DPP v O'Neill

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0031

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MICHAEL O'NEILL	Respondent

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JUDGES:	WARREN CJ, REDLICH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2015
DATE OF JUDGMENT:	2 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 325
JUDGMENT APPEALED FROM:	[2015] VSC 25 (Hollingworth J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Impairment of mental functioning – Personality disorder – Respondent suffering dependent personality disorder with prominent features of narcissistic personality disorder – Principles in R v Verdins (2007) 16 VR 269 inapplicable to personality disorder – Scope and limitations of Verdins principles explained – Principles in Verdins and relevance of requirement of impairment to mental functioning to general and specific deterrence and moral culpability discussed – General deterrence to be moderated only where nature and severity of impairment of mental functioning require it – Verdins assessment in the sentencing process – Relevance of respondent’s condition to moral culpability.

CRIMINAL LAW – Appeal – Sentence – One count of murder and one count of arson – Total effective sentence of 18 years with non-period of 13 years – Whether concealment of killing and burning of body necessarily aggravating factors – Sentence not manifestly inadequate – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Crown precluded from pursuing arguments on appeal not raised at first instance.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Whether must be ‘rare and exceptional’ – Specific error – Nature of errors that can be subject of Crown appeal – Whether proof of manifest inadequacy required – Residual discretion – Relevance of inadequacy of sentence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J C Silbert QC with Mr B L Sonnet	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Ms K Argiropoulos	Lewenberg & Lewenberg

WARREN CJ
REDLICH JA
KAYE JA:

The respondent, Michael O’Neill, killed Stuart Rattle. He told no-one of the killing and then engaged in a charade over five days, acting as if the deceased remained alive. Ultimately, the respondent set fire to the home he shared with the deceased, deliberately causing the deceased’s body to be burned in the process. After the fire the respondent embarked on another charade and acted as if the deceased had died accidentally in the fire he started. The charade was maintained until the respondent was arrested by the police and he eventually admitted his guilt.

Ultimately, the respondent was convicted after a plea of guilty to one count of murder and one count of arson. He was sentenced as follows:

Offence	Maximum	Sentence	Cumulation
Murder (common law)	Life imprisonment (Crimes Act 1958 s 3)	17 years	Base
Arson (Crimes Act 1958 ss 197(1) and (6))	15 years (Crimes Act 1958 s 197(7))	2 years	1 year
Total effective sentence	18 years’ imprisonment
Non-parole period	13 years’ imprisonment
Pre-sentence detention declared	428 days
6AAA statement	Total effective sentence of 22 years’ imprisonment; non-parole period of 17 years’ imprisonment
Other orders	Forfeiture and disposal orders

The Director appeals the sentences on the following grounds:

Ground 1
The sentence is manifestly inadequate as follows:
(a)the sentence of 17 years imprisonment on the charge of murder is manifestly inadequate;
(b)the sentence of 2 years imprisonment on the charge of arson is manifestly inadequate;
(c)by virtue of the errors identified in (a) and (b), the total effective sentence of 18 years imprisonment is manifestly inadequate;
(d)a non-parole period of 13 years imprisonment in all the circumstances is manifestly inadequate.[1]
[1]The Director provided the following particulars in support of Ground 1:
(i)the sentencing judge failed to have sufficient regard to the maximum penalty for the offences;
(ii)the sentencing judge failed to have sufficient regard to the nature and gravity of the offence of murder, including the deceased begging for his life during an act of strangulation, the relatively trivial nature of the offending comments, and the breach of trust where a domestic partner kills another during the course of an ongoing loving relationship;
(iii)the sentencing judge failed to have sufficient regard to the nature and gravity of the offence of arson, including premeditation, the extent of the damage and the incineration of the deceased’s body;
(iv)the sentencing judge failed to have sufficient regard to the deceptive post-offence conduct with others, including his interactions with investigating police both as to the provision of a false statement and participation in the record of interview;
(v)the sentencing judge has placed too much weight in moderating the sentencing purposes of moral culpability and general deterrence as a consequence of the respondent’s disorder.
Ground 2

The sentencing judge erred in finding that setting fire to the apartment (and thus incinerating the deceased’s body) was not an aggravating feature of the murder.
Ground 3
The sentencing judge erred in categorising the offence of murder as falling at the ‘lower end’ of the scale.
Ground 4
The sentencing judge erred in fixing a ‘lower than usual’ non-parole period (thus undermining general deterrence in sentencing for the crime of murder).

Background

The deceased and the respondent met in 1997 and later began living together in a homosexual relationship. Together they ran a successful and well-known interior design business. The deceased was a renowned Melbourne creative identity who had many wealthy clients. He was the face of the interior design side of the business. The respondent was the manager responsible for finance, quotations and orders. He also liaised with clients.

The two men enjoyed a lavish and expensive lifestyle. In time, this lifestyle led to the interior design business suffering financially. The respondent was untrained for his management role and did not perform well. Mistakes were made which the respondent covered up. By contrast, the deceased, whilst informed and aware of the respondent’s failings, ignored the financial perils of the business and the respondent’s managerial inadequacy. The deceased expected the respondent to ensure their mutual extravagant lifestyle continued. Steps were taken by the respondent to cover up shortfalls through accessing a joint superannuation account and delaying the payment of creditors.

The prosecution relied upon these circumstances on the plea in support of a submission that the business was in a precarious financial position due to the respondent’s incompetence and that he killed the deceased as an act of self-preservation in order to conceal those circumstances and protect his financial position. The sentencing judge rejected that submission. Her Honour found there was no evidence that things had reached a financial crisis point or that the true position was hidden from the deceased or that the respondent would benefit financially from the deceased’s death.

The deceased was the dominant partner in the relationship, with the respondent by and large acquiescing to the deceased’s directions. Over the term of the relationship there was regular verbal conflict which intensified with time. The respondent told his psychologist how he was abused and humiliated in front of others by the deceased. Sometimes the conflicts involved verbal abuse and sometimes pushing and shoving. He also told the psychologist that the deceased was sexually demanding of him and if he declined the deceased’s approaches he would call him a ‘frigid bitch’. The respondent said he felt as if the deceased treated him as his own property. Despite all this, the deceased was regarded by the respondent as being loving and affectionate towards him.

The respondent and the deceased owned two properties, an apartment at South Yarra, and a rural property near Daylesford called Musk Farm. The couple mostly lived on weekdays at the apartment and on weekends at Musk Farm. Together the respondent and the deceased transformed the building and grounds of their rural property. Some days before the killing of the deceased, Musk Farm had been open to the public for a charity fundraiser which had required demanding preparatory work by the couple. The respondent and the deceased were exhausted by the end of the weekend opening.

The following, largely drawn from the respondent’s account of what occurred immediately before and at the time of the deceased’s death and thereafter, was accepted by the sentencing judge.

On Wednesday 4 December 2013, a little over a week after the opening of the rural property, the respondent and the deceased were at their apartment. At about 6:00am, the respondent rejected the deceased’s sexual approach. The deceased called the respondent ‘a frigid bitch’. At that point the respondent left the bedroom and went to make breakfast. A few minutes later the respondent returned carrying a steel pan in his hand. The respondent’s intention was to apologise to the deceased. The deceased repeated his abuse, calling the respondent again a ‘frigid bitch’ and describing him as selfish.

The trial judge described what happened next:

Against the background of your [the deceased and the respondent’s] relationship, and given your fragile psychological state, this caused you to snap and hit him on the head with the pan. While he was dazed, you [the respondent] picked up a dog lead from the floor and strangled him until he was dead.[2]

[2][2015] VSC 25 [7] (‘Reasons’).

The deceased said as the respondent was strangling him, ‘Michael, don’t do this’.

Thereafter, a bizarre course of conduct was engaged in by the respondent.

After strangling the deceased he placed the deceased’s body in a large plastic furniture bag, covering the deceased up to his shoulders. The respondent then placed the body on the bed. Next, the respondent cleaned the room, showered and went to work in the office downstairs from the apartment at about 8:00am. The respondent informed an employee that the deceased was unwell and requested that the deceased’s appointments be cancelled. Later in the day the respondent attended a client appointment on behalf of the deceased. He continued thereafter to attend appointments and engagements on the basis that the deceased was unwell, thereby pretending that the deceased was still alive. The respondent made telephone calls and sent text messages impersonating the deceased. Over the days after killing the deceased, the respondent continued to carry on as if the deceased was still alive, including preparing and laying out meals for two people.

The respondent left the deceased’s body in the apartment on the Friday and went to Musk Farm. He stayed there until Sunday, returning to the apartment early in the evening. The respondent bought some Indian takeaway food and wine. He then laid out dinner for two people. Shortly before midnight the respondent placed a lit candle next to some curtains near where the deceased’s body remained on a bed. The respondent then left the apartment and walked to a nearby service station to buy some confectionery. By the time the respondent returned the apartment was alight. The respondent and neighbours summoned emergency services.

