DPP v Perry

[2016] VSCA 152

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0245

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
GAVIN PERRY	Respondent

GAVIN PERRY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, REDLICH and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2015
DATE OF JUDGMENT:	1 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 152
JUDGMENT APPEALED FROM:	[2014] VSC 534 (Hollingworth J)

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CRIMINAL LAW – Appeal – Sentence – Statutory murder – Crown appeal – Offender stabbed victim during armed robbery – Offender on parole – Sentence of 20 years’ imprisonment – Whether manifestly inadequate – Whether intent relevant – Whether drug intoxication aggravating feature – Prevailing view that statutory murder less serious than common law murder – Cumulation – Whether armed robbery sentence should have been cumulated – Relevance of position adopted by Crown on plea – Current sentencing practices – Sentence reasonably open – Crown appeal dismissed – Crimes Act 1958 s 3A.

CRIMINAL LAW – Appeal – Sentence – Statutory murder, armed robbery (3) – Total effective  sentence 27 years’ imprisonment, non-parole period 23 years – Totality – Whether excessive cumulation of sentences on unrelated armed robberies – Offences committed on parole – Time served prior to release on parole – Whether relevant – No breach of totality principle – Leave to appeal refused – DPP v Oksuz [2015] VSCA 316 applied.

CRIMINAL LAW – Sentencing – Sentencing principles – Assessment of offence gravity – Assessment of offender culpability – Statutory murder – Act of violence causing death – Act committed ‘in the course or furtherance’ of foundational offence – Prevailing view that statutory murder less serious than common law murder, and offender culpability lower – Established practice of imposing lower sentences – Whether killing must be proved to have been unintentional – Whether intent relevant – Prevailing view erroneous – Current sentencing practice inadequate – Intent relevant to seriousness and culpability – Whether sentence on foundational offence should be cumulated – Current practice not to cumulate – Practice should change – Crimes Act1958 s 3A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J C Silbert QC with Ms R J S Sharp	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr M O’Connell SC with Ms B Franjic	Greg Thomas Barristers and Solicitors

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MAXWELL ACJ
REDLICH JA
WHELAN JA:

1. Gavin Perry (‘Perry’) stabbed and killed Dermott O’Toole in the course of carrying out an armed robbery of Mr O’Toole’s jewellery shop in Hastings.  As the CCTV footage from the shop shows, Perry stabbed his victim twice in the chest, with a large carving knife, as he lay on his back on the floor.

1. Perry was originally charged with common law murder but the Director of Public Prosecutions subsequently agreed to accept a plea to what is known as ‘statutory murder’, under s 3A of the Crimes Act 1958.  As will appear, this provision is the statutory embodiment of the common law rule known as the ‘felony murder rule’. 

1. On the same indictment, Perry also pleaded guilty to intentionally causing injury to Mr O’Toole’s wife, Bridget, and to armed robbery.  On a separate indictment, he pleaded guilty to two further armed robberies.  On 27 October 2014, Perry was sentenced in the Trial Division of this Court as follows:

Charge on Indictment D12077830	Offence	Maximum	Sentence	Cumulation
1	Murder[1]	Life imprisonment	20y	Base
2	Intentionally causing injury[2]	10y	4y	2y
3	Armed robbery[3]	25y	5y	-
Charge on Indictment D13749214	Offence	Maximum	Sentence	Cumulation
1	Armed robbery	25y	5y	2y 6m
2	Armed robbery	25y	5y	2y 6m
Total Effective Sentence:		27y
Non-Parole Period:		23y
Pre-sentence Detention Declared:		2 days
6AAA Statement:		32y with a non-parole period of 27y
Other orders: The sentence was to be served cumulatively upon the sentence then being served of 1 year, 11 months and 14 days, due to expire on 28 June 2015.

[1]Crimes Act 1958 s 3A.

[2]Ibid s 18.

[3]Ibid s 75A.

1. The Director has appealed against the sentence of 20 years’ imprisonment on the charge of statutory murder on the ground that it is manifestly inadequate.  The Director also contends that the total effective sentence (27 years’ imprisonment) and the non-parole period (23 years’ imprisonment) are manifestly inadequate.  For his part, Perry seeks leave to appeal his sentence, contending that the cumulation ordered on the second indictment results in a total effective sentence and a non-parole period that offend the principle of totality.

1. For reasons which follow, we would dismiss the Director’s appeal and refuse Perry’s application for leave. 

Summary of conclusions

1. This appeal raises a number of important questions about sentencing for statutory murder under s 3A, as follows:

(a)               Is statutory murder a less serious form of murder than common law murder?

(b) For the purposes of sentence, what is the meaning and significance of the phrases ‘unintentionally causes the death’ and ‘as though he had killed that person intentionally’ in s 3A?

(c)               Is a court sentencing for an offence of statutory murder entitled/obliged to consider whether the act causing death was committed with the intention of causing really serious injury or death?

(d)              Are current sentencing practices for statutory murder too low?

1. Related questions arise concerning the sentencing process in the present case, as follows:

(e)               Was the sentencing judge bound to sentence in accordance with the parties’ agreement, express or implied, that the fatal act was not accompanied by murderous intent?

(f)                If it was open to the judge to have sentenced upon the basis that Perry had an intention to cause really serious injury, what procedure should have been followed on the plea?

(g)               Does the course followed by the Crown on the plea preclude the Director from contending on this appeal that:

(i)         Perry should have been sentenced on the basis that statutory murder was no less serious than common law murder;  and/or

(ii)      it was an aggravating factor that Perry knew how he would be affected by taking crystal methylamphetamine (‘ice’)?

(h)               Should the sentencing court have cumulated a portion of the sentence for the foundational crime of armed robbery on the sentence imposed for statutory murder?

(i)                Does the total effective sentence or non-parole period offend the principle of totality?

1. Our conclusions on the general issues are as follows:

(j) On the proper construction of s 3A (which replaced the felony murder rule), statutory murder is not inherently less serious than intentional murder.

(k) To prove the offence of statutory murder, the prosecution does not have to prove that the killing was unintentional. The word ‘unintentionally’ was used in s 3A solely in order to make clear that the prosecution was relieved of the obligation to prove intention.

(l) The fact that s 3A relieves the prosecution of the obligation to prove intent does not, however, render the offender’s intent irrelevant or evidence of intent inadmissible. The sentencing court must therefore consider what the material before the court reveals about the offender’s state of mind with respect to the act causing death.

(m) For liability under s 3A, it must be proved — or admitted — that the ‘act of violence’ which caused the death was conscious, voluntary and deliberate. It is a separate question — relevant only to sentence — whether in committing the act of violence (which can include an act of intimidation or menace), the offender intended to cause harm to the victim.

(n)               Thus, the offence of statutory murder covers the full range of conduct, from the case where the death is an accidental result of the act of violence to the case where the death is the intended result of the act.  On ordinary principles, it will be relevant to the sentencing court’s assessment of the gravity of the offence, and of the offender’s culpability, to consider where within that range the conduct is proved to fall. 

(o) A number of sentencing decisions in this State have proceeded on the erroneous basis that the offence of statutory murder is a less serious form of murder than common law murder and should therefore attract sentences of a lesser order. The accepted (but erroneous) view has been that, under s 3A, the killing must be treated as unintentional and that, as a result, markedly lower sentences should be imposed than for common law murder.

(p)              The sentence of 20 years’ imprisonment imposed on Perry, by some three years the highest sentence ever imposed for statutory murder, is reflective of the inadequacy of existing sentencing standards. 

(q)               Sentencing standards for statutory murder must be increased to properly reflect the objective gravity of the offence, which carries the same maximum penalty as common law murder.  The range of sentences for statutory murder — from the least serious to the most serious instances of the offence — should be encompassed within the range of sentences for common law murder.

1. Our conclusions on the particular issues in the appeal are as follows:

(r)               On a Crown appeal, regard is always had to the manner in which the Crown conducted the plea.  In this case, the prosecutor relied — properly — on the fact that the acts of Perry were deliberate and carried with them the gravest consequences.  But there was no challenge to the defence contention that there was ‘an absence of an intention to kill or cause really serious injury’.[4] 

[4]See below [97]–[98].

