DPP v Osborn

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0208

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
BRANDON OSBORN	Respondent

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JUDGES:	BEACH, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2018
DATE OF JUDGMENT:	23 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 207
JUDGMENT APPEALED FROM:	R v Osborn [2017] VSC 535 (Keogh J)

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CRIMINAL LAW – Director’s appeal – Sentence – One charge of manslaughter by unlawful and dangerous act and one charge of prohibited person possess a firearm – Respondent shot partner in head at close range – No challenge to sentencing judge’s finding that respondent did not intend gun to discharge when he pulled trigger and therefore did not intend to cause physical harm – Whether finding that offence ‘tends towards a lower level of gravity of manslaughter’ constituted specific error – Whether sentence manifestly inadequate – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr J O’Connor	James Dowsley & Associates

BEACH JA
WEINBERG JA:

We have had the advantage of reading in draft the reasons for judgment prepared by McLeish JA. His Honour has concluded that this appeal by the Director of Public Prosecutions (‘the Director’) against a total effective sentence of nine years and two months’ imprisonment, with a non-parole period of six years, should be allowed. His Honour does so on the basis of ground one only, namely that the total effective sentence and the individual sentences were manifestly inadequate. He rejects the second ground of appeal, which asserts specific error. We entirely agree with his Honour’s reasons for rejecting that second ground of appeal.

Justice McLeish would order that the total effective sentence be increased to one of 12 years’ imprisonment, with a non-parole period of eight years. Moreover, his Honour states, for the purposes of s 6AAA of the Sentencing Act 1991, that had the respondent not pleaded guilty he would have imposed a total effective sentence of 14 years and six months with a non-parole period of 11 years.

For the reasons that follow, we respectfully disagree with his Honour’s conclusion, and would instead dismiss this appeal. We consider that the total effective sentence and individual sentences imposed, as well as the non-parole period, may properly be regarded as somewhat lenient. They are not the sentences that we, ourselves, may have imposed. That said, they do not, in our view, meet the high threshold of being manifestly inadequate. In other words, they were not wholly outside the range of sentences reasonably available to the sentencing judge.

If it be necessary for the Director to demonstrate an error of principle, separate and apart from establishing manifest inadequacy,[1] the submissions put forward on behalf of the Director fail to do so.
[1]We should indicate that we agree entirely with the approach taken by McLeish JA to the preliminary objection to the competence of the appeal taken by senior counsel for the respondent. His Honour treated that submission as informing the case for the exercise of the residual discretion. He would not, in the circumstances of this case, exercise that residual discretion. Nor, it should be said, would we, if it became necessary to consider its exercise.

Justice McLeish has set out the background facts surrounding this matter. We shall therefore confine our summary of the evidence to those matters we regard as being of central importance to the outcome of this appeal.

Introduction

On 26 May 2017, the respondent pleaded guilty to one charge of manslaughter and one charge of being a prohibited person in possession of a firearm. Those charges arose out of his having held a loaded revolver to the head of his partner, Ms Karen Belej, and having pulled the trigger, causing her death.

On 1 September 2017, the respondent was sentenced in the Supreme Court at Mildura to a total of nine years and two months’ imprisonment. The respondent’s sentence is summarised in the following table:

Charge on Indictment	Offence	Maximum		Sentence	Cumulation
1	Prohibited person possess firearm Firearms Act 1996 s 5(1)]	10 years		1 year	2 months
2	Manslaughter [Common Law]	25 years		9 years	Base
Total Effective Sentence:			9 years 2 months’ imprisonment
Non-Parole Period:			6 years’ imprisonment
Pre-sentence Detention Declared:			489 days
6AAA Statement: 11 years’ imprisonment with a non-parole period of 8 years.
Other orders: Disposal Order, Forfeiture Order

The Director of Public Prosecutions has appealed against that sentence pursuant to s 287 of the Criminal Procedure Act 2009.

The Director relies on the following two grounds of appeal:

Ground One: The individual sentences imposed, the total effective sentence and the non-parole period are each manifestly inadequate.
Particulars: In imposing the individual terms of imprisonment, in making the order with respect to cumulation and in fixing the non-parole period, the Sentencing Judge:
a)failed to properly reflect the nature and gravity of the offending and the culpability of the offender;
b)failed to have sufficient regard to the maximum penalties;
c)failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence and specific deterrence;
d)failed to give any, or sufficient, weight to protection of the community;
e)failed to give sufficient weight to the impact of the offending upon the victims;
f)failed to give sufficient weight to current sentencing practices;
g)gave excessive weight to the factors in mitigation.

Ground Two: The Sentencing Judge erred in finding that because the Respondent pulled the trigger of the handgun not intending for it to discharge this ‘tends towards a lower level of gravity of manslaughter’.

It should be noted that the respondent was initially charged with murder. That charge was later downgraded to manslaughter. This was on the basis that the prosecution concluded that it could not exclude the reasonable possibility that, when the respondent pulled the trigger, he genuinely believed that the revolver would not discharge. Accordingly, the case had to proceed on the understanding that it was the Director’s position that the respondent did not intend any physical harm to Ms Belej, and did not foresee any likelihood that she would suffer such harm.[2]
[2]Before this Court, senior counsel for the Director, at one point denied that this was so. He contended that the Director had never made any concession of that kind, but had simply acknowledged that the prosecution could not establish an intent to discharge the weapon, beyond reasonable doubt. For reasons that will emerge, we reject that contention.

Manslaughter was put on the basis of unlawful and dangerous act. The prosecution characterised the unlawful act as the ‘indictable offence of prohibited person use a firearm’.[3] The respondent was a prohibited person at the time of the shooting, because he was the subject of an intervention order made pursuant to the Family Violence Protection Act 2008. The circumstances giving rise to that order were also the genesis of the finding that he had, in 2014, recklessly caused injury.[4] This offending involved the respondent having punched a man whom he discovered in bed with a woman with whom he had been in a relationship.
[3]Section 5(1) of the Firearms Act 1996 (Vic) states that a prohibited person must not possess, carry, or use a firearm. The indictment, with respect to the firearm charge, was expressed in terms of ‘possess’, rather than ‘use’. The unlawful and dangerous act with respect to the charge of manslaughter, however, was confined to the ‘use’ of the weapon.
[4]The respondent pleaded guilty to that offence in the Magistrates’ Court. He received a $2,500 fine, but no conviction was recorded.

Background facts

In the period leading up to the commission of the offence, the respondent and Ms Belej were experiencing difficulties in their relationship. It was clear from diary entries and text messages sent by Ms Belej, that she was unhappy with the respondent’s relationships with other women, his excessive consumption of alcohol, and his possession of a handgun, which he had recently acquired.

On 1 May 2016, just before 7.00pm, the respondent arrived at the house which he shared with Ms Belej. Eight minutes later, she arrived home. At about 7.30pm, the respondent held a revolver to her head, and pulled the trigger. It discharged and killed her instantly. At first blush, this seemed like a classic case of murder. However, as will become apparent, the circumstances surrounding the killing of Ms Belej were somewhat more nuanced than this.

Moments later, the respondent dialled 000. He told the operator that Ms Belej had been shot in the head, and that she was dead. He sounded extremely distressed. He was told to attempt cardio pulmonary resuscitation, which he did. He continued, for an hour or so, trying to revive her until emergency services arrived. Ambulance officers observed that Ms Belej was clearly deceased. At about 8.43pm, the respondent was formally taken into custody.

Crime scene investigators recorded that the revolver was lying on the kitchen floor, between Ms Belej’s feet and the base of a freestanding island bench. On the bench was a gun case, containing five live rounds of ammunition. The bullet which had killed Ms Belej was retrieved from a cabinet located behind her body. Other items in the kitchen indicated that she had been preparing dinner when she was shot.

An autopsy identified an entry wound to Ms Belej’s mid-forehead region, and an exit wound at the rear of her skull. The cause of death was catastrophic damage to the brain, resulting from the discharge of the handgun at close range.

The respondent’s police interview

In the early hours of the morning, the respondent took part in a formal record of interview. It is obvious from the transcript that he was still very distressed during the course of that interview.

When asked to explain how Ms Belej had come to be shot, the respondent initially prevaricated. He replied, ‘it’s just a stupid fuckin’ thing. I mean, we’d both been drinking and she — we had — she had the shits all day, I’d had the shits all day’. He told police that, after he arrived home, he had been in the bedroom playing with the gun. After Ms Belej arrived, she discovered that he had brought the weapon into the house. She had said to him, ‘get rid of [the gun] otherwise she [would] use it’.

According to the respondent, Ms Belej then left the bedroom and went into the kitchen. As he was walking past her en route to the shed, carrying the gun in its case, she had commented, ‘I might as well use it on myself now’.

The respondent said that, at that point, he took all of the bullets, bar one, from the weapon. In other words, he acknowledged that he had deliberately left one bullet in the revolver. Accordingly, the gun was, in that sense, loaded.

The respondent said that he had then spun the chamber. However, he told police that after doing so, he had checked the left side of the chamber and noted that it was empty. He said that he believed that the chamber would rotate in a clockwise direction, and therefore if he pulled the trigger, the gun would not discharge. Having thus satisfied himself that it was safe to do so, he put the barrel of the revolver to his own head, and pulled the trigger. Self-evidently, the gun did not discharge.

Initially, the respondent told police that after he had pulled the trigger of the gun while it was pointed at his own head, he had placed his elbow on the table, pointed the gun towards Ms Belej, and cocked it. He said that she had grabbed the gun, and that it had gone off accidentally. It was accepted on the plea that this account of how the gun had come to discharge, had been false.[5]
[5]It should be noted that the respondent resiled from this version of events shortly after attributing the discharge of the weapon to his arm having been bumped or knocked. The sentencing judge was prepared to treat this initial false statement as not having been a deliberate lie. We recognise that this may have been a benevolent finding. However, it was not challenged before us.

Later in the interview, the respondent returned to the subject of how the gun had come to be loaded with one bullet. He said that while he was playing with the revolver in the bedroom, it had not been loaded. After being admonished by Ms Belej for having brought the gun into the house, he decided to return it to the shed. At that stage, the ammunition was loose in the case. It was only when Ms Belej had made some comment to him in the kitchen, that he had put a single bullet into the chamber.

The respondent’s account of what then occurred was as follows:

… I put one bullet in the gun and I spun the chamber and I said, ‘will this make you happy?’. And I looked at the side of the gun on the left side and I couldn’t see … so I cocked it, put it to my head, pulled the trigger. She — she said, ‘you’ve aimed — you’re aiming at the wrong person’. I cocked the gun again and I pointed it in her direction. I was — I was looking right at her and she turned and she grabbed … she hit the gun, the gun went up at — and then it went off and she … and once she fell I … and I tried to catch her … ground and I could see the —so much blood coming out … and I tried to stop it.[6]

[6]Emphasis added.

