Dobson v Tasmania

[2017] TASCCA 19

[2017] TASCCA 19

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                Dobson v Tasmania [2017] TASCCA 19

PARTIES:  DOBSON, Darren Michael
  v
  STATE OF TASMANIA

FILE NO:  CCA 1694/2015
DELIVERED ON:  6 October 2017
DELIVERED AT:  Hobart
HEARING DATE:  10 November 2016
JUDGMENT OF:  Tennent, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Prior criminality – Life sentence for unintentional murder warranted for protection of community.

Veen v The Queen (No 2) (1998) 164 CLR 465, considered.
Criminal Code (Tas), s 157(1)(c).
Aust Dig Criminal Law [3258]

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Life sentence for unintentional murder not manifestly excessive.

Veen v The Queen (No 2) (1998) 164 CLR 465, considered.
Criminal Code (Tas), s 157(1)(c).
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Edwards
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2017] TASCCA 19
Number of paragraphs:  56

Serial No 19/2017

File No CCA 1694/2015

DARREN MICHAEL DOBSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
WOOD J
PEARCE J
6 October 2017

Order of the Court

Appeal dismissed.

Serial No 19/2017

File No CCA 1694/2015

DARREN MICHAEL DOBSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
WOOD J
PEARCE J
6 October 2017

1. The appellant, Darren Michael Dobson, pleaded guilty to murdering Jodi Eaton on 1 February 2014. At the time of the crime the appellant was aged 37. On 8 September 2015 he was sentenced by Blow CJ to imprisonment for the term of his natural life. His Honour ordered that the appellant not be eligible for parole until 20 February 2029, an effective non-parole period of 15 years, by which time the appellant will be 52. This appeal challenges the sentence. There are three grounds. The first ground asserts that the sentence is manifestly excessive. The remaining grounds assert error arising from the learned sentencing judge's categorisation of the crime as being "in the worst category of murder"; firstly, from the circumstances of the "crime itself", and secondly, by impermissible resort to the appellant's "prior criminal history". 

2. For the reasons which follow, we have concluded that none of the grounds are made out and the appeal should be dismissed.

The circumstances of the crime

1. During the evening of 31 January 2014 Jodi Eaton, aged 28, went with her partner Bodizar Jelenic to the home of Peter Vernon at 3 Sage Court in Gagebrook. There were others present including the appellant and Gavin Hornberg. During the evening the appellant, and others, consumed alcohol and cannabis. Just before midnight Miss Eaton and Mr Jelenic argued. Mr Jelenic drove off in his car. Mr Vernon went to bed and the other guests also left. Miss Eaton and the appellant were left alone in the house, apart from Mr Vernon who was heavily intoxicated and asleep.

2. The appellant killed Miss Eaton in the living room some time between 5.22am and about 7am the following morning, Saturday, 1 February 2014. Before she was killed, Miss Eaton made a number of calls to Mr Jelenic's phone. There was also a call from the appellant's phone to Mr Jelenic's phone made at 5.22am which went to message bank. Mr Jelenic did not receive any of these calls because, after leaving Gagebrook, he was arrested by the police for an alcohol-related driving offence and his phone was left in his car. He did not see the calls on his phone until he returned to his car at 7am. He listened to the message. He heard a distressed Miss Eaton saying words to the effect "leave me alone" or "get off me".

3. After murdering Miss Eaton, the appellant concealed her body. Initially he placed the body in an enclosed area under Mr Vernon's house. When Mr Vernon woke at about 7am, unaware of what had happened, the appellant had gone. Miss Eaton was reported missing by her family early on Sunday, 2 February 2014. Police officers went to 3 Sage Court during that day. The appellant was there. He told the police that Miss Eaton had been at the house on the Friday night but had left at about 2.30am and that he had not seen her since. After the police left, the appellant went under the house, wrapped Miss Eaton's body in a blanket and then a blue plastic pool liner, and secured them with duct tape. He did so without Mr Vernon's knowledge. Because the appellant had an injured leg which reduced his strength and mobility he needed help to move the body. In the early evening of 2 February he rang Mr Hornberg. The appellant asked Mr Hornberg to come to 3 Sage Court and, without giving a reason, to bring his car. They met there later that night. The appellant raised the subject of Miss Eaton and told Mr Hornberg that he had strangled her. While Mr Hornberg was inside the house the appellant removed the wrapped body from under the house and placed it on the ground near the rear of Mr Hornberg's car. He asked Mr Hornberg to drive him to a property belonging to the appellant's uncle at Pelham, a remote rural area about 40 kms north-west of Gagebrook. When Mr Hornberg realised that Miss Eaton's body was inside the blankets, he refused. He did, however, agree to lend the appellant his car and gave him the keys. The appellant contacted his brother in law, Jonathon Pearce, asking for help. When he arrived Mr Hornberg was still there and Miss Eaton's body was still on the ground. The appellant and Mr Pearce loaded the body into the rear of the car and drove to Pelham. When they arrived they borrowed a shovel and mattock from the appellant's uncle, drove to an isolated area of bush on the property and buried Miss Eaton's body.  The appellant was interviewed or spoken to by the police on a number of subsequent occasions. On each occasion, the appellant lied about the last time he saw Ms Eaton.

4. Miss Eaton's body was not discovered until 20 February 2014, 19 days later. The police investigation led to Mr Hornberg, to information about the Pelham property, to phone communication between the appellant and his uncle, and then to Mr Pearce who took them to the grave. When the body was exhumed it was still secured within the blanket and plastic liner and was badly decomposed.

5. A post-mortem examination revealed signs of violence. There were multiple bruises on Miss Eaton's head, face and neck, her chest, abdomen and back, and her arms and legs. The cause of death could not be established with certainty; however the examination strongly suggested to the pathologist that death resulted from asphyxia due to neck compression or smothering. That finding is consistent with the admission the appellant made to Mr Hornberg. The sentencing judge imposed sentence on that basis. Forensic examination revealed signs of a struggle inside the house at 3 Sage Court. A clump of Miss Eaton's hair was found in the living room and blood with DNA matching hers was found inside and under the house.