(s)               The CCTV footage showed the deliberate nature of the acts causing death and was at least capable of supporting an inference that, in performing those acts, Perry intended to cause Mr O’Toole really serious injury.  In view, however, of the prevailing jurisprudence and the position taken by the prosecutor, the sentencing judge understandably proceeded on the basis that it was not open to her to investigate that question. 

(t)                When he killed Mr O’Toole, Perry was under the influence of the drug ice.  On the plea, the prosecutor placed no reliance on Perry’s foreknowledge of the effects of ice on his mood and his behaviour.  The Director was, as a result, precluded from contending on the appeal that this was an aggravating factor.

(u)              Although we consider that the sentence imposed on the charge of statutory murder failed to reflect adequately the degree of criminality of Perry’s conduct, the judge sentenced Perry by reference to current sentencing practices for this offence, as she was required to do.[5]  The prosecutor did not suggest otherwise.  The sentence was within the range reasonably open and the ground of manifest inadequacy therefore fails.

[5]Sentencing Act 1991 s 5(2)(b); Anderson v The Queen (2013) 230 A Crim R 38, 45–7 [21]–[26].

(v) Had it not been for the constraints imposed by the existing jurisprudence on s 3A and by the manner in which the plea was conducted, her Honour might have made affirmative findings about murderous intent and about Perry’s foreknowledge of the effects of ice. In those circumstances, a sentence of at least 25 years’ imprisonment would have been appropriate on the charge of statutory murder.

(w)              The armed robbery was the foundational offence for the charge of statutory murder.  Although the act of violence which resulted in death was committed in furtherance of the foundational offence, the conduct constituting the elements of the offence of armed robbery were discrete. 

(x)               On ordinary principles, therefore, it would have been appropriate to cumulate some portion of the armed robbery sentence on the statutory murder sentence.  On the basis of existing sentencing practice, however, and the Crown’s position on the plea, the judge’s decision to order full concurrency cannot be impugned.  No appellate intervention is warranted in those circumstances. 

(y)               No error can be detected in the orders for cumulation imposed with respect to the armed robbery charges on the second indictment.  Perry had served the non-parole period of his previous sentence and had been at liberty for some five months, during which time he committed the present offences.

Circumstances of the offending

1. On 12 July 2013, Perry and his then girlfriend (K) attended a jewellery shop in Hastings, purportedly in order to have an earring appraised.  The shop was co-owned by Mr and Mrs O’Toole. 

1. Perry and K stayed in the store for about five minutes, before Perry made a comment about having made the counter dirty.  He then wiped the glass with his
   t-shirt before leaving the store, using his elbow to close the door while exiting.

1. Later in the afternoon Perry returned to the Hastings area.  He visited a hotel, a supermarket and a hairdresser shop.  He then returned to the jewellery shop.  He produced a large carving knife from inside his tracksuit pants, pushed his way through the hinged staff gate and began to grab items from inside the shop counter. 

1. At this stage, Perry was confronted by Mrs O’Toole.  The two struggled and, as they did so, moved into the customer area.  As Mr O’Toole then moved towards him, Perry stabbed at Mrs O’Toole’s midriff and knocked her into a glass cabinet.  This conduct constituted part of charge 2 on the first indictment (intentionally causing injury).

1. A struggle then took place between Mr O’Toole and Perry, with Mr O’Toole falling backwards to the floor.  While Mr O’Toole was on his back, Perry moved around him and stabbed him twice in the upper chest area.  This founded charge 1 on the first indictment (s 3A murder). 

1. Perry then resumed his struggle with Mrs O’Toole and made stabbing motions towards her midriff.  This also formed part of charge 2 on the first indictment.  At this stage Perry broke free and ran from the store with the knife and a pad of toe rings.  This constituted charge 3 on the first indictment (armed robbery). 

1. A number of bystanders observed the incident and rang ‘000’.  Attempts to resuscitate Mr O’Toole were unsuccessful and he died at the scene.  Perry drove away.  He later set the vehicle on fire and had K report it to the police as stolen.

1. A post-mortem examination of Mr O’Toole showed, amongst other injuries, a stab wound through the third rib on the left side, approximately 20 centimetres in depth.  The massive blood loss associated with the wound was the cause of death.  No defensive injuries were noted. 

1. Mrs O’Toole was taken to hospital and found to have a number of injuries.  These included deep lacerations on her left elbow and forearm, bruising to her chest area, lacerations to her left ear and left side of her forehead and a number of lacerations and abrasions to her back where she was forced into the glass cabinet.  She underwent plastic surgery in relation to a number of her injuries.

1. A carving knife was located at the house where Perry and K lived, and was handed to police.  The knife matched packaging located by police in the car park of the supermarket Perry had visited before returning to the jewellery shop.

1. The second indictment concerned two armed robberies which Perry had committed earlier in July 2013.  The first was on 6 July 2013, at a fast food store in Cranbourne.  Perry carried a knife and a black canvas bag and told the 19 year old store manager to ‘open the safe and hurry up, or I’ll stab your eyes out’.  The sum of $1,130 in cash was stolen.  This constituted charge 1 on the second indictment. 

1. On 11 July 2013, Perry entered another business in Cranbourne.  He held a solid object covered by a bag, seeking to convey the impression he was holding a firearm.  He said, ‘Put the money in the bag or I’ll blow your fucking head off’.  The sum of $2,880 in cash was stolen.  This constituted charge 2 on the second indictment.

1. Perry has a long history of criminal offending.  He has more than 200 prior convictions, largely for property and driving offences.  The offences the subject of both indictments occurred when he was on parole, having been sentenced to six years’ imprisonment for six armed robberies and two thefts committed between June 2008 and January 2009.  That sentence was imposed in February 2010.  He was released on parole on 7 February 2013, and had been on parole for approximately five months when the present offences were committed.  By the time he was sentenced for these offences, his parole had been cancelled and he was serving his parole sentence of 1 year, 11 months and 14 days.[6]

   [6]R v Perry [2014] VSC 534 [45]–[46], [67] (‘Reasons’).

1. As to the offences committed between June 2008 and January 2009, some of the later offences were committed while he was on bail for the earlier offences.  He has previously offended whilst on parole in 2005.  On five previous occasions, he has breached youth supervision orders, intensive correction orders or community-based orders.

Section 3A of the Crimes Act and the felony murder rule

1. In most jurisdictions across Australia, the common law felony murder rule has been abolished and restated, or reformulated, by statute.[7] Before turning to the proper construction of s 3A, it is convenient to set out the position at common law, which provides the context in which s 3A must be interpreted.

   [7]Crimes Act 1900 (NSW) s 18(1)(a); Criminal Code Act 1983 (NT) s 161A; Criminal Code Act 1899 (Qld) s 302(1)(b); Criminal Law Consolidation Act 1935 (SA) s 12A; Criminal Code Act 1924 (Tas) sch 1 item 157(1)(c); Criminal Code Act Compilation Act 1913 (WA) s 279(1)(c).

1. The so-called ‘felony murder rule’ had a long history at common law. Originally it was defined in wide terms as the killing of a person in the commission of a felony.[8]  The significant distinction between felony murder and other types of homicide lay in the imputation of malice.  Historically, this imputation was inextricably linked to the felonious and violent nature of the action in the course of which death occurred.  Blackstone summarised the distinction as follows:

So if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not;  for this is universal malice.  And, if two or more come together to do an unlawful act against the king’s peace, of which the probable consequence might be bloodshed;  as to beat a man, to commit a riot, or to rob a park;  and one of them kills a man;  it is murder in them all, because of the unlawful act, the malitia praecogitata, or evil intended beforehand.[9]

[8]R v Radalyski (1899) 24 VLR 687.

[9]William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1769, vol 4) 200.

1. In the United States, this approach to the imputation of malice is well illustrated by the 1875 Massachusetts case of Commonwealth v Pemberton:

If the purpose of the defendant was to commit robbery, and if in the execution of that purpose, and in order to overcome the resistance and silence the outcries of the victim, he made use of violence that caused [the victim’s] death, no further proof of premeditation or of wilful intent to kill is necessary. Robbery committed by force and violence, and in spite of all resistance, is of course malicious, and if in the perpetration of that crime the person robbed is killed, it is a killing with malice aforethought.[10]

[10]Commonwealth v Pemberton, 118 Mass 36, 44 (1875).