Once the fire was extinguished the body of the deceased was found (suffering 100 per cent coverage burns). The deceased was observed to be covered in a plastic substance. Later, the cause of the fire was attributed to two candlesticks.

On the night of the fire the respondent provided a sworn statement to police. He told the police that he and the deceased had been at home and were in bed watching DVDs having had some Indian takeaway for dinner and consuming some wine. The deceased had fallen asleep. The respondent said he went to buy some sweets and the fire started while he was out.

A post-mortem examination of the deceased revealed he had been dead for some time before the fire and had fractures to his skull and one side of his larynx.

After the fire and in the following days, the respondent continued to dissemble about the fire being an accident. He purported to display grief at the death of the deceased and set about arranging the deceased’s funeral.

On the following Wednesday, 11 December 2013, the respondent was arrested. During the first five hours of the police interview the respondent maintained his earlier story. He eventually admitted having killed the deceased on the previous Wednesday morning.

The plea

The Crown at the sentence hearing emphasised that there was no motive for the killing proffered by the respondent to police. On the plea counsel for the respondent stated to the judge that the respondent did not know why he killed the deceased. He admitted that there was no triggering event, that he did do stupid things and the deceased always forgave him.

The Crown on the plea contended that the respondent murdered the deceased to avoid the consequences of the serious financial difficulties of the business caused by his mismanagement, or, as it was described on the appeal by senior counsel for the Director, ‘the killing was an act of financial self-preservation’. On the plea the respondent challenged the Crown’s hypothesis. The sentencing judge found that the respondent killed the deceased ‘in the heat of the moment without aforethought’.[3] On the appeal the Director did not challenge the judge’s finding.
[3]Ibid [27].

With respect to the fire the Crown submitted on the plea that the fire was lit to achieve concealment of the deceased’s murder. While the respondent had accepted in his interview that it might be so regarded, he maintained in his interview and on the plea that his primary motivation in lighting the fire was to dignify the deceased’s death.

The Crown alleged on the plea that the fire was premeditated, and that the respondent had brought candlesticks from Musk Farm to the apartment for the purpose of starting the fire. The judge found that the evidence in that respect was inconclusive. Nonetheless, her Honour found that there was some aforethought and that the arson was not a spontaneous act. As for the motive for lighting the fire, the judge was not satisfied to the necessary standard that the arson was committed for the purpose of covering up the deceased’s murder. Consequently, the judge treated the arson for sentencing purposes as justifying a separate sentence, rather than as an aggravating feature of the murder.

The judge found that the respondent had a complex relationship with the deceased that ‘need[ed] to be understood against the background of [the respondent’s] childhood and [his] own psychological make-up.’[4] The respondent was 47 years old at the time of the killing and 48 years old at the time of sentence. He emigrated to Australia from Ireland with his family as a small child. The family and the respondent settled in western Victoria.
[4]Ibid.

The respondent identified himself early on as homosexual. He had a number of casual male encounters before he met the deceased when about 30. It was his first serious relationship which endured for 16 years until the deceased’s death. During all that time the respondent did not introduce the deceased to his family or inform them of the relationship.

The personalities of both the deceased and the respondent were considered by the judge. Her Honour said this:

Mr Rattle was strong, confident and successful. He also had a dominant, controlling personality; everything had to be done his way, both personally and professionally. No doubt that was part of the key to his professional success. And, because of your own psychological make-up, you felt inadequate; it suited you to be with someone who took control and made all the decisions. But many of your mutual friends have described how Mr Rattle used to demean and belittle you in public. He frequently complained to them that you were not satisfying him sexually. In front of others, he would call you lazy, a parasite; he would threaten to send you back to where you came from. He was critical of your lack of business acumen. There were financial and business pressures on the relationship. In the work context, he treated you like the office boy, not his partner.[5]

[5]Ibid [34].

The judge observed that there were tensions in the relationship and that those tensions had increased up to the time of the murder of the deceased.

A report was provided and evidence given at the plea by a treating psychologist for the respondent, Dr Mathew Barth. He had spent a substantial amount of time treating and assessing the respondent before providing a report. Dr Barth diagnosed the respondent as having a maladaptive personality adjustment and as suffering ‘pervasive feelings of worthlessness, inadequacy and insecurity’. The psychologist concluded that the respondent’s psychological condition met the DSM-V criteria for a diagnosis of ‘Dependent Personality Disorder with Prominent Features of Narcissistic Personality Disorder’. Finally, Dr Barth opined:

In summary, the offending which brings Mr O’Neill before the court can be viewed as a culmination of his poor emotional awareness, limited coping skills, impulsive decision making, the accompanying propensity to engage in reckless behaviour and his limited conflict resolution skills. In the context of his significant personality pathology, particularly his intense interpersonal dependency combined with feelings of inadequacy and failure, these factors underpinned the devastating act of interpersonal aggression and violence which he perpetrated against Mr Rattle.

The respondent was also diagnosed as suffering depressive symptoms that were sufficiently severe to warrant a diagnosis of ‘Adjustment Disorder — with Depressed Mood’ in accordance with the DSM-V criteria. However, that condition arose after the subject offending.

The respondent relied upon the principles in R v Verdins[6] at the plea. As discussed later in these reasons, this reliance was not expressly challenged by the Crown on the plea.
[6](2007) 16 VR 269 (‘Verdins’).

The submissions on appeal

Counsel for the Director emphasised the particular circumstances of the offending: the fact of the murder by the respondent of his long term partner; the leaving of the deceased’s body in the apartment for five days and then setting fire to the apartment, thereby incinerating the body; the injuries inflicted on the deceased, including the time taken of one to two minutes to complete the strangulation of the deceased; and the fact that, on the respondent’s admission, the deceased pleaded for his life as he was being strangled. On the arson, counsel for the Director submitted that the respondent had admitted his intention of concealment and that the burning of the deceased’s body was a significant aggravating feature, even if the respondent had another motive or intention.

Counsel for the Director also relied on post-offence conduct of the respondent, including his repeated lying as to the whereabouts of the deceased after the murder; his impersonation of the deceased in text messages and telephone calls; the leaving of the deceased’s body as he did and then lighting the fire to burn the deceased’s body and destroy evidence; and the fact that the respondent only confessed to the murder and arson after five hours of questioning by police, when the police had indicated that they had knowledge of the respondent’s conduct. All this, counsel for the Director submitted, was potent evidence of attempts at self-preservation by the respondent.

The respondent submitted on the appeal that the Crown was now advancing a number of submissions that were not made before the sentencing judge. The respondent observed that the Crown had submitted on the plea that the murder fell ‘within a mid-range of domestic murder’, based on its narrative of a murder motivated by financial self-preservation. The respondent submitted that, the prosecution theory having been rejected by the sentencing judge, it was open for the judge to assess the murder as less objectively grave than asserted by the Crown at the plea. The respondent also relied on a number of circumstances of the offending that had been accepted by the sentencing judge and that, the respondent submitted, justified the sentences imposed. These circumstances included the deeply imbalanced nature of the relationship between the respondent and the deceased, the respondent’s psychological difficulties from a young age, and the respondent’s personality disorder.

The relevance of Verdins

Before dealing with the grounds of appeal, it is necessary first to consider a number of questions relating to the application of the principles, summarised by this Court in Verdins,[7] to this case, in light of the evidence of the psychologist, Dr Barth, that the respondent was suffering from a dependent personality disorder with prominent features of narcissistic personality disorder.
[7]Ibid.

The submissions relating to this aspect of the appeal raise matters of importance, not only in relation to the present appeal, but also more generally. Recently, in delivering sentence in R v Miller,[8] King J made the following pertinent observation concerning the frequency with which the principles in Verdins are relied upon during a plea in mitigation, requiring judges

to consider reports from psychiatrists, but more usually psychologists, who have often had only very brief interaction with that offender, who have accepted as reliable and truthful the word of that offender as to their state of mind, thought processes or abilities, and relied upon the statements by the offenders, as though it was sworn evidence, to then ascribe to the offender, at least one of the six limbs in Verdins. I have found over time that I am less and less satisfied with reports prepared by forensic psychologists who have often spent an hour or less, with the offender before producing a lengthy report that purports to address quite particularly, and directly, the various limbs of Verdins, usually relating to either the moral culpability or the sentence weighing more heavily upon the offender.[9]

[8][2015] VSC 180.

[9]Ibid [33].

The respondent contended before the sentencing judge and on appeal that the evidence of the psychologist, Dr Barth, that the respondent was suffering from a dependent personality disorder with prominent features of narcissistic personality disorder enlivened the principles in Verdins.[10] On the plea the prosecutor did not explicitly challenge the respondent’s reliance on Verdins. He submitted that, based on the evidence of Dr Barth as to the respondent’s personality disorder, general deterrence had a ‘moderate role’ in the sentencing process. He accepted that specific deterrence was not a factor relevant to the sentencing of the respondent. He further said that there was a ‘small role’ for general deterrence, but that punishment and denunciation were ‘probably the primary sentencing factors’ that the judge should take into account. The prosecutor would have left the judge with the impression that he did not demur from the proposition that personality disorders could enliven the principles stated in Verdins.
[10](2007) 16 VR 269.