6. At the sentencing hearing, senior counsel for the appellant advanced the appellant's contentions about the circumstances of the crime. The sentencing judge was told that Miss Eaton was known to the appellant. The appellant saw Miss Eaton and Mr Jelenic argue and saw Mr Jelenic leave. After he and Miss Eaton were left in the house they had sexual intercourse, but then argued. He took hold of her and, in anger, put his hands around her throat and squeezed. She collapsed to the ground. He said he thought that she struck the side of her face on the couch on the way down. When she did not wake up he panicked, and was scared and distressed. He moved her body under the house so Mr Vernon would not discover what had happened, and was thereby put on a "path of deception".

7. The crime had a devastating effect on Miss Eaton's family and others. Her two daughters, aged 9 and 5 at the time, were especially affected. Their social and educational development has suffered considerably and they have many ongoing problems.

The appellant's personal circumstances and record

1. The appellant's upbringing was dysfunctional. He has little memory of his father who left when he was 5. He was neglected and abused by his mother and he and one of his two sisters were removed into State care. Between the ages of 8 and 13 his paternal grandmother looked after him but, when his behaviour led to the failure of that placement, he was returned to his mother in the Northern Territory. He was again badly neglected. His education ceased. He habitually abused alcohol and cannabis. He commenced offending and between the ages of 13 and 17 spent time in youth detention. When he returned to Tasmania in about 1994, by which time he was 18, his offending continued. Since then, he has served several terms of imprisonment. The appellant's past conduct is an important sentencing consideration and is a primary focus of this appeal. His criminal record includes many serious crimes of violence against women, some involving similar acts to those committed in Miss Eaton's murder. The record was summarised by the sentencing judge:

   "In 1995, when he was 18, he was sentenced to 18 months' imprisonment for armed robbery. At the time of that robbery he was subject to a suspended sentence of 4 months' imprisonment for earlier crimes of dishonesty. That sentence was activated. In September 1997 he was sentenced to a total of 5 months' imprisonment for a number of summary offences including assault, injury to property, and assaulting police officers. In January 1998 he was sentenced to another 6 weeks' imprisonment for another assault.

   In February 1998 he was sentenced to 7 years' imprisonment on three counts of rape, one count of assault, and one count of aggravated sexual assault. All of those crimes were committed upon a woman in whom he had taken a sexual interest. On a night when he was staying at that woman's home, she awoke to find Mr Dobson on top of her, fully clothed, with his hands around her throat, strangling her very hard. She tried to fight him off. He punched her to the face. He raped her vaginally, then orally, and then vaginally again. She escaped, with injuries to her left eye.

   In 2007 I sentenced Mr Dobson to 3 years' imprisonment on charges of assault and assaulting a pregnant woman. Those charges related to separate attacks on his then partner, who was only 19 years old. On the first occasion, when that woman argued with his mother, he punched her to the left cheek so hard that her cheekbone was fractured and she had to have surgery. Three weeks later, when he was intoxicated, he grabbed that woman by the throat, pushed her against their kitchen bench, chased her to a telephone box, punched her repeatedly to the left side of the face (the side where she had had surgery after the earlier assault), placed both hands around her throat, and started to choke her. She lost consciousness. He continued to punch her until police officers used capsicum spray to stop him. That victim lost two teeth. She was about five months pregnant, and he knew that.

   In May 2013 Mr Dobson was given a wholly suspended sentence of 2 months' imprisonment for assaulting another of his partners. He grabbed that woman around the throat with his right hand, pushed her onto a bed, released his grip, and punched her to the left side of the face. He again placed his hands around her throat, and applied so much pressure that she could not breathe. She decided to go limp, and he released his grip. That assault occurred in August 2012.

   In February 2013 he assaulted yet another partner by grabbing her by the throat, holding her against the wall, preventing her from breathing, and punching her to the side of the face. He was charged with assaulting that woman. At the time of the murder, he was on bail on that assault charge.

   About a week before the murder of Ms Eaton, Mr Dobson was travelling in Mr Hornberg's car when he decided to attack a woman who was sitting in the back seat. He reached over, grabbed her by the throat hard, grabbed her by the hair, and ripped out a piece of hair. As far as I know he has not been charged with that assault."

2. Following his release on parole in 2009, the appellant stayed out of prison for about five years. He moderated his use of drugs and alcohol and obtained employment. That did not stop him committing the violent offences against women in August 2012, February 2013 and January 2014 referred to by the sentencing judge. The appellant broke his leg in November 2013, following which he again resorted to the heavy abuse of substances, including Ice.

3. It was not suggested that the appellant suffered from any mental health condition which reduced his criminal culpability. However the sentencing judge was given a lengthy report of an assessment undertaken on behalf of the appellant by an experienced and well qualified consultant clinical forensic psychologist, Mr Damien Minehan. Counsel for the appellant relied on the report to support her submission that there remained some prospect of the appellant's rehabilitation. In his comments the sentencing judge did not specifically refer to the report, but we have little doubt that it informed his Honour's conclusions. Combined with the appellant's record, the contents of the report are highly relevant to the appellant's tendency to commit serious crimes of violence against women, a consideration which his Honour emphasised when sentencing. The report included the following passages:

   "81  Assessment was made of Mr Dobson's personality. It is clear from his history, prior convictions and clinical presentation that he has an Antisocial Personality Disorder as described in the Diagnostic and Statistical Manual for Mental disorders-V (DSM-V, 2013). In summary this includes a failure to conform to social norms with respect to lawful behaviour, deceitfulness, impulsivity, failure to plan ahead, irritability and aggressiveness, reckless disregard for self or others, consistent irresponsibility, lack of remorse and a history of conduct disorder before the age of 15 years.

   82    In addition to this, consideration was given to a Psychopathic Personality Disorder, assessed using the Hare Psychopathy Checklist-Revised 2^nd Edition (PCL-R 2^nd edition). Mr Dobson did not present at assessment with the superficial charm and grandiosity that is often characteristic of psychopathy, however almost all other traits and characteristics were present. Need for stimulation, proneness to boredom, deceitfulness, manipulativeness, lack of remorse or guilt, shallow emotional tone, lack of empathy and callousness, poor behavioural control, early behavioural problems, impulsivity, irresponsibility, a pattern of short term relationships, juvenile delinquency and criminal versatility were all evident in his presentation and history.