1. As Anthony Duff has explained, it was the felonious nature of the offender’s action which provided the basis for imputing malice in respect of the unintended consequences of that action:

   For the doctrine of constructive malice involves the principle that a man’s responsibility for the fatal consequences of his action may depend, not (just) on the extent to which he intended or anticipated those consequences, but (also) on the fact that his action itself, regardless of those consequences, was in some relevant way criminal or immoral:  the felonious nature of his action may render him responsible for consequences which he neither intended nor anticipated, or for which he would not have been held responsible if his action had not already been thus felonious.[11]

   [11]R A Duff, ‘Implied and Constructive Malice in Murder’ (1979) 95 Law Quarterly Review 418, 422.

1. Mraz v The Queen[12] was a case of constructive murder.  The allegation was the accused had caused the death of a woman in the course of raping her.  In a joint judgment, Williams, Webb and Taylor JJ said:

If upon the evidence the jury was prepared to conclude that the crime of rape had been committed and that the acts of the appellant associated with or done in the furtherance of his purpose had caused the death, it was unnecessary that they should embark upon an independent inquiry to ascertain whether those acts were malicious.  The very fact that they were so associated or so done established beyond question that they were done ‘of malice’.[13]

[12](1955) 93 CLR 493.

[13]Ibid 505. See also Royall v The Queen (1991) 172 CLR 378, 428 (Toohey and Gaudron JJ).

1. In R v Ryan the Full Court confirmed that ‘once the intentional act of violence is found, the malice is imputed by law’.[14]  There was no requirement that the act in question be objectively dangerous.

   [14][1996] VR 553, 563.

1. Windeyer J explained the common law rule in Ryan v The Queen:

There was a time when a man was guilty of murder, and punished accordingly, if while doing any unlawful act he happened to kill another man, however unexpectedly and unintentionally.  This harsh rule became gradually mitigated.  By the eighteenth century, although a man who in the course of committing a crime unintentionally killed another might still for that reason be guilty of murder, this was only when the crime was a felony.  By the middle of the nineteenth century doubts had begun to be expressed about this doctrine. … The generally accepted rule of the common law today is, however, that an unintended killing in the course of or in connexion with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person.[15]

[15](1967) 121 CLR 205, 240–1. See also Arulthilakan v The Queen (2003) 203 ALR 259, 266 [27]. As to the requirement that the death be caused by an act of violence, see R v Dowdle (1900) 26 VLR 637, 634; DPP v Beard [1920] AC 479, 493.

Felony murder abolished

1. In October 1980, the then Victorian Attorney-General, Mr Storey, introduced into the Victorian Parliament the Crimes (Classification of Offences) Bill 1980.  The principal purpose of the Bill was to abolish the distinction between felonies and misdemeanours, a distinction described by the Attorney General as being ‘an historical one with no meaningful purpose’.[16] 

   [16]Victoria, Parliamentary Debates, Legislative Council, 28 October 1980, 1650 (Haddon Storey, Attorney-General). 

1. One consequence of this reform, as the Minister explained in the Second Reading Speech, was that the felony murder rule had to be reformulated:

The common law rule known as the felony murder rule is necessarily changed by the abolition of the word ‘felony’.  That rule provides that, where a person causes the death of another person by an act of violence done in the course or furtherance of a felony involving violence, that person is guilty of murder.  That rule will now form part of the statute law rather than the common law and is stated in clause 3 of the Bill.  For the expression ‘felony involving violence’ there appears the expression:

crime of violence for which a person upon first conviction may under or by virtue of any enactment, be sentenced to life imprisonment or to imprisonment for a term of ten years or more …[17]

[17]Ibid.  See also R v Butcher [1986] VR 43, 51.

1. As enacted, s 3A provides as follows:

3A Unintentional killing in the course or furtherance of a crime of violence

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2)The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

1. Thus, statutory murder is committed when death results from an act of violence done ‘in the course or furtherance’ of another crime. In this field of discourse, that other crime is referred to as ‘the foundational offence’. Under s 3A, the foundational offence must be an offence of violence which carries a maximum penalty of ten years or more.

1. Importantly, s 3A is a deeming provision. The section creates a statutory fiction. The offence which the section establishes is deemed to be the same as the offence of intentional murder. That is, a person who unintentionally causes the death of another person in the course of a crime of violence is liable to be convicted of murder as though he/she had killed the victim intentionally. 

1. Put another way, a person who unintentionally causes a death in the specified circumstances is to be treated — for the purposes of criminal liability — as if he had intended to cause the death.  The legal fiction, it has been said, is that the intention to commit the foundational crime of violence is transferred ‘to the death which accidentally happens’ in the perpetration of the foundational offence.[18]

   [18]New South Wales Law Reform Commission, Complicity, Report No 129 (2010) [5.7].

1. As can be seen, the legislature set out in sub-s (2) its own definition of the felony murder rule which it was abolishing.  That definition of the rule is identical to the definition of the statutory offence in sub-s (1) except that, in the latter, the phrase ‘a felony of violence’ is replaced by the phrase ‘a crime the necessary elements of which include violence’.  Thus, although the common law rule was being abolished, the identity of language shows that the legislature did not regard itself as altering the elements of the offence.  Rather, as the Attorney-General said, the rule would ‘now form part of the statute law rather than the common law’. 

1. Questions about the scope and application of s 3A are therefore questions of statutory construction, to be determined according to accepted principles of interpretation. Context and legislative history must both be considered.

1. To prove a charge of murder under s 3A(1), the prosecution must show that:

(z)               the accused caused the death of another person by an act of violence; 

(aa)            the act of violence was done ‘in the course or furtherance of a crime the necessary elements of which include violence’;  and

(bb)            the crime in question must be one which exposes an offender, on first conviction, to a maximum term of at least 10 years’ imprisonment.

1. What constitutes ‘an act of violence’ for this purpose was explained by the Full Court in R v Butcher[19] as including acts of intimidation and menaces as well as physical force.  The Court said:

When the words ‘act of violence’ and ‘crime the necessary elements of which include violence’ are used in s 3A, violence is used in a descriptive sense. ‘Act of violence’ means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is by definition an element.[20]

[19][1986] VR 43.

[20]Ibid 53.

1. Two issues emerge from the statutory language employed in s 3A. First, what is the effect of the introductory words, ‘a person who unintentionally causes the death of another person’?  Second, what is the consequence of the offender being liable to be convicted of murder ‘as though he had killed the victim intentionally’?[21] 

   [21]Crimes Act 1958 s 3A(1) (emphasis added).

1. As to the first of these, it was said in R v Galas[22] and again in Zaim v The Queen,[23] that the prosecution must prove affirmatively that the killing was unintentional.  With respect, we disagree.  In our view, the legislative history (set out above) reveals that the word ‘unintentionally’ was used in this provision solely in order to make clear that — as at common law — the prosecution was relieved of the obligation to prove an intention to kill (or cause really serious injury).[24] 

   [22](2007) 18 VR 205, 213 [28].

   [23][2011] VSCA 80 [3] (‘Zaim’).

   [24]This is undoubtedly the position in NSW, where the statutory provision is differently expressed:  R v Lin [No 2] [2014] NSWSC 1710 [14]–[15] (‘Lin’).

1. Put simply, the legislature declared the absence of such an intention to be immaterial to guilt for murder where a death occurs in the course of a foundational offence. For the purposes of conviction, the offender is treated as though he/she had a murderous intent. The offender’s (lack of) intention is immaterial. Thus, where a killing occurs in the course of a foundational offence which satisfies s 3A, the offender will be liable to conviction for statutory murder irrespective of whether any conclusion can be drawn as to whether the killing was, or was not, intentional.