It was not in issue on the appeal that in the following sentencing remarks her Honour, in accordance with the parties’ submissions, was applying the principles in Verdins:

I accept that your personality and adjustment disorders are such that you are likely to find time in prison more burdensome than for a person not suffering from such disorders, and that prison may itself exacerbate those disorders …
I also accept that your personality disorder played some role in your offending, and operates so as to reduce your moral culpability, and to moderate to some extent the need for general and specific deterrence.[11]

[11]Reasons [39]–[40].

On the appeal, the parties filed supplementary submissions at the Court’s invitation. The respondent maintained that the principles as expressed in Verdins extended to personality disorders so as to require a moderation of general and specific deterrence and mitigate moral culpability. Senior counsel for the Director now makes submissions which differed in important respects from those made before the sentencing judge and which were not put to the sentencing judge.

First, he submits that many relationships exhibit the dependence of one party on another such that one party could be categorised as having a dependent personality disorder with prominent features of narcissistic personality disorder. Such features do not reduce moral culpability and do not moderate the need for general and specific deterrence. He contends that the condition diagnosed by Dr Barth should not have attracted the application of the principles stated in Verdins, as the respondent’s personality disorder did not affect his capacity to reason right from wrong, or to rationally make decisions. He submits that, other than a conventional tailoring of the sentence taking into account the idiosyncrasies of the respondent, there is no public policy reason for applying any major reduction to moderate the role played by general deterrence. This argument was, however, inconsistent with the position he had adopted on the plea. Senior counsel acknowledged on appeal that he had said to the judge that general deterrence had a ‘moderate role’ in the sentencing process by reason of the respondent’s disorder.

Second, and allied to the first submission, senior counsel for the Director asks the Court to find that Verdins has, for some time, been understood as allowing personality disorders to enliven such principles. He submits that Verdins has been read as substantially ‘lowering the bar’; that a mental abnormality or cognitive deficit is no longer a pre-requisite but that any abnormality or psychological idiosyncrasy causally linked to the offending behaviour is to be regarded as warranting a moderation in sentence. As a consequence, common and widely prevalent idiosyncrasies are asserted to moderate otherwise appropriate sentences. This, the Director submits, is inappropriate and contrary to public policy. These and other submissions to which we shall later refer raise matters of importance, not only to the present appeal, but also more generally.

Third, the appellant advances a number of reasons why a sentencing judge should not have to undertake a minute evaluation of the psychological assessment of an offender.

As a starting point, it is important to understand that the judgment in Verdins does not contain one, single, overarching principle concerning the relevance of an offender’s mental state to the determination of the appropriate sentence in the particular case. Rather, the judgment summarised, in a compendious manner, a number of different propositions which may be relevant in a case where there is evidence as to the offender’s mental state, whether at the time of offending or at the time of sentence.

In order to address the parties’ submissions, it is necessary to recognise that most of the discussion in the decided cases before Verdins, relating to the effect of an offender’s mental state, was concerned with the principle that where an offender suffers from a serious mental illness, that offender might not be an appropriate vehicle for the full operation of the principles of general deterrence. In such a case, the application of that principle may need to be sensibly moderated to take account of the disability suffered by the offender.

It is important to understand that the discussion in those cases was directed to that particular aspect of the process of sentencing. The approach to be taken by sentencing judges, in such a case, developed as a recognition of the need to reconcile the principles of general deterrence, on the one hand, with the effect on the offender of the particular mental impairment, which contributed to the offending, or, alternatively, which affected the offender at the time of sentence. The offender was not then to be regarded as a suitable vehicle for the full application of general deterrence, which was to be appropriately moderated.

One of the earliest discussions of those principles was in the decision of the Court of Criminal Appeal in R v Mooney.[12] In that case, the applicant, Mooney, had pleaded guilty to one count of assault causing actual bodily harm, and one count of wounding with intent to resist lawful apprehension. There was a substantial body of evidence that, at the time of the commission of the offences, the applicant suffered from a mental condition described as ‘manic depressive psychosis’. The members of the Court observed that the evidence supported the probable conclusion that the applicant, at the time of the commission of the offences, was insane within the legal test described as the M’Naghten Rules.
[12](Unreported, Court of Criminal Appeal of Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978) (‘Mooney’).

It was in that context that the Court discussed the relevance of such an illness to the concept of general deterrence. The leading judgment was delivered by Young CJ, who, in terms that have been frequently quoted, stated the principles as follows:

in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. … General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender’s responsibility for the offence should be regarded as having been reduced.

In a concurring judgment, Lush J observed that the applicant at the time of the offences was affected by a crisis that had developed into a chronic mental illness from which he suffered, so that he was not an appropriate person to be made the medium of a deterrent sentence. His Honour stated:

The concept of the deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Regard to this consideration must, I think, be relevant to the use of the law as an instrument of social administration. Its significance in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.

Three years later, in R v Anderson,[13] the Court of Criminal Appeal adopted and followed those passages from the judgments in Mooney. In that case, the applicant applied for leave to appeal against sentences imposed on two counts of wounding with intent to murder and one count of maliciously inflicting grievous bodily harm. The consultant psychiatrist at Pentridge Prison, Dr Alan Bartholomew, had given evidence that the applicant suffered from a disease of the mind, namely paranoid schizophrenia, and that in all probability at the time of the offence he was acting as a result of insane automatism. Counsel informed the trial judge that a deliberate decision had been taken not to raise a defence of insanity on behalf of the applicant.
[13][1981] VR 155 (‘Anderson’).

In their joint judgment, Young CJ and Jenkinson J quoted the paragraphs from the Court’s earlier decision in Mooney, to which we have referred.[14] Their Honours held that the sentencing judge had not sentenced the applicant in accordance with those principles, and accordingly upheld the application for leave to appeal against sentence. Murphy J, in a separate judgment, agreed, while expressing dissatisfaction with the circumstance that an accused, who chose not to raise the issue of insanity, was entitled to rely on it as an extenuating factor.[15]
[14]Ibid 159–61.
[15]Ibid 164.

Subsequently, in R v Tsiaras,[16] this Court outlined five respects in which serious psychiatric illness, not amounting to insanity, may be relevant to sentencing. In that case, the applicant had been convicted of trafficking in cocaine and possessing cannabis. There was professional evidence that he suffered from an ongoing psychiatric illness, possibly schizophrenia, with symptoms including auditory hallucinations with possible delusions and problems in his thinking. There was lay evidence that he was erratic and irrational in his thought processes. The Court considered that the sentencing judge had failed to give adequate weight to the applicant’s psychiatric illness. In adumbrating the five respects in which the Court considered such an illness might be relevant, the Court said the following in relation to the principles of general deterrence:

Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.[17]

[16][1996] 1 VR 398 (‘Tsiaras’).

[17]Ibid 400.

Two years later, in R v Yaldiz,[18] the Court was concerned with an offender who was convicted of attempted murder of his wife. There was evidence that he suffered from post-traumatic stress disorder, as a result of an attack on him in which he had been shot in the face. However, there was no evidence that that condition had played a relevant role in the offending, in which the offender stabbed his wife in a frenzy in public in front of their children. In considering the relevant principles, Batt JA stated:

general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.[19]

[18][1998] 2 VR 376.

[19]Ibid 381.

Winneke ACJ, who agreed with Batt JA, referred to a number of previous decisions including Anderson and Tsiaras, and stated:

It is true that the courts in those cases expressed the view that serious psychiatric illness falling short of legal insanity is relevant to the sentencing because, inter alia, a person suffering from such an illness is not an appropriate vehicle for general deterrence … But it must be remembered that in each of the cases to which I have referred the accused was suffering either from schizophrenia or a schizophrenic-type illness which obscured the mental intent to commit the crime with which he had been charged. It is not appropriate to simply fasten on to the words ‘recognised psychiatric disorder’ and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.[20]

[20]Ibid 383.

Pausing there, it can be seen that, before the decision of this Court in Verdins,[21] the principles relating to the relationship between an offender’s mental illness and the concept of general deterrence were articulated in cases in which the offender suffered from a serious psychiatric or intellectual disability. In such cases, the disability had played an important role in diminishing the offender’s capacity to form a rational judgment in relation to the offending. Sometimes considerations of humanity precluded the offender who was afflicted with such a condition from being considered to be a suitable medium for the full application of the principles of general deterrence, although the impairment did not contribute to the offending.
[21](2007) 16 VR 269.

Nothing said in Verdins modifies or alters those principles, so far as they relate to the question of general deterrence in sentencing, save that it recognises that the ‘nature and severity’ of an offender’s impairment falling short of a serious psychiatric illness may require some moderation of general deterrence.