   83    Mr Dobson has significant issues with the experience of strong emotions and control of these emotions, particularly anger. His own description of his anger was that it is explosive, but short lived. It seems likely that he presents to others as cold and unemotional for much of the time, but with an explosive temper that is displayed with little provocation and results in extremely violent and aggressive behaviour at times. This is often directed at his intimate female partners."

4. After referring to factors including the appellant's dysfunctional upbringing and long-term history of substance abuse, Mr Minehan said that "a review of his prior offences lends weight to a view of a degree of inevitability in what has occurred". [Emphasis added.] Mr Minehan later continued:

   "97  Over the course of serving his prison sentence there are multiple issues that Mr Dobson will need to address in order to manage future risk. Within a treatment context his childhood history, personality characteristics, the role of sexual elements in his offending, substance abuse, emotional problems and significant anger issues will need to be addressed to reduce the likelihood of violent recidivism."

The basis of the appellant's criminal responsibility – s 157(1)(c)

1. The State accepted the appellant's plea of guilty to murder on the basis that he killed Miss Eaton by an unlawful act which he ought to have known to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to her. Liability for murder thus arose by operation of the second limb of s 157(1)(c) of the Criminal Code. In his sentencing remarks the sentencing judge described the four circumstances in which the commission of culpable homicide amounts to murder:

   "In this State, when an unlawful killing occurs as the result of an act which was likely to cause death in the circumstances, there are four different situations in which a killer is guilty of murder, rather than manslaughter:

   •   A killing amounts to murder if the offender intended to cause the death of any person: s 157(1)(a).

   •   A killing amounts to murder if the offender intended to cause any person bodily harm which he or she knew to be likely to cause death in the circumstances, even if he or she had no wish to cause death: s 157(1)(b).

   •   A killing amounts to murder if the offender knew that his or her unlawful act was likely to cause death in the circumstances, even if he or she had no wish to cause death or bodily harm to any person. That is the first limb of s 157(1)(c).

   •   A killing amounts to murder if the offender ought to have known that his or her unlawful act was likely to cause death in the circumstances, even if he or she had no wish to cause death or bodily harm to any person, and even if he or she did not perceive at the time that the act was likely to cause death. That is the second limb of s 157(1)(c).

   These four situations involve different degrees of moral culpability. Obviously the greatest moral culpability attaches to an intentional killing, whereas the lowest degree of moral culpability attaches to an offender in the fourth category, who is guilty of murder not because of any intended or known consequence of his or her act, but because of something he or she 'ought to have known'."

2. As the sentencing judge explained, the decision of the Crown to not seek to establish the appellant's criminal responsibility on the basis of one of the categories of murder requiring proof of intent or knowledge, likely followed from the lack of evidence of what happened at 3 Sage Court when the appellant and Miss Eaton were together. The basis of the appellant's criminal responsibility as just stated, is central to his contentions concerning each of the three grounds of appeal.

Ground 2 – the worst category of murder?

1. It is convenient to deal with this ground first. It contends that the learned sentencing judge "imposed the maximum sentence available despite acknowledging that the crime itself could not be categorised as 'in the worst category of murder' thereby offending the sentencing principles enunciated in Veen v The Queen (No 2) (1998) 164 CLR 465".

2. The ground derives from the passage in the judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen (No 2) at 478:

   "… the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed … That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."

3. The sentencing judge was mindful of the statement just quoted because he referred to it in his sentencing remarks. After doing so, his Honour said:

   "From one perspective, the maximum penalty is a sentence of life imprisonment with no provision for parole. When an offender is sentenced to life imprisonment, the sentencing judge may fix a parole ineligibility period of whatever length he or she considers appropriate: Sentencing Act 1997, s 18(1)(b). However when any other sentence is imposed, the parole ineligibility period must be at least half of the period of the sentence: Sentencing Act, s 17(3). Thus, for example, a 30-year sentence must result in parole ineligibility for at least 15 years, whereas a life sentence could be accompanied by an order permitting parole much sooner.

   Mr Dobson's state of mind at the time of the killing does not result in this case being in the worst category of murder cases. That is because he must be sentenced on the basis that, whilst he caused Ms Eaton's death by strangulation, he did not intend to cause her death, or even think about the fact that strangling her was likely to result in her death, but acted in a very primitive way, deliberately applying force without thinking about the consequences that would have been obvious to nearly anyone. However, in my view, his tendency to commit serious crimes of violence against women and his callous behaviour in hiding and disposing of the body during the 48 hours after the killing do place this case in the worst category of murder cases. I will therefore impose a life sentence, but I will make provision for parole because Mr Dobson demonstrated, following his release on parole in January 2009, that he has the capacity to lead a productive and responsible life. However I believe that, in all the circumstances, this crime warrants a lengthy non-parole period." [Emphasis added.]

1. The appellant submits that the sentencing judge erred by imposing a life sentence after, to adopt the words of the ground of appeal, "acknowledging that the crime itself could not be categorised in the worst category of murder". His Honour stated that the appellant's state of mind at the time of the crime did not place the case in the worst category. His Honour then found that other factors he referred to did "place this case in the worst category of murder" despite the absence of an intention to kill or knowledge of the likelihood that death may be caused. It is not necessary or useful at this stage of these reasons to attempt to discern what is meant by the reference in the ground to "the crime itself", although as will later be explained, the factors which the sentencing judge expressly referred to as the reason he placed this crime in the "worst category" were properly regarded as relating to the commission of the crime.