1. A comparison of three cases will illustrate the point. A person takes a loaded shotgun to a bank for the purposes of committing an armed robbery. In the course of the armed robbery, the offender discharges the firearm deliberately. In one case, he does so intending to kill a security guard; in the second, he does so intending only to fire a warning shot; in the third, the evidence does not reveal what his intention was. In each case, the security officer is shot and killed. The effect of s 3A is that the absence of an intention to kill does not affect the offender’s liability to conviction for murder. The statute is unambiguously clear. The offender in each of the second and third cases is still liable to be convicted of murder ‘as though he had killed that person intentionally’.

1. As already explained, the fact that the death occurs in the course of the foundational crime of violence is treated as supplying the mental element for murder. It may well have been contemplated that s 3A murder would only be charged in a case where the killing could not be proved to have been intentional. But, in truth, the section gives the prosecuting authority an unfettered choice. If a death occurs in circumstances to which s 3A applies, the offence of statutory murder may be charged even if there is a reasonable prospect of establishing that the accused acted with intent to kill or cause really serious injury. Or, as happens not infrequently, both forms of murder may be charged.[25]

   [25]R v Ng (2002) 136 A Crim R 415, 417–18 [8]–[9] and the cases there cited;  R v Thurston [2004] NSWCCA 98 [4].

1. For liability under s 3A, it must be proved — or admitted — that the ‘act of violence’ which caused the death was conscious, voluntary and deliberate. It is a separate question — relevant only to sentence — whether, in committing the act of violence (which can include an act of intimidation or menace), the offender intended to cause harm to the victim.

1. Thus, the offence of statutory murder covers the full range of conduct, from the case where the death is an accidental result of the act of violence to the case where the death is the intended result of that act.  On ordinary sentencing principles, it will be relevant to the Court’s assessment of the gravity of the offence, and of the offender’s culpability, to consider where within that range the conduct is proved to fall.

1. Accordingly —

(cc)             the fact that intention does not have to be proved does not mean that statutory murder is inherently less serious than common law murder;  and

(dd)           the objective gravity of a particular offence of statutory murder will vary according to the circumstances of the killing.  Whether the act which causes death is accompanied by any particular malicious intent will inform the assessment of objective gravity and culpability.

1. We deal later with the course to be adopted by a court sentencing a person convicted of statutory murder, in a case where a finding of a murderous intent is open on the evidence.

Divergent approaches to statutory murder in Victoria and New South Wales

1. As will appear, appellate courts in New South Wales and in Victoria have diverged in their approach to the question whether murder under s 3A should be treated as inherently less serious than common law murder — and as attracting significantly lower sentences — because murderous intent is not an element of the statutory offence.

1. The relevant provision in New South Wales is s 18 of the Crimes Act 1900 (NSW), which provides that ‘murder shall be taken to have been committed’ (relevantly) when the act of the accused which caused the death was done:

(ee)            with intent to kill or inflict grievous bodily harm;  or

(ff)              during or immediately after the commission ‘of a crime punishable by imprisonment for life or for 25 years’.

1. The first of these alternatives equates with common law murder in Victoria.  The second is described in the New South Wales authorities as ‘felony murder’ or ‘constructive murder’.[26] A peculiarity of this form of statutory murder is that, by contrast with s 3A(1), the foundational offence does not need to be an offence of violence.

   [26]Lin [2014] NSWSC 1710 [14].

1. In R v Mills,[27] the New South Wales Court of Criminal Appeal dealt with the case of an offender who had robbed a store by placing a loaded gun to the attendant’s head, with no intention of discharging the weapon.  The gun went off, killing the attendant.  Cole JA said:

As the trial judge made clear, taking a loaded firearm and using it as a threat whilst in the course of committing a serious felony is a most serious matter.  It is to be greatly discouraged by sentences of this Court.  The fact that the murder was a felony murder is no ground for reducing either the minimum term or the total sentence.[28]

[27](Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Cole JA and Sperling J, 3 April 1995) (‘Mills’).

[28]Ibid 3 (emphasis added).

1. Gleeson CJ agreed:

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

I would reject that premise.  Indeed, it would be difficult to select a better case than the present for the purpose of demonstrating its falsity.  This was a case where a young man with an appalling history of criminal offending used a loaded gun in an armed robbery.  He came to close quarters with the surprised victim.  As is highly likely to occur in such circumstances, the weapon discharged.  For the sake of the appellant’s determination to get his hands on a few hundred dollars, an innocent person lost his life.  This is a case of murder involving a very high degree of seriousness.[29]

[29]Ibid 4 (emphasis added).

1. The reasoning of Cole JA and Gleeson CJ in Mills has been widely cited with approval.[30]  In R v JB,[31] the New South Wales Court of Criminal Appeal considered the case of two co-offenders, JB and RJH, who had robbed the deceased of his wallet while attacking him repeatedly to the head with a heavy rock, causing death.  Both pleaded guilty to felony murder.  One of the grounds of RJH’s appeal was that the sentencing judge had erred in finding, as a circumstance of aggravation, that RJH continued to strike the deceased until he had satisfied an intention of inflicting grievous bodily harm upon him.  In effect, it was said, RJH had been sentenced for a different class of murder.

   [30]Jacobs (2004) 151 A Crim R 452, 512 [332]; R v Wigney [2004] NSWCCA 171 [31] (‘Wigney’).;  R v Teck Lee Lew [2004] NSWCCA 320 [19]; Aslett v The Queen [2006] NSWCCA 360 [21]. See also R v Winters (1997) LSJS 350, 352.

   [31][1999] NSWCCA 93 (‘JB’).

1. Dismissing the appeal, Stein JA (with whom Studdert J and Smart AJ agreed) said:

I think it is correct to say that there are degrees of seriousness of felony murder, just as any other serious crime.  The starting point was for the judge to determine the objective gravity of the crime.  This depends, for the most part, on the nature of the actual acts of the offender which played a part in the death of the victim.  His Honour's finding that the applicant participated in an attack on the deceased with an intention to inflict grievous bodily harm on him does not elevate the felony murder into another class of murder.  His Honour had to assess the material before him, including the evidence of the applicant, in order to consider what was an appropriate sentence.  It is conceded by the applicant that in doing so the judge is entitled to take into account the infliction of grievous bodily harm, but not the intention to inflict it.  In light of the facts of this case, it seems to be a distinction without a difference.  It is necessary to analyse the conduct involved to ascertain the degree of moral culpability.  Even assuming that his Honour was wrong, and I am not convinced of this, it is difficult to see that a re-sentencing would make any difference. … I do not see that it can be concluded that his Honour passed sentence on the applicant on the basis of a different factual substratum than that required by the charge of felony murder.[32]

[32]Ibid [33] (emphasis added).

1. Inhttp:// and 2004 - disp0 R v Wigney,[33] the offender had fired two shots during an armed robbery and killed the off duty manager of the hotel.  The sentencing judge had not been prepared to find beyond reasonable doubt that the offender, in discharging the gun, intended to kill or inflict grievous bodily harm on the victim, though he rejected a submission that the firing of the gun was accidental.  The Crown challenged the finding that the respondent fired the weapon in some reflex fashion. 

   [33][2004] NSWCCA 171.

1. Grove J (with whom Dunford and Howie JJ agreed) found that the evidence showing that the discharge of the weapon was deliberate was incontrovertible.  His Honour concluded that manifest inadequacy had been made out and said:

[A]n absence of intention to kill or do grievous bodily harm does not necessarily mean that responsibility on the basis of felony murder is less serious:  R v Mills.  In this instance, setting aside the notion that the firing of the pistol (twice) was some form of reflex action and recognizing the deliberate disarming of the safety mechanism and the proximity of the victim to the muzzle of the weapon, I conclude that this was a crime, the seriousness of which is at least at the level of responsibility for murder on the basis of specific intent.[34]

[34]Ibid [31] (emphasis added) (citations omitted).

1. In R v Jacobs,[35] Wood CJ at CL (with whom Sperling and Kirby JJ agreed) said:

Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder:  R v Mills.  Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender’s conduct and the part which he or she played in the events giving rise to the death:  R v JB.[36]

[35](2004) 151 A Crim R 452.

[36]Ibid 512 [332] (emphasis added) (citations omitted).

