DPP v Pan

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0167

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
PAGUIR PAN	Respondent

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JUDGES:	PRIEST, NIALL and EMERTON JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2022
DATE OF JUDGMENT:	26 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 98
JUDGMENT APPEALED FROM:	[2021] VSC 703 (Taylor J)

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CRIMINAL LAW – Sentence – Crown appeal – Murder – Sentence of 24 years’ imprisonment, non-parole period of 16 years – Whether total effective sentence and non-parole period each manifestly inadequate – Whether sentence matched objective gravity of offending – Young offender – Sentence within range – Appeal dismissed.

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Counsel
Appellant:		Mr C Boyce QC with Mr E Dober
Respondent:		Mr D Dann QC with Dr M Gumbleton
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Milides Lawyers

PRIEST JA
NIALL JA
EMERTON JA:

In the evening of 10 March 2019, when the respondent was 19 years old, he fatally shot his childhood friend, Winis Atem Apet, at close range with a shotgun. The respondent was arrested, charged with murder and, somewhat belatedly, pleaded guilty to the charge. Following a plea in mitigation, he was sentenced by a judge of the Trial Division to a term of imprisonment of 24 years. A non-parole period of 16 years was set by the judge. It is against that sentence that the Director of Public Prosecutions appeals,[1] on the single ground that the sentence, both as to its head term and its non-parole period, is manifestly inadequate.
[1]Criminal Procedure Act2009, s 287, the appeal is brought as of right.
In a careful set of reasons that explained how the judge arrived at the sentence she imposed, the judge set out a range of matters, many tending in different directions, that were relevant to sentence.
In summary, the judge assessed the gravity of the offending, describing it as extremely high.[2] She noted that the respondent had fired a shotgun at close range; he had attempted to disguise himself; and he had fled the scene, rendering no assistance to his childhood friend. The judge also took into account that the respondent was angry with the victim for assisting law enforcement and that this anger contributed to his decision to shoot Mr Apet. Further, the respondent was on bail for armed robbery at the time of the offending. The judge accepted that the respondent is an immature young man with limited capacity to manage conflict.[3] She stated that given the gravity of the offending, the principles of denunciation, protection of the community, just punishment, and deterrence, both general and specific, must be given appropriate weight.[4] The judge found the respondent’s prospects for rehabilitation to be guarded and that there was limited evidence of remorse.[5] Having taken all of these matters into account, the judge arrived at a head sentence of 24 years’ imprisonment.
[2]DPP v Pan [2021] VSC 703, [33] (‘Reasons’).
[3]Ibid [37].
[4]Ibid [39].
[5]Ibid [42]–[43].
It is important to record that the Director does not contend that the judge failed to take into account any relevant matter or committed a specific error in relation to the sentence. Thus, the appeal turns solely on the question whether the resulting sentence was wholly outside the range open to the judge in the sound exercise of her discretion.

The shooting

On the evening of 10 March 2019, the respondent and Mr Apet were with five other friends at a house in Dandenong. They had all consumed alcohol and the respondent had taken ice and Xanax. Later in the evening, the group decided to go to a café in Springvale. The respondent, Mr Apet and another friend travelled in Mr Apet’s car, picking up a young woman on the way. The group socialised in the café, in the carpark and in a laneway.
At approximately 11.10 pm, there was a scuffle between Mr Apet and the respondent in the carpark. A witness, Mr Mijak, saw the respondent drive away in Mr Apet’s car. Mr Apet explained that he and the respondent had been ‘play fighting’ in the carpark, in the course of which the respondent had punched him a couple of times and he had struck the respondent in return.
Mr Mijak called the respondent and spoke to him briefly on the telephone. The respondent told Mr Mijak to tell Mr Apet to wait for him and that he would return.
At approximately 11.47 pm, the respondent returned to the scene. The respondent walked down the rear laneway towards the carpark carrying a blue bag, and wearing the hood of his jumper over his head and a mask. Mr Apet was seated in a vehicle with Mr Mijak and another person. Mr Apet proceeded to get out and walk to the rear of the car.
The respondent then produced a 12 gauge shotgun from the bag and, from about one metre away, pointed it at Mr Apet. Mr Apet said ‘what are you doing?’. The respondent discharged the gun, hitting Mr Apet in the chest.
The respondent then fled in Mr Apet’s car, which he abandoned about a kilometre from his home. He also disposed of his mobile telephone and clothing.
Mr Apet was taken to hospital where he was declared dead at 12.40 am on 11 March 2019.
There is no disagreement that, objectively, this was a serious murder. In assessing its gravity, and the culpability of the respondent, oral argument in this Court focused on two aspects that need to be considered in some detail: the motivation for the murder and the respondent’s age and level of maturity.