The transcript of the interview subsequently reads:

Q: … you said that you pulled the gun out of the bag and said, ‘will this make you happy?’ And that’s when you said that you opened the chamber and you put one bullet into it. Is that right?
A: I think it was the other way around. I think I pulled the gun out and put the bullet in it and then said, ‘will this make you happy?’
Q: Ok.
A: And spun the chamber and I looked at the gun and I thought, ‘Ok, it’s not loaded’ or, ‘It’s loaded but it not …. discharged’.
Q: Could you see the bullet in the cylinder?
A: No, I looked at the left side and I couldn’t see anything on the left side of the gun, so I cocked the gun.
…
Q: You did — you commented that you thought the revolver was safe and you pointed it to yourself and you made the – the – and I quote, ‘click’. And that I assume you mean –
A: Yeah, I pulled the trigger.
Q: Ok, so you pulled the trigger. At the time of pulling the trigger were you reasonably confident that the firearm wouldn’t discharge.
A: Very.
Q: So what was your intention at that stage?
A: I dunno why — I dunno why I did it.
…
Q: Ok. And at that stage when you re-cocked the gun were you aware of the — the position of that bullet?
A: I looked again ‘cause it was on — still on the same side and I couldn’t see anything on the left side …
Q: You said you pointed it at Karen.
A: Yeah.
Q: And that was when you said that she either grabbed or hit at the gun, you —
A: Yeah.
Q: — you weren’t sure.
A: Mm’hm.
Q: Did you wanna explain that anymore?
A: I had — I had the gun like that and I was leaning against the counter and I had it pointed at her, I think it was around about here and there was a bit of a distance, not a lot though, it was very close. And I was looking — and I was looking at her and not the gun, and I was looking at her right — right in the eyes, and the gun jolted up and then it went off.
Q: When you say that gun jolted up, what do you put that down to? How did the gun jolt up?
A: I think she either grabbed it or hit it, I don’t know, ‘cause I was looking at her and it was — finger at the time?
A: My finger was on the trigger.
Q: Yeah. And when the gun jolted up, as you describe it, is that when it discharged?
A: She moved forward and the gun jolted up as she moved forward, like, in one motion, and then it went off and she — she jumped — she jumped and I tried to catch her.[7]

[7]Emphasis added.

The respondent was then asked about his knowledge of the workings of the revolver, which he had acquired only two weeks earlier. The transcript on that subject reads as follows:

Q: Which direction do you — do you say that the cylinder rotates when you pull the trigger?
A: I don’t know. I — I always thought it was clockwise, ‘cause everything moves clockwise. Every mechanic device known to man moves clockwise.
Q: Did you ever contemplate that it could move counter clockwise?
A: No.
Q: What — what in your opinion now of — of that — how that firearm discharged, what – now that you know what you know?
A: I don’t know, I didn’t see any — any bullets on the left-hand side of the gun, I just assumed that —
…
Q: Brandon, it is — is it possible that you — you put the firearm to Karen’s head and pulled the trigger confident in — in your knowledge that the firearm wouldn’t discharge because of your —your belief that it would rotate clockwise? Is that — Is that something —
A: I don’t think so.
Q: And how can you be sure?
A: Everything happened so fast, I’m not sure — I’m not sure of anything.[8]

[8]Emphasis added.

On the following day, police took the respondent back to his home in order to ‘walk through’ the events leading up to Ms Belej’s death. The respondent recalled the following:

I looked at the chamber on the left side where I could see that there was nothing on that side. So I was pretty sure there was nothing in the gun or to be — about fired — the gun to my head pulled the trigger and she said, ‘you’re pointing at the wrong person’. I cocked the gun again, I could see there was nothing on that side, so I was sure it was empty.[9]

[9]Emphasis added.

Clearly, the respondent was saying to the police, in substance, that he had never, at any stage, intended to discharge the gun. Equally clearly, he was also saying that he never seriously contemplated that it would do so. He described the steps that he had taken to ensure that it was safe to pull the trigger. These included twice checking the left hand chamber; once before pulling the trigger when the barrel was put to his own head, and again, seconds later, when he pointed the weapon at Ms Belej. He explained why he was ‘very confident’ that the precautions he had taken meant that the gun would not fire. His confidence, in that respect, was based upon his own experience with a revolver that he had previously owned, as well as upon his general familiarity with firearms.

Of course, the sentencing judge did not have to accept the respondent’s account of the events surrounding the death of Ms Belej. During the course of the plea, the prosecutor invited his Honour to find that the respondent had told a number of lies in the record of interview. He submitted that the fact that these lies had been told should be treated as an aggravating factor when assessing, for example, the issue of remorse.

Significantly, however, the prosecutor did not submit that the sentencing judge should reject the respondent’s account of having twice sought to ensure that the gun would not discharge when he pulled the trigger. In one sense, the Director’s willingness to accept a plea to manslaughter, rather than insist upon a trial for murder, meant that the Crown had to acknowledge that it could not disprove that account. Otherwise, and in accordance with well-established authority,[10] the case against the respondent would almost certainly have been one of reckless murder, and nothing less.
[10]R v Faure [1999] 2 VR 537 (‘Faure’).

It is of critical importance to this appeal to understand that the judge, in his sentencing remarks, made it clear that he entirely accepted the respondent’s account of how Ms Belej actually came to be shot. His Honour did so, despite the prosecutor’s submissions to the effect that the record of interview contained a number of lies, and should be approached with caution.

It is also important to note that the Director has not sought, in either ground of appeal, to challenge his Honour’s finding that the respondent had been truthful in the step by step account that he had given to police concerning the circumstances surrounding Ms Belej’s death. The sentencing judge had proceeded to sentence the respondent specifically on the basis that he never, at any stage, intended the gun to discharge, or even believed that there was any likelihood that it would do so. Accordingly, the respondent was sentenced on the basis that he never intended to cause harm to Ms Belej (or for that matter, to kill himself when he pulled the trigger with the gun pointed at his own head).

As his Honour observed, the respondent was grossly negligent in acting as he did. That clearly made this case a serious example of manslaughter. The respondent was not, however, to be sentenced on the basis that he intended to discharge the gun, or that he ever seriously contemplated that it would do so.

Sentencing remarks

The sentencing judge began by noting that, on the plea, there had been some disagreement between the parties as to the facts surrounding the offence.

As indicated, the prosecutor had submitted that the respondent had told a number of lies to police, and that his Honour should therefore be slow to accept his version of events.

The sentencing judge gave careful consideration to that submission, but as we have said, rejected it. His Honour treated the ‘lies’ upon which the prosecutor relied, as, in his view, understandable errors. They properly reflected the respondent’s difficulty in recollecting, at the time of the interview, the precise chain of events that had led to Ms Belej’s death. His Honour noted that the events in question had occurred very quickly, that the respondent was extremely distressed, and that he must have been suffering considerable trauma.

His Honour gave detailed reasons as to why he was not satisfied that the respondent’s account to police had been dishonest. The respondent had been unable to recall a number of details regarding matters connected to the offence. His honour found, as a fact, that the respondent had genuinely attempted to co-operate with police, and to be truthful with them. He noted that the respondent had freely answered questions, despite having been advised by his solicitor not to do so.

It was against the background of this view of the respondent’s truthfulness, that his Honour went on to assess the nature and gravity of this offence. In doing so, he noted that the prosecutor had accepted that the available evidence did not enable the exclusion of the reasonable possibility that when the respondent pulled the trigger, he did so neither intending for it to discharge, nor contemplating that it would do so.

The sentencing judge described manslaughter as ‘manifestly a serious offence’.[11] That said, having found that the respondent did not intend the weapon to discharge, he concluded that this factor tended ‘towards a lower level of gravity of manslaughter’.[12] It was that observation which formed the subject of the Director’s second ground of appeal. As McLeish JA has correctly noted, that particular observation does not equate to a finding that this was not a serious example of manslaughter. As we have said, that ground of the Director’s appeal is without merit.
[11]R v Osborn [2017] VSC 535 [53] (‘Sentencing Remarks’).
[12]Ibid [56].

The judge characterised the respondent’s conduct as displaying an ‘appalling’ level of recklessness. Indeed, his Honour remarked that the circumstances of the offending meant that this case was ‘a bad instance of manslaughter by unlawful and dangerous act’.[13]
[13]Ibid [102].

His Honour noted that since 1992, the respondent had had a total of 29 firearms registered to him, 11 of which were handguns. He had completed at least two firearms safety courses, and he had previously owned a revolver. The cylinder of that particular weapon had rotated clockwise, which formed the basis of the respondent’s mistaken belief that the cylinder of this weapon would rotate in the same direction.

According to the sentencing judge, the respondent’s training and familiarity with firearms meant that he was very well aware of the danger associated with pointing a gun and pulling the trigger, as he had done. His Honour considered this an aggravating factor in relation to this offence.

The sentencing judge also took into account the 22 victim impact statements that were tendered on the plea. His Honour concluded that those statements showed that Ms Belej was an ‘enormously important, valued and loved member of her large family, her friendship group, her workplace and the broader community’.[14] He said that the impact of her death was undoubtedly devastating for those around her.
[14]Ibid [52].

In addition, his Honour characterised the respondent’s behaviour as ‘an appalling’ breach of trust. He described his actions as amounting to ‘acts of violence’ which were ‘completely unwarranted’. His culpability was therefore said to be ‘very high’.[15]
[15]Ibid [59].

Next, the sentencing judge turned to the various matters raised in mitigation. Despite the matter having run to a contested committal in March 2017, the respondent had agreed, at an early stage, to plead guilty to manslaughter.

His Honour accepted that the respondent’s plea of guilty was significant in this case. It had been made some five months prior to the scheduled trial date. It had spared the witnesses and the Belej family from having to go through the trauma of a trial. In his Honour’s view, it demonstrated a degree of acceptance of responsibility, and a willingness to facilitate the course of justice.

The prosecutor challenged the submission, on the plea, that the respondent was remorseful. He submitted that the respondent had expressed regret, but not genuine remorse. It was noted that the respondent’s case had been presented, by his counsel, and in some character references, on the basis that Ms Belej’s death had been a ‘tragic accident’. That, of itself, was said to indicate a lack of appreciation of the seriousness of the crime the respondent had committed.

The sentencing judge rejected each of the prosecutor’s submissions regarding remorse. Having carefully considered the matter, he specifically found that there was genuine remorse. The various references to Ms Belej’s death as being a ‘tragic accident’ meant no more, in context, than that her death had been an unintended consequence of the respondent’s actions. Remorse was also evident in the respondent’s actions immediately after Ms Belej had been shot, as well as his obvious distress at his having caused her death.

The judge considered a report by Mr Patrick Newton, a clinical and forensic psychologist. In short, that report observed that the respondent had been downcast, grief-stricken, and had shown symptoms of anxiety and depression in response to what he had done. Mr Newton was of the view that this was consistent with a display of genuine remorse.

His Honour referred to Mr Newton’s observation that the respondent ‘would pose a relatively limited risk of violence [sic] recidivism’.[16] He acknowledged that that finding had to be balanced against Mr Newton’s observation that the respondent displayed egocentric traits (particularly in intimate relationships).
[16]Ibid [79].

His Honour expressed concern about the respondent’s use of and dependence on alcohol. He took into account Mr Newton’s view there was a significant risk that the respondent might relapse into alcohol abuse after his eventual release from prison. Nonetheless, his Honour found that the respondent’s prospects of rehabilitation were ‘good’.[17] That finding was informed by, amongst other things, the respondent’s excellent work history, and the strong support offered by his family.
[17]Ibid [77].