1. New South Wales courts continue to apply the view that constructive murder is not to be regarded as inherently less serious than other categories of murder.[37]  They also treat the offender’s intent — if proved or admitted — as relevant to sentence.[38]

   [37]R v Houri [2007] NSWSC 615 [48]; R v Smith[No 4] [2011] NSWSC 1082 [14]; R v Phan [2016] NSWSC 483 [22]–[23].

   [38]Wigney [2004] NSWCCA 171 [31]; R v Houri [2007] NSWSC 615 [47].

1. In Victoria, however, a quite different line of authority has developed.  It has become the accepted view that statutory murder is less serious than common law murder, and the offender less culpable, because the killing is assumed to have been unintentional or because the prosecution does not allege intention.  As a result, a range of sentences for statutory murder has developed which is markedly lower than the range for common law murder, as the sentencing judge in the present case  pointed out to the prosecutor on the plea.[39]

   [39]See below [99].

1. In Director of Public Prosecutions v Zaim,[40] Harper J had to sentence an offender who, when affected by ‘ice’, had attempted to steal a taxi. The offender had pushed the taxi driver out of the driver’s side door, causing him to be crushed when the car connected with a tree. A jury found him guilty of murder under s 3A. In sentencing the offender to 17 years for the offence, Harper J said:

[T]he Director of Public Prosecutions charged you with, and the jury convicted you of, a special class of murder.  It may be referred to as an unintentional killing in the course of a crime of violence.  In this case, the violence was the act of pushing the taxi driver out of his taxi.  No weapon was used, and the Director did not allege that you intended the death of your victim.  The law, therefore, does not permit me to sentence you as if you intended to kill.

…

There is no presumption that murder resulting from reckless indifference to human life is necessarily less culpable than murder involving one of the other categories of malice.  Nevertheless your counsel … argued that the lack of an intention to kill reduces your criminality from that which it would have been had that intention constituted the foundation of your actions.

It seems to me that in this case I should accept [that] submission.  Even so, yours was a very serious crime indeed.  You were entirely reckless for [the victim’s] safety.  To the extent that [counsel’s] submission has force, its strength lies in the fact that the risk to which you exposed [the victim] was not as great as it might in other circumstances have been.  But I cannot avoid the reality that you totally ignored that risk, with consequences which in the result were fatal.  What is more, [the victim] endured the terror of the attack made by you upon him as you attempted to gain control of the taxi.  Your violence towards him was a conscious, voluntary and deliberate act.[41]

[40][2008] VSC 543 (‘DPP v Zaim’).

[41]Ibid [3], [21]–[22] (emphasis added).

1. On the offender’s appeal against sentence,[42] this Court rejected a challenge to the 17 year sentence as excessive.  Bongiorno JA (with whom Ashley and Hansen JJA agreed) said:

The maximum penalty for murder, including statutory murder, is life imprisonment.  It is against that yardstick that the sentence imposed on Mr Zaim must be examined for manifest excess.

…

The culpability of a person convicted of constructive or statutory murder can vary across a very wide range — from accessorial involvement in a homicide where death could be truly characterised as accidental — to direct involvement in a crime of violence where intentional violence results in unintentional death.  In this case, the actions of the applicant place his culpability much closer to the higher end of this spectrum than to the lower.  To attempt to push a person out of a moving car, as the jury must have found the applicant did, carries with it at least a foreseeable risk of serious injury even if the actual mechanism by which [the victim] met his death might not have been foreseeable or foreseen by the applicant.  It is in this light that the sentence must be considered.[43]

[42]Zaim [2011] VSCA 80.

[43]Ibid [47]–[48] (emphasis added).

1. We note that, even at the top end of this suggested culpability range for statutory murder, the case was said to be one of ‘unintended death’.  This was consistent with the trial judge’s description of statutory murder as ‘a special class of murder’, involving ‘unintentional killing’.  At the same time, the Court had no occasion to consider the correctness of Harper J’s conclusion that the offender’s (assumed) lack of an intention to kill ‘reduced his criminality’ from that which it would have been had the killing been intentional.

1. In Director of Public Prosecutions v MM,[44] a 16-year-old offender, acting in a group, robbed the victim of his phone.  In so doing, he lifted the man and dropped him on his head.  The victim’s head hit a hard object as he fell.  MM’s 20-year-old co-offender, Caratozzolo, kicked the victim forcefully in the head.  The victim died in hospital four days later.  Although it could not be determined whether it was the kick or the impact of the fall on the hard surface which had proved fatal, the force that MM used was determined to have been sufficient to cause death.  The group then robbed a second victim. 

   [44][2009] VSC 336 (‘MM’).

1. MM was sentenced to nine years’ imprisonment for statutory murder and Caratozzolo was sentenced to 13 years’ imprisonment for statutory murder.[45]  In sentencing MM, Harper J said:

The Director of Public Prosecutions had a number of options when deciding upon the offences with which you and Caratozzolo might be charged.  Robbery was obviously one of them.  The fact that the attack had resulted in [the victim’s] death raised other considerations.  Had there been evidence of an intention to kill, murder was another obvious possibility.  Generally speaking, however, a charge of murder cannot be made out unless the prosecution proves, and proves beyond reasonable doubt, that the accused intended to kill.  But it seems that the Director concluded that there was no, or no sufficient, evidence of an intention to kill, or even to cause really serious injury.  I have no quarrel with that conclusion.

…

The Director of Public Prosecutions chose not to allege an intention either to kill or to cause really serious injury.  Rather, he chose to proceed against both you and Caratozzolo by invoking s 3A.  I repeat that I do not suggest that he was wrong to take this course.  But it was his choice.  The court played no part in making it.  On the other hand, it has the result that you must be sentenced on the basis that you did not intend [the victim’s] death.  The court cannot sentence you as if you had an intention that is not alleged and not admitted.[46]

[45]DPP v Caratozzolo [2009] VSC 305 (‘Caratozzolo’).

[46]MM [2009] VSC 336 [29], [31] (emphasis added).

1. Reflecting on public disquiet which had apparently been generated by the prosecution’s acceptance that the killing was unintentional, his Honour observed:

The maximum sentence for a s 3A murder is the same as for a murder constituted by an intentional killing: that is, life imprisonment. On the other hand, Parliament has enacted legislation which requires the courts, when deciding upon an appropriate sentence, to take into account, among other things, the nature and gravity of the offence.  And the absence or presence of an intention to kill is something which is a necessary element of that nature and that gravity. Of course, the absence of an intention to kill as a mitigating factor may be so overwhelmed by the criminality of other aspects of a s 3A killing that it cannot warrant any reduction in the sentence which must be imposed. Ordinarily, however, the absence of an intention to kill will result in a lesser sentence than would have been imposed had the criminal intended the death of the victim.[47]

[47]Ibid [33] (emphasis added).

1. Adams J in the New South Wales Court of Criminal Appeal in Raad v The Queen[48] expressed a similar view, in different terms:

If one were to make a general statement of relative seriousness (omitting subjective features) to my mind, other things being equal, the killing of a person intending to do so involves a higher degree of moral turpitude than killing without such an intention, whilst killing where there is no intention either of inflicting death or serious injury involves still less moral turpitude. Broadly speaking, felony murder falls into this class.  Of course, other things are usually not equal at all, so at this level of abstraction such a generality is only slightly, if at all, informative.[49]

[48](2011) 220 A Crim R 471.

[49]Ibid 487 [47].

1. In Director of Public Prosecutions v Canham,[50] the 20-year-old offender forcefully struck the deceased twice to the head with a tyre lever in the belief that the deceased had stolen from him.  Canham searched the deceased’s pockets and then fled.  The sentencing judge found that Canham did not intend to inflict violence on the deceased, but instead intended to rob him and recover property he assumed belonged to him.  However, it was found that Canham must have contemplated violence had he been faced with resistance.  Canham pleaded guilty and was sentenced to 14 years’ imprisonment, with a non-parole period of nine years.

   [50][2011] VSC 296.

