DPP v Daing
[2016] VSCA 58
•31 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0177
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ISAC AYOUL DAING | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 March 2016 |
| DATE OF JUDGMENT: | 31 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 58 |
| JUDGMENT APPEALED FROM: | R v Daing (Unreported, Supreme Court of Victoria, Justice T Forrest, 24 August 2015) |
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CRIMINAL LAW — Crown Appeal — Sentence — Murder — Brutal attack on former partner — Use of a weapon — Respondent suffered from Post-Traumatic Stress Disorder as a result of traumatic upbringing in Sudan — Whether sentencing judge erred in finding limited remorse — Whether sentence manifestly inadequate — Sentence of 18 years and 6 months’ imprisonment with non-parole period of 14 years and 6 months not manifestly inadequate — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr L Hartnett and Ms S Keating | Revill & Papa Lawyers |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. I too would dismiss the appeal for the reasons his Honour gives.
WEINBERG JA:
I agree, for the reasons given by Priest JA, that this appeal should be dismissed.
PRIEST JA:
Introduction
Isac Ayoul Daing, the respondent, beat Maryanne Sikai to death on 18 March 2014. It was a savage and merciless killing.
On 5 February 2015, the respondent pleaded guilty in the Supreme Court to Ms Sikai’s murder. A plea in mitigation took place on 14 August 2015. On 24 August 2015, the judge sentenced the respondent to be imprisoned for 18 years and six months, and fixed a non-parole period of 14 years and six months.
The Director of Public Prosecutions appeals against the sentence imposed, claiming both manifest inadequacy and specific error. He relies on two grounds:
1.The sentence of 18 years and 6 months imprisonment with a non-parole period of 14 years and 6 months imprisonment on a charge of murder, in the circumstances pertaining here, was manifestly inadequate.
Particulars:
(i) The sentencing judge failed to have sufficient regard to the maximum penalty applicable in sentencing the respondent for a grave example of the most serious offence known to law;
(ii) The sentencing judge failed to have sufficient regard to the sustained brutality of the attack on a defenceless woman;
(iii)The sentencing judge failed to have sufficient regard to fact that the accused had broken into Ms Sikai’s home;
(iv)The sentencing judge failed to have sufficient regard to murder occurring in the context of an intimate partner or ‘domestic’ relationship where one party had terminated the relationship;
(v) The sentencing judge failed to have sufficient regard to the relevant lead up and previous violent behaviour of the respondent towards Ms Sikai;
(vi)The sentencing judge erred in the extent to which the diagnosis of PTSD reduced the respondent’s moral culpability;
(vii) The sentencing judge erred in the discount given for the utilitarian benefit of the plea of guilty in the context of the numerous changes of position of the respondent culminating in the dismissal of his application to change his plea to not guilty;
(viii)The sentencing judge overvalued the respondent’s unfortunate past prior to coming to Australia.
2.It was not reasonably open to find, in the circumstances, that the applicant [sic] had a moderate sense of remorse for the murder of Maryanne Sikai.
For the reasons that follow, I would dismiss the appeal.
The circumstances of the murder
The charge of murder arose from events which occurred in the apartment of Maryanne Sikai in Footscray on the morning of 18 March 2014. During a disagreement with her, the respondent — the former partner of Ms Sikai — struck her over the head with a wooden chair, causing it to break, and then beat her savagely to the head and body using a piece of wood from the broken chair. Ms Sikai was taken to the Royal Melbourne Hospital in a critical condition, where she died later that day from the injuries inflicted by the respondent. She had, as the sentencing judge observed, been beaten ‘to a pulp’.
Ms Sikai was born in Papua New Guinea on 2 October 1972. At the time of her death, she lived in an apartment in Footscray which she shared with Linh Ngoc Nguyen and his girlfriend, Sirinapa Yimklan. The respondent was born in Sudan on 11 November 1978. He moved to Australia in 2006, and worked in the security industry.
The respondent and Ms Sikai met in late 2011 and they shortly afterwards commenced a relationship. Ms Sikai invited the respondent to live with her in her Footscray apartment. The relationship was good for a time, but the respondent gradually became controlling and jealous. On occasions, the respondent was seen to be violent towards Ms Sikai. A former flatmate of Ms Sikai and the respondent, Andrew Wilson, saw some of the violence and observed injuries on Ms Sikai. Once, after an intervention order had been taken out against him by Ms Sikai, the respondent told Mr Wilson that he was going to kill her.