The sentencing judge gave limited weight to the respondent’s previous criminal history, such as it was. He noted that the respondent had no prior convictions, and only one previous brush with the law.

Finally, his Honour took into account a number of character references, and other material, which was submitted on the plea. He considered that the respondent had ‘used the period of his incarceration to date in a positive manner’.[18] He had completed a number of worthwhile programs, and had acted as a mentor to inmates suffering from disability.
[18]Ibid [90].

The Director’s submissions before this Court

In the Director’s written case, it was submitted that the sentence of nine years on the charge of manslaughter, with only two months cumulated on the firearms charge, and with a non-parole period of only six years, was wholly outside the range reasonably available to the sentencing judge. In particular, it was submitted that the total effective sentence did not give proper weight to the nature and gravity of this particular offence.

Again in the written case, the Director drew attention to various aggravating factors which, it was submitted, had not been given sufficient weight by the sentencing judge. These included:

·the domestic setting in which the offending took place;
·the breach of trust associated with the killing of Ms Belej by the respondent;
·the fact that pointing a loaded gun at both his own head, and at the head of Ms Belej, each constituted an act of violence, perpetrated in order, it would seem, to intimidate her;
·the gravity of the offence of being a prohibited person in possession of a firearm;
·the respondent having purchased the weapon illegally, and it having had its registration number filed off;
·the respondent’s experience with the use of firearms, and his awareness therefore, of the risks associated with handling a loaded weapon;
·the prevalence of intimate partner violence in the community generally; and
·the need for the protection of the community.

In addition, the Director’s written case submitted that the sentencing judge gave excessive weight to those mitigating factors that were present. Though the prosecutor on the plea had acknowledged that these were ‘powerful and important’, it was submitted that considerations of specific and general deterrence, and the need to impose adequate punishment, should have outweighed matters personal to the respondent.[19]
[19]The Crown relied on R v Lupoi (1984) 15 A Crim R 183 in support of this proposition.

In dealing with current sentencing practices for manslaughter, and statements of principle to be derived from the authorities concerning that particular offence, the Director’s written submissions referred to R v Pashalay.[20] In that case, a husband shot his wife in their family home. He had formed the belief that she was unfaithful. He had first responded by beating her severely with a leather belt. He then confronted her with a loaded shotgun, and held it to her stomach. The weapon somehow discharged, killing her.
[20][1998] VSCA 18.

Pashalay claimed that the gun had gone off accidentally. He maintained that he had never intended to kill his wife, or to cause her serious injury. The Crown presented him on a charge of murder, but elected, several days into the trial, to accept a plea of guilty to manslaughter. That meant the Crown accepted that Pashalay had to be sentenced on the footing that he did not intend the weapon to discharge.

Nonetheless, in holding that a sentence of seven years’ imprisonment with a non-parole period of five years was within range, Winneke P stated:

At the end of the day, it cannot be denied that the crime to which the applicant pleaded guilty was a very serious example of a serious crime. In the course of a domestic dispute, and in order to assert his domination, the applicant chose to select a weapon of destruction, to load it and to wield it against his wife, in circumstances where he must have realised the dangerous nature of the threat which he was posing to her.[21]

[21]Ibid [6].

In oral argument before this Court, senior counsel for the Director adopted the written submissions filed in support of this appeal. However, it soon became apparent that he sought to present the case on a somewhat different basis to that which had been done on the plea.

The transcript of the hearing before this Court sets out senior counsel’s opening remarks in support of this appeal. He said:

Your Honours, can I commence the argument by drawing attention to what the prosecutor said in opening both before the learned sentencing judge and in terms of what the prosecutor describes as settled facts. Now, his recitation of what are settled facts … but it — and that needs to be read obviously, but it proceeds also onto … what the prosecutor said there was as follows: ‘Nonetheless the accused’s accepted state of mind on the available evidence was that he was at the relevant time knowingly handling a loaded revolver, one that he himself had loaded with a single bullet’. ..
…
He was aware that it was, at the very least, possible that if he depressed the trigger the gun would discharge and in such circumstances it will be submitted that this greatly increases his culpability and overall this offending represents a high in the example of manslaughter by unlawful and dangerous act.
So the case went forward on the single basis that when the trigger was depressed the accused was aware of at the very least the possibility that if you depress the trigger the gun would discharge and we know that the gun has one bullet on it, we know that the gun is being held between 2 and 5 millimetres from the head of the deceased.[22]

[22]Emphasis added.

The written submissions filed on behalf of the Director do not contain any argument to the effect that, based upon the respondent having been aware of any realistic possibility that the gun would discharge, this particular offence was to be viewed as being at the highest end of gravity for manslaughter. Nonetheless, senior counsel who appeared on behalf of the Director sought to mount such an argument before this Court, based solely, it would seem, upon the use of the word ‘possible’, within the prosecutor’s opening. We shall deal with that particular submission when we set out our conclusions regarding this appeal.

Respondent’s submissions before this Court

As regards ground one, it was first noted in the respondent’s written case that for an appeal based on manifest inadequacy to succeed, the Director had to establish that the sentence imposed below was ‘wholly outside the range reasonably open’ in the particular circumstances of the case.[23]
[23]DPP v Karazisis (2010) 31 VR 634, 662-3.

The written case then referred to R v Pham,[24] where French CJ, Keane and Nettle JJ stated:

Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[25]

[24](2015) 256 CLR 550.

[25]Ibid [28] (emphasis added).

It was submitted that the test for manifest inadequacy imposed a heavy burden upon the Crown which had not been discharged in this case. The point was made that there had been a concession by the prosecutor on the plea, that the respondent was entitled to call in aid ‘some powerful and important mitigating features’, and the Director should not be permitted to resile from that position.

It was next submitted that a sentence of nine years’ imprisonment on a charge of manslaughter was, broadly speaking, in line with other sentences in comparable cases.

In particular, the written case referred to Director of Public Prosecutions v Torun.[26] There, the respondent was originally charged with murder. At some point before the committal, he offered to plead guilty to manslaughter. The offer was not, at that stage, accepted. However, it was accepted soon after the committal had ended.
[26][2015] VSCA 15 (‘Torun’).

In Torun, the respondent, then aged 24, had shot his girlfriend with a 12-gauge sawn-off shotgun. Moments before the weapon discharged, he was waving it around, apparently in a drug addled state, while she was seated on the couch. Immediately before the gun fired, he said something about another gun having had no bullets in it. At that moment, while standing, he held the gun with both hands and pointed it at his girlfriend. He then pulled the trigger deliberately, and from very close range. This caused the gun to discharge, hitting the victim in the region of the groin.

The respondent had loaded the weapon at an earlier stage. The Crown accepted that because he had been using drugs heavily at the time, he had failed to recall that the gun was, at that stage, loaded. It was on the basis of that view of the facts that the Crown was prepared to settle the matter, as a plea to manslaughter.

The sentencing judge in Torun rejected a defence submission to the effect that the respondent had not deliberately aimed the gun at the victim, and a further defence submission that he had not deliberately pulled the trigger. His Honour said that he was satisfied beyond reasonable doubt that the respondent had held the gun with both hands, and pointed it at the victim from very close range. He was also satisfied that the respondent has pulled the trigger deliberately.

The respondent was aged 25 at the time of sentence. He had been using illicit drugs for many years and had a lengthy history of driving offences. He had also previously been convicted of offences of dishonesty, possession by a non-prohibited person of a firearm, possession of a prohibited weapon, and various drug offences. He had been imprisoned in the past, and had also been placed on a community correction order.

There was evidence before the sentencing judge that the respondent in Torun had a history of abuse towards his girlfriend, and had engaged in repeated episodes of threatening behaviour. He was easily angered and exercised a significant degree of control over her. He had been violent towards her, had smashed plates and had also punched a hole in the wall with his fist.

The respondent had obtained the shotgun from a friend. He had threatened various people with it after he acquired it.

There were a series of victim impact statements which were described by the sentencing judge as ‘moving documents’.

The sentencing judge imposed a sentence of eight years’ imprisonment with a non-parole period of five years. He noted that the respondent’s behaviour did not involve any intended or foreseen violence or injury to the victim, but characterised his behaviour as ‘extremely careless’, ‘very dangerous’ and ‘profoundly stupid’. The offending was described as ‘falling between the mid-range and the serious range of manslaughter’.[27]
[27]Torun [2015] VSCA 15 [54].

It was not suggested in Torun that the sentencing judge had misapprehended some factual matter, had regard to some irrelevant consideration, or had failed to have regard to a relevant consideration which he was bound to take into account. The sole ground of appeal was manifest inadequacy. The appeal was dismissed. Senior counsel for the respondent placed considerable reliance upon both the outcome, and the reasons for decision in that case.

In Torun, the Court said that manifest inadequacy would not be established unless the inadequacy in the sentence was ‘clear and egregious’. It noted that the offence of manslaughter encompassed a very wide range of offending behaviour, and that, accordingly, the range of sentences reasonably available was also very wide. That same view of manslaughter has been expressed many times before. [28]
[28]See also R v Jagroop (2009) 22 VR 80, where a sentence of ten years with a non-parole period of seven years, on a plea to manslaughter by gross recklessness, was reduced on appeal to eight years with a non-parole period of five years and six months. The case was said to be a particularly bad example of manslaughter of that kind. The callousness displayed by the appellant in that case stands in stark contrast with the finding by the sentencing judge in this case that the respondent did not intend any physical harm to Ms Belej.

The Court in Torun referred to two cases; Director of Public Prosecutions v Phillips[29] and R v Stratton.[30] Both of those cases had emphasised that in assessing the gravity of the offence of manslaughter involving the discharge of a firearm, the issue of whether the discharge of the firearm was intentional was significant. Senior counsel emphasised that point.
[29][2009] VSCA 68 (‘Phillips’).
[30](2008) 20 VR 539 (‘Stratton’).

Comparison of specific fact situations was said not to be helpful. Nonetheless, as had been noted in Stratton, there did not seem to be any case where a sentence of over ten years had been imposed in circumstances where it was found that there had been no intention to seriously harm the victim. The sentences ultimately arrived at in both Phillips and Stratton were of nine years’ imprisonment, that being the same sentence as was imposed in the present case.

In Phillips, the offender intentionally pointed and fired the weapon at the victim, with whom he had been fighting, from a distance of about ten metres. Nonetheless, the jury were not satisfied that he had murderous intent, though he plainly intended to cause some form of serious injury (short of really serious injury) by firing at the victim.

In Stratton, the offender had engaged in committing an aggravated burglary, armed with a firearm, when it accidentally discharged and killed the owner of a cannabis crop which the offender had been in the process of plundering. In each case, the offender fled without seeking to render assistance to the victim.

Senior counsel for the respondent relied upon Phillips and Stratton in support of his submission that the sentence of nine years and two months’ imprisonment, with a non-parole period of six years that was imposed in this case, was within range. He submitted that the gravity of the offending in both those cases was at least as high as it was in the respondent’s case.