Motive and the judge’s findings

The respondent believes that Mr Apet is assisting law enforcement

Wayel Mana, a mutual friend of the respondent and Mr Apet, was the subject of a criminal investigation. At some point, the respondent and Mr Mana came to believe that Mr Apet was assisting law enforcement authorities in relation to investigations into Mr Mana. This enraged the respondent. In a telephone conversation between the respondent and his brother, the respondent said that ‘he would rather do ten years than be a fucking dog’ and that his brother should not associate with Mr Apet because he ‘was going to go Crown witness on fucking Wayel’.
Between October 2018 and March 2019, Mr Mana was in prison. The respondent and Mr Mana shared frequent telephone conversations, some of which showed animosity towards Mr Apet and in which the respondent referred to Mr Apet as a ‘dog’. In one conversation with Mr Mana, the respondent recounted that he had told Mr Apet that he needed to obtain money for Mr Mana which, the prosecution alleged, was a form of retribution for him assisting law enforcement authorities. In another call, the respondent told Mr Mana to tell Mr Apet that ‘he has to pay up’.
In a conversation with the respondent on 7 March 2019, three days before Mr Apet was killed, Mr Mana said that he had told Mr Apet that Mr Apet was going to give Mr Mana something when he gets out and that ‘if he’s not going to make up for his fuckup then he knows very well [what] I can do.’

The psychological evidence

It is also necessary to refer to the evidence of Dr Mathew Barth.
Dr Barth, a psychologist, conducted an assessment of the respondent over three sessions and provided a written report dated 9 September 2021, that paid particular attention to the respondent’s personality, behavioural adjustment and risk of violent recidivism.
Dr Barth said that the respondent presented as a very immature young man, superficially glib, and who reported an extensive substance abuse history. He recorded the respondent’s depressive and anxiety related symptoms as the most salient feature of his mental state that cause him a moderate degree of distress.
Dr Barth concluded that the respondent was a very immature young man, yet to transition to adult maturity, who had a very undeveloped sense of self identity. Dr Barth believed that the respondent’s social reasoning was unsophisticated, making him very impulsive with poor decision making skills. He had a limited capacity to effectively manage conflict and placed a premium on dealing with conflict through ‘overtly masculine means’. Dr Barth thought that the respondent displayed significant delinquent behaviours during adolescence and that he continued to exhibit entrenched antisocial traits. He considered the respondent’s maladaptive personality traits to be intensely problematic, meeting DSM-5 diagnostic criteria for an ‘Antisocial Personality Disorder’.
In conclusion, Dr Barth considered the respondent to be a high risk of violent reoffending, noting:
In particular, his antisocial personality traits, his significant substance abuse issues, his history of engaging with negative peers and his propensity to resort to aggressive behaviour as a means to achieving his personal and material goals. Further to this, Mr Pan lacks insight into his behaviour, his coping skills are poor and he has little realistic concept of the steps required to establish a stable lifestyle in the community.