2. To the extent that this ground alleges specific error, it cannot succeed unless one of two alternative propositions is established. The first proposition is that there could never be any circumstance justifying a life sentence for a person guilty of murder by operation of the second limb of s 157(1)(c). That is, that, as a matter of principle, any such murder must always be "recognisably outside the worst category" regardless of the other circumstances of the offence and the offender. The second proposition is that the circumstances of this crime and this appellant, including the factors referred to by the sentencing judge, do not justify a life sentence. In other words, the sentencing judge erred in determining that this crime warranted the imposition of a life sentence. As will be explained, in considering whether the sentencing judge erred by imposing a life sentence for this offence and this offender, all of the relevant sentencing factors must be taken into account, not just the appellant's state of mind at the time of the crime. So viewed, the proposition advanced is an aspect of the ground asserting that the sentence is manifestly excessive. Separate consideration will be given to that ground.

3. We return to the first proposition. It is based on the premise that a murder contrary to the second limb of s 157(1)(c) is necessarily recognisably outside the worst category of murder. The premise should be rejected. The contention that a case of murder committed by a person who did not intend to cause death, but who ought to have known that his or her unlawful act was likely to cause death in the circumstances, can never justify the maximum sentence is not supported by principle or authority, including Veen v The Queen (No 2). If the contention is correct it must mean, by extension, that a life sentence could never be properly imposed for any homicide other than an intentional killing amounting to murder under s 157(1)(a), because only such a crime can be described as "in the worst category of murder." In R v Kilic [2016] HCA 48, 91 ALJR 131 at [19], the High Court disapproved use of the expression "worst category" of offence. The plurality explained at [18] that what is meant by an offence falling within the "worst category" of the offence is that it is an instance of the offence which "is so grave that it warrants the imposition of the maximum prescribed penalty for that offence". See also Ibbs v The Queen (1987) 163 CLR 447 at 451-452; Veen (No 2) at 478; Markarian v The Queen [2005] HCA 25, 228 CLR 357. Implicit in the appellant's argument is the proposition that if the nature of the crime does not fall at the gravest end of the spectrum of cases of murder, consideration of factors personal to an offender such as prior convictions and post-offence conduct could not place the crime in the worst category. However, both the nature of the crime and the circumstances of the criminal are to be considered in determining whether the case is of the worst type: R v Kilic (above) at [18]; R v Tait (1979) 46 FLR 386, per Brennan, Deane and Gallop JJ, at 398; GHK v The State of Western Australia [2014] WASCA 19, 238 A Crim R 178 at [42]. It is beside the point that it is possible to conceive of an even worse instance of the offence: Kilic at [18]. See also Veen v The Queen (No 2) at 478, per Mason CJ, Brennan, Dawson and Toohey JJ.

4. The Code draws no distinction between the maximum penalty available for the various categories of murder, including for murder involving the second limb of s 157(1)(c). A person who commits murder is liable to imprisonment for the term of the person's natural life or for such other term as the Court determines: the Code, s 158. The 21 year maximum sentence for crimes imposed by s 389(3) does not apply to murder. Because s 157 defines murder to include several categories of conduct, the heinousness of the conduct in a particular case depends on the facts of the case and not on the statute defining the offence: Ibbs v The Queen at 452. A crime involving an intention to kill generally involves greater objective seriousness than a crime of a category in which such intention is absent: R v Hearne [2001] NSWCCA 37, 124 A Crim R 451 at [34]; Apps v The Queen [2006] NSWCCA 290 at [49]. However, cases involving an intention other than intention to kill do not necessarily involve culpability not justifying the maximum sentence. The intention of the offender is a relevant sentencing factor but is not determinative. The principle may be demonstrated by reference to decisions of other intermediate courts of appeal dealing with instances of crimes involving a mental element other than an intention to kill. In The Queen v Hillsley [2006] NSWCCA 312, 164 A Crim R 252 at 258 [16], the Court of Criminal Appeal dealt with a case in which the offender was sentenced for murder on the basis that he intended to cause grievous bodily harm. At 258 [16] of the joint judgment, the Court said:

   "16  Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. In R v Nelson (unreported, NSWCCA 25 June 1996) McInerney J said (Gleeson CJ and Studdert J agreeing) that 'there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill'; see also R v Wilson [2005] NSWCCA [112].

   17    In our view, the finding that the respondent intended only to cause grievous bodily harm does not in the circumstances here significantly reduce his culpability. Put another way, the culpability involved in the premeditated vicious attack of extreme violence on the victim in his own home is so grave that the mere fact that the respondent might not have intended to kill does not significantly mitigate the gravity of the offence. For this reason, it is unnecessary to determine whether the learned trial judge's conclusion about whether the respondent intended to kill the deceased is incorrect and we decline to do so."

5. In R v Nelson, an unreported New South Wales decision, 25 June 1996, the Court of Criminal Appeal stated that "there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill".

6. Statements to the same effect appear in New South Wales in cases involving felony murder and constructive murder. At common law, a killing, even if unintended, is murder if it takes place in the course of or in connection with a felony involving violence or danger to a person: Ryan v The Queen (1967) 121 CLR 205. In R v Mills, an unreported decision of the New South Wales Court of Criminal Appeal, 3 April 1995, Gleeson CJ stated:

   "The major premise underlying the argument of counsel for the appellant was that cases of felony murder involved a lower level of culpability than cases of murder involving intention to kill and therefore should receive a lower level of sentence that applies to intentional killing.

   I would reject that premise."

7. Gleeson CJ explained why, in that case, the unintended killing of a person by a man with an appalling history of criminal offending in the course of an armed robbery using a loaded gun was a "case of murder involving a very high degree of seriousness". The decision in Mills was cited with approval in R v Jacobs [2004] NSWCCA 462, 151 A Crim R 452. In New South Wales, the statutory replacement to the felony murder rule provides that a person commits constructive murder if he or she causes death in the commission of a crime punishable by life or 25 years' imprisonment. Constructive murder replaces but derives from the common law felony murder rule. In Jacobs, Wood CJ at CL said at [332]:

   "Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93."

8. The position in Victoria is now the same: DPP v Perry; Perry v The Queen [2016] VSCA 152. In Perry the court cited Mills (above) with approval and stated at [82]:

   "82 The Court's assessment of the gravity of the particular offence under s 3A, [Crimes Act 1950 (Vic)] and of the offender's culpability, will depend – as for any other offending – on the objective and subjective circumstances of the case. The seriousness of any particular statutory murder is to be assessed according to the nature of the act(s) of the offender which caused the death of the victim. …" [Footnotes omitted.]