Senior counsel, in his written submissions, identified a number of mitigating factors, all of which the sentencing judge had properly taken into account. These included:

·the respondent’s early offer to plead guilty to manslaughter;
·the fact that the plea of guilty had spared the deceased’s family, and a number of witnesses, the ordeal of a trial;
·the fact that the plea of guilty had demonstrated some acceptance of responsibility and a willingness to facilitate the course of justice;
·genuine remorse on the part of the respondent as found by the sentencing judge, which was not challenged before this Court;
·a very supportive report from within the prison system as regards the respondent’s behaviour since having been incarcerated;
·the respondent’s reasonably good prospects of rehabilitation; and
·his limited criminal history.

Senior counsel submitted that the Director’s submission that the sentence imposed failed to provide adequate protection to the community should be rejected. There was nothing to suggest that the respondent would pose a danger to other members of the community after he was released at the conclusion of his sentence.

Senior counsel also relied on the sentencing snapshot for manslaughter for 2011-12 and 2015-16. He noted that sentencing for this offence during those periods, ranged from less than two years to just over 12 years. The median length of imprisonment for manslaughter throughout that period (involving 70 some cases), was eight years. No single sentence during that period exceeded 13 years. There were only two instances where sentences of 12 years or more had been imposed. There were six instances of sentences between 11 and 12 years. Close to half of all sentences imposed were between seven and nine years.

Of course, it was rightly acknowledged that these bare statistics were of limited use given the paucity of information available as to matters such as whether there had been a plea of guilty or not.

In oral argument, senior counsel for the respondent took issue with the way in which counsel for the Director now sought to characterise the objective gravity of the offence. He submitted that the Director had taken a single phrase from a passage in the prosecution opening (as to the respondent’s awareness of the possibility that the gun might discharge), out of context. The Director had effectively elevated that phrase into something akin to an agreed fact, but one which was entirely at odds with the sentencing judge’s own findings. If the phrase in question were to be given the meaning for which the Director now contended, it would elevate the objective gravity of this offence into something perhaps just short of murder.

Senior counsel for the respondent strongly rejected that interpretation of the word ‘possible’. He noted that the judge had said, in his sentencing remarks:

In this case, I sentence Mr Osborn on the basis that he did not intend the handgun to discharge.[31]

[31]Sentencing Remarks [78] (emphasis added).

Senior counsel emphasised several times that the sentencing judge’s finding in that regard, had not been the subject of any challenge before this Court. He submitted that the Director should not now be permitted to put the case against the respondent on a basis that differed from the way in which it had been put on the plea.

Finally, senior counsel submitted that the judge had fully recognised the gravity of the respondent’s offence, and had appropriately denounced his conduct.

Analysis

In Dinsdale v The Queen,[32] the High Court formulated the principles that apply to appeals against sentence, whether asserting manifest excess or inadequacy. In a joint judgment, Gleeson CJ and Hayne J said:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A court of criminal appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.[33]

[32](2000) 202 CLR 321.

[33]Ibid [6].

Having given this matter careful consideration, we are not persuaded that the sentence imposed below was manifestly inadequate. The issue before this Court is not whether the sentence of nine years’ imprisonment on the charge of manslaughter was, in all the circumstances, an appropriate one. We have already said that it may not have been the sentence that we ourselves would have imposed. We acknowledge that it could be regarded as perhaps somewhat lenient. However, a lenient sentence is not one that is of itself manifestly inadequate.

We deal first, with the way in which the matter was presented in oral argument before this Court. The transcript records that the Court took up with senior counsel for the Director the question how the description of the respondent’s state of mind that was included in the phrase relied upon in the prosecution opening alone, could be reconciled with the judge’s own findings of fact, not challenged in this Court.

As we have said, the sentencing judge made it clear, both during the course of argument on the plea, and in his sentencing remarks, that he did not accept the prosecution submission that the respondent had lied to the police when he described what had been going through his mind at the moment that he shot Ms Belej.

It is clear from the sentencing remarks that his Honour accepted that the respondent, having put a round of ammunition in the chamber, and having spun it, had then looked at the left side of the chamber itself and satisfied himself that it was empty. He then put the revolver to his own head and pulled the trigger. The sentencing judge went on to say that the respondent had again looked at the left side chamber of the revolver, and made sure that there was no round within it. He did so before he pulled the trigger, causing it to discharge and kill Ms Belej.

The judge recorded the prosecution submission that he should be cautious before accepting any part of the respondent’s account of the circumstances surrounding the killing. His Honour certainly approached the matter in that way, but his conclusion was clear and unambiguous. He said:

Mr Osborn’s account is consistent with the settled facts which form the basis of the plea, and I accept the above aspects of Mr Osborn’s account.[34]

[34]Sentencing Remarks [20].

The reference to the ‘above aspects’ of the respondent’s account was plainly a reference to his having told police that he had twice checked the left side of the chamber to ensure that it was safe to pull the trigger. There was nothing to suggest that the respondent considered it at all likely that he would kill himself when he put the gun to his own head, and pulled the trigger. The same was undeniably true in relation to the shooting of Ms Belej.

What then is to be made of the single phrase upon which senior counsel for the Director placed so much reliance in his oral submissions before this Court? What meaning is sensibly to be given to the assertion in the prosecutor’s opening that the respondent was aware that it was, at the very least, possible that if he depressed the trigger, the gun would discharge?

Senior counsel for the Director would have it that this was an ‘agreed fact’ which greatly increased the respondent’s culpability, and made this a particularly grave form of manslaughter by unlawful and dangerous act. Whether or not that is so would depend heavily upon the meaning to be attributed to the notoriously vague and uncertain word ‘possible’, in the context of that particular phrase.

It is an old adage among gun enthusiasts that one should always be aware of the risk that a gun, which is thought to be unloaded, may in fact not be so. In other words, it should always be assumed, when handling any gun, that it may be loaded. The respondent’s situation was, as the judge fully appreciated, somewhat worse than that. He knew that the gun was loaded because he had loaded it himself.

But for the fact that the prosecution could not exclude the reasonable possibility that when the respondent pulled the trigger, he did so not intending for it to discharge, this might indeed have been a case of the level of gravity for which the Director contended. Had the respondent simply spun the chamber and pulled the trigger, without taking any steps to check whether there was a bullet in the chamber, this would be a case very much like Faure. There, of course, a conviction for murder was sustained on the basis of conduct something akin to having engaged in Russian roulette.

In our opinion, the sentencing judge’s view of the facts was reasonably open to him, and as we have said, not challenged in this appeal. His Honour’s findings of fact cannot easily be reconciled with the meaning now sought to be attributed to the particular phrase under consideration.

His Honour found that the Director had accepted that, unlike the revolver the respondent had previously owned, the cylinder of the handgun that killed Ms Belej rotated counter-clockwise. That finding is not challenged before this Court.

The judge went on to find that the respondent did not intend the revolver to discharge when he pulled the trigger, or what we regard as essentially the same thing, that the Director could not establish to the contrary. That finding was again not challenged before this Court.

The judge found that all of this occurred because of the respondent’s mistaken belief as to the direction in which the chamber of the revolver rotated. In all likelihood, this is what led the Director to accept a plea to manslaughter, rather than insist upon a trial for murder. That was a finding that his Honour did not have to make. Nonetheless, he did, and once again, that finding is not challenged before this Court.

As previously indicated, senior counsel for the Director at one point denied that the judge had made any such finding. He argued that his Honour had merely found that the respondent had twice checked the left hand side of the chamber, and nothing more. With respect, we consider that submission to be sophistry, and without substance. It seems to us to be at odds with the very clear language that his Honour used in his sentencing remarks.

In any event, we find it difficult to discern even a hint of a submission to the sentencing judge by the prosecutor on the plea that by reason of the use of the word ‘possible’ in the opening, this was a case that fell not far short of murder. It was said by senior counsel for the Director that such a submission could be inferred from the phrase used in the prosecutor’s opening. We reject that submission. Had the prosecutor on the plea sought to make that case, it would have been necessary to do so with greater clarity than what was said in the particular passage. If the Director was of the opinion that the judge’s view of the facts was wrong, and materially so, that should have been the subject of a specific ground of appeal, or should at least have been a particular of manifest inadequacy.

We readily accept that there were present in this case a number of aggravating features of the kind identified by the judge. His Honour was well attuned to these matters, and gave them careful consideration. He balanced them as he was required to do, against the ‘powerful and important’ mitigating factors that were present. The synthesis that he carried out led him to a sentence of nine years on the charge of manslaughter, and 12 months on the firearms charge, with two months to be served cumulatively. In our view, both sentences and the order for cumulation were within range.

If the Director’s submissions before this Court were to be accepted, and the total effective sentence below held to be manifestly inadequate, the consequence would have to be a very substantial increase in both that sentence, and its individual components. Justice McLeish, by the orders he proposes, has properly recognised that this must be so.

In our view, that would be a very unjust result. The longest sentence imposed in this State, on a single charge of manslaughter, at least in living memory, seems to have been the sentence of 15 years that was fixed in R v Ibrahim.[35] The Director’s submissions in this case seem to imply that this particular case falls not far short of the objective gravity of the offending in that case. A moment’s reflection will reveal that this cannot be so.
[35][2006] VSC 96. (We note that in some databases this decision is reported as ‘R v AB’. We will refer to it as ‘Ibrahim’). That sentence was upheld on appeal. See R v AB (No 2) (2008) 18 VR 391.

In Ibrahim, the accused was presented for trial on one count of murder. He raised a somewhat spurious defence of self-defence. He also relied upon an equally spurious qualified defence of provocation. Surprisingly, the jury acquitted him of murder. He was, however, convicted of manslaughter.

In his sentencing reasons, the trial judge, Nettle J, said that he viewed the offence as of the ‘gravest kind’.[36] He noted that Ibrahim had purchased the unlicensed pistol-grip pump-action 12-guage shotgun used in the killing, as well as eight rounds of the most lethal ammunition generally available for use in such a weapon. He found that Ibrahim had acquired the weapon with the ‘avowed intention’ of using it to kill the deceased, when the occasion arose. Indeed, he had prepared for a ‘blood bath’. The offence had clearly been premeditated. His Honour described the killing of the deceased as a ‘massacre’.[37]
[36]Ibrahim [2006] VSC 96 [38] (Nettle J).
[37]Ibid [40].

The facts surrounding Ibrahim made it perfectly clear that, in terms of the objective gravity of the offence, this was about as bad a case of manslaughter as one could reasonably contemplate. Ibrahim himself had many prior convictions dating back some 20 years or so. These included serious drug offences. He had committed manslaughter whilst on bail for other offences. He had been imprisoned previously, and had breached a suspended sentence when leniency had been afforded to him.

If Ibrahim is properly to be regarded as falling within the worst class of offending of this type, bearing in mind the High Court’s admonition as to how expressions of that kind should be understood,[38] it is difficult to see how the present case can be viewed as remotely comparable to the gravity of that case.
[38]R v Kilic (2016) 259 CLR 256.