1. In his sentencing remarks, Kaye J observed:

The offence, to which you have pleaded guilty, namely murder, is the most serious offence known to our criminal justice system.  The maximum sentence prescribed by law is life imprisonment.  By accepting your plea of guilty to statutory murder, as distinct from common law murder, the prosecution has expressly accepted that, at the time at which you struck the fatal blow to [the victim], you did not intend to kill him, or to cause him really serious injury, and you have pleaded guilty on that basis.  Accordingly, and notwithstanding the evidence of Professor Cordner as to the nature of the fatal injury inflicted on [the victim], and the degree of force required to produce that injury, I am obliged, in sentencing you, to act on the basis of the concession made by the Crown. 

…

In the course of sentencing submissions, there was some discussion by counsel as to how I should view the gravity of your offending in this case.  In particular, [defence counsel] made submissions that your offending in this case should be regarded, for the purposes of sentencing, as substantially less serious than if you had been convicted for the intentional murder of your victim.

As I already stated, you are to be sentenced on the basis that you did not intend to kill, or cause really serious injury to, [the victim].  Rather, you are to be sentenced on the basis that you unintentionally caused his death through an act of violence done by you in the course or furtherance of a crime, namely armed robbery, the necessary elements of which included violence. … I do not accept that this case is an instance of statutory murder which, broadly speaking, could be categorised as being substantially less serious than intentional murder.[51]

[51]Ibid [11], [13]–[14] (emphasis added).

1. As can be seen, his Honour was here proceeding on the accepted view that, once a plea to statutory murder had been accepted, he was obliged to treat the killing as unintentional, irrespective of what the evidence might have suggested about the intent which accompanied the fatal blow.  At the same time, his Honour rejected the defence submission that, as a result, the particular offence was ‘substantially less serious’ than if it had been an intentional murder.

1. In R v JLE,[52] the offender, aged 15 at the time of the offending, stabbed a man whilst attempting to steal his phone.  He pleaded guilty and was sentenced to 13 years’ imprisonment, and a wholly concurrent two years and six months for attempted armed robbery.  The non-parole period imposed was eight years.  Coghlan J was again reflecting the accepted view when he said:

It is accepted that due to your plea to constructive murder that you did not intend to kill or really seriously injure [the victim] during the attempted armed robbery.

…

The importance of s 3A is that although it deals with the ‘unintentional causing of death’, it does make a person such as you, who engages in such conduct, liable to be convicted of murder and that is the consequence of this case.

On the one hand, your conduct is less blameworthy because it is accepted that [the victim’s] death was an unintentional consequence of your actions, and that was conceded by the prosecution.  But it cannot be avoided that your conduct is still serious because you had committed yourself to quite serious conduct — armed robbery — which carries a maximum term of imprisonment of 25 years in any event.  Attempted armed robbery for which you fall to be sentenced carries a maximum sentence of 20 years.[53]

[52][2011] VSC 669 (‘JLE’).

[53]Ibid [19], [22]–[23] (emphasis added).

1. In R v Kelly,[54] the offender believed that a man (B) had stolen items from the house of his deceased friend.  While intoxicated, he went to confront B, taking a loaded rifle with him.  Before entering the house, he fired a shot at the window.  He then entered through the back door and fired a shot down the hallway, causing the death of B’s pregnant partner.

   [54][2013] VSC 144.

1. Kelly pleaded guilty to one charge of statutory murder and one charge of reckless conduct endangering life.  He was sentenced to 17 years’ imprisonment for statutory murder.  A total effective sentence of 19 years’ imprisonment, with a non-parole period of 16 years, was imposed.  In his sentencing remarks, Osborn JA said:

Insofar as the charge of murder is concerned, the Crown put the case against you on the basis of malice derived from an act of violence in the course of a crime.

…

I must sentence you on the basis that the Crown does not put its case on the basis of transferred malice or malice derived from recklessness.  This is despite the fact that the admissions that you made to police at Apsley would plainly found a case of transferred malice.[55]

[55]R v Kelly [2013] VSC 144 [18]–[19]. The judge here cited R v Pollitt [1991] 1 VR 299, 301–2.

1. Clearly enough, the plea had been conducted on the basis of the conventional view.  That is, once the Crown had accepted a plea to statutory murder, his Honour was obliged to treat the killing as unintended.  Equally clearly, his Honour was troubled by being unable to take into account the offender’s admissions which — in his Honour’s view — ‘plainly’ showed murderous intent.  His Honour continued:

The maximum penalty for murder, including statutory murder, is life imprisonment.  The culpability of a person convicted of constructive or statutory murder can vary across a very wide range — from accessorial involvement in a homicide where death could be truly characterised as accidental, to direct involvement in a crime of violence where intentional violence results in unintentional death.[56]  In this case your actions place your culpability much closer to the higher end of the spectrum than the lower.  The intentional firing of your rifle down the hallway of the house after you had smashed in the back door was an act of intentional violence, albeit that I accept it resulted in the unintended death of [the victim].[57]

[56]Zaim [2011] VSCA 80 [48] (citation in original).

[57]R v Kelly [2013] VSC 144 [20] (emphasis added).

1. His Honour identified the following circumstances as aggravating the seriousness of the offence of statutory murder.  The offender had taken a loaded firearm with him ‘to pursue [B] and at the very least place him in fear of injury’;  had entered the house ‘in a state of rage’;  had known that B’s partner was present in the immediate vicinity when he fired the fatal shot;  had ignored her screams of ‘Don’t do it’;  must have known that, because of the period over which he had been drinking, his use of the firearm might be affected;  had shot a pregnant woman who must have been terrified by his invasion of the house;  and, knowing her to be shot, did not attempt to give her any aid but pursued B into the backyard of the house.[58]

   [58]Ibid [21].

1. Although his Honour found that Kelly performed a deliberate act of intentional violence, the fact that the Crown had agreed that it could not establish that Kelly acted either with the intention to kill or with the intention to cause really serious injury was ‘a significant factor reducing [his] moral culpability’.[59]  His Honour set out the passage from MM,[60] in which Harper J, described the absence of intention as ‘a mitigating factor’, before concluding in these terms:

For the reasons I have explained however, it nevertheless seems to me that when the circumstances of your offending as a whole are considered the murder you committed must be regarded as falling towards the upper end of the range of seriousness and culpability [for statutory murder] referred to by the Court of Appeal in Zaim v The Queen.[61]

[59]Ibid [42].

[60]See above [67].

[61]R v Kelly [2013] VSC 144 [43] (citations omitted).

1. On appeal, this Court held that the sentence of 17 years for statutory murder was not manifestly excessive.[62]  Weinberg JA (with whom Neave and Redlich JJA agreed) stated:

The applicant was dealt with on the basis of a s 3A murder. He was entitled, by virtue of that fact, to receive a more lenient sentence (given the unintended nature of the killing) than if he had been dealt with on the basis of transferred malice.  He received a sentence of 17 years’ imprisonment in relation to the charge of murder which, despite its characterisation by the sentencing judge as ‘statutory murder’, and its essential character as an unintended killing, was nonetheless still murder, an offence that carries a maximum sentence of life imprisonment.[63]

[62]Kelly v The Queen [2013] VSCA 336 (‘Kelly’).

[63]Ibid [11] (emphasis added).

1. Neave JA observed:

This is a very serious example of statutory murder.  It is certainly possible to envisage examples of intentional murder which are less objectively grave than the offence committed by the applicant.  Such examples of intentional murder might well attract a lesser sentence than the sentence imposed on the applicant.

In my view the sentence in this case was lenient having regard to the matters set out in … the sentencing judge’s reasons.  Indeed, the applicant was fortunate not to have received a more severe sentence.[64]

[64]Ibid [15]–[16].

1. Redlich JA said:

This offence was not only one which fell within the higher end of cases for such offending, as the Crown submitted on the plea.  It was, in my view, a case within the worst category. 

That being so, the sentence imposed was, in my view, a very lenient one.

The more objectively grave the conduct, the subject of the statutory offence of murder, the greater the alignment one would expect with sentences that would be imposed for intentional murder in similar circumstances.

A term of imprisonment in the order of 20 years would not have been out of the question.[65]

[65]Ibid [21]–[24].