The joint judgment of the Court in Verdins commenced with an analysis of the decisions in a number of cases, including interstate cases, which themselves employed terminology that indicated that it was not necessary in each case that the intellectual or mental disability be serious. In addition, the Court emphasised[22] that the diagnostic label of a condition was not important. Rather, the critical question was how the particular condition might have affected the mental functioning of the offender in the particular circumstances.
[22]Ibid 272 [13].

That part of the judgment in Verdins must be understood in the context of the Court’s examination of what was said in Tsiaras as to five possible ways in which the mental state of an offender might be relevant for the purposes of sentencing. In Verdins, the Court restated those principles and identified a sixth respect in which impaired mental functioning might be relevant to the process of sentencing.[23] The introductory passages of the judgment in Verdins were a prelude to the Court outlining those six different aspects of the sentencing process to which evidence, as to the impaired mental functioning of an offender, may be relevant. Significantly, in outlining the third aspect, in respect to general deterrence, the Court said this:

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.[24]

[23]The six propositions are set out at ibid 276 [32].

[24]Ibid 276 [32].

In our view, that statement was expressed to encapsulate the principles, relating to the effect of impaired mental functioning on general deterrence, stated in the earlier decisions of the Court and of the Court of Criminal Appeal, to which we have referred. By emphasising that the effect of the impairment of mental functioning of the offender on the principle of general deterrence depended on the ‘nature and severity of the symptoms’, the Court in Verdins reflected the reasoning contained in those earlier decisions.

Clearly, there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient that the offender suffer from a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or of how the offender’s condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.

We do not consider that the decisions of other intermediate appellate courts of interstate jurisdictions are inconsistent with the principles that we have just stated. It is not necessary to refer to those cases in detail. It is convenient to refer to three decisions of the New South Wales Court of Criminal Appeal by way of example.

In Scognamiglio v The Queen,[25] the applicant was sentenced to a minimum term of five years and nine months’ imprisonment for attempted murder and two associated offences. At his trial, he pleaded not guilty on the ground of mental illness. The prosecution led evidence from a psychiatrist who attested that the applicant suffered from paranoid schizophrenia, but that he was aware of the nature and quality of his actions at the time of the offence. In the course of the trial, the applicant changed his plea to one of guilty. On the plea, there was a conflict in the evidence of a number of psychiatrists. The sentencing judge expressed preference for one doctor, who, while rejecting the diagnosis of paranoid schizophrenia, nevertheless considered that the applicant had a psychotic illness of some sort. Grove J (with whom Clarke JA and Newman J agreed) noted that it was inevitable that the sentencing judge had found that the applicant’s responsibility had been reduced because of his illness, whatever the diagnosis. However, taking into account the principles stated in a number of the decisions, including Mooney and Anderson, Grove J considered that the judge did not sufficiently moderate the principles of general deterrence in light of the applicant’s mental condition. Accordingly, the applicant was granted leave to appeal, and his sentence was reduced.
[25](1991) 56 A Crim R 81.

In Engert v The Queen,[26] the applicant pleaded guilty to an offence of intercourse with a male person under the age of 18 years. The applicant suffered from schizophrenia, with delusions of possession, paranoid feelings, and auditory and visual hallucinations. However, the sentencing judge found that there was no evidence of any relationship between the applicant’s mental disorder and the commission of the offences. The Court of Criminal Appeal dismissed the appeal. Allen J stated the relevant principle as follows:

General deterrence is simply the deterrence … of others[,] and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: ‘Well, you would not expect him to get the same sentence as someone else’.[27]

[26](1995) 84 A Crim R 67.

[27]Ibid 72.

In R v Wright,[28] the New South Wales Court of Criminal Appeal was concerned with an appeal by the prosecution against the sentence imposed on an offender who had committed a robbery, in the course of which the respondent had held a serrated knife to the throat of a young woman. The medical evidence before the judge was that the respondent suffered from a psychiatric illness with features of schizophrenia, which he was able to keep under control with medication prescribed for him, but which flared up when he failed to take the medication and when he abused drugs. At the time of the offending, he had not been taking his medication for three days, and he was intoxicated with marijuana and amphetamines. In those circumstances, Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed) stated that the self-induced psychiatric condition of the respondent could not be regarded as a matter of mitigation.
[28](1997) 93 A Crim R 48.

In the course of his judgment, Hunt CJ stated:

It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender’s mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.[29]

[29]Ibid 50–1 (citations omitted) (emphasis in original).

While Hunt CJ did state that the particular mental illness or retardation need not be ‘significant’, nevertheless it is evident from the foregoing passage, read in its entirety, that the incapacity must be such as to have affected the offender’s appreciation of the gravity of his or her offending, in order that that incapacity be a basis upon which to moderate the application of general deterrence in a particular case.

In light of that discussion, we now return to the judgment in Verdins that summarised compendiously, the following six circumstances in which impaired mental functioning was relevant to the appropriate sentence to be passed on an offender:

1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[30]

[30](2007) 16 VR 269, 276 [32] (citations omitted).

It is important to note that these six aspects of the process of sentencing (which themselves are not exhaustive) are each different. Accordingly, the nature and degree of impaired mental functioning, which might be relevant, may well be different, depending upon the particular aspect of the sentencing process that is under consideration.

Clearly, it is inappropriate to apply a mechanistic approach that, because an offender is said to suffer from impaired mental functioning, the offender thus attracts the Verdins principles. Such an approach is overly simplistic, and erroneous. As this Court emphasised in Verdins and many later cases, careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence.[31]
[31]Tran v The Queen (2012) 35 VR 484, 490–1 [20]–[22].

In R v Howell,[32] the Court was concerned with an appeal in which the offender suffered from clinical depression, and had also been diagnosed as meeting several criteria for a ‘borderline personality disorder’. Nettle JA (with whom Ashley and Redlich JJA agreed), having referred to authorities that predated the decision of the court in Verdins, stated:

The earlier cases … must now be read as subject to the conclusion reached in Verdins that what matters in any given case is not so much the label to be applied to the offender’s psychiatric condition, but whether, and to what extent, it can be shown to have affected the offender’s mental capacity at the time of the offence, or at the time of sentence. Contrary to the Crown’s submission, therefore, the cases in which the principles in Verdins apply are not limited to those in which the accused is rendered incapable of making a rational decision as to whether or not to offend. As was explained in Verdins, an impaired mental functioning may reduce the offender’s moral culpability in any number of ways, including, without limitation, if it has the effect of impairing the offender’s ability to exercise appropriate judgment or make calm and rational choices, or if it makes the offender disinhibited, or if it obscures the offender’s intent to commit the offence.[33]

[32](2007) 16 VR 349.

[33]Ibid 356 [20].

The principles essayed in Verdins have now been applied for some eight years by sentencing courts in this State. It is desirable to summarise the scope and limitations of these principles as consistently understood and stated by this Court.

First, the principles are enlivened only where the offender suffers from an impairment of mental functioning.[34] Whether there should be any moderation of general deterrence, and if so its degree, will depend upon the nature and severity of the impairment of mental functioning. It is important to keep in mind that, in Verdins, and in this Court’s subsequent application of Verdins, the Court has consistently stated that the principles in Verdins relate to offenders who suffered from ‘mental impairment’ or ‘impaired mental functioning’, whether at the time of the offending or at the time of sentence.[35] While the Court in Verdins regarded the particular diagnostic label as not being determinative, the principles expressed have always been confined to cases in which the offender suffered an impairment of his or her mental functioning. They do not apply to personality disorders such as those from which the respondent suffered.
[34]R v Martin (2007) 20 VR 14 (Maxwell P, Nettle and Redlich JJA); Bowen v The Queen [2011] VSCA 67, [27] (Warren CJ); Freeman v The Queen [2011] VSCA 349, [27] (Nettle JA with whom Warren CJ and Beach AJA agreed); Vergados v The Queen [2011] VSCA 438, [29] (Warren CJ with whom Nettle and Ashley JJA agreed); Carroll v The Queen [2011] VSCA 150, [17]–[20] (Maxwell P with whom Buchanan JA agreed); DPP v Jones [2013] VSCA 330 [95]; O’Toole v The Queen [2013] VSCA 62, [37] (Warren CJ with whom Redlich and Coghlan JJA agreed); DPP v Jones (2013) 40 VR 267, [55] (Redlich and Priest JJA and Robson AJA).
[35](2007) 16 VR 269, 272 [13], 275 [26], 276 [32].