The judge’s findings as to motive

In the light of this evidence, the judge said:
The motive for you killing Mr Apet is also relevant to the gravity of your offending. Mr Apet was your childhood friend. You each spent significant time with the other’s family and were like brothers. A dispute had arisen between you and another friend as a result of Mr Apet co-operating with law enforcement authorities. You have in the past expressed certain views about those whom you consider to be ‘dogs’ or ‘rats’. Mr Apet informed against your mutual friend and denied to you that he had done so. You considered Mr Apet to be a ‘dog’ and a liar. You were angry and felt disrespected by him. You considered that Mr Apet should financially compensate your friend or face a physical beating.
While ultimately the prosecution did not press the submission that the sole motive for your actions was retribution for Mr Apet’s co-operation with law enforcement authorities, I am of the view, as conceded by your counsel, that the fact he had done so, that you were angry about both it and his initial denial of it, together with your views about ‘dogs’ all contributed to your decision to shoot him. But for that background, it is inconceivable that your anger at his actions during the play fight would have flared and burned at sufficient intensity for you to take his car to obtain a loaded shotgun and return, disguised, to shoot him.
In this regard I note the psychological report of Dr Matthew Barth prepared on your behalf. He is of the opinion that you are an immature young man with an unsophisticated personality and limited capacity to manage conflict. Dr Barth considers that your maladaptive personality traits meet the diagnostic criteria for Antisocial Personality Disorder.
I accept the opinion of Dr Barth. But I do not accept the characterisation of your actions you gave to him. They were not ‘spur of the moment’. Notwithstanding your immaturity and constrained capacity to manage conflict, you left the scene of the initial confrontation to obtain a weapon. You returned to the scene to use it. Further, I do not accept your statement that you had forgiven Mr Apet for informing to authorities prior to the shooting. If you had, your anger resulting from the play fight would have been of a different magnitude. Accordingly, your moral culpability is high.
It follows that principles of denunciation, protection of the community, just punishment and deterrence, both general and specific, must be given appropriate weight. Although your offending is not to be characterised as a revenge killing, the deliberate taking of a life by shooting at point blank range in a public place, motivated by anger and self-entitlement must be met by condign punishment.[6]
[6]Ibid [35]–[39].
As that passage intimates, the prosecution had submitted that the respondent had ‘killed a young man with a motivation that was fuelled by revenge and/or punishment out of a perception that the deceased had assisted law enforcement authorities’. In oral submissions, counsel for the respondent submitted that this finding was not open on the evidence, noting that although the murder was serious, a finding that revenge was the ‘core’ motivation would ‘put it into a different category of murder altogether’. In response, the prosecutor told the judge that it was not contended that revenge or punishment was the sole motivation without resiling from the submission that it was a factor in the murder.

The respondent’s youth

The judge also took into account the respondent’s youth. As to its relevance the judge said:
I also take into account your youth. You were 19 years of age at the time of your offending. You are now 22 years old. The sentence I impose upon you gives, to the full extent possible, weight to your rehabilitation and the possibility of you living a meaningful life upon your eventual release.[7]
[7]Reasons, [41].
In fixing a non-parole period, the judge again referred to the respondent’s youth. She noted that given the offence of murder has a standard sentence of 25 years’ imprisonment, s 11A of the Sentencing Act 1991 requires that the court fix a non-parole period of at least 70 per cent of the relevant term, unless the court considers that it is in the interests of justice not to do so.[8] In finding it was in the interests of justice to fix a lower non-parole period, the judge referred ‘particularly’ to the respondent’s youth, his plea of guilty and the length of the head sentence.[9]
[8]Sentencing Act 1991, s 11A(4)(b).
[9]Reasons, [51].

Other matters relevant to sentence

Prior criminal history

Despite his young age and supportive family environment headed by his hardworking, conscientious and loving parents, the respondent has a relevant criminal history. He first appeared in the Children’s Court in 2016 for minor offending and again in early-2017 for armed robbery. On the latter occasion he was sentenced to an eight month Youth Attendance Order. The respondent’s compliance with that order was poor and, on appeal, the duration of the order was increased.
In August 2018, the respondent was sentenced to five months’ detention in a youth facility. He was released subject to bail conditions relating to an armed robbery alleged to have been committed in March 2018. It is alleged that on the day of his release, he broke into two cars and stole items from each of them. We note that the murder of Mr Apet also occurred whilst the respondent was on bail in respect of the armed robbery.
On 21 March 2019, the respondent was sentenced in the Magistrates’ Court to three months’ imprisonment for obtaining property by deception.
In March 2018, the respondent was arrested for armed robbery, and it is also alleged that whilst on remand for the murder of Mr Apet, the respondent assaulted a prison officer. These matters are pending.

Other matters

After recounting the circumstances of the offending, the judge referred to the four victim impact statements made by members of Mr Apet’s family.[10] Mr Apet’s mother, older brother and two sisters provided victim impact statements and the judge referred to various passages contained within them. The judge noted that Mr Apet’s family was steeped in the grief of losing the youngest child of a loving and tightknit family.[11]
[10]Ibid [12].
[11]Ibid.
The judge then referred to the personal background of the respondent. She noted that the respondent, his three brothers and sister were born in Australia after his parents arrived in 1997 as refugees from Sudan. The respondent’s parents worked hard to support their children. The judge described the respondent as an academically average student and noted he had been assessed as having low-average intelligence.[12] The respondent completed year 11 and then commenced at TAFE with a view towards securing an apprenticeship but ceased after a short time. The respondent had a limited employment history.
[12]Ibid [19].