Consideration

1. In our respectful view, the position enunciated in the New South Wales authorities is correct. Murder under s 3A is not inherently less serious than common law murder.[66] Nor does the law recognise any inherent difference between the moral culpability of a person convicted of statutory murder and that of a person convicted of common law murder. Accordingly, the mere fact that the offence is s 3A murder, rather than common law murder, has no bearing on the sentencing outcome.

   [66]Mills (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Cole JA and Sperling J, 3 April 1995) 3–4;  R v Winters (1997) 192 LSJS 350, 352; Jacobs (2004) 151 A Crim R 452, 512 [332]; DPP v Zaim [2008] VSC 543 [21].

1. The Court’s assessment of the gravity of the particular offence under s 3A, and of the offender’s culpability, will depend — as for any other offending — on the objective and subjective circumstances of the case.[67]  The seriousness of any particular statutory murder is to be assessed according to the nature of the act(s) of the offender which caused the death of the victim.[68]  A particular instance of statutory murder may therefore be more serious than some instances of common law murder.[69] 

   [67]Mills (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Cole JA and Sperling J, 3 April 1995) 3–4;  JB [1999] NSWCCA 93 [33];  R v Teck Lee Lew [2004] NSWCCA 320 [19]; Jacobs (2004) 151 A Crim R 452, 512 [332]. See also R v Garve (1995) 65 SASR 483, 486.

   [68]JB [1999] NSWCCA 93 [33].

   [69]Mills (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Cole JA and Sperling J, 3 April 1995) 3–4;  JB [1999] NSWCCA 93 [33]; Jacobs (2004) 151 A Crim R 452, 512 [332]; Aslett v The Queen [2006] NSWCCA 360 [21]; Zaim [2011] VSCA 80 [48]; Kelly [2013] VSCA 336 [15]. In a number of cases findings have been made that the level of seriousness is in fact at the level of responsibility for murder with intent: see, eg, R v Petrinovic [2001] NSWCCA 118 [21]; Wigney [2004] NSWCCA 171 [31].

1. As we have said, statutory murder is not to be viewed as inherently less serious than common law murder, or as having a lower ‘starting point’ for sentencing. Both intentional murder and s 3A murder carry the same maximum penalty, that of life imprisonment.[70]  The sentencing guidance which the maximum penalty provides is therefore the same for both offences.[71]

   [70]R v Beacham (2006) 163 A Crim R 348, 353 [24] (dealing with a similar, though differently worded, provision in Queensland).

   [71]Markarian v The Queen (2005) 228 CLR 357, 372 [30]–[31].

2. The persistence of the incorrect view — that statutory murder is an inherently less serious form of murder — has resulted in sentences being unduly confined in length. Markedly lower sentences have been imposed than would ordinarily be imposed for common law murder in the same category of seriousness.  Sentencing practice for this offence should be altered to reflect the objective gravity of statutory murder.

3. R v Kelly appears to be the only Victorian case where a finding might have been made that the act causing death was accompanied by an intention to cause — at least — really serious injury.  The offending in the present case was more serious, however.  The CCTV evidence showed very clearly the forceful manner in which Perry stabbed Mr O’Toole, twice, in the upper chest region.  On the view of the law set out in these reasons, the question of Perry’s intent was a matter which could, and should, have been investigated, as going to the gravity of the offence and Perry’s moral culpability.  As explained below, however, the sentencing judge proceeded on the understandable assumption that she was precluded from raising that issue.

   When is a sentencing judge entitled to depart from  agreed facts?

1. We turn to consider what course would be open to a sentencing judge in a case of statutory murder, if the agreed position on the plea was that there was an absence of murderous intent but the evidence before the judge invited the inference that the violent act had indeed been accompanied by such intent. 

1. First, we should make some general observations about the approach required in sentencing for any offence where there is an issue as to intent.  By a plea of guilty the offender is taken to admit each of the elements of the offence to which they pleaded.  Conventionally, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.[72] 

   [72]         DPP v CPD (2009) 22 VR 533, 543 [41].

1. If intent is not an element of the offence but the prosecution wishes intent to be taken into account as an aggravating circumstance, it must bring that to the attention of the judge and, if necessary, call evidence in support of it.[73]  A finding that an offender possessed a particular intent, being a finding adverse to the offender, could only be made if established beyond reasonable doubt.[74] 

   [73]R v Olbrich (1999) 199 CLR 270, 281 [25]; R v Storey [1998] 1 VR 359, 367 (‘Storey’).

   [74]Storey [1998] 1 VR 359, 369.

1. Conversely, a sentencing judge could not make a mitigatory finding that the act was unintentional — if that was a matter in dispute — solely because intention was not an element of the offence or because the prosecution could not prove intention.  The High Court in R v Olbrich rejected a contention that

a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt.[75] 

If the issue was disputed, a sentencing judge could only take account of the absence of an intent if persuaded of that fact on the balance of probabilities.[76] 

[75](1999) 199 CLR 270, 280 [24].

[76]Ibid 281 [27]; Storey [1998] 1 VR 359, 369.

1. Returning to statutory murder, even if parties are agreed as to how the presence or absence of intent should be approached, if the admitted facts would support an inference of murderous intent the sentencing judge is not precluded from drawing that inference and treating it as an aggravating factor. Nothing in the language of s 3A expressly or impliedly prohibits the sentencing judge from considering whether the accused possessed a murderous intent.

1. As we have said, s 3A is a deeming provision which creates liability to conviction for murder without requiring proof of intent. The absence of that requirement does not render intent — if present — irrelevant, or evidence of intent inadmissible.

1. Thus, if in a future case the prosecution agreed not to allege murderous intent, the judge would not be bound by the parties’ agreement if he/she considered that the undisputed evidence supported an inference of intent.  And, if the admitted evidence supported no other conclusion, the judge could not sentence upon facts that were plainly wrong.  To do so would impede the course of justice.  In any such case, of course, procedural fairness would require that the judge inform the parties of his or her provisional view, in order that they may be given a sufficient opportunity to make submissions.[77]

   [77]Scott v The Queen [2010] VSCA 290 [48].

1. The principles relevant to ‘going beyond’ the agreed facts were set out in R v Lowe.[78]  In that case, the sentencing judge had found several aggravating factors which had not been contained within the ‘undisputed facts’ agreed between the parties on the plea.  The Court said:

   [78][2009] VSCA 268.

Now, it is more likely for a plea hearing to be heard on the basis of an agreed statement of facts (or statement of undisputed facts as it was in the present case) rather than on facts that could be found in the depositional material.  Accordingly, a sentencing judge will often be required to inform the parties and invite submissions, if he or she intends to ‘go beyond’ those facts which have been agreed or are not disputed between the parties.  That obligation will be informed by the principles of procedural fairness.

In sentencing, the judge is not fettered by the facts upon which the parties rely.  The judge may seek further facts from either party or may indicate that he or she intends to rely upon facts additional to those which the parties have put the court so long as it is done in accordance with ordinary legal principles appropriate to a criminal trial.  This Court in R v Mielicki endorsed the principles set out by Kirby P in R v Chow where his Honour said:

The judge may go behind the agreement of the parties as to the approach which they urge should be taken to the facts relevant to sentencing.  But in that event, the judge must be careful to avoid the kind of procedural unfairness which is inherent in accepting a plea of guilty but then proceeding to impose a sentence upon a different factual substratum than that required by the essential ingredients of the offence and agreed between the parties when the plea was taken.

In addition to such procedural unfairness, the Court in Mielicki adverted to the further requirement that the offender be alerted by the judge to any proposed reliance upon facts — in that case contained in the depositional material — which went beyond the ambit of any agreed factual statement.  That would enable any such material to be disputed or, indeed, would have given the applicant the opportunity to consider an application to withdraw his plea of guilty.  In R v Duong the Court observed:

Procedural fairness requires that if a judge proposes to depart from an agreed statement of facts which has formed the basis of a guilty plea, and to rely instead upon facts which are not contained in, or to be inferred from, the agreed facts, the judge should inform the parties in order that they may be given a sufficient opportunity to challenge the material on which the judge is proposing to rely and, if appropriate, to withdraw the plea.[79]

[79]Ibid [15]–[17] (citations omitted).