   Relevantly for our purposes, the court went on to note that the maximum penalty, life imprisonment was the same for common law murder and statutory murder, stating, "The sentencing guidance which the maximum penalty provides is therefore the same for both offences."

9. We respectfully agree with the principles enunciated in the authorities referred to. As a matter of principle, cases not involving an intention to kill are not to be regarded as necessarily less serious, thereby attracting a lighter sentence than that which is appropriate for other categories of murder. There is no principle that a crime of murder in which the accused is guilty by operation of the second limb of s 157(1)(c) is always recognisably outside the worst category of murder as that term is to be properly understood. Whether a crime warrants the imposition of a life sentence is to be assessed according to the objective and subjective circumstances of the case. The error asserted by this ground is not established. This ground fails.

Ground 3 – the appellant's prior criminal history

1. Ground 3 asserts that the sentencing judge erred by categorising the crime as falling in the worst category of murder because of the appellant's prior criminal history, thereby offending the sentencing principles enunciated in Veen v The Queen (No 2) (above). The principle which is referred to appears at 477 of the majority judgment. It is that "the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instance offence. To do so would be to impose a fresh penalty for past offences." The majority described that principle as being subsidiary to the principle of proportionality, that a sentence should be proportionate to the gravity of the crime. At 472 the majority referred to "the unanimous view of the Court in Veen v The Queen (No 1) (1979) 143 CLR 458 that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender". As was stated by Cox CJ in Hill v The Queen [1999] TASSC 29 at [4], it is "trite law that a sentence must be proportionate to the gravity of the offence and that to impose a disproportionate penalty by reason of antecedent criminal history involves the infliction of a fresh penalty for past offences".

2. In the course of his sentencing remarks the sentencing judge said that one of the factors which placed the crime in the "worst category of murder" was the appellant's tendency to commit serious crimes of violence against women. The appellant submits that his Honour's sentencing remarks, when considered with the sentence imposed, reveal that the sentencing judge imposed a disproportionate sentence by impermissible resort to the appellant's prior convictions.

3. The appellant's contention should not be accepted. When passing sentence the sentencing judge made clear that protection of the public was a factor which weighed heavily in the exercise of his sentencing discretion. He outlined the appellant's prior offending history in detail. He had also been given the psychologist's report referring to the appellant having many of the characteristics of psychopathy and a proneness to impulsive, extremely violent and aggressive behaviour often directed at intimate female partners. His Honour's remarks make clear that he was well aware of the distinction between extending a sentence merely to protect society, and properly looking to the protection of society in determining sentence. He made express reference to the principles to be applied and to the authorities. He said:

   "Although there is a positive side to the way in which Mr Dobson lived in the five years preceding the murder, this is a case in which the need to protect the public is a very powerful sentencing factor because of Mr Dobson's tendency to commit crimes of violence against women. I acknowledge that the High Court has made clear that the need to protect society from an offender does not warrant increasing a sentence beyond what is proportionate to that offender's crime: Veen (No 1) (1979) 143 CLR 458; Veen v The Queen (No 2) (1998) 164 CLR 465."

4. The passages in Veen (No 2) relied on by the appellant are to be considered with other passages in the majority judgment. At [9]-[10] the majority referred to the manner in which the protection of society is relevant to the sentencing process:

   "9   It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. The distinction between what is impermissible and what is permissible is at the heart of an illuminating controversy to be found in (1953) 6 Res Judicatae between Mr C S Lewis ('The Humanitarian Theory of Punishment', at p 224) on the one hand and Drs Norval Morris and Donald Buckle ('A Reply to C S Lewis', at p 231) and Professor J J C Smart ('Comment', at p 368) on the other. The thesis advanced by Mr Lewis was that the retributive theory of punishment – punishing an offender 'because he deserves it' – prevents the injustices which may be involved in detaining an offender in order, for example, to protect society or to reform the offender. The controversy, the light of which has not been dimmed by later literature, ended with C S Lewis' 'On Punishment: A Reply' (at p 519) in which he acknowledged the importance of protecting society but in this way (at pp 522-523):

   'All I plead for is the prior condition of ill desert; loss of liberty justified on retributive grounds before we begin considering the other factors. After that, as you please. Till that, there is really no question of 'punishment'. We are not such poltroons that we want to be protected unconditionally, though when a man has deserved punishment we shall very properly look to our protection in devising it.'

   10  The plea has been heard by the courts of this country, by adopting the principle of proportionality and by having regard to the protection of society as a factor in determining a proportionate sentence. It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment."

5. In our opinion, nothing said by the sentence judge offends the principles in Veen (No 2). His Honour was well aware of the need for proportionality, but correct to assert that protection of the public is an important sentencing factor. It is beyond doubt that protection of the public is, along with deterrence, retribution and reform, one of the primary aims of sentencing: Veen (No 2) at 476. It is a factor in determining a proportionate sentence. One of the purposes of the Sentencing Act 1997 is to "promote the protection of the community as a primary consideration in sentencing offenders": s 3(b). The risk that the appellant may offend again is a material factor in determining the sentence to be imposed. In assessment of that risk it is proper to take account of the offender's record. In Veen (No 2), the majority referred to the following statements of Mason J (as he then was) in Veen (No 1) at 469 as being an accurate statement of the law. After referring to a passage from the reasons of Gibbs J in Pedder, a 1964 unreported decision of the Queensland Court of Criminal Appeal, Mason J said:

   "In my opinion, his Honour's observations express the principle which is to be applied to cases of this kind. They demonstrate that in such a case there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offenders' record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred."

6. In Tasmania is has been held that protection of the public may justify a life sentence. In Kemp [1997] TASSC 147, Cox CJ determined an application under the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 for re-sentence of a man who had, until then, been subject to a mandatory life sentence for murder. The applicant, who was 21 at the time of the crime and had no serious prior convictions, had knocked on the door of an elderly stranger and, when the man answered the door, stabbed him and fled. Cox CJ found that the absence of any explanation for the violent behaviour "is cause for concern that the public may need protection of a longer head sentence than one of finite duration" and imposed a life sentence with entitlement to parole after 14 years.