Over the months leading up to her death, Ms Sikai told a number of people that she was scared of the respondent. Sirinapa Yimklan heard an argument between the respondent and Ms Sikai one morning after a party the previous night — the respondent was apparently upset by the presence of males at the party — during which the respondent loudly said, ‘Do you want to die?’
After the relationship soured, Ms Sikai had the locks changed on the apartment. The respondent was seen to be sitting in his car outside the apartment, watching it. And in the week or so leading up to Ms Sikai’s death, the respondent kept coming to the apartment uninvited. Ms Sikai was staying away from the apartment, and she told Sirinapa Yimklan that she was scared of the respondent, since he had threatened her in a text message.
On Saturday, 15 March 2014, Mercy Waiya, a friend of Ms Sikai, received a telephone call from the respondent. He spoke of his relationship with Ms Sikai, and said, ‘One of us will leave this earth’.
The night before her death, on Monday, 17 March 2014, Ms Sikai asked Mr Nguyen to change the lock on the front door of the apartment so that the respondent could not get in. Mr Nguyen did so. Ms Sikai, who had been staying in another apartment upstairs with her mother, came down to her apartment at 9.00pm and went to bed. Later that night and early the next morning, Mr Nguyen heard noises coming from the front door of the apartment, but took no action because he thought that the apartment was secure. At about 1.30am on 18 March 2014, Mr Nguyen went to the front door and observed damage to the inside of the door above the door handle as if someone had tried to force the door; but, since the door was still closed, Mr Nguyen assumed it was still locked and went back to bed. As the respondent admitted, however, he had gone to the apartment building at about 1.30am on 18 March 2014 and gained access to the car park using the remote control he still had, and had gone up to the apartment. He had tried his key and, realising the lock had been changed, gained access by breaking the door with his shoulder.
In his record of interview, the respondent told police that upon his entry into the apartment, he had seen Ms Sikai. She was surprised to see him. He asked if they could talk. She refused. Ms Sikai then went to her bed and slept while the respondent watched television and drank alcohol in the same room. The respondent said that they shared the bed that night. It seems that the respondent woke at about 7.00am. At 7.08am he sent a text message to Peter Miazga — Ms Sikai’s former fiancée — which read: ‘I’m with Maryanne now. What u gonna do Mather fucker. I told you get out from our life’. After he had sent the text message, the respondent asked Ms Sikai to explain the breakdown of their relationship. To try to get Ms Sikai to talk about the matter, he told her about the text message he had recently sent to Miazga and that he had told Miazga that she was there with him. He claimed that this had caused Ms Sikai to get upset and throw something at him. Shortly after telling the police these things, the respondent declined further comment on the events in the apartment leading to Ms Sikai’s death.
Linh Nguyen, the flatmate, was woken at about 8.15am by the noise of people fighting in the apartment. He could hear two voices. Sirinapa Yimklan, his girlfriend, heard noises as if a person was being pushed against the walls, and heard Ms Sikai yelling out for help. Mr Nguyen and Ms Yimklan both got out of bed and walked to the lounge room.
Ms Yimklan’s account was that she observed Ms Sikai run from her bedroom saying, ‘Save me, save me’. She was being pursued by the respondent. He got hold of her and forced her to the floor.
Mr Nguyen saw Ms Sikai lying on the floor of the lounge room near her bedroom. The respondent was standing next to her and stopping her from getting up. She was trying to get away, and said to Mr Nguyen: ‘Leon, help me. Call the police’. Mr Nguyen screamed at the respondent: ‘You stop now. If you touch her, I will call the police. You go now. I will call the police’. Ms Sikai again asked for police to be called. Mr Nguyen said that, when told the police would be called, the respondent appeared to become more angry. The respondent walked to the kitchen bench and picked up a wooden stool. He then lifted the stool with both hands over his shoulder and carried it back to where Ms Sikai lay. She had moved closer to the front door as if trying to get away. According to Mr Nguyen, when he got close to Ms Sikai, the respondent ‘smashed the stool down with a lot of anger into Maryanne’s body’. He was not sure where the stool struck Ms Sikai, but it came down with a lot of force and broke into pieces which went everywhere.