Director’s submissions

The Director submitted that, having regard to the objective gravity of the offence, the total effective sentence and non-parole period were each manifestly inadequate.
The Director emphasised that it was a serious example of the offence of murder and that the respondent had limited matters in mitigation, with the exception of his young age and a relatively late plea of guilty. In this regard, the Director referred to the respondent’s limited remorse, assessed risk of re-offending and guarded prospects of rehabilitation.
The Director submitted that the objective gravity of the offending had to be considered in light of the respondent’s motive. She argued that the respondent’s motive was, in large part, retribution for Mr Apet’s co-operation with law enforcement authorities. In oral submissions before this Court, the Director argued that Mr Apet’s co-operation with the authorities was the principal motive for the offending, and retaliation for the play fight between the respondent and Mr Apet was an ancillary motive. It was argued that the motive increased the objective gravity of the offending, and that had the motive been appropriately factored in, the judge would have regarded the offending as a more serious example of murder which, in turn, would have been reflected in the head sentence and non-parole period.
The Director accepted that the respondent was a youthful offender but submitted that as the objective seriousness of the offence increases, the weight that can be given to an offender’s youth diminishes accordingly.[13] The Director relied on the following statement of this Court in Todd v The Queen:[14]
The more serious the offending, the more the mitigating effect of youth diminishes. As the seriousness of the offending increases, so too does the emphasis on denunciation, general and specific deterrence. In a case such as the present, particularly in respect of the charge of murder, those three things were of great importance. In the context of this case, there was much less room for the applicant’s youth to play a significant role in the sentencing task that faced the judge. Naturally youth is still a factor; but the weight accorded to it cannot be permitted to overshadow how serious the offending has been and the consequences of the offending.[15]
[13]Citing Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA); [2011] VSCA 372 (‘Azzopardi’); Siilata v The Queen [2019] VSCA 277, [31] (Ferguson CJ, Whelan and Priest JJA).
[14][2020] VSCA 46.
[15]Ibid [49] (Ferguson CJ, Priest and Beach JJA) (citations omitted).
In relation to the non-parole period, it was submitted that if the Court were to find the head sentence within range, it was at the very bottom of the range. It followed, it was argued, that this was not the type of case for the imposition of a lower than usual non-parole period and that it was not open, having regard to the features of the case, to impose a non-parole period of 16 years. Further, it was noted that the sentencing judge had imposed a non-parole period below the minimum required pursuant to s 11A of the Sentencing Act. The Director submitted that such a non-parole period did not meet the applicable sentencing purposes and did not adequately reflect the gravity of the crime, particularly in light of the respondent’s motive.

Respondent’s submissions

The respondent submitted that in the case of Director’s appeals, a stringent test must be applied where manifest inadequacy is alleged. The respondent referred to the principles relating to Director’s appeals as set out in Director of Public Prosecutions v Zhuang.[16]
[16][2015] VSCA 96.
The respondent submitted that the judge properly took into account all relevant matters that she was required to, including the respondent’s guarded prospects of rehabilitation, his significant criminal history and the very serious nature of the offending. It was accepted that considerable emphasis had to be placed on denunciation, protection of the community, just punishment, and general and specific deterrence.

In relation to mitigatory factors, the respondent referred to his youth, his guilty plea, that the plea was entered in the midst of the COVID-19 pandemic, and that there were some positive indicators of the respondent’s long term rehabilitation.
In respect of the respondent’s youth, while it was conceded that the more serious the offending, the less weight should be given to the factor of youth, it was submitted that there remained scope for youth and rehabilitation to be given appropriate weight. It was also noted that the respondent was an immature young man with a limited capacity to manage conflict and that his offending had to be considered in this context.
The respondent referred to the Director’s focus on his motive. He noted that the sentencing judge had said the offending was not to be characterised as a revenge killing.[17] He submitted that although the motive was part of the background, the judge did not have to come to any finding as to the relative level of its contribution.
[17]Reasons, [39].
In relation to the non-parole period, it was submitted that the judge arrived at a lenient, but appropriate, non-parole period. It was submitted that the respondent’s youth was one of the main bases for the lower than usual non-parole period and that this was consistent with authorities.[18] The respondent also submitted that the community has a vested interest in his rehabilitation.
[18]Citing R v Duncan [1998] 3 VR 208, 215 (Callaway JA); R v Detenamo [2007] VSCA 160, [27]–[28] (Redlich JA).