In this context it is convenient to refer to the following passage from the reasons of Chesterman JA (with whom Holmes JA and Lyons J agreed) in R v Hayes,[36] who was addressing this very issue:

There is no substance in the submission the applicant’s borderline personality was not taken into account in determining the appropriate sentence. It was irrelevant. A prisoner’s mental illness which reduces her capacity for judgment or understanding, or ability to control behaviour, and therefore reduces the moral blameworthiness in the offending is rightly regarded as an important mitigating factor in the sentencing process. It is my understanding that the law has never regarded personality disorders as having this effect. This is for the reason that they are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it. A personality disorder is a description of a personality type, or the traits which define the person and the person’s predominant modes of behaviour. The personality type becomes a disorder when the traits become manifest in behaviour which ‘deviates markedly from the expectations of the (person’s) culture’, and leads to ‘distress or impairment’. The passages are from DSM IV …[37]

[36][2010] QCA 96.

[37]Ibid [28].

The respondent referred to a number of sentencing decisions at first instance in which judges have applied the Verdins principles to offenders diagnosed with particular personality disorders.[38] Each of the cited cases appears to have proceeded upon the assumption that the Verdins principles applied. Those cases did not address the issue raised in this appeal. It is unnecessary to examine whether in any of those cases there was evidence of an impairment to the offender’s mental functioning but in those cases where there was no such evidence, the finding that the Verdins principles applied must be viewed as per incuriam.
[38]See, for example, R v West [2013] VSC 737; R v Hudson [2013] VSC 184; R v Cheney [2009] VSC 154; R v Arnott [2007] VSC 351.

Second, in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.[39] For example, Vincent and Weinberg JJA and Mandie AJA said in DPP v Weidlich,[40] in a passage subsequently quoted with approval in DPP v Eli[41] and R v Safati:[42]

Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in Tsiaras and Verdins recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge’s assessment of the individual’s motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender’s behaviour must be carefully explored.

[39]Charles v The Queen (2011) 34 VR 41, 70 [162] (Robson AJA with whom Redlich and Harper JJA agreed). See also R v Shafik-Eid[2009] VSCA 217, [27] (Lasry AJA with whom Nettle and Redlich JJA agreed); R v Zander [2009] VSCA 10, [26]–[29] (Dodds-Streeton JA with whom Nettle JA agreed); Vergados v The Queen [2011] VSCA 438, [53] (Warren CJ); Carroll v The Queen [2011] VSCA 150, [20] (Maxwell P with whom Buchanan JA agreed); Romero v The Queen (2011) 32 VR 486, 490–1 [13]–[18] (Redlich JA with whom Buchanan and Mandie JJA agreed); Armour v The Queen [2012] VSCA 188, [14]–[18] (Maxwell P and Mandie JA); Latif v The Queen [2013] VSCA 51, [77]–[81] (Weinberg and Harper JJA); Shaw v The Queen [2012] VSCA 78, [49] (Williams AJA with whom Buchanan JA agreed); Arthars v The Queen (2013) 39 VR 613, [13] (Redlich and Coghlan JJA and T Forrest AJA).

[40][2008] VSCA 203, [17] (citations omitted).

[41][2008] VSCA 209, [28].

[42] [2008] VSCA 232, [15].

Third, to show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender’s ability to appreciate the wrongfulness of the conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.[43]
[43]Verdins (2007) 16 VR 269, 275 [26]; Charles v The Queen (2011) 34 VR 41, 69–70 [162].

Fourth, the fifth and sixth limbs of Verdins may operate where the existing impairment will make prison more onerous, or where prison may exacerbate the mental condition, if the expert evidence establishes the significance of the impairment to the imposition of a prison sentence.[44]
[44]Verdins (2007) 16 VR 269, 275–6 [27]–[30].

Fifth, cogent evidence, normally in the form of an expert opinion, is necessary to establish the existence of the mental impairment, either at the time of the offence, or at sentence, or both,[45] and the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[46]
[45]Ibid 272 [13]; Carroll v The Queen [2011] VSCA 150, [19].
[46]Verdins (2007) 16 VR 269, 271 [8]; R v Zander [2009] VSCA 10, [29], [32].

Sixth, the assessment by the sentencing judge must be undertaken with rigour, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.[47]
[47]DPP v Patterson [2009] VSCA 222, [46]; R v White [2009] VSCA 177, [13]–[17]; Romero v The Queen (2011) 32 VR 486, 490 [13]–[14]; Carroll v The Queen [2011] VSCA 150, [19]; DPP v Gerrard (2011) A Crim R 171, 181 [39]. As is now well-recognised, diagnostic labels are, by themselves, of no assistance to a sentencing judge: R v Robazzini [2010] VSCA 8, [42]; Carroll v The Queen [2011] VSCA 150, [19].

In this connection, the appellant submitted that the sentencing process had become distorted in this State in applying Verdins as a result of the sentencing judge having to undertake an evaluation of the psychological assessment of an offender. The appellant submitted that it is not a field susceptible of accurate and objectively verifiable agreement; that psychological reports are almost always self-serving and are almost always based on self-reporting, the validity of which is incapable of verification; and that there is no cause for such a detailed concentration on the psychology of an offender in the sentencing process where the make-up of the offender falls short of mental illness or abnormality. Some aspects of the appellant’s submission find support in the observations of King J in R v Miller,[48] which we have earlier set out.
[48][2015] VSC 180.

As this Court emphasised in Verdins, and in many later cases, careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired, and to which of the circumstances set out in Verdins are engaged. That consideration requires a rigorous evaluation of the evidence.[49] It has been the general experience of this Court that sentencing judges exercise great caution when considering whether Verdins principles have been enlivened. Judges give careful attention to whether the material relied upon by the offender establishes the necessary basis for the application of the relevant Verdins principle relied upon. They give the issue the rigorous attention that it requires.
[49]Romero v The Queen (2011) 32 VR 486, 491 [18]; O’Connor v The Queen [2014] VSCA 108, [65]–[68]; DPP vWeidlich [2008] VSCA 203, [17]; Carroll v The Queen [2011] VSCA 150, [19]–[20]; R v Vuadreu [2009] VSCA 262, [37]; Tran v The Queen (2012) 35 VR 484, 490–1 [20]–[22].

In this connection, it should be emphasised that the Crown has an important role to play in identifying any inadequacy in the opinion of the expert or the circumstances in which it was formed. The prosecutor should provide full assistance to the judge in the performance of his or her task. The expert evidence should be scrutinised with care and, where appropriate, a challenge made to the adequacy of the material. Where the judge concludes that the material is inadequate to support the opinion expressed, either because of its content or because of the circumstances in which it came into existence, the sentencing judge will ordinarily be obliged to state the reasons for rejecting the opinion or for finding that the material is inadequate. But it is a matter for the sentencing judge to determine the manner in which such issues are resolved.

Seventh, an existing mental impairment at the time of sentence may require appropriate moderation of general deterrence, if it is determined that by virtue of that mental impairment the offender is not an appropriate vehicle for general deterrence.[50] Whether that is so ’depends upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused’.[51]
[50]R v Anderson [1981] VR 155, 159–60; R v RLP(2009) 213 A Crim R 461, 472–3 [25]–[26].
[51]R v Iaria [2004] VSC 254, [49] (Nettle J).

Eighth, a moderation of general deterrence will not ordinarily be required where the condition arises after the offence as a reaction to the discovery of the offender’s crime or the prospect of a lengthy term of imprisonment.[52] Maxwell P, Nettle and Priest JJA said in Khoja v The Queen:

In our judgment, the sentencing judge was quite correct to conclude that the supervening condition in this case did not mean that general deterrence must be moderated. Such factual differences as there may be between this case and RLP do not affect the basic principle.
Put simply, at the time of this terrible accident Mr Khoja was suffering from no impairment of mental functioning. He was fully aware of his responsibilities as a driver, not least because his companions were urging him to drive safely. As a young man who was driving under the influence of alcohol, and with a complete lack of care, when he caused the death and the serious injuries, Mr Khoja is precisely the kind of person who may properly be treated as a vehicle for general deterrence in sentencing for this offence. Punishment of offenders is, of course, only one aspect of public education about the dangers of driving under the influence of alcohol. But courts have for many years emphasised the central importance of general deterrence in sentencing for offences of this kind.
Nothing which happened subsequently affects Mr Khoja’s suitability as a vehicle for general deterrence. As Priest JA pointed out during the hearing, an extreme psychological response of this kind is not unusual in such cases, nor is it surprising given the sheer horror of the consequences of culpable driving. Adopting the language from RLP, the community would not expect Mr Khoja to be treated more leniently because of his reactive condition. He is ‘the author of his own predicament’.
The same applies to specific deterrence. The sentencing judge was required to assess to what extent Mr Khoja’s shame and remorse affected the need for specific deterrence. That is part of the conventional sentencing analysis. By itself, however, the supervening stress disorder was not relevant to that task.[53]

[52]R v RLP (2009) 213 A Crim R 461, 473 [26]; Khoja v The Queen [2014] VSCA 9.

[53][2014] VSCA 9, [27]–[30] (citations omitted).