As Ms Yimklan described it, after the respondent had forced Ms Sikai to the floor, he ‘picked up a wooden chair and raised it over his head and slammed it down onto her body, striking her in the back’. This caused the chair to break, and Ms Yimklan screamed at the respondent to stop. The respondent then picked up a broken piece of the chair and struck Ms Sikai with it multiple times all over her body. It seems that the piece of wood was quite large. The respondent raised it with both hands above his head as he stood and struck Ms Sikai repeatedly when she was on the ground. After a time, she did not move or say anything.
Mr Nguyen left the apartment in fear before his girlfriend did and called ‘000’ at 8.18am, requesting police and ambulance.
While Mr Nguyen was on the telephone to emergency services, the respondent left the apartment, walked the short distance to the Footscray police station and entered at about 8.28am. Leading Senior Constable Matthew McNair observed the respondent come up to the counter. Without saying anything, the respondent placed a wallet, a set of keys, an iPhone and some cash on the counter. He then said, ‘I've just killed my girlfriend’. Asked if he was serious, the respondent said: ‘Yes, I am. I killed her with a piece of wood’. During the conversation, Senior Constable McNair noticed blood on the left sleeve of the T shirt being worn by the respondent.
Shortly after he was arrested the respondent was spoken to by Detective Senior Constable Brett van der Vliet. He again admitted that he had killed his girlfriend. Later, at 9.00am, when Constable Gregory Williams asked the respondent what had prompted him to come into the police station, the respondent replied: ‘Murder. Things happen. I never think about it. She did a lot of stuff’.
Ambulance paramedics arrived at the apartment at about 8.39am. Ms Sikai’s face and head were bloodied and there was blood on the carpet around her head. She had a severe laceration to her right ear. The amount of blood on her head made it difficult to gauge the severity of the head wounds. Ms Sikai was noted to be unresponsive. She had no pulse and was not breathing, and was considered to be in cardiac arrest. As a result of the efforts of paramedics, a pulse was regained briefly before a further period of arrest and further resuscitation. Ms Sikai was transported by ambulance to the Royal Melbourne Hospital, arriving there at 9.33am. On being received at the hospital, Ms Sikai was critically ill. Her pupils were fixed and dilated. A scan showed multiple facial and skull fractures. Subdural and subarachnoid haemorrhages, and substantial swelling of the brain, were observed. The indications were of a severe brain injury which was incapable of survival. Ms Sikai was transferred to the intensive unit where her condition deteriorated and life support was turned off. Maryanne Sikai died at 3.16pm.
A post mortem examination found numerous blunt force injuries to Ms Sikai’s head, neck, torso and limbs. The most significant injuries were those to the head, including multiple bruises and lacerations to the face and scalp, facial fractures, and multiple skull fractures, including a fracture to the base of the skull. Ms Sikai’s brain showed features that would be expected with such blunt force injuries including contusions, subarachnoid haemorrhage and traumatic axonal injury. The basal skull fracture in particular was a significant injury which on a three point scale of mild, moderate and severe would be considered a severe injury. The diffuse axonal injury observed to the brain was indicative of rotational movements of the head relative to the brain. In addition to the head injuries, there were abrasions to the neck and a fractured larynx. The pathologist, whilst not acknowledging that estimation of the number of impacts based on the number of injuries can be problematic, expressed the opinion that there had been at least four separate impact sites to the head and neck; at least two to the torso; at least eight to the arms and shoulders; and at least three to the legs. Cause of death was said to be blunt force head injuries.
The course of proceedings
A committal hearing was held on 7 August 2014. At the conclusion of the committal hearing the respondent pleaded guilty to the charge of murder.
On 14 August 2014, however, the respondent told his then counsel that he had not meant to plead guilty to murder. Four days later, on 18 August 2014, the respondent was a party to a letter to his solicitors in which he told them that he no longer wished them to act, purportedly because they had not followed his instructions. On the application of the respondent, the post-committal directions hearing in the Supreme Court was adjourned on two occasions.
When the directions hearing was finally held in the Supreme Court on 24 September 2014, the respondent entered a plea of not guilty to murder. It was indicated that an application would be made to exclude at trial the evidence of the plea of guilty at the committal hearing.
Thereafter, on 5 February 2015, part way through sworn evidence being given by the respondent in support of an application to exclude from trial the evidence of the plea of guilty, the respondent again changed his position. On arraignment, he pleaded guilty to murder.
A further application was then made by the respondent for leave to change his plea. The application was heard on 21 and 22 May of 2015, but was refused on 24 June 2015.