On the Director’s submission, the present case must notionally warrant a sentence not far short of that imposed in Ibrahim. If nine years is manifestly inadequate for this respondent, nothing short of perhaps 12 years would be likely to be regarded as sufficient. An increase from nine years to ten would rightly be regarded as ‘tinkering’. So too, it might be thought, would be an increase from nine to 11 years.

Justice McLeish has properly recognised the need to avoid merely tinkering. He has confronted the logic of his analysis directly by his s 6AAA statement to the effect that, had the respondent in this case not pleaded guilty, he would have imposed a total effective sentence of 14 years and six months with a non-parole period of 11 years.[39] A term of 14 years and six months would closely approximate the 15 years thought to be appropriate in Ibrahim. Such a term would be difficult to reconcile with the sentence imposed on Ibrahim, given the vast difference in objective gravity, and in mitigating circumstances between that case and this. By no means can it be said that this is the second worst case of manslaughter recorded in this State in recent memory. Yet, a sentence of 14 years and six months, after a trial, would reflect that view of this offending.
[39]His Honour would propose a sentence of 11 years and six months on the charge of manslaughter, and would cumulate six months rather than two months of the firearms charge. With respect, we see nothing wrong with the sentencing judge’s decision to cumulate two months of the sentence for that offence, bearing in mind the need to avoid double punishment.

Rather, we regard the dispositions in Torun, Phillips and Stratton, all of them more readily comparable with the present case, as providing some guidance with regard to how the sentence imposed in the present case should be viewed.

We do so fully conscious of the admonition of the High Court as to how the question of current sentencing practice, as set out in the Sentencing Act 1991, should be approached.

It is for these reasons that, although we would not have been surprised had the respondent received a slightly longer sentence than that fixed by the sentencing judge, we cannot conclude that the sentence imposed was ‘clearly and egregiously’, or ‘manifestly’, inadequate. The sentencing judge unquestionably had a broad discretion in this case. His Honour exercised it carefully and in a manner that does not give rise to appealable error.

We of course accept that this was a serious case of manslaughter. We endorse

the sentencing judge’s description of the respondent’s conduct as appalling. Nonetheless, the respondent is entitled to be dealt with according to law. As a general principle, he should not be treated more harshly than many others have been in comparable cases. If this appeal were to succeed, it would necessarily follow that he would have been so treated.

The appeal should be dismissed.

McLEISH JA:

On 1 September 2017, Brandon Osborn was sentenced to a term of nine years’ imprisonment for the manslaughter of Karen Belej and 12 months’ imprisonment on a charge of being a prohibited person possessing a firearm. Ten months of the latter sentence were ordered to be served concurrently with the sentence imposed on the count of manslaughter, representing a total effective sentence of nine years and two months. A non-parole period of six years was fixed. Mr Osborn had pleaded guilty to both offences.

The Director of Public Prosecutions has appealed against the sentence pursuant to s 287 of the Criminal Procedure Act 2009.

Background and circumstances of the offending

The respondent and Ms Belej lived together at Cardross in the Mildura region. At about 7:30 pm on 1 May 2016, they were in the kitchen of their home standing close to an island bench. The respondent placed a handgun against or within five millimetres of Ms Belej’s forehead, knowing that there was a single bullet within the six-bullet chamber of the weapon. He pulled the trigger of the handgun and it discharged, killing Ms Belej instantly.

At the time, the respondent was subject to an order of the Magistrates’ Court pursuant to the Family Violence Protection Act 2008, as a consequence of which he was a prohibited person for the purposes of s 5(1) of the Firearms Act 1996

On 26 May 2017, the respondent pleaded guilty to the above two charges after the Director agreed not to proceed with a murder charge.

At the time of her death, Ms Belej was aged 31. The respondent was aged 36. They had commenced a relationship in 2003 after meeting when Ms Belej attended a social event at a restaurant and nightclub in Mildura at which the respondent was working as a crowd controller. In late 2004, Ms Belej decided to leave Melbourne where she had been studying at university and to return to the Mildura area where she had grown up. For much of the time after her return to Mildura, Ms Belej was employed at the Mildura Rural City Council, holding the position of human resources coordinator at the time of her death.

In 2004, Ms Belej and the respondent moved into rental accommodation. They jointly purchased the Cardross home in 2008 and their relationship was ongoing at the time of her death. During that relationship, however, the respondent regularly pursued relationships with other women, one of which continued from 2009 until early 2014. At most times, he continued to reside at the Cardross home. In around 2011, that property was transferred to the sole name of Ms Belej.

In early 2014, the second relationship just mentioned ended. A short time later, the respondent discovered the woman in question in bed with another man. He assaulted the man by punching him and ultimately pleaded guilty to one charge of recklessly causing injury. He was sentenced to a fine of $2,500 without conviction. As a consequence of that incident, the order pursuant to the Family Violence Protection Act mentioned above was made and the respondent was prohibited from possessing, carrying or using a firearm.

Diary entries made by Ms Belej and text messages sent by her to the respondent in the period not long before her death indicate that she was unhappy with the respondent’s affairs with other women. She was also unhappy with his consumption of alcohol, which had been very high in the months leading up to her death. In addition, she was unhappy that the respondent had brought into their home the handgun with which he ultimately killed her.

Despite the disharmony in the relationship in relation to the above matters, the sentencing judge found no evidence of any violence or threat of physical violence by the respondent towards Ms Belej prior to 1 May 2016.

The respondent was born in Port Lincoln, South Australia. His parents separated when he was very young. He moved with his mother to Mildura when he was two years old and grew up there. He left school in 1997 before completing Year 12, in order to undertake employment. After that time he completed various courses, in particular involving security training. Since leaving school, the respondent was continuously employed, most often in the security industry. Since October 2004, he had been employed as a security officer team leader at a winery.

At the time of the offences, the respondent was a patched member of the Rebels outlaw motorcycle club, Mildura chapter. However, he had been working towards the dissolution of that chapter.

The respondent had a history of holding firearm licences dating from 1992, when he was first issued a junior permit. Until the making of the family violence order in 2014, he had at various times a total of 29 firearms registered to him, including 11 individual handguns of various makes and models. He had completed at least two firearms safety courses and had previously lawfully owned one revolver-type handgun.

The handgun which the respondent discharged, causing the death of Ms Belej, was not a registered firearm. It was a Ruger Security-Six model centre fire revolver action .357 magnum calibre handgun. It was unregistered because the serial number on the heel of the butt of the handgun had been pin-punched over so as to make it illegible.[40] The respondent had purchased the handgun in April 2016 for the sum of $3,000. Ms Belej had been involved in the purchase and the evidence was that the respondent intended to make a profit by reselling the weapon.
[40]By virtue of the Firearms Act, s 8A, the firearm was presumed to be unregistered in these circumstances in the absence of evidence to the contrary. It was agreed that it was unregistered.

Expert evidence indicated that the handgun was unable to be discharged by any means other than pulling the trigger, which required 2.3 kg of pressure. The cylinder of the handgun rotated anticlockwise. The cylinder of the revolver-type handgun previously lawfully owned by the respondent had rotated clockwise.

On the evening of 1 May 2016, Ms Belej arrived at the Cardross house carrying grocery items she had purchased a short time earlier. Less than half an hour later, the respondent pulled the trigger of the handgun, causing it to discharge and kill Ms Belej. The respondent had been drinking alcohol during the afternoon and evening but it was not suggested that his capacity was impaired to any significant degree as a result.

The sentencing judge accepted that, when Ms Belej entered the house, the respondent was in the bedroom, sitting on the bed playing with the handgun which he had retrieved from its hiding place. He took all the rounds of ammunition out of the handgun. Ms Belej entered the room and told him to ‘get that thing out of the house or I’m probably going to use it’. Ms Belej expressed disapproval of the respondent’s drinking and of the handgun and there was a brief argument. Ms Belej then walked into the kitchen. The respondent put the handgun in a gun bag along with the bullets and walked into the kitchen with the gun bag and a drink, intending to take the bag to the rear shed. Ms Belej said something to him as he was walking through the kitchen and the respondent stopped, pulled the handgun out of the bag, opened the revolver chamber, put one round of ammunition into the chamber, spun it and then closed it and said ‘Will this make you happy?’ The respondent looked at the left-side revolver chamber and saw that there was no round in that chamber. He then put the handgun to his head and pulled the trigger.

The judge accepted that Ms Belej then said to the respondent ‘You’re pointing that at the wrong person’. The respondent then cocked the hammer of the handgun and pointed it at Ms Belej, holding it so that it was touching or within five millimetres of her forehead. The respondent looked again at the left-side chamber of the revolver and could see no round in that chamber. He pulled the trigger of the handgun causing it to discharge and to shoot Ms Belej dead.

Within a few minutes, the respondent called 000 and requested an ambulance. With instructions from the operator, he attempted resuscitation of Ms Belej over an extended period before he was instructed to exit the premises and present himself to waiting police who took him into custody.

Ms Belej was found deceased on the kitchen floor. Subsequent examination by a forensic pathologist identified an entry wound in her mid-forehead region and an exit wound to the rear occipital region just left of midline. The pathologist stated that the catastrophic damage to Ms Belej’s brain caused death almost instantly.

Police crime scene investigators located the handgun lying on the kitchen floor between Ms Belej’s feet and the island bench. On the bench was the gun case, inside which there were five live rounds of ammunition. A pan containing fried bacon pieces sat in an angled position on the island bench near a plate containing baked potatoes. A spatula lay on the floor. Ms Belej had been preparing the evening meal before she was shot.

As noted, the respondent was initially charged with murder. The matter resolved by way of a plea to manslaughter because the Crown conceded that the available evidence did not enable exclusion of the reasonable possibility that when the respondent pulled the trigger, he did so not intending the handgun to discharge. The Crown accepted a plea of guilty to manslaughter by unlawful and dangerous act, the unlawful act being the indictable offence of being a prohibited person using a firearm contrary to s 5(1) of the Firearms Act.

Plea hearing and sentencing remarks

At the plea hearing, the prosecutor submitted that the respondent had made a number of dishonest statements when interviewed by police after the above events. In particular, he had suggested that Ms Belej had grabbed or hit the handgun and that this had contributed to, or was the cause of, its discharge. It is not necessary to traverse these matters, because the sentencing judge was not satisfied beyond reasonable doubt that the respondent had been dishonest in the manner alleged. The judge considered that the respondent had made a genuine attempt to answer police questions in clearly traumatic circumstances.

Twenty-two victim impact statements were read or tendered at the plea hearing, including from Ms Belej’s parents, her three brothers, other family members, friends and work colleagues. The sentencing judge set out examples of the eloquent and moving accounts of pain, loss and grief contained in those statements and concluded that Ms Belej had been an enormously important, valued and loved member of a large family and friendship group, her workplace and the broader community.

The sentencing judge noted the maximum penalty for manslaughter of 20 years’ imprisonment and the maximum penalty for the firearms offence of 10 years’ imprisonment.

The judge recorded that the Director had accepted that, unlike the revolver that the respondent had previously owned lawfully, the cylinder of the handgun with which the respondent killed Ms Belej rotated anticlockwise. The Director accepted that the evidence did not enable the exclusion of a reasonable possibility that the respondent misunderstood the direction of rotation of the revolver barrel and that this meant that when he deliberately pulled the trigger of the handgun, he did so not intending for it to discharge. At the same time, the prosecutor submitted, as explained further below, that the respondent was aware when he pressed the trigger that it was possible that the handgun would discharge.