In this case, the condition diagnosed by Dr Barth as existing at the time of the offending was a personality disorder. Dr Barth, in the conclusion to his report, stated that a comprehensive evaluation of the respondent’s personality ‘indicated significant pathology’. As we have already set out,[54] his view was that:

the offending which brings Mr O’Neill before the court can be viewed as a culmination of his poor emotional awareness, limited coping skills, impulsive decision making, the accompanying propensity to engage in reckless behaviour and his limited conflict resolution skills. In the context of his significant personality pathology, particularly his intense interpersonal dependency combined with feelings of inadequacy and failure, these factors underpinned the devastating act of interpersonal aggression and violence which he perpetrated against Mr Rattle.

[54]See above [29].

Having regard to the scope of the principles in Verdins, the respondent’s contention, asserted on the plea and on appeal, that the personality disorders identified by Dr Barth enlivened Verdins principles, cannot be sustained. The disorder, diagnosed by Dr Barth, does not fulfil the threshold criteria of Verdins. Those passages from the report of Dr Barth, and the evidence that he gave before the sentencing judge, do not include any evidence that the respondent suffered from an impairment of mental functioning. He did not opine that the respondent was unable to appreciate the wrongfulness of his conduct or exercise appropriate judgment or make a rational choice, or, alternatively, how the respondent’s personality disorder might have obscured his intention to commit the offence of murder. The respondent did not establish on the balance of probabilities that he suffered from a mental impairment. As we have said, it is well settled that Verdins principles are confined to impairment of mental functioning. The principles in Verdins do not extend to personality disorders such as those relied upon and which are set out in Section II of DSM–V.

Accordingly, the respondent’s condition could not provide a basis for a moderation of the principles of general deterrence. That condition did not play any relevant role in diminishing the respondent’s capacity to understand the nature and gravity of his offending. It was not an impairment which required some moderation of general deterrence on the grounds that the respondent’s condition at the time of the offence or sentence rendered him unsuitable to be a vehicle for general deterrence.

As we have already said, before the judge, the prosecutor submitted that, based on the evidence of Dr Barth as to the respondent’s personality disorder, general deterrence had a ‘moderate role’ in the sentencing process. He accepted that specific deterrence was not a factor relevant to the sentencing of the respondent. After making that statement, he then said that there was a ‘small role’ for general deterrence, but that punishment and denunciation were ‘probably the primary sentencing factors’ that the judge would take into account.

In her reasons for sentence, the judge accepted that the respondent’s personality disorder played some role in his offending, and that it operated (inter alia) ‘to moderate to some extent the need for general and specific deterrence’.[55] In that way, it would seem that the judge took, if anything, a more conservative approach in moderating the application of general deterrence than that conceded by the prosecution. In light of the position adopted by the Crown on the plea, it could not be heard to maintain, on a Director’s appeal, that the judge erred in moderating ‘to some extent’ the need for general deterrence.
[55]Reasons [39].

We turn then to the respondent’s allied submission that the first limb of Verdins was correctly enlivened, as his personality disorder reduced his moral culpability.

The area of contention before the judge, and on appeal, concerned the extent to which the respondent’s personality disorder was relevant in determining his moral culpability for the offending. The judge, having found that the respondent’s personality disorder played some role in his offending, concluded that it operated to reduce his moral culpability.

On the plea the prosecutor submitted that the personality disorder was not outside the range of the common experience of the courts in dealing with people charged with serious criminal offences. He appeared to leave it to the judge to ‘instinctively synthesise the facts involved and the psychological evidence called in support of the prisoner when imposing a sentence’. On appeal, the appellant explained that the submission on the plea was intended to be an acknowledgement that the respondent’s personality — that is, ‘who he was’ — had relevance in assessing his level of criminality, but not on the basis that Verdins principles were engaged. Senior counsel for the appellant submitted that too much weight was accorded by the judge in moderating the respondent’s moral culpability for the offence, essentially because her Honour applied Verdins reasoning.

The appellant now submits that there was no evidence that the respondent was not aware of the nature and gravity of his conduct or the wrongfulness of it, nor was there a suggestion of a significant mental impairment. We have already said, in dealing with general deterrence, that there was no such evidence. The appellant in addition further submitted that there was no ‘triggering incident’. The appellant now explicitly contends that there should have been no substantial diminution in the respondent’s moral culpability by reason of his personality disorder.

As we have said, the Crown may not pursue an argument on a Crown appeal that was not distinctly pursued at first instance. At no point during the course of the plea did the prosecutor challenge the respondent’s contention that Verdins was engaged and that moral culpability was thereby to be reduced. At best, the prosecutor was equivocal in his submissions as to whether the respondent’s personality disorder did play a role in diminishing his culpability. On sentence, the Crown has an obligation to identify for the sentencing judge any erroneous legal or factual submission made by the respondent. Failure to do so precludes the Crown from raising such arguments in a Crown appeal. Leaving this fundamental objection aside, as we have said, absent proof that the respondent suffered from impaired mental functioning, the principles summarised in Verdins were not engaged. They could not be applied in order to reduce moral culpability, or to mitigate the sentence because imprisonment would weigh more heavily on him.

By the time of sentence, the evidence established — and the judge found — that the respondent was suffering from an adjustment disorder with depressed mood. Assuming this was to be regarded as an impairment of mental functioning, as we have stated in paragraph 83 moderation of general deterrence was not required, since the condition arose after the offence as a reaction to the discovery of the offender’s crime or the prospect of a lengthy term of imprisonment.

That said, as with the other complaints now made, the Crown took no issue with the submissions made on the plea in this regard and cannot now be permitted to complain on a Crown appeal. Moreover, as some part of the respondent’s reaction was as a result of remorse and grief arising from the nature and significance of his conduct, we leave open for consideration on a suitable occasion whether some moderate allowance could be made for a post-offence reaction arising for such reasons which would make prison more onerous.

The respondent’s complex personality matrix was not, however, irrelevant to the sentencing synthesis. The evidence of Dr Barth was relevant and of substantial importance in explaining why the respondent, in response to the humiliating remarks made to him by his partner, exploded in a fit of rage in the course of which he murdered his partner. That explanation was of central importance in making an informed assessment of the respondent’s moral culpability for his offending conduct.

The determination of an offender’s moral culpability does not depend, solely, on an objective assessment of the actions and conduct of the particular offender. Such an assessment necessarily involves a careful consideration of matters personal to the offender, which may provide an appropriate explanation as to how, particularly in a case such as this, a hitherto law-abiding person has, in an outburst of uncontrolled anger, committed such a serious crime.

Evaluating the nature of the circumstances to which the offender has reacted requires consideration of both the offender’s relevant personal characteristics on the one hand, and the expectations of society, on the other. In Felicite v The Queen,[56] Redlich JA said:

Allowance has sometimes been made for the fact that a murder committed on the spur of the moment in a domestic environment as a consequence of a volatile mixture of emotions, whether or not in response to what was previously recognised as provocation in law, may attract a lesser sentence. The existence of great emotional strain within a domestic or spousal relationship which plays upon the offender’s emotional susceptibilities and results in a spontaneous act may bear upon the offender’s degree of criminality. But murders that occur in such circumstances are not to be approached as though they fall into a discrete and less serious category of the offence.

[56](2011) 37 VR 329, 333 [19] (citations omitted).

Here an explanation was advanced as to why the respondent resorted to the offending conduct. As we have said, the appellant accepted before the sentencing judge, and on appeal, that the evidence of Dr Barth, relating to the respondent’s disorder, was relevant as having a bearing upon the degree of criminality of the respondent. Dr Barth had the opportunity to explore, over a period of consultations, the psychological makeup of the respondent. The judge accepted Dr Barth’s conclusion that the difficult and conflicted emotional life which the respondent had endured had resulted in the development of a highly complex disorder, in which he had developed a very strong dependence on and attachment to the deceased, but during which he had masked intense feelings of shame and humiliation. Dr Barth’s evidence — accepted by the judge — was that the emotional turmoil and conflict within the respondent had built in intensity, so that, in the events that occurred on the morning of the murder, they exploded in the uncontrolled outburst of violence in which he murdered his partner.

The judge found that the murder of Mr Rattle by the respondent was not premeditated, vindictive or gratuitous, but, rather, was the result of a very complex and conflicted personality structure that had developed as a result of the respondent’s confused and difficult sense of his own life. It was plainly open to the judge to so conclude. In that way, the judge was correct in taking the respondent’s disorder into account in making an assessment of the moral culpability of the respondent in committing the murder of his partner.[57] It is important to note that the personality disorder suffered by the applicant was highly unusual and complex. As the evidence adduced on the plea and in particular Dr Barth’s evidence made plain, the respondent’s fragile psychological state and complex profile were the product of the unusual and difficult nature of his background and circumstances. His condition bore, in a limited way, upon the seriousness with which his conduct should be viewed, as senior counsel for the appellant conceded on the plea.[58] That said, it is also important to recognise that the condition, whilst explaining his reaction, did not attract the level of mitigation of sentence that must be allowed where Verdins principles are applicable.
[57]Cf ibid.
[58]Bugmy v The Queen (1990) 169 CLR 525; DPP v OJA (2007) 172 A Crim R 181, 204–5 [64]; Marrah v The Queen [2014] VSCA 119, [16]; DPP v Zhuang [2015] VSCA 96, [56].