7. No error of principle is demonstrated. To that extent, this ground should fail. Whether the sentence his Honour imposed is disproportionate to the appellant's crime and extended beyond what is appropriate to the crime merely to protect society can be determined only when all factors relevant to sentence, including the need for protection of the community, are taken into account. That question is to be considered under ground 1, to which we now turn.

Ground 1 – is the sentence manifestly excessive?

1. Ground 1 of the appeal contends that the sentence is manifestly excessive. The appellant does not challenge the length of the 15-year non-parole period, but contends that the sentencing judge erred by not determining and imposing a finite sentence. In appeals on the ground of manifest excess or inadequacy it is important to bear in mind the principles which limit the circumstances in which intervention of an appellate court is justified. They are summarised in Director ofPublic Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]:

   "The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

1. We would approach this ground by, after considering the facts of the offence and the offender, asking whether it was an error to regard the crime as so grave that it warranted the imposition of the maximum prescribed penalty. In that assessment, account is to be taken of all factors relevant to sentence. However there are three sentencing factors which are the principal focus of the appellant's argument. The first is the degree of criminal culpability of the appellant arising from his state of mind at the time of the crime, and the distinction to be drawn with murders involving a different mental element. The other two factors are those referred to specifically by the sentencing judge when sentencing, namely, the appellant's tendency to commit crimes of violence against women and his callous behaviour in hiding and disposing of the body.

2. It can be accepted that some factors which increase the objective gravity of the crime of murder were absent in this case. It was not an intentional killing. The appellant was not to be sentenced on the basis that he intended to cause bodily harm which he knew to be likely to cause death, or that he knew that his unlawful acts were likely to cause death. The killing was not planned or premeditated. It did not involve the use of a weapon or extreme brutality or a sadistic method. It was not committed for financial gain. The appellant's plea of guilty to murder under the second limb of s 157(1)(c) necessarily involved acceptance of the proposition that he did an act, grabbing Miss Eaton around the throat and squeezing until she collapsed, which was unlawful and inherently dangerous because it was likely to cause death in the circumstances, and in fact did so. It also involved the admission that the appellant, with the knowledge and capacity he actually possessed, ought to have thought about the likely consequences of his actions, and had he stopped to think to the extent he ought to have, he would have appreciated that his acts were likely to cause Miss Eaton's death: Boughey v The Queen (1986) 161 CLR 10 per Mason, Wilson and Deane JJ at 29; Attorney-General's Reference No 1 of 1996 (1998) 7 Tas R 293. The sentencing judge described the appellant as having "acted in a very primitive way, deliberately applying force without thinking about the consequences that would have been obvious to nearly anyone".

3. The circumstances of the offence, combined with the appellant's own circumstances, throw light on the appellant's moral culpability. The sentencing judge's description of the appellant's prior criminal conduct is set out earlier in these reasons. It is convenient in this context to repeat some of it. The appellant had served long terms of imprisonment for violent crimes against women in 1998 and 2007. The 1998 crimes included three rapes and violence including strangling the victim. The 2007 assault of a pregnant woman included punches which fractured her cheekbone and strangling her to the point of unconsciousness. At the time of the murder, the appellant was subject to a suspended sentence for a serious common assault, having choked and punched one of his former partners on 12 August 2012. On that occasion the appellant placed his hands around the throat of the victim with so much pressure that she could not breathe. Also, at the time of the murder, the appellant was on bail for having assaulted another woman in February 2013, again by grabbing her throat preventing her from breathing and punching her. Only a week before the murder he assaulted a woman in a car by grabbing her throat hard, and grabbing her hair. The circumstances of the murder disclose a chilling repetition of substantially the same type of conduct. As we earlier explained, there were multiple bruises on Miss Eaton's head, face and neck, her chest, abdomen and back, and her arms and legs. The sentence was imposed on the basis that death resulted from asphyxia due to neck compression or smothering. Forensic examination revealed signs of a struggle, and a clump of Ms Eaton's hair and her blood were found in the house. The injuries to Ms Eaton indicated the infliction of considerable violence.

4. Because the appellant committed the murder while on bail and subject to a suspended sentence for similar conduct, he displayed a continuing attitude of disregard for the law and authority, and increased the weight to be placed on retribution, deterrence and protection of the society as sentencing factors: Wisniewski v Tasmania [2007] TASSC 25 per Crawford J (as he then was) at [10]–[11].

5. It is obvious when reading the sentencing judge's remarks that the protection of the public was a factor of considerable importance in sentencing. His Honour's approach was correct for the reasons given concerning ground 3. There is no suggestion that the appellant's culpability was affected by any provocation or a belief that it was necessary to defend himself, or that that his culpability was lessened by the effects of drugs or alcohol. The pattern of his offending justified his Honour's view that the appellant is a danger when at large. It revealed a dangerous propensity and that this crime was not an aberration. The appellant was not a person who, on this occasion, acted with uncharacteristic violence. On numerous previous occasions he had experienced an impulse to harm women in circumstances of argument or conflict. The murder occurred because the appellant again gave way to that impulse to inflict serious violence. The assessment of the danger presented by the appellant was contributed to by the opinion of the forensic psychologist, Mr Minehan, describing the appellant's proneness to rage into which he had no insight, but which led to "spontaneous and reactive violence against women that required minimal provocation". The appellant inflicted violence sufficient to kill Ms Eaton, seemingly for no reason other than he became angry, and regardless of the potential consequences to her, or to himself, and apparently incapable of controlling his impulses or exercising judgment about his conduct.