Decision

The principles relevant to Director appeals on sentence, as described by this Court in Director of Public Prosecutions v Karazisis,[19] are as follows:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[20]
[19](2010) 31 VR 634; [2010] VSCA 350.
[20]Ibid 662–3 [127] (Ashley, Redlich and Weinberg JJA) (citations omitted).
There can be no doubt that this was a grave killing. It was the murder of a young unarmed man in public who was callously shot at close range with a shotgun. The respondent’s youth and plea of guilty apart, there were few significant factors in mitigation. The crime demanded, and the respondent received, a long term of imprisonment. The respondent was remanded on his arrest when he was still 19 years of age. At the end of his sentence he will be 43 years of age. On the assumption that this Court must make, he will have served every day of the head sentence in prison.[21] To that point, he will have spent over half his life and all his adult years incarcerated. For well over two decades he will be denied the opportunities that liberty affords. On any view, it is a heavy sentence for a young man. That does not answer the question as to whether the sentence is manifestly inadequate, but it does illustrate that this is a significant sentence.
[21]Sentencing Act, s 5(2AA)(a).
Without losing sight of the fact that a sentence is informed by a range of matters, critical to the resolution of the appeal is close attention to the findings of the judge on motive and the significance of the respondent’s age and level of maturity. They are important because the former is essential to an understanding of the gravity of the offending and the latter, when combined with the plea of guilty, is the critical feature that operated to moderate the sentence. As will be seen, these matters cannot be compartmentalised in a way that ignores the interrelationship between the two.
If the motive for the murder was to punish the deceased for assisting law enforcement or an act of revenge for doing so, that would significantly increase the objective gravity of the murder. There is a significant public interest in people, including those who are themselves involved in criminal activity, assisting authorities in the detection and prosecution of serious crime. That proposition, which is self-evident, can be seen in the reduction in sentence that is often afforded to those who assist.[22] The protection of those who assist law enforcement is also a cardinal responsibility for law enforcement authorities. Again, it can be seen in the conferral of public interest immunity protecting the identity of informers. It follows that a murder that is motivated by a desire to punish or take revenge against a person who assists, calls for punishment and denunciation of a very high order. It strikes at the administration of justice and imperils the ability of authorities to garner the assistance of those willing to co-operate.
[22]R v Cartwright (1989) 17 NSWLR 243, 252–3 (Hunt and Badgery-Parker JJ).
It is plain that the respondent was angry and had a high degree of animus towards Mr Apet at the time of the shooting. As found by the judge, the respondent believed that Mr Apet was assisting authorities and this undoubtedly made the respondent angry, he felt disrespected and he considered that Mr Apet should financially compensate Mr Mana. The judge accepted that the respondent’s anger contributed to the respondent’s decision to shoot Mr Apet. However, the judge declined to characterise the killing as a revenge killing. In essence, the judge did not find that the killing was premediated or a considered response to the victim’s co-operation. That finding is not challenged by the Director.
Any assessment of motive also had to take into account the events leading up to the shooting and the expert psychological evidence. Before the shooting, there was a physical altercation between the respondent and Mr Apet during which blows were exchanged. That incident occurred in a context where there was a deep antipathy held by the respondent towards Mr Apet, in part caused by the respondent’s opinion of persons who co-operate with authorities. The respondent left, retrieved a gun, returned and shot Mr Apet. The lapse of time between the respondent leaving and his return gave him the opportunity to gather his thoughts and calm down, but instead he used the time to take the deliberate step of obtaining a firearm and returning to the scene to shoot the victim.
The judge accepted the opinion of Dr Barth as to the respondent’s lack of maturity, impulsivity and limited capacity to manage conflict.
In Azzopardi, Redlich JA brought together the principles that apply where a court is called on to sentence a young offender. Those principles are informed by a number of factors. In assessing the culpability of a young offender it is important to recognise that ‘the young and immature are more prone to ill-considered or rash decisions’;[23] ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’;[24] and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.[25] Secondly, rehabilitation and avoiding or reducing the adverse effects of incarceration in an adult prison will usually be a fundamental aspect in sentencing, serving both the interests of the offender and the community more broadly.
[23]R v McGaffin (2010) 206 A Crim R 188, 210 [69] (White J); [2010] SASCFC 22.
[24]DPP v TY [No 3] (2007) 18 VR 241, 242 [43] (Bell J); [2007] VSC 489.
[25]Azzopardi (2011) 35 VR 43, 53 [34] (Redlich JA); [2011] VSCA 372.
Of course, the influence of age and level of maturity of the offender on the sentencing outcome, important as they are, may have to tempered by other factors, such as the seriousness of the offence and the protection of the community.[26] In the case of serious offending, there may be an increased need for general (and specific) deterrence. This difficult aspect of the synthesis was explained by Batt JA in Director of Public Prosecutions v Lawrence:
[W]ith an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.[27]
[26]Todd v The Queen [2020] VSCA 46, [49] (Ferguson CJ, Priest and Beach JJA).
[27](2004) 10 VR 125, 132 [22]; [2004] VSCA 154 (citations omitted).
Applying those principles here, it is plain that the judge was entitled to take into account, as she did, the respondent’s age and level of maturity in assessing his culpability for the offending. Not only was the respondent relatively young, he was markedly immature in his outlook. The judge’s characterisation of the offence as one committed by an immature young man unable to control his temper fuelled by a pernicious anger about Mr Apet’s cooperation, was open to her and enabled her to conclude fairly that this was not a revenge killing. That conclusion served to place the offending in its proper context. In our view, the respondent’s age was a powerful factor that the judge was entitled to take into account and give great weight to in sentencing him. It meant that the sentence she imposed could be significantly more lenient than would be the case for an older offender. The observation that the significance of youth may recede in the face of serious offending cannot be doubted, but it does not mean that age and maturity must be ignored and it remains a legitimate matter for a sentencing judge to take into account.
Once account is taken of the respondent’s youth, his plea of guilty, the relatively narrow basis on which Mr Apet’s cooperation with law enforcement had been a factor in the killing, and the other factors to which her Honour had regard, it is not possible to say that the sentence of 24 years’ imprisonment was wholly outside the range. For that reason, the head sentence is not manifestly inadequate.