The sentencing remarks
The sentencing judge observed that, put ‘bluntly’, the respondent ‘beat Maryanne Sikai to a pulp’. ‘This was’, the judge said, ‘a cowardly attack upon a terrified, defenceless woman’. Although the judge accepted that the respondent’s actions were ‘spontaneous’, nonetheless he ‘acted with white hot anger … undeterred by the efforts of Mr Nguyen to intervene’. Given the ‘ferocity’ of the attack, the judge was satisfied beyond reasonable doubt that the respondent intended to kill Ms Sikai.
The judge found limited remorse. When addressing the issue of remorse and the plea of guilty, the judge said:
I accept that you have expressed a modest amount of remorse for your attack on Maryanne. You went straight to the police station and confessed to killing your girlfriend. You told them you ‘felt bad’ for your actions. You have expressed also some remorse to Dr Barth, a psychologist, who prepared a forensic report that was tendered on your plea. Your repeated changes of plea are, I suspect, a product of you not wishing to accept the tag of ‘murderer’, rather than any denial of responsibility for your actions. You have never denied responsibility for causing Maryanne’s death. Although I am not prepared to infer any remorse from your plea of guilty, there is evidence of some modest remorse from other sources and I shall allow you some benefit for it. You are also entitled to a utilitarian benefit for your plea of guilty. Your committal was conducted on a very limited basis and the community has been saved the expense and inconvenience of a contested jury trial. Witnesses to your actions have been spared the ordeal of giving evidence. I have reduced the sentence that otherwise I would have imposed to reflect this.
Material had been put before the judge which indicated that the respondent had had an extremely traumatic upbringing in Sudan, attended by ‘appalling deprivation and suffering’, ‘so great that it is almost beyond the comprehension of people lucky enough to be born in this country‘. He endured civil war and extreme hunger, and his father was shot dead in front of him. At age 11 years, having been taken in by the family of a North Sudanese army officer, the respondent was beaten daily, raped and forced into servitude. The respondent escaped to Egypt aged 14 years, and travelled to Australia in 2006. After release from immigration detention, the respondent ‘worked assiduously as a security guard at the Sunshine Magistrates’ Court and also at various night venues’. The judge observed that it could be seen from the respondent’s history that he had suffered ‘cruel, at times inhuman, deprivation and social disadvantage’.
The respondent had been assessed by two psychologists, Dr Mathew Barth and Mr Michael Crewdson. Based on the psychological evidence, the judge accepted that the respondent suffered from Post-Traumatic Stress Disorder (‘PTSD’). His Honour accepted that individuals who suffer from PTSD experience ongoing emotional disturbances that can have a significantly adverse effect on judgment and social reasoning, such that ‘they can be prone to impulsive and reckless decision making in emotionally charged situations, particularly when they perceive they are under some physical threat’, so that ‘they are likely to experience considerable difficulty developing alternative courses of action to manage the situation’. Despite this being so, however, the judge rejected the respondent’s assertion to Dr Barth that he perceived himself to be under threat from Ms Sikai as ‘a self-serving rationalisation for [his] conduct which has no basis in fact’. But his Honour said:
Notwithstanding this, I am satisfied on balance (a) that you suffered from an undiagnosed PTSD that had its genesis in your cruelly deprived childhood, and (b) that as a consequence of this, at the time of offending your judgment, social reasoning and decision making faculties were impaired to some degree.
Although it had been assayed that alcohol consumption might have played a part in the offending behaviour, the judge found that there was nothing to suggest that the respondent relevantly was affected by alcohol. But the judge went on to find a connection between the respondent’s PTSD and the offending, such that his moral culpability was reduced to a moderate extent; and accepted that the respondent’s mental health issue would make imprisonment more burdensome for him. Thus his Honour observed:
I am satisfied, however, that your traumatic upbringing and its product, your PTSD, are realistically connected to your offending. I consider it likely that your capacities to exercise restraint and sound judgment in a time of emotional stress were diminished by the PTSD from which I accept you suffered. In these circumstances, I consider that your moral culpability or blameworthiness for murdering Maryanne Sikai is reduced to a moderate extent. I am also of the view that the aspects of general and specific deterrence, just punishment and denunciation, although still weighing heavily in the sentencing mix, should be given a little less weight than otherwise would be the case. Your psychologist also offered this opinion: ‘In the light of [the respondent’s] mental health issues, he is likely to be a particularly vulnerable prisoner and experience imprisonment as more burdensome than an individual who does not suffer from a mental disorder’. I accept this opinion.