The judge observed that the circumstances of manslaughter and the resulting sentences vary widely. He accepted that the respondent pulled the trigger of the handgun not intending it to discharge. He said that this factor ‘tends towards a lower level of gravity of manslaughter’. This observation is central to a ground of specific error relied upon by the Director in the present appeal.

The judge stated that the respondent’s intention needed to be considered in the context of all the circumstances leading to the death of Ms Belej. He found that there had been an ‘appalling level of recklessness’ on the part of the respondent. It was an aggravating factor that the respondent was ‘very well aware of the danger’ associated with loading the handgun, cocking it, pointing it at Ms Belej and pulling the trigger, by virtue of the firearms licences he had previously held and the safety courses which he had undertaken.

The judge noted further that the respondent and Ms Belej had been in a relationship of trust and that the respondent’s actions constituted an ‘appalling breach of that trust’. He described the actions of the respondent as ‘completely unwarranted’. Moreover, placing the loaded handgun against Ms Belej’s forehead, cocking it and pulling the trigger, were acts of violence. The respondent’s behaviour had been ‘extremely reckless and dangerous, and profoundly stupid’. The judge regarded the respondent’s culpability as ‘very high’.

The judge took into account a number of mitigating factors. First, the respondent had pleaded guilty. He had done so relatively early, albeit only after the matter had run to a contested committal. The plea, some five months before the trial, had spared the witnesses and the Belej family the ordeal of approaching and experiencing a trial. On the other hand, the family had been required to face a contested committal. The judge accepted that the plea of guilty demonstrated some acceptance of responsibility by the respondent and a willingness to facilitate the course of justice.

Secondly, the judge accepted that there was a level of genuine remorse on the part of the respondent. The 000 transcript demonstrated the respondent’s distress and his attempts to resuscitate Ms Belej. He had given extensive answers to police questions against his own legal advice. References tendered in his support spoke strongly of his remorse and in particular the report of Ms Diane Morrison, Director of the ‘Prison Fellowship Change on the Inside’ program was ‘very supportive’. The judge noted the report of clinical and forensic psychologist, Mr Patrick Newton, finding Mr Newton’s observations to be consistent with remorse, mixed with feelings of regret as to the effect of the respondent’s actions on his own future. Further reference is made to this report below.

Next, the judge found that the respondent had good prospects of rehabilitation and that it was unlikely that he would reoffend in this way. The judge noted his excellent work history and strong family support as well as his plea of guilty, again demonstrating a ‘level of remorse’. The judge noted the respondent’s limited prior convictions, consisting of one prior conviction involving an intention to harm the victim. The judge noted that he was sentencing the respondent ‘on the basis he did not intend the handgun to discharge’ and that this difference limited the relevance of the prior conviction.[41]
[41]By virtue of the fact that no conviction was recorded, the ‘prior conviction’ was strictly only a prior finding of guilty, but nothing turns on the difference for present purposes.

The judge identified a number of matters in the evidence of Mr Newton, who had concluded that the respondent would pose a ‘relatively limited risk of violent recidivism’. The judge considered that the report supported the conclusion that there was a degree of egocentricity in the respondent’s reaction to his current circumstances, mixed with the genuine remorse he felt as a consequence of having caused Ms Belej’s death. Mr Newton had commented on the respondent’s traditional masculine view of gender roles, emphasising bravado and an assertive approach to conflict. Mr Newton had linked those traits to the incident of prior violent offending in the context of relationship conflict, and to the possession of the handgun whose discharge caused Ms Belej’s death. Mr Newton also referred to the respondent’s affiliation with the Rebels outlaw motorcycle club, which he said demonstrated a concerning alienation from the mores of mainstream society. Mr Newton concluded that the respondent demonstrated traits of antisocial personality.

Mr Newton also commented on the respondent’s significant alcohol dependence and his relatively limited understanding of the risks of heavy drinking and appropriate strategies for the exercise of control. In the absence of appropriate treatment, Mr Newton considered that there remained a significant risk of the respondent relapsing into alcohol dependence upon his release from custody.

The judge referred to matters to be balanced against the negative factors identified by Mr Newton. He referred to the respondent’s ‘otherwise unblemished record’. He also noted the decades during which the respondent held gun licences and was the registered owner of firearms, without any previous conviction relating to firearms. Next, custody reports detailed the respondent’s positive conduct and engagement in activities since his arrest, including acting as a disability mentor for prisoners with cognitive impairment and completing a peer supporter’s program along with a number of education and self-assisted programs. The respondent also completed substance use and relapse prevention programs.

The judge concluded that the respondent had ‘reasonably good prospects of rehabilitation’. In forming that opinion, he stated that he took into account the significant risk factors identified by Mr Newton, which the judge acknowledged remained relevant and would be so into the future.

The judge stated that general deterrence, just punishment and denunciation were especially important in the circumstances of the present case and that the extremely reckless use of a handgun in a domestic setting causing the death of a young woman was to be denounced and must result in a substantial term of imprisonment. The judge stated that, balanced against the weight to be given to specific deterrence, were the respondent’s plea of guilty, remorse, limited criminal history and relatively good prospects of rehabilitation. The judge noted that rehabilitation remained a very important consideration, having regard to the risk factors identified by Mr Newton and the positive progress made by the respondent to date in addressing those risk factors.

The judge stated that the respondent should be encouraged to continue taking positive steps in the process of rehabilitation during the period of his sentence. He stated that he took that consideration into account along with other relevant matters in fixing the sentence, including the non-parole period. The judge also noted that the court was not to impose a sentence more severe than that which was necessary to achieve the identified sentencing purposes.

Finally, the judge referred to current sentencing practice. He noted that sentences for manslaughter in the period 2011/12 to 2015/16 ranged from less than two years to something in excess of 12 years, with non-parole periods of less than one year to something in excess of nine years. The judge made reference to having been referred to authorities at the plea hearing and stated that he had been assisted by considering the circumstances of those cases. Further reference is made to the authorities later in these reasons.

The judge concluded that the circumstances of the offending meant that this was ‘a bad instance of manslaughter by an unlawful and dangerous act’. He stated that he had had regard to the sentences imposed for manslaughter in the other cases to which he was referred, ‘particularly those where the deceased was killed by the unintended discharge of a firearm’. The judge stated that there were, however, always differences in circumstances between cases and that this limited the usefulness of comparisons between the present case and those to which he was referred.

Grounds of appeal

The Director relies on two grounds of appeal:

Ground One: The individual sentences imposed, the total effective sentence and the non-parole period are each manifestly inadequate.
Particulars: In imposing the individual terms of imprisonment, in making the order with respect to cumulation and in fixing the non-parole period, the Sentencing Judge:
a)failed to properly reflect the nature and gravity of the offending and the culpability of the offender;
b)failed to have sufficient regard to the maximum penalties;
c)failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence and specific deterrence;
d)failed to give any, or sufficient, weight to protection of the community;
e)failed to give sufficient weight to the impact of the offending upon the victims;
f)failed to give sufficient weight to current sentencing practices;
g)gave excessive weight to the factors in mitigation.

Ground Two: The Sentencing Judge erred in finding that because the Respondent pulled the trigger of the handgun not intending for it to discharge this ‘tends towards a lower level of gravity of manslaughter’.

Factual basis for the sentence

An issue arose at the hearing of the appeal as to the factual basis upon which the respondent was sentenced. Senior counsel for the Director submitted that the sentencing judge’s remarks had to be read in the context of the ‘settled facts’ upon which the prosecutor had opened the plea. He pointed out that the judge had referred to ‘the settled facts which form[ed] the basis of the plea’.[42] In particular, it was emphasised that the prosecutor had said, both in oral submissions and his written opening that:[43]

the [respondent’s] accepted state of mind, on the available evidence, was that he was at the relevant time knowingly handling a loaded revolver, one that he himself had loaded with a single bullet. He was aware that it was at the very least possible that if he depressed the trigger, the gun would discharge.

[42]R v Osborn [2017] VSC 535 [19] (‘Sentencing Remarks’).

[43]Summary of Prosecution Opening [63]; T19.

It was submitted that this was an agreed fact upon which the plea had proceeded and a critical factual aspect of the case, to which the judge had given insufficient weight.

Senior counsel for the respondent submitted that, whatever ‘settled facts’ had been agreed between the parties, the appeal fell to be decided based upon the sentencing judge’s findings of fact, as to which there had been no challenge. The judge had accepted that the respondent pulled the trigger of the handgun ‘not intending for it to discharge’.[44] Especially given that the respondent had checked the revolver barrel before pressing the trigger, it was suggested during oral argument that there was no basis, consistently with that finding, for considering that the respondent had any foresight of the possibility that he was mistaken and that the firearm might discharge.
[44]Sentencing Remarks [36].

In my opinion, there is no inconsistency between the judge’s acceptance of the fact that the respondent did not intend to harm Ms Belej and the proposition that he was none the less aware of the possibility that his actions may cause the handgun to discharge. A person may take a course of action attended by some risk of which the person is aware while hoping, even fervently, that the risk will not come to pass and having no intention that it will do so. I did not take the Director to be contending anything more than this as the basis upon which sentencing proceeded.

The ‘settled fact’ in question sits comfortably with the judge’s other observations. Importantly, the judge made no finding that the respondent thought that the handgun could not possibly discharge in the circumstances. To the contrary, the judge found that the respondent:[45]

was very well aware of the danger associated with loading the handgun in the kitchen of the Cardross home, cocking it, pointing it at Ms Belej and pulling the trigger.

[45]Sentencing Remarks [38].

In light of this specific finding, together with the judge’s earlier observation as to the settled facts forming the basis of the plea, it can be seen that the respondent was sentenced on the basis that he had been aware when he pressed the trigger that it was possible that this would cause Ms Belej’s death. At the same time, it must be accepted that the respondent did not consider this likely, and thought that he had a sound basis for expecting that the handgun would not discharge. Nor did he have any intention that it would do so.

Preliminary issue raised by respondent

At the hearing of the appeal, the respondent raised a preliminary objection to the competence of the appeal. Senior counsel submitted that it had been held in DPP v Walsh (a Pseudonym)[46] that a Director’s appeal needed to raise a point of principle and that manifest inadequacy, without more, would not suffice. He submitted that it was incumbent upon the Director to identify the ‘point of principle’ involved or the ‘something more’ than manifest inadequacy. Reference was made to Green v The Queen[47] where French CJ, Crennan and Kiefel JJ stated that the ‘primary purpose’ of a Crown appeal against sentence was to lay down principles for the governance and guidance of courts.[48] Their Honours described this primary purpose as a limiting one, not extending to the general correction of errors made by sentencing judges.[49]
[46][2018] VSCA 172 (‘Walsh’).
[47](2011) 244 CLR 462 (‘Green’).
[48]Ibid 465 [1], quoting Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ).
[49]Ibid 477 [36].