6. In deciding that the murder was in the "worst category of murder cases", the sentencing judge also made specific reference to the appellant's "callous behaviour in hiding and disposing of the body during the 48 hours after the killing". The appellant concealed Ms Eaton's body, and, with the assistance of others, buried the body in an isolated area of bush. Her family and partner were prevented from knowing where she was and it made it unlikely that she would be discovered. Miss Eaton's body was not discovered for 19 days. In Neill-Fraser v Tasmania [2012] TASCCA 2, Crawford CJ (with whom Tennent and Porter JJ concurred) stated at [210]:

   "The consequences of a crime are commonly taken into account. Obvious examples are hurt caused to a victim or a victim's family by a crime of violence. Dumping or concealing the body of a victim has been regarded as an aggravating circumstance that may be taken into account when sentencing for murder. Director of Public Prosecutions v England [1999] 2 VR 258 at 263 at 266 [37]; R v Von Einem (1985) 38 SASR 207 at 218; Bell v R [2003] WASCA 216 at [25] and [61]-[62]; Colledge v Western Australia [2007] WASCA 211 at [16]; R v Cavkic (No 2) [2009] VSCA 43 at [134]; R v Wilkinson (No 5) [2009] NSWCA 432 at [61]." [Citations inserted.]

7. The appellant's post-offence conduct not only aggravated his crime, but also indicated a lack of immediate remorse: DPP v England, at [37]; Bell v The Queen at [25]. His callous treatment of the body increased the impact of the crime upon Ms Eaton's family and partner: Colledge v The State of Western Australia at [15] and [16]; R v Kellisar [2001] VSCA 244 at [7].

8. The appellant did not contend that the sentencing judge erred in principle by taking into account the appellant's post-offence conduct. The thrust of the appellant's submission is that factors such as the hiding and disposal of the body, the appellant's involvement of other people, the impact of the killing and the unexplained disappearance of the victim on her family and partner, the appellant's prior crimes and the fact that he was on bail, cannot elevate the sentence beyond the appropriate range when the "circumstances of the actual killing" are taken into account. The appellant submits that such factors are capable only of placing the crime at the higher end of the appropriate range, not fixing the upper limit of the sentencing range. The submission should not be accepted. First, the submission assumes that there is a range. Secondly, leaving aside for the moment the question of the impact of the killing, there is however, no clear distinction between the "crime itself" and the factors referred to. If the reference to the "crime itself" means the objective circumstances of the crime, consideration of the appellant's record and his commission of crimes while on bail is a necessary part of the assessment of the level of his criminal culpability. Similarly, post-offence events may be taken into account in assessing the objective seriousness of a crime and the moral culpability of the offender. In Shield v Tasmania [2017] TASCCA 6, Brett J, with whom Blow CJ and Slicer AJ agreed, referred with approval the following comments of Johnston J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61], which are relevant to the appellant's submission:

   "Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] VSCA 95; [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18]."

9. In his sentencing remarks the sentencing judge described the impact of the appellant's crime. The impact of the murder on Ms Eaton's family and partner was an essential consideration in the sentencing process. In cases of death, it is the taking of the life of the person, not the regard in which the particular person was held, which is the governing factor: In re Smith 66/1997, [1997] TASSC 69 and Zeeman J in Inkson v The Queen (1996) 6 Tas R 1 at 30-31. It is not necessary in this appeal to consider whether the impact of the crime may properly have been considered an aggravating circumstance of the crime. That issue was not contested on the appeal. The appellant did not contend that the sentencing judge was unduly influenced by that factor in the fixing of sentence. It was not a factor which led the sentencing judge to the conclusion that the crime should be placed in the "worst category".

10. For the crime of murder, the upper sentencing range is established by statute. The Code provides that a sentence of imprisonment for life is the maximum sentence. As the sentencing judge correctly pointed out, in one sense the appellant did not receive the maximum penalty. The gravest penalty that could be imposed for murder is life imprisonment without eligibility for parole. However, the principle that the maximum penalty is reserved for the most grave of cases or the "worst category of crime" is tied to the maximum penalty prescribed by statute for a particular offence, and the principle has application irrespective of an order with respect to parole eligibility. It is the maximum sentence enacted by the legislature which provides a sentencing yardstick and which invites comparison "between the worst possible case and the case before the court at the time": Markarian v The Queen at [30]-[31].

11. That approach is demonstrated by authorities which determine whether the crime warranted the maximum penalty, without reference to an order made for parole eligibility in instances where that power is available to the court: see as examples, R v Tait (1979) 46 FLR 386 at 398; Cameron v The State of Western Australia [2016] WASCA 92. The pragmatic observation can be made that the category of cases which are so grave that they attract the maximum penalty captures a "range": Bensegger v The Queen [1979] WAR 65 at 68; Hudson v The Queen [2010] VSCA 332. At the most heinous end of the range will be cases attracting life sentences with no eligibility for parole. Here, the sentencing judge allowed the opportunity for parole. His Honour ordered that the appellant is eligible to apply for parole after having served 15 years of his sentence. A parole ineligibility period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances: Power v The Queen (1974) 131 CLR 623 at 629; Deakin v The Queen (1984) 58 ALJR 367; Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASSC 18 at [47]. The task of the sentencing court is to determine the minimum term of imprisonment which is appropriate to achieve the joint goals of prevention, punishment and deterrence: Bugmy v The Queen (1990) 169 CLR 525.

12. However, the Parole Board need not grant the prisoner parole. An application for parole may be refused or parole may be revoked: Corrections Act 1997, ss 72(3)(c) and 79. A prisoner on parole is taken as being still under sentence: s 78. As stated by the plurality judgment in Bugmy at 537, "The fact is, though, that the sentence, remains in the present case one of life imprisonment." The question in this appeal is whether this crime warranted the maximum penalty, as an aspect of the larger question of whether the sentence was manifestly excessive.