In summary, I consider your deprived early life and consequent impaired mental functioning has reduced your moral culpability, the need for general and specific deterrence and denunciation. It will also make your future experiences in prison more burdensome. I have moderated the sentence that otherwise I would have imposed to reflect these factors.
The judge noted that the respondent had prior convictions,[1] but thought the respondent’s prospects of rehabilitation to be ‘quite good’. He took into account the victim impact statements, and the suffering of the victims. His Honour observed that there is ‘a vital community interest in deterring powerful if inadequate males from terrorising their weaker female partners or ex-partners’. And, although he had ‘softened the impact of general deterrence’ on account of the respondent’s mental disorder, ‘it still weighs heavily’ upon the sentence to be imposed. The judge also thought that the respondent’s conduct called for just punishment and denunciation, ‘again moderated somewhat by [the respondent’s] mental disorder’. His Honour also moderated specific deterrence ‘somewhat’ on account of the respondent’s ‘mental disorder’.
[1]On 13 February 2014, the respondent dealt with at the Melbourne Magistrates’ Court for two counts of unlawful assault of Ms Sikai, and one of intentionally damaging property, and without conviction was released on an adjourned bond. The prosecution submitted that these were part of the overall history of the relationship between the respondent and Ms Sikai, characterised by the respondent’s jealous and controlling behaviour.
Pursuant to s 6AAA of the Sentencing Act 1991, the judge said that, had the respondent not pleaded guilty, he would have sentenced him to be imprisoned for 20 years and six months, with a non-parole period of 16 years and six months.
Ground 2 — Finding of moderate sense of remorse
It is convenient to turn first to ground 2, which asserts that it was not reasonably open to the sentencing judge to find that the respondent ‘had a moderate sense of remorse for the murder of Maryanne Sikai’.
In my view, ground 2 is unsustainable.
The appellant contended in effect that the history of the proceedings shed more light on the respondent’s remorse than what he might have said to any psychologist; and that, in light of that history, the impugned finding was not open.
In context, however, the judge said no more than that he thought the respondent’s remorse to be very limited. As is obvious from the sentencing judge’s thorough analysis, he took every relevant factor bearing on remorse into account, and found ‘evidence of some modest remorse’. That finding was, with respect, unassailable. There was some evidence of remorse, but it was limited.
Ground 2 must fail.
Ground 1 — Asserted manifest inadequacy
In my opinion, although the sentence imposed on the respondent is undoubtedly lenient, it is not manifestly inadequate.
Manifest inadequacy is a conclusion that does not depend on the attribution of specific error.[2] The ground of manifest inadequacy is a stringent one, difficult to make good.[3] A sentence is, or is not, unreasonable or plainly unjust; and inadequacy is, or is not, plainly apparent.[4] Sentencing is a consummate example of the exercise of discretionary judgment. There is no single correct sentence for a particular offence or particular offender.[5] Thus, this Court may only intervene at the suit of the Director if satisfied that the sentencing judge’s discretion miscarried because the sentence imposed was below the range of sentences that could, consistently with proper sentencing standards, justly be imposed for the particular offending.[6] Intervention is not warranted simply because the individual members of this Court would, if sentencing at first instance, have imposed a different sentence. In the circumstances, it is only if it is ‘plainly apparent’ that the sentence imposed on the respondent is inadequate, as being ‘manifestly … too short’, that this Court may intervene.[7] Put another way, manifest inadequacy will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[8]
[2]Dinsdale v R (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J) (‘Dinsdale’).
[3]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
[4]Dinsdale, 325–6 [6].
[5]Bugmy v The Queen (2013) 249 CLR 571, 588–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Bugmy’).
[6]Ibid. See also Munda v WA (2013) 249 CLR 600, 613 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
[7]Dinsdale, 325–6 [6].
[8]Karazisis, 662–3.