Non-parole period

At the time the murder was committed, the offence was a standard offence, with a standard sentence of 25 years’ imprisonment. Section 11A(4) of the Sentencing Act required the judge to fix a non-parole period of 70 per cent of the head sentence, unless the court considered that it was in the interests of justice not to do so. The judge imposed a non-parole period of 16 years, which is 66.67 per cent of the head sentence.[28] In her reasons, the judge said that the circumstances of the case, particularly the respondent’s youth, his plea of guilty and the length of the head sentence, led her to conclude that it was in the interests of justice to fix a lower non-parole period.
[28]70 per cent would be a non-parole period of 16 years and 9 months.
In assessing whether the non-parole period is manifestly inadequate, it is important to recall the purpose of parole as explained by the High Court in Power v The Queen,[29] namely ‘to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.’[30]
[29](1974) 131 CLR 623; [1974] HCA 26.
[30]Ibid 629 (Barwick CJ, Menzies, Stephen and Mason JJ).
As Winneke P explained in R v Mulvale:[31]
The fixing of a minimum period is no sinecure but requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.
[31]Unreported, Court of Appeal, Winneke P, 20 February 1996.
It was plainly open to the judge to take into account the respondent’s youth and plea of guilty in assessing what was the minimum time that justice required the respondent serve in prison. The Director’s submission that the length of the head sentence was irrelevant to the fixing of a non-parole period, which was not advanced as a specific error but as a factor pointing to how the outcome might have gone awry, cannot be accepted. As s 11A makes clear, the Sentencing Act requires, at least as a starting point, that the non-parole period be fixed by reference to a proportion of the head sentence. Further, the length of the head sentence will be the other determinant of how long the person must be under supervision.
The non-parole period imposed was nine months shorter than the period prescribed by s 11A. Given the length of the head sentence, and that the non-parole period was 66.67 per cent rather than 70 per cent of the head sentence, we consider that this aspect of the Director’s appeal was ambitious. In any event, we are comfortably satisfied that the period of 16 years was open to the judge.

Conclusion

The sentence has not been shown to be manifestly inadequate. The appeal should be dismissed.
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[2022] VSCA 98

26 May 2022