The respondent also referred to DPP v Bright,[50] in which Redlich JA stated that manifest inadequacy alone will not be sufficient to warrant appellate intervention but that something more is needed. Redlich JA stated that such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle was required. He also stated that the inadequacy of the sentence must be ‘clear and egregious’.
[50](2006) 163 A Crim R 538, 542 [10] (‘Bright’).

These observations potentially bear upon the exercise of the Court’s residual discretion to refuse a Director’s appeal.

Contrary to the respondent’s submissions, the Court in Walsh did not canvas the possibility that the raising of a point of principle formed any kind of jurisdictional requirement for the bringing of a Director’s appeal. Ashley JA considered the issue from the standpoint of the residual discretion and held that he could not ‘confidently conclude’ that the residual discretion should be exercised on the basis that a Director’s appeal sought only to raise ‘mere’ manifest inadequacy, without hearing full argument.[51] Maxwell P and McLeish JA did not need to decide the point, because they regarded the case as not falling into the category of ‘mere’ manifest inadequacy in any event.[52]
[51]Walsh [2018] VSCA 172 [169]; see also [115].
[52]Ibid [65]–[67].

The Director submitted that the point was moot in the present case because she contended that the sentence was ‘egregiously’ low and that this sufficed as a ‘point of principle’ in accordance with Bright. As was also pointed out in argument, a ground of manifest error, of its very nature, involves a conclusion that there must have been some misapplication of principle.[53]
[53]Pham v The Queen (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ) (‘Pham’); DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063, 1067 [7], 1074 [59] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh’).

Although raised as a preliminary point, the respondent’s submissions ultimately inform his argument as to the residual discretion and it is preferable to defer further consideration of them to that point.

Ground 2 — specific error

It is convenient to deal first with the ground alleging specific error.

The Director submitted in her written case that the sentencing judge had appropriately found that the offending was a bad instance of manslaughter by unlawful and dangerous act but had erred in concluding that it was ‘at the lower level of gravity for manslaughter’.

This submission does not correctly reflect the judge’s conclusions. The judge stated that the respondent had pulled the trigger not intending the handgun to discharge and that this ‘tends towards a lower level of gravity of manslaughter’.[54] He did not say, or ‘conclude’ that the offending was ‘at the lower level’. The sentence must be read in context. As the Director acknowledged, the judge regarded the case as a bad instance of manslaughter.
[54]Sentencing Remarks [36].

The Director then argued that to treat the respondent’s conduct as being towards a lower level of gravity of manslaughter failed properly to characterise the gravity of the offending. That was because the fact that the respondent did not intend the handgun to discharge did not lessen the gravity of the act of manslaughter. Instead, it brought the act in this case into the category of manslaughter rather than murder. As such, the absence of an intention to harm Ms Belej did not assist in deciding where on the scale of manslaughter offending this case was to be placed.

The respondent submitted that the judge was simply noting a relevant circumstance which, generally speaking, tended to reduce the seriousness of a manslaughter offence when compared to cases of manslaughter where the offender intended to discharge the firearm. Counsel contended that the judge was acknowledging, consistently with the observation in DPP v Torun,[55] that the issue whether discharge of the firearm was intentional is significant.
[55][2015] VSCA 15 [58] (Whelan and Beach JJA, Ashley JA agreeing) (‘Torun‘).

The judge’s remarks could be read as saying that, as a general matter, the ‘factor’ that an offender did not intend the handgun to discharge tends towards a lower level of manslaughter. But accepting that general proposition, it must be said that the present case is something of an exception because, as the Director submitted, if discharge of the firearm had been intentional in the circumstances of this case the offence would have been one of murder. However, even in the present case it must be accepted that the fact that the respondent did not intend to harm Ms Belej in any way distinguishes it from those instances of manslaughter where the offender intends to cause harm, short of really serious injury, to the victim. In that way, the judge’s observation that the respondent did not intend to discharge the firearm, applied to the circumstances of this case, is to be understood as saying that the respondent did not intend to harm Ms Belej. It is unexceptionable that this factor bore on the sentencing discretion in the respondent’s favour.

For that reason, the judge was not in error in stating that the fact that the respondent did not intend the handgun to discharge tended towards a lower level of manslaughter. The fact that the respondent did not intend to harm Ms Belej is a relevant matter in his favour. The Director has not made out ground 2.

Ground 1 — manifest inadequacy

Manifest inadequacy is a conclusion which does not depend on identifying any specific error of reasoning by the sentencing judge.[56] The only question is whether the Court is persuaded that the sentence was ‘wholly outside the range’ of sentencing options available to the sentencing judge.[57] As with the ground of manifest excess, it must be shown that something has gone ‘obviously, plainly or badly wrong’.[58] The Court must be ‘driven to conclude that there must have been some misapplication of principle’.[59]
[56]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[57]DPP v Karazisis (2010) 31 VR 634, 663 [127] (Ashley, Redlich and Weinberg JJA; Warren CJ and Maxwell P agreeing).
[58]See, eg, Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), quoting Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[59]Pham v The Queen (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ).

In her written case the Director elaborated on the particulars attached to the ground of appeal. Senior counsel at the hearing of the appeal placed emphasis on the ‘settled fact’ that the respondent was aware when he pressed the trigger of the possibility that the handgun would discharge. He submitted that there were two significant aggravating features of the case, namely the fact that the offending involved a gross breach of trust in which the respondent subjected his partner to mortal danger within their own home and the fact that, despite his long familiarity with firearms, he chose to take the risky action he did. It was submitted that the respondent’s actions displayed a callous disregard for the life of Ms Belej, only marginally different from engaging in Russian roulette. It was submitted that the sentence was egregiously low, so as to indicate an error of principle.

In respect of the sentence on the firearms charge, it was submitted that the sentence ignored the fact that the firearm was unregistered and unlawful, and that it was possessed for the purposes of sale. Counsel submitted that the period of two months by way of cumulation was ‘derisory’.

The written case developed the Director’s submissions in further detail. Among other things, the submissions pointed to the conscious, deliberate and voluntary act of the respondent in pulling the trigger, the maximum penalties of 20 years for manslaughter and 10 years for the firearms charge, the need for specific and general deterrence in circumstances where the respondent had previously resorted to violence in an intimate partner context and others needed to be deterred from doing the same, a suggested need to protect the community and the impact of the offending on Ms Belej’s family and friends. It was submitted that the sentence was out of line with current sentencing practices and that excessive weight had been given to matters in mitigation.

The respondent pointed to the mitigating factors relied upon by the sentencing judge, which the Director had accepted in her written case were ‘powerful and important’, including the respondent’s guilty plea, his ‘level of genuine remorse’ and his ‘reasonably good prospects of rehabilitation’. The respondent’s limited criminal history was noted. Senior counsel placed weight on the fact that the respondent did not intend the handgun to discharge. He had done something appallingly reckless and stupid but had not intended to harm Ms Belej in any way.

Senior counsel took specific issue with the Director’s written submissions regarding protection of the community, submitting that there was no basis for contending that the respondent represented a threat to the community. To the contrary, the judge had found that it was unlikely that he would re-offend. Counsel contended that the judge had given careful and proper weight to the victim impact statements. He also submitted that the sentence was consistent with current sentencing practices, in particular as reflected in Torun, to which reference is made below.

In relation to the firearms sentence, the respondent submitted that substantial concurrency was called for because the use of the handgun was the unlawful and dangerous act founding the manslaughter charge. The alleged possession was on a single day. It was submitted that to take account of the respondent’s intention to sell the handgun would amount to punishment for trafficking an unregistered firearm, with which he had not been charged.[60]
[60]R vDe Simoni (1981) 147 CLR 383.

No argument can be had with the trial judge’s description of the respondent’s conduct on 1 May 2016 as indicating an appalling level of recklessness. As the judge said, placing the handgun to Ms Belej’s forehead and pulling the trigger were acts of violence that were extremely reckless and dangerous, as well as profoundly stupid. All this was accepted by the respondent’s counsel. The main difference in emphasis between the opposing submissions before us concerned two further factual circumstances, namely that the respondent did not intend the firearm to discharge or to harm Ms Belej, and that he was ‘very well aware’ of the danger that his actions presented, namely that they might lead the handgun to discharge.

That awareness must be understood in the context that if the risk that the respondent was taking came to pass, Ms Belej would certainly be killed. In my opinion, the respondent’s awareness of the danger in that context means that this case involves very grave moral culpability. As I understand the judge’s findings, the respondent took a conscious risk of bringing about Ms Belej’s death. This conduct is aptly described as exhibiting a callous disregard for the life of his partner.

In these circumstances, the fact that the respondent did not intend to harm Ms Belej or to discharge the handgun, while plainly relevant, has less significance than it would if, for example, the handgun had a hair trigger of which the offender was unaware and had discharged accidentally. This was a deliberate act which involved knowingly taking a risk of killing Ms Belej.

At face value, a sentence of less than half the maximum penalty for the taking of a human life in this way fails to reflect the gravity of the offence. As is well known, the maximum penalty invites comparison between the worst possible case and the case under consideration and provides, taken and balanced with all other relevant factors, a sentencing yardstick.[61] Measurement against that yardstick, if taken by itself, tends to suggest that the sentence is significantly too low.
[61]Markarian v The Queen (2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Dalgliesh (2017) 91 ALJR 1063, 1067 [10] (Kiefel CJ, Bell and Keane JJ).

It is of course necessary to take account of all relevant factors, including by looking at current sentencing practices, which provide another relevant yardstick against which a sentence or proposed sentence may be examined.[62] In that regard, the respondent placed particular emphasis on Torun. In that case, which was a Director’s appeal, the offender shot and killed his girlfriend in the course of telling a story. He had been waving a gun around before pointing it at the victim at very close range and deliberately pulling the trigger. He had earlier loaded the gun but failed to recall doing so because he was in a drug-addled state. The shot discharged into the victim’s groin as she was seated on a couch. The victim did not die instantly and the offender tried to get her to a hospital. The offender had a history of drug, firearm and driving convictions and was easily angered when affected by drugs.
[62]Hili v The Queen (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58, 74 [41] (French CJ, Hayne, Kiefel and Bell JJ; Pham (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ); Kilic v The Queen (2016) 259 CLR 256, 267 [22] (Bell, Gageler, Keane, Nettle and Gordon JJ); Dalgliesh (2017) 91 ALJR 1063, 1073 [52] (Kiefel CJ, Bell and Keane JJ).

The Court described the offending as a killing by a drug-affected man in the course of play-acting gone terribly wrong[63] and involving no intended or foreseen violence or injury to the victim.[64] It may be observed that there was no finding akin to that in this case as to the offender’s awareness of the risk entailed in his actions. The Director’s appeal against a sentence of 8 years’ imprisonment was dismissed.
[63][2015] VSCA 15 [6] (Ashley JA)
[64]Ibid [61] (Whelan and Beach JJA).

In the course of their reasons, Whelan and Beach JJA noted that they had reviewed a number of sentences for manslaughter involving the discharge of firearms. They referred in particular to R v Stratton[65] and DPP v Phillips.[66] Observing that comparison of specific fact situations is not helpful, they noted the Court’s observation in Stratton that there appeared not to be a case where a sentence over 10 years was imposed for manslaughter where there had been no intention to harm the victim.[67]
[65](2008) 20 VR 539 (‘Stratton’).
[66][2009] VSCA 68 (‘Phillips’).
[67]Torun [2015] VSCA 15 [58].