To support the contention that the sentence was manifestly inadequate, in summary the Director relied on the following:
·the offence of murder carries life imprisonment;
·although the offence here was not premeditated, the sheer brutality of the attack on a smaller, weaker female make this ‘a particularly heinous case’;
·the murder was committed in Ms Sikai’s own home — where she was entitled to feel safe — after the respondent had forced entry;
·the respondent’s anger was motivated by jealousy, and this was yet another case of the ‘prevalent social evil’ of violence against women by men;[9]
·the lead up to the killing showed more than a merely volatile relationship, given that the respondent had previously been violent to Ms Sikai — resulting in prior findings of guilt and an intervention order — and had threatened to kill her;
·the link between the respondent’s PTSD and the offending was ‘tenuous’; and
·in light of the ‘vacillating position’ of the respondent, he ought not to have received the degree of benefit that the judge gave him for his plea of guilty.
[9]DPP v Smeaton [2007] VSCA 256, [21].
It cannot be gainsaid that the killing in this case was brutal. Indeed, the manner in which Ms Sikai met her death might aptly be described as horrifying. Objectively, the circumstances of the present offence were very serious, so that general deterrence, denunciation and just punishment were each important factors animating the exercise of the sentencing discretion. As was said in Felicite:[10]
The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and society’s abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be a protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.
[10]Felicite v The Queen (2011) 37 VR 329, 333 [20] (Redlich JA) (footnotes omitted).
As I have mentioned, however, the sentencing judge found that, as a result of his extremely traumatic upbringing, and the appalling deprivation and suffering he endured, the respondent suffered from PTSD. Importantly, his Honour was satisfied that there was a connection between the respondent’s PTSD and the offending, such that his moral culpability was reduced to a moderate extent. The judge also accepted that the respondent’s mental health issues would make imprisonment more burdensome for him. The appellant, as I have said, criticised the judge’s finding of a connection between the PTSD and the offending as being tenuous. In my view, however, on the evidence before him, the finding of such a connection — and the concomitant finding of a reduction of moral culpability — was open to the sentencing judge (as was the finding that the respondent would find imprisonment more burdensome). Verdins principles[11] accordingly were attracted.[12]
[11]R v Verdins (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA).
[12]See also Bugmy, 595 [44].
The sentence imposed in this case was, as I have said, lenient. And given the circumstances of the offending, the sentence must be seen as being at the lower end of the available range. But it was within range. As was observed in McPhee:[13]
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences. For offences such as murder which, as a matter of course, attract very substantial sentences, the variations between the sentences which might be imposed by different judges will necessarily be greater. The maximum penalty for murder is life imprisonment. The median sentence imposed during the period 2007/08 to 2011/12 was 19 years. As such, and recognising that there is no mathematical rule, one could expect a variance in the order of at least some three to four years in the sentences that different judges would impose for particular offending by a particular offender. In order for an argument of manifest [inadequacy] to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.
[13]McPhee v The Queen [2014] VSCA 156, [8] (Redlich and Priest JJA) (footnotes omitted).
McPhee, and sentences imposed in other cases of the murder of domestic partners,[14] raise an important question as to whether current sentencing practices[15] adequately reflect the seriousness with which such cases generally ought be viewed. Indeed, it might be queried whether, generally speaking, the ‘tariff’ for such killings is not too low. If there is to be an increase in the prevailing sentencing standards for the murder of domestic partners, however, it must occur incrementally.[16] With that in mind, this case does not present an appropriate vehicle to examine that question.
[14]See Davey v The Queen [2010] VSCA 346 (18/15); Dutton v The Queen [2011] VSCA 287 (16/12); Chalmers v The Queen (2011) 37 VR 464 (22/18); Felicite v The Queen (2011) 37 VR 329 (19/16); Bayram v The Queen [2012] VSCA 6 (16½/13¼); Delich v The Queen [2015] VSCA 556 (20/16); Meade v The Queen [2015] VSCA 171 (23/19); R v Manour [2011] VSC 113 (Coghlan J) (18/14); DPP v Azizi [2013] VSC 16 (Kaye J) (22/16); R v Browning [2015] VSC 556 (Lasry J) (18/15).
[15]Sentencing Act 1991, s 5(2)(b).
[16]Poyner v The Queen (1986) 66 ALR 264, 264; R v Barber (1976) 14 SASR 388, 389–90; Ashdown v The Queen (2011) 37 VR 341, 377 [151] (11) (Ashley JA), 409 [202] (Redlich JA);
Having regard to all that was advanced by the Director, I am not persuaded that the sentence imposed was outside the permissible range. Certainly, it cannot properly be characterised as being so far outside the range of reasonable discretionary judgment as to demonstrate error.
Conclusion
For the foregoing reasons, the appeal must be dismissed.
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