Grounds 2, 3 and 4 — specific error grounds

We turn then to grounds 2, 3 and 4, which allege specific error by the judge.

At the invitation of the Court, the parties provided supplementary written submissions on the question whether specific error may ground a Director’s appeal under ss 287 and 289 of the Criminal Procedure Act 2009. The submissions filed on behalf of the appellant were to the effect that, though the specific errors pleaded could be relied upon, the public interest dictated that a Director’s appeal should only succeed in a case in which the Director was able to demonstrate that the sentence was manifestly inadequate. It was submitted that it must be demonstrated that the error or errors contributed to the imposition of a sentence that was manifestly inadequate.

Crown appeals and grounds alleging specific error

For the reasons that follow, the Crown’s approach, supported by the respondent, disclosed some fundamental misconceptions about the nature of Crown appeals under the Criminal Procedure Act2009. First, as the judgments in Director of Public Prosecutions v Karazisis make clear, under the present statutory regime the notion that Crown appeals should only be rare and exceptional no longer applies.[59]
[59](2010) 31 VR 634, 661 [120] (Ashley, Redlich and Weinberg JJA with whom Warren CJ and Maxwell P agreed) (‘Karazisis’).

Second, the Crown may rely upon any of the three types of error enumerated in House v The King.[60] It may be a patent error or a latent error, the latter being the third type of error set out in House v The King, where the sentence is outside the appropriate range.[61]
[60]Dinsdale v The Queen (2000) 202 CLR 321, 324–6 [3]–[6] (Gleeson CJ and Hayne J), 329 [20]–[21] (Gaudron and Gummow JJ); R v Baker [2000] NSWCCA 85, [19] (Spigelman CJ, Grove and Hidden JJ); Carroll v The Queen (2009) 254 ALR 379, 381 [7]–[8] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 581 [16] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Hudson v The Queen (2010) 30 VR 610, 627–8 [65]–[68] (Ashley, Redlich and Harper JJA); Green v The Queen (2011) 244 CLR 462, 477–8 [36] (French CJ, Crennan and Kiefel JJ), 500 [112] (Bell J); R v Lachlan [2015] NSWCCA 178, [60]–[62] (Gleeson JA with whom Johnson and Garling JJ agreed); R v Loveridge [2014] NSWCCA 120 (multiple grounds of specific error upheld).
[61]R v Wall (2002) 71 NSWLR 692, 707 [70] (Woods CJ at CL with whom Meagher JA and Bell J agreed); R v Clarke [1996] 2 VR 520, 522 (Charles JA with whom Winneke P and Hayne JA agreed); Green v The Queen (2011) 244 CLR 462, 477 [36] (French CJ, Crennan and Kiefel JJ), 500 [112] (Bell J); CMB v Attorney-General (NSW) (2015) 317 ALR 308, 315–17 [32]–[36] (French CJ and Gageler J); R v NT [2015] NSWCCA 136 [50] (Rothman J with whom Simpson and Bellew JJ agreed).

Third, the error must raise a matter of principle that needs to be addressed for the governance and guidance of sentencing courts, or in order to establish or maintain proper sentencing standards.[62] This is a limiting purpose which does not extend to the correction of sentencing errors relating only to the particular case.[63] The limiting purpose provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion whether the court should refuse to intervene.[64]
[62]Griffiths v The Queen (1977) 137 CLR 293; Everett v The Queen (1994) 181 CLR 295, 299; R v Clarke [1996] 2 VR 520, 522; R v TW (2011) ACTLR 18, 20–1 [6]; R v Meyboom [2012] ACTCA 48, [6]–[9]; R v Yuan [2015] NSWCCA 198, [30].
[63]Green v The Queen (2011) 244 CLR 462, 477 [36] (French CJ, Crennan and Kiefel JJ).
[64]Ibid.

The specific errors, alleged in the grounds of appeal, do not possess the necessary qualities which would permit intervention on a Crown appeal. They raise no error of principle that needs be addressed for the governance and guidance of sentencing courts or in order to establish or maintain proper sentencing standards.

By contrast, the contentions now advanced by the Director — that the principles in Verdins did not extend to personality disorders and that the principles have been too broadly applied — would have been capable of supporting intervention on a Crown appeal. But the errors now complained of were not included as a ground of appeal. And, as we have said, as a result of the failure to raise these arguments on the plea, such a ground, even if pleaded, would not have justified the Court’s intervention.

We reject senior counsel for the appellant’s further submission that, even if a specific error is made out, the Crown cannot succeed in a Crown appeal unless it establishes also that the sentence was manifestly inadequate. Although this question remained unresolved under the previous statutory regime,[65] it is now clear that the Crown’s approach, if left uncorrected, would unduly confine the circumstances in which a Crown appeal may be brought.
[65]See the reservations expressed in DPP v Chatterton [2014] VSCA 1, [80]–[81], [86]–[89]; DPP v Bulfin [1998] 4 VR 114.

The joint judgment in Karazisis[66] discussed the broader reach of Crown appeals following the abolition of double jeopardy in ss 289 and 290 of the Criminal Procedure Act 2009 and its prescriptive regime.[67] Nothing in any of the High Court’s judgments concerning Crown appeals suggests that only latent or residual error — the third type of error in House v The King — could warrant bringing or allowing an appeal. Where a specific error ground has the necessary quality to support intervention on a Crown appeal, no authority or principle dictates that there must be a further ground that the sentence is also manifestly inadequate, in order for the Director to bring or succeed on the appeal.[68]
[66](2010) 31 VR 634, 648–9 [52]–[56] (Ashley, Redlich and Weinberg JJA with whom Warren CJ and Maxwell P agreed).
[67]As the joint judgments in Karazisis and the reasons of Buchanan and Neave JJA in DPP v Hardy [2011] VSCA 86, [17] (Buchanan JA), [33] (Neave JA), recognise, some of the principles stated in Everett v The Queen (1994) 181 CLR 295, R v Clarke [1996] 2 VR 520 and DPP v Bright (2006) 163 A Crim R 538 no longer apply to Crown appeals.
[68]See for example R v Nemer (2003) 87 SASR 168, 172 [24] (Doyle CJ).

The limiting purpose of an appeal is that the ground is appropriate for the proper discharge of the Court’s statutory function in establishing a matter of principle.[69] As Heydon JA said in R v Hernando[70] of s 5D of the NSW Criminal Appeal Act 1912, in a passage approved by French CJ and Gageler J in CMB v Attorney-General (NSW),[71] there are two hurdles that the Crown must surmount before the respondent can be sentenced more heavily:

The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.[72]

[69]CMBv Attorney-General (NSW) (2015) 317 ALR 308, 316–17 [35] (French CJ and Gageler J); DPP v Gow (2015) 298 FLR 397, 399–400 [4] (Basten JA).

[70](2002) 136 A Crim R 451.

[71](2015) 317 ALR 308, 316 [34]. See also R v NT [2015] NSWCCA 136 [52].

[72]R v Hernando (2002) 136 A Crim R 451, 458 [12].

The adequacy of the sentence, and the relationship between the error and the sentence do, however, serve an important function in informing the manner in which the residual discretion whether to intervene may be exercised. One would ordinarily expect that Crown appeals would not be brought on grounds of specific error unless it could be demonstrated that the error had a significant material effect on the sentence imposed. If it is established that the error has the requisite quality, the degree to which the specific error affected the sentence and whether the sentence is manifestly inadequate will be matters highly relevant to whether the court should in the exercise of its discretion refuse to intervene.[73] Where the Court declines to intervene, the judgment of the Court may still serve the primary purpose of Crown appeals, namely, to lay down principles for the governance and guidance of sentencing courts and to facilitate the maintenance of sentencing standards.
[73]Karazisis (2010) 31 VR 634, 648–9 [52] (Ashley, Redlich and Weinberg JJA with whom Warren CJ and Maxwell P agreed); CMB v Attorney-General (NSW) (2015) 317 ALR 308, 315–17 [32]–[36] (French CJ and Gageler J); DPP v Zhuang [2015] VSCA 96, [49].

We turn to the specific error grounds relied upon. As we have said, none of them is an appropriate ground for a Crown appeal, as they allege no more than errors in the particular case. Moreover, for the reasons that follow, the appellant has failed to demonstrate any error as alleged in grounds 2, 3 and 4.

Ground 2

Ground 2 alleges that the judge erred in finding that setting fire to the apartment (and thus incinerating the deceased’s body) was not an aggravating feature of the murder.