13. Counsel for the appellant submitted that, to the extent that a range of sentences for murder pursuant to s 157(1)(c) can be discerned, sentences fall within the vicinity of 16 to 20 years. She submitted that that comparison with past sentences imposed for serious murders suggests error in the impugned sentence. A number of particular cases were referred to. On 1 May 2015, Marco Rusterholz was sentenced to imprisonment for 45 years with a non-parole period of 25 years, for a premeditated and callous double murder. Mr Rusterholz was 51 when sentenced. On 18 August 2014, Stephen Standage, aged 62, was sentenced to imprisonment for 48 years with a non-parole period of 24 years. Mr Standage was found guilty of two murders, one committed in 1992 and the other committed in 2006, which the sentencing judge described as premeditated cold-blooded murders with an absence of any mitigating circumstances. Patrick Daley was sentenced on 19 August 2014 to imprisonment for 45 years with a non-parole period of 25 years, for the planned murder of his ex-partner and her partner, committed in the presence of children. Mr Daley was 61 when sentenced. In 2002, Noel Leslie Riley was sentenced to imprisonment for 40 years, with a non-parole period of 22 years, for two intentional murders committed on the same day but not directly related in their circumstances. In 2005 Bradley Lambert and Darryn Stokes were both sentenced to imprisonment for 42 years with a non-parole period of 28 years for the violent and cruel murders of a father and son. The men planned to kill the victims while robbing them in their home.

14. The point made by the appellant by reference to these sentences is that, in each case, the crimes did not attract a life sentence, despite objective circumstances which appear more grave than the crime committed by the appellant. Conversely, the appellant submits, the cases in which life sentences have been imposed involve circumstances which are objectively more grave. In 2010, Stavros Papadopoulos, aged 22, was sentenced to life imprisonment with a non-parole period of 25 years, for what the sentencing judge described as the planned "thrill" murder of a student.

15. Consideration of what has been done in other cases is a proper sentencing exercise. Past cases can provide some measure by which a sentencing court can attempt to achieve consistency in sentencing and in the application of principle: R v Kilic (above) at [22]. In exercising the sentencing discretion a judge must act in a manner that is consonant with reasonable consistency – "the treatment of like cases alike, and different cases differently": Hili v The Queen [2010] HCA 45, 242 CLR 520 at [49]. In Elias v The Queen [2013] HCA 31, 248 CLR 483, the plurality adopted the following passage from the judgment of Gleeson CJ in Wongv The Queen [2001] HCA 64, 207 CLR 584, 591 at [6]:

    "All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency."

16. In this case, the appellant contends that imposition of a life sentence on the appellant is so inconsistent with past sentences as to demonstrate error. The majority of the High Court in Hili accepted that the proper use of past sentences was correctly identified by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1 at [303]-[305] and said:

    "As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added in Hili). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." [Footnotes omitted.]

17. However, as was pointed out in Hili, at [18], the sentencing consistency sought is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence". The point was made again by the High Court in Munda v Western Australia [2013] HCA 38, 249 CLR 600 at 615 [39], a case dealing with an asserted manifest inadequacy of sentence:

    "It was acknowledged that such a disparity is one pointer towards inadequacy; but French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ expressly approved the statement of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa that previous sentences may be used to establish a range of sentences that have been imposed but not that the range is correct. In particular, the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'."

1. Reference should also be made to Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40]–[41] and R v Pham [2015] HCA 39, 256 CLR 550. As the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) explained in Markarian v The Queen (above) at 371 [27], there is "no single correct sentence", and judges at first instance "are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies". The requirement to have regard to the sentences imposed in other cases does not mean that the range of sentences fixes the boundaries within which future sentences must be passed: Kilic at [22], citing Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129, 172 A Crim R 181 at 196 [30]-[31]. Intervention of this Court is not justified 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 comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle": Pham at 406 [28].

2. In our view, the respondent's submission that the appellant's crime is, when all of the relevant circumstances are taken into account, and to adopt the words of Gleeson CJ in Mills, a case of murder involving a very high degree of seriousness, is correct. When all factors relevant to sentence are taken into account, there is not such disparity between the sentence imposed and the sentences imposed in past cases as to indicate misapplication of principle. The submission that lesser sentences were imposed for other cases of murder under s 157(1)(c) can be accepted. The proposition that the crime of murder may be divided into categories, each of which has its own sentencing range, should not be accepted. Each case falls to be assessed according to its own circumstances which, for the crime of murder, may vary widely. In any event, there is an insufficient number of cases to establish a discernible range of sentences imposed on persons guilty of murder by resort to s 157(1)(c), or other instances of murder not involving an intention to kill, beyond which the sentencing judge could not properly sentence. The submission that life sentences were not imposed for many instances of premeditated and intentional killings can also be accepted. While the sentences imposed in the cases referred to did not carry a life sentence, some at least involved a sentence exceeding the life expectancy of the person sentenced. A life sentence, though, as compared with a finite sentence that exceeds the life expectancy of the offender, carries symbolic significance as the maximum penalty available to a sentencing court. It does not follow from the fact that a lesser sentence has been passed in instances of premeditated or intentional killings that it was not open to the sentencing judge to impose a life sentence in this case if the circumstances of the offence and the offender warranted it: Veen (No 2) at 478; Hudson v The Queen (above) at [38] and [39]. The learned sentencing judge was entitled to determine sentence having regard to the gravity of the criminal conduct and the culpability of the appellant. As has already been pointed out, a murder committed by an offender who ought to have known that his unlawful act was likely to cause death in the circumstances is not necessarily less grave than an intentional murder.

3. We are not persuaded that the sentencing judge erred by concluding that the appellant's crime warranted a life sentence. The sentence is not disproportionate to the crime. It is a case in which it was open to his Honour to regard the appellant's moral culpability as high, notwithstanding his lack of intention to kill or an intention to cause grievous bodily harm, due to his repeated serious violence against women. His Honour was entitled to attach great weight to protection of society, particularly its vulnerable members. The circumstances show that it was open to his Honour to find that this case was in the category of the gravest cases reserved for the maximum sentence. The case is not recognisably outside the category that is so grave as to warrant the maximum sentence. The balancing of sentencing considerations achieved by his Honour by imposition of a life sentence to punish the appellant for his conduct and protect the community from the danger he poses if released, but providing incentive for reform and rehabilitation, and allowing for his supervision by ordering eligibility for parole, is one which was within the proper exercise of his sentencing discretion. The sentence is not manifestly excessive. No error is demonstrated. This ground should fail.

Conclusion and orders

1. In our opinion none of the grounds of appeal succeed. We would dismiss the appeal.