In Stratton, the offender presented a loaded firearm in the general direction of the victim in the course of an attempted burglary. The offender was sentenced on the basis that the weapon had a ‘hair trigger’ and that its discharge had been entirely unintentional.[68] There was no suggestion that the offender knew about the ‘hair trigger’.[69] A majority of the Court held that the sentence of 11 years’ imprisonment, with a minimum term of 8 years, was manifestly excessive and resentenced the appellant to imprisonment for 9 years with a minimum term of 7 years. As the plurality in Torun observed, Lasry AJA stated that no case where a head sentence of more than 10 years had been imposed for manslaughter had involved circumstances where the offender asserted and the Crown accepted that no harm was intended to the deceased.[70]
[68](2008) 20 VR 539, 540 [3] (Ashley JA), 564 [135] (Lasry AJA).
[69]Ibid 540 [2]-[3] (Ashley JA).
[70]Ibid 564 [134].

In Phillips, the offender had been in a dispute with the victim and intentionally discharged a firearm in his general direction from a distance of about 30 metres, intending to scare him. The sentencing judge described the offending as being towards the lower end of the ‘middle category’ for manslaughter. The Director appealed against a sentence of 6 years’ imprisonment with a non-parole period of 4 years. Nettle JA, with whom Maxwell ACJ and Buchanan JA agreed, said this in the course of holding that the sentence was manifestly inadequate:[71]
[71][2009] VSCA 68 [35]–[37], [39].

In my view, appellable error is established. Short of murder and manslaughter by reason of provocation, the unlawful killing of a human being by the deliberate presentation and firing of a weapon at him or her is amongst the most serious offences against the person. Regardless of the absence of murderous intent, the possibility of extreme harm and the potential for disaster are so obvious as to render the offence most heinous. It follows that any notion that the killing of a human being in that fashion falls towards the lower end of the range of seriousness is seriously misconceived. With respect, the judge was in error in approaching the crime … in that fashion.

Perhaps it counted in favour of the respondent that he fired only one shot and that all the other shots in the rifle were ‘rat shot’. But if so, the difference is only marginal. To present and fire a loaded .22 rifle at another human being at a range of 30 metres (which is to say at less distance than two ordinary house frontages away) is at best to court disaster, and to play what would be in effect Russian roulette with the victim at that range could seldom be much better.

Additionally, as the judge herself observed, in this case it was not as if the respondent could have been in any doubt about the likely effect of his actions. …

…

When it is remembered that, in order to be able to kill the deceased, the respondent had to move from a position of safety in his own unit; retrieve the rifle from its storage place; carry it up the driveway to the street, as it were in pursuit of the deceased; and then present and fire the weapon in the direction of the deceased, well knowing of its capacity to cause serious harm, I consider that the respondent’s moral culpability in relation to this offence was high.

In the result, the Court imposed a sentence of 9 years with a non-parole period of 7 years. Nettle JA observed that, were it not for the double jeopardy principle then applicable, the sentence and non-parole period would have been ‘considerably higher’.[72] In that respect, Phillips represents a qualification to the observation made in the previous year in Stratton regarding sentences of more than 10 years not having being imposed for manslaughter where the offender did not intend to harm the victim. Phillips stands as an example of factual circumstances which would, apart from double jeopardy, warrant a sentence on a guilty plea for manslaughter exceeding 10 years.
[72]Ibid [44] (Maxwell ACJ and Buchanan JA agreeing).

It is of course not helpful to conduct a close comparison of the facts of individual cases and they are not to be treated as precedents. But in my opinion Stratton and Phillips (which the Court saw as more serious offences than in Torun itself) both indicate that the sentence in the present case sits uncomfortably with current sentencing practices. In Stratton, which was also resolved on a guilty plea, the forearm had discharged because of a ‘hair trigger’. Lasry AJA therefore described the case as one that ‘could only be at the mid to higher end of the cases involving the infliction of the fatal injury where that act was entirely unintentional’, noting that this threw into ‘sharp relief the significance of the fact that what was done was done without any intent to cause harm to the victim’.[73] The state of mind of the present respondent is materially different in three ways. First, he consciously and deliberately pulled the trigger. Secondly, he was ‘very well aware’ that it was dangerous to do so because there was a possibility that the handgun would discharge. Thirdly, it was plain that if that happened, Ms Belej would be killed. These factors, in my opinion, markedly increase the respondent’s moral culpability and place the case at the high end of cases involving unintentional infliction of the fatal injury.
[73](2008) 20 VR 539, 560 [116]; see also 563 [130].

In Phillips, the circumstances were closer to the present case. A firearm was deliberately discharged in circumstances where it must have been obvious to the offender that there was a ‘possibility of extreme harm and the potential for disaster’. Similarly here, as already noted, the judge made no finding that the respondent thought that his actions could not possibly harm Ms Belej; his finding as to the respondent’s awareness of the danger was to the contrary. The Court’s comparison to Russian roulette in Phillips was apt to the present case as well. The only difference between Russian roulette, in which the offender spins the barrel and fires with a random chance of discharging a bullet, and the present case, is that the respondent may be assumed not to have considered the risk of death to be as high as it would be in Russian roulette.[74] In that respect he was in a similar position to the offender in Phillips, who meant only to scare the victim and not to harm him.
[74]This would have raised the prospect of murder, which was obviously disavowed: R v Faure [1999] 2 VR 537, 546-52 (Brooking JA; Winneke P and Ormiston JA agreeing).

Account must of course be taken of the significant matters mitigating the respondent’s sentence. His guilty plea has been found to evidence a level of remorse and to have saved Ms Belej’s family and friends the ordeal of anticipating and experiencing a trial. He appears to have adopted a positive and constructive approach to his imprisonment and to be contributing materially to the wellbeing of other prisoners with disabilities of various kinds. He has very limited prior criminal history and his prospects of rehabilitation are reasonably good.

I also accept the respondent’s submission that protection of the community was not a relevant purpose of the present sentence. The judge concluded that it was unlikely that the respondent would reoffend in this way.

Granted all of those matters, to my mind this offence is marked by a very high level of moral culpability, given the extraordinarily dangerous nature of the actions which the respondent quite deliberately took. The consequence of those actions was the death of his partner, towards whom he owed obligations of trust. He was aware of the danger of his actions yet, tragically, he proceeded with misplaced confidence to pull the trigger. In all the circumstances, the sentence of 9 years’ imprisonment for manslaughter was in my view manifestly inadequate, as was the non-parole period of 6 years.

In respect of the firearms offence, I do not think that the same can be said. In my opinion the sentence was modest, because there were two significant aggravating features. The first was the fact that the respondent possessed an unregistered firearm, despite his close familiarity with the requirements of the law in that respect. Secondly, the unregistered firearm was possessed for the purposes of a future sale which would itself have been unlawful. There is no offence of possessing a single unregistered firearm for the purpose of sale,[75] so that the Court can have regard to that intention without punishing the respondent for an offence with which he was not charged. None the less, the offence was a first firearms offence, on a guilty plea, and the sentence can be seen sufficiently to have allowed for these matters. Although the maximum penalty for the offence was 10 years’ imprisonment, the sentence of one year’s imprisonment for a person with a long history of lawful use of firearms was in my opinion within the range of permissible sentences.
[75]Cf Firearms Act s 7C, prohibiting possession of two or more unregistered firearms, described in the heading to that provision as a ‘traffickable quantity’. Section 7B prohibits possession, carrying or use of an unregistered general category handgun. The offence under which the respondent was charged was the more serious offence under s 5 of being a prohibited person in possession of a firearm, whether registered or not.

However, the Director’s submission that the level of cumulation was such as to give rise to manifest inadequacy in the total effective sentence should be accepted. Significantly more than two months needed to be added to the term to be served in order to reflect the above aggravating factors. In my view these aspects of the possession offence, which were not connected with the manslaughter offence, called for separate and substantial punishment.

Taking all the foregoing matters in account, I would allow the appeal and resentence the respondent to a term of imprisonment of 11 years and 6 months on the manslaughter charge and 1 year on the firearms charge, 6 months of that sentence to be served cumulatively upon the base sentence for manslaughter, so as to produce a total effective sentence of 12 years’ imprisonment. I would fix a non-parole period of 8 years.

For the purposes of s 6AAA of the Sentencing Act, had the respondent not pleaded guilty I would have imposed a total effective sentence of 14 years and 6 months and a non-parole period of 11 years.

Residual discretion

The respondent submitted that the Director had failed to establish a sufficient basis for the Court not to exercise its residual discretion to dismiss the appeal. The respondent made three specific submissions in this context.

First, it was submitted that the prosecutor had failed at the plea hearing to identify sufficiently the relevant comparable cases and to identify the underlying sentencing principles revealed by those cases. In particular, counsel had not taken the sentencing judge to the cases referred to in Torun, especially Stratton and Phillips. That submission should be rejected. The prosecutor gave the judge the decision in Torun and made submissions in relation to it occupying more than a page of transcript, principally to the effect that the present case involved a higher degree of gravity and moral culpability. The fact that the prosecutor did not specifically raise aspects of the analysis of Whelan and Beach JJA in Torun is not a basis for exercising the residual discretion. That judgment and the reasoning in it, the relevant part of which is not lengthy, was squarely placed before the judge. The judgment prominently draws attention to Stratton and Phillips. While the prosecutor could have referred to those cases directly rather than in this indirect manner, his approach does not mean that the judge was so deprived of assistance as to attract the residual discretion.

Secondly, the respondent submitted that principles for the guidance of sentencing courts could be laid down by an unequivocal statement as to how and why the sentences were manifestly inadequate. The case relied upon by the respondent in urging that approach was Green.[76] However, that case involved a specific feature that tended against imposing a different sentence, being the unjustifiable disparity that would be created with a sentence previously imposed on a co-offender.[77] The Court in Green held that any newly imposed sentence in those circumstances would be ‘infected by an anomalous disparity’.[78] There is no such factor here tending against imposing a higher sentence.
[76](2011) 244 CLR 462.
[77]Ibid 477–8 [37] (French CJ, Crennan and Kiefel JJ.
[78]Ibid 477 [37] (French CJ, Crennan and Kiefel JJ).

Finally, the question canvassed earlier by way of preliminary objection arises in the context of the residual discretion. As indicated, the Director submitted that the manifest inadequacy in the present case was clear and egregious. That submission should be accepted. The inadequacy of the sentence was such as to indicate clearly, or manifestly, that some error of principle must have been made. If it is not already inherent in such a conclusion that such an error is ‘egregious’, that designation is equally applicable. On the authority of Bright, at least, that suffices to take the case out of the category of manifest inadequacy ‘alone’. The questions whether the absence of something more than ‘mere’ manifest inadequacy is required in a Director’s appeal, and whether the absence of that something more may attract the residual discretion, therefore do not need to be addressed.[79]
[79]See Walsh [2018] VSCA 172 [68] (Maxwell P and McLeish JA).

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[2018] VSCA 207

23 August 2018