In the course of the plea, it was submitted on behalf of the appellant that the judge should either consider the conduct of the respondent, in setting fire to the apartment, as an aggravating feature, in which case the sentence imposed on charge 1 and charge 2 would be entirely concurrent, or, alternatively, the judge should ‘carve the murder off’ and impose a degree of cumulation in respect of the sentence imposed on charge 2. In submissions in reply, the prosecutor specifically agreed with the approach contended for on behalf of the respondent. In particular, he submitted that ‘some small degree of cumulation would be appropriate’. The prosecutor, referring to the respondent’s submissions, said:

Your Honour can do it one of two ways and end up with the same bottom line as to how you do it.

Based on those submissions, the judge adopted the approach of not treating the arson as an aggravating feature, but, rather, cumulating part of the sentence imposed in respect of charge 2 on the sentence imposed in respect of charge 1. That is, the judge adopted the approach contended for by counsel for the respondent, and agreed to by counsel for the appellant. In those circumstances, it cannot be maintained on this appeal that the judge erred in adopting that approach.

Ground 3

Ground 3 is that the judge erred in categorising the murder ‘as falling at the “lower end” of the scale’. In fact, the judge did not characterise the offending in that way. Rather, her Honour stated:

the circumstances in which you killed Mr Rattle, including the history of the relationship and your fragile psychological state, mean that the sentence to be imposed for murder must be towards the lower end of the range for that offence.[74]

[74]Reasons [48].

Before the judge, counsel for the respondent contended that the offence fell at the ‘low end of the spectrum of gravity’ for the particular offence. On the other hand, counsel for the prosecution submitted that the offending fitted within the ‘mid or moderate range’ of that type of murder.

The prosecutor made that submission after counsel for the respondent had presented the plea. Earlier, the prosecutor had submitted, inter alia, that the respondent had killed the deceased as an act of financial self-preservation, because the business relationship between himself and the deceased had deteriorated so that the respondent saw his financial well-being as being under threat. The prosecutor also submitted that the respondent had lit the fire in the apartment in an attempt to destroy any evidence that he had killed the deceased.

At no stage did counsel resile from either of those two submissions. Thus, when the prosecutor submitted that the offending fitted within the ‘mid or moderate range’ of murder, he did so in the context of a murder which he had characterised as being premeditated and having been committed for financial gain, and, secondly, which he contended had been aggravated by the deliberate attempt by the respondent to conceal his wrongdoing by setting fire to the premises. The judge was not satisfied beyond reasonable doubt as to either of those two matters. It follows that, accordingly, the judge rejected two important aggravating factors which the prosecution relied on in the context of submitting that the offending fitted within the ‘mid or moderate range’ of the type of murder committed by the respondent.

In any event, the sentence imposed by the judge was for an unpremeditated murder, resulting from the triggering of the psychological factors described by Dr Barth, by an offender with no previous convictions, and by an offender who had made an early plea of guilty. In those circumstances, in our view, a sentence of 17 years’ imprisonment, on an early plea of guilty, was not a sentence ‘at’ the lower end of the scale for that type of murder. Rather, it was, if anything, at the lower end of the middle range of sentences for such a murder consequent upon a plea of guilty.

Ground 4

Ground 4 is that the judge erred in fixing a ‘lower than usual’ non-parole period.

In her reasons for sentence, the judge did not state that she was imposing a ‘lower than usual’ non-parole period. The judge noted that although the respondent did not have a history of violence or problems with anger management, he had not developed good coping strategies, and that he tended to deal with stressful situations by repression, denial and avoidance. The judge then stated:

It would be highly desirable for you to be able to engage in appropriate counselling, both in custody and whilst on parole, to improve your conflict resolution skills. I have set a non-parole period that should be sufficient to enable you to address these matters.[75]

[75]Ibid [59].

In that way, the judge explained why she fixed the non-parole period at 13 years. It was not contended on behalf of the appellant that the judge’s reasons, to which we have just referred, were in any way erroneous. Indeed, having concluded that there was little need for specific deterrence, we consider that the judge was, with respect, correct in calibrating the sentence to allow for a sufficient time on parole to ensure that the respondent receive sufficient counselling, after his release, to improve his conflict resolution skills.

As the submissions on behalf of the respondent point out, the non-parole period was 72 per cent of the head sentence. We do not consider that such a gap between the head sentence and the non-parole period is inappropriate in the circumstances of the case, such as would indicate any sentencing error on behalf of the sentencing judge.

Ground 1 — manifest inadequacy

In support of ground 1, it was submitted on behalf of the appellant that the sentence imposed by the judge for each of the two offences failed to take into account the nature and gravity of each offence.

In making that submission in respect of the sentence imposed on charge 1, it was submitted, in particular, that the judge erred in concluding that she was not satisfied beyond reasonable doubt that the respondent had lit the fire in the apartment in order to conceal the fact that he had murdered the deceased. Counsel submitted that there was no other conclusion available to the judge than that the respondent lit the fire for that purpose.

Before considering the submission as to manifest inadequacy, it is necessary first to address the latter point made on behalf of the appellant. In the course of his interview with the police, the respondent gave the following explanation for lighting the fire

I know it sounds as though — it’s all so crazy, but, you know, if there was an accident, it would give some dignity to Stuart, you know, rather than being sort of found the way he was which sort of wasn’t particularly nice.

Later in the interview, it was put to him that he lit the fire to try to remove evidence that he had murdered the deceased. The respondent answered, ‘that’s a fair assessment’, but then he said that:

I mean, it wasn’t so much to — to hide the fact … I mean, he was someone widely known and touched a lot of people in such an awful way for, you know, such an amazing person, to be remembered and thought it would give some dignity to it and just hoped he had a nice funeral.

Having referred to those passages from the respondent’s record of interview, the judge concluded

While you may well have wanted to cover up your earlier crime, given your psychological make-up your explanation cannot be dismissed as an unreasonable possibility.
In all the circumstances, I am not satisfied beyond reasonable doubt that your setting fire to the apartment should be treated as an aggravating feature of the murder. Rather, I shall treat it for sentencing purposes as justifying a separate sentence, with greater cumulation.[76]

[76]Ibid [44]–[45].

In light of the evidence, constituted by the passages in the record of interview to which we have referred, we consider that it was open to the judge to conclude that she could not be satisfied beyond reasonable doubt that the respondent set fire to the apartment in order to conceal his criminality. The appellant has not been able to proffer any reason why that conclusion was not reasonably open to the sentencing judge on the evidence before her Honour.

We turn, then, to the general submission made on behalf of the appellant that, in any event, the sentences imposed on each of the two charges, and the amount of cumulation for the sentence imposed on charge 2, on the sentence imposed on charge 1, were manifestly inadequate.

The principles relating to the ground of manifest inadequacy (or manifest excess) are well established, but, in the context of this case, are worth restating. In Karazisis, Ashley, Redlich and Weinberg JJA said:

As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind 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. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and the offender.[77]

[77](2010) 31 VR 634, 662–3 [127] (citations omitted).

Certainly, there were serious aspects of the offending in this case. The respondent admitted to investigating police that the deceased pleaded for his life while he was being strangled. The conduct of the respondent, in concealing the death of the respondent for a period of five days, and in indulging in elaborate and repeated falsehoods to that end, aggravated the offending.

On the other hand, there were, as found by the judge, important mitigating circumstances. As already discussed, the murder was unpremeditated and spontaneous, resulting from the implosion of the respondent’s complex personality disorder. The respondent had no previous convictions. He made an early plea of guilty. As the judge found, the respondent was genuinely remorseful for what he had done, and, after he had desisted from the initial charade, he made full confessions to the police, including disclosing information that was harmful to him and which would otherwise not have been known to the police. The judge noted that there was substantial evidence that the respondent had been devastated by what he had done, and that he was still struggling to cope with the prospect of life without the deceased.

The appellant has failed to identify any material error of fact or law on the part of the sentencing judge that we may take into account. We should emphasise the vital importance to the administration of our system of criminal justice of the discretion which the law commits to sentencing judges. It must be understood that it is not the function of this Court to substitute its own opinion for that of the sentencing judge merely because the discretion could have been exercised in a manner different from the manner in which the sentencing judge exercised her discretion.[78] Disregarding the matters which the Crown was precluded from raising because of the position which it adopted on the plea, we do not consider that it could be maintained that the sentence was wholly outside the range of sentences available to the judge.
[78]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15], 678 [35].

The appellant has also submitted that the sentence imposed for charge 2, arson, was manifestly inadequate. We do not agree. As counsel for the respondent has pointed out, the offence was not committed for financial gain. No accelerants were used. The respondent contacted the fire brigade to report the fire, and there was no evidence that any other person or property was placed at risk by the fire. Again, the respondent had no previous convictions, and he made an early plea of guilty to the offence. In those circumstances, while the sentence imposed on charge 2 was low, it was not manifestly inadequate. Nor do we consider that the amount of cumulation of that sentence, on the sentence imposed on charge 1, was manifestly inadequate.

Conclusion

For these reasons the Director’s appeal must be dismissed.

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[2015] VSCA 325

2 December 2015