1. In this case, the evidence before the sentencing judge clearly invited the inference that Perry had a murderous intent when he stabbed Mr O’Toole twice in the chest.  The CCTV footage of the offending conduct and the nature of the stab wounds suggested, very powerfully, that when Perry stabbed Mr O’Toole he intended, at least, to cause really serious injury.  The presence of that intention was highly relevant to the sentencing task.[80] 

   [80]MM [2009] VSC 336 [33]; Cf R v Robinson [2001] NSWCCA 180 [12].

1. The judge in the present case was, however, placed in an unenviable position by the course which the Crown adopted, as her Honour explained in her reasons for sentence:

The prosecution has chosen to charge you with what is often called ‘statutory murder’ or ‘section 3A murder’, rather than common law murder.  Both types of murder carry the same maximum sentence.  However, the significance of the charge, for sentencing purposes, is that the prosecution does not allege that you stabbed Mr O’Toole with any intention to kill him or cause him really serious injury.  Instead, the prosecution case is that you unintentionally caused his death, by an act of violence done in the course or furtherance of committing the armed robbery.  The court is obliged to sentence you in accordance with the charge which the prosecution has chosen.[81]

[81]Reasons [18] (emphasis added).

1. In those circumstances, given the jurisprudence and the accepted sentencing practice to which we have referred, her Honour understandably assumed that she was precluded from considering whether the evidence should be viewed as establishing that Perry had an intent to cause really serious injury.  Had her Honour felt able to explore that issue, procedural fairness would have required that Perry and the Crown be given the opportunity to make submissions as to the course which her Honour should take, as to the conclusion to be reached regarding Perry’s intent and as to how it should be taken into account.[82]

   [82]See R v Mielicki (1994) 73 A Crim R 72.

The course of the plea and sentence

1. The defence submission on the plea was that statutory murder was less serious than intentional murder.  This submission was doubtless based on the existing jurisprudence and sentencing practice to which we have referred.  Drawing on what Harper J had said in DPP v Zaim,[83] defence counsel submitted to the sentencing judge that:

the absence of an intention to kill or to cause really serious injury … reduces the overall criminality from that which it would have been if an intention to kill or an intention to cause really serious injury was the foundation of what he did.

Counsel informed the judge that Perry had originally been charged with murder but that a plea of guilty had been entered ‘as soon as the count changed to a constructive murder plea’. 

[83][2008] VSC 543. See above [62].

1. The prosecutor did not challenge the contention that Perry should be sentenced on the basis that he had no intention to kill or cause really serious injury.  He responded to the defence submissions by quoting the passage, set out earlier, from the judgment of the New South Wales Court of Criminal Appeal in Jacobs,[84] to the effect that statutory murder ‘is not to be regarded as less serious, and thereby attracting a lighter total sentence’ than other categories of murder.  The prosecutor also quoted the statements to similar effect by that Court in Mills and in JB (also set out above).[85] 

   [84]See above [59].

   [85]See above [53]–[56].

1. Unsurprisingly, her Honour then enquired of the prosecutor whether this Court had made any similar statement about the (relative) seriousness of statutory murder.  She referred to a table of sentencing decisions which had been helpfully prepared by counsel for Perry, which included the Court of Appeal decisions in Zaim and Kelly.  Her Honour invited the prosecutor’s response to the defence submission that the Victorian decisions established a range of sentences for statutory murder ‘which on its face is substantially lower than the range for murder simpliciter’.

1. Remarkably, the prosecutor responded by saying that he had not read any of the Victorian decisions and was ‘not in any position to comment’ on the defence contention as to current sentencing practice for statutory murder.  He could not, therefore, dispute its accuracy.

1. Referring to the High Court decision in Barbaro v The Queen,[86] her Honour remarked that it was ‘most unfortunate’ that she was no longer able to ask the prosecutor for a sentencing range.  Her Honour then invited the prosecutor to identify what the Crown said were the most comparable cases.  The prosecutor referred to Zaim but, when her Honour asked what the sentence in that case had been, the prosecutor had to rely on information provided by defence counsel.  The prosecutor then referred to this Court’s decision in Kelly and said:

I expect that their Honours would have reviewed the recent cases and given an [authoritative] position in relation to that, but I can’t at the moment tell your Honour what the sentence that was imposed there is, but [defence counsel] may have that at his fingertips or nearby, and he does he tells me.  I would say that would be the best case for your Honour.

[86](2014) 253 CLR 58 (‘Barbaro’).

1. In response to the sentencing judge’s question as to where this offending fell within the range of seriousness for statutory murder, the prosecutor said:

Well, this is more … of the foreseeable, the serious end of the spectrum to deliberately select a weapon, and Mr Perry chose that, one would presume, from a number of objects that were available in the Woolworths supermarket, to take it in, to produce it, and then to use it in the fashion that he did, and Your Honour has, I appreciate, only seen that CCTV once and I expect Your Honour will look at it again.  He was using that multiple occasions and Ms O'Toole may very well be fortunate indeed, but it was used and it was used in circumstances where, as the Crown says, Mr Perry could have left without engaging in those acts of violence.  As a matter of public policy, it's at the upper end of the spectrum, in the Crown's submission, for this type of offence because it's everything that makes this type of offending dangerous and the consequences that flow from it.

1. The Crown opening made no reference to the fact of Perry’s use of ice at the time of the murder.  On the plea, however, the sentencing judge drew attention to a statement to that effect in the report of a forensic psychologist relied on by the defence.  Defence counsel confirmed that those were his instructions.  Her Honour then asked the prosecutor whether it was in issue that Perry was drug-affected at the time. 

1. The prosecutor responded that he ‘could not say one way or the other’ whether Perry was drug-affected.  He submitted, however, that if the judge accepted that Perry was on ice at the time, the consequences were as stated in Director of Public Prosecutions v Johnston.[87]  That is, the drug use could not constitute a mitigatory factor.  There was no suggestion from the prosecutor that it might have been an aggravating factor.  (As will appear, the Director submitted on the appeal that Perry’s drug use should have been so viewed.)[88]

   [87]See DPP v Johnston [2013] VSCA 362.

   [88]See below [115].

1. Regrettably, the assistance which her Honour received from the prosecutor was simply inadequate.  Although it is no longer possible for a judge to seek the assistance of a Crown submission on sentencing range, the High Court in Barbaro reaffirmed that it was the duty of the prosecutor to assist the sentencing court, and that such assistance extended to the provision of comparable cases and other relevant sentencing information.[89] 

   [89]Barbaro (2014) 253 CLR 58, 73–4 [38]–[39].

1. A prosecutor appearing on any plea, and in particular a plea of this degree of complexity, should be in a position to furnish the judge with the necessary information on relevant Victorian sentencing decisions, and to make an informed submission on which decisions are likely to be of most assistance to the judge.  Moreover, in view of this Court’s decisions in R v Martin[90] and Edwards v The Queen[91], whenever a case involves an intoxicated offender the prosecutor should be astute to consider whether the intoxication (whether from drugs or alcohol) is properly to be viewed as an aggravating factor.

   [90](2007) 20 VR 14 (‘Martin’).

   [91][2011] VSCA 87.

1. In her sentencing reasons, her Honour noted that the murder charge was the most serious of the offences to which Perry had pleaded guilty.  She continued:

The culpability of a person convicted of statutory murder can vary across a very wide range.  This is a very serious instance of statutory murder, for the following reasons.

You had been planning to rob the Jewel Shed from at least lunchtime that day, when you took such pains to leave no fingerprints on your earlier visit to the store.  About 20 minutes before you went to rob the store, you obtained the large-bladed carving knife, which you intended to use in the robbery.  Even accepting that, prior to entering the store, you had not formed an actual intention to use the knife to harm anybody, you clearly intended to use it to threaten or frighten whichever staff were in the store at the time.  And, as soon as you encountered the slightest resistance from the O’Tooles, you swiftly resorted to using the knife against them both.

Although the events in the Jewel Shed lasted for only about 30 seconds, in that short space of time you stabbed Mr O’Toole twice, stabbed at Mrs O’Toole multiple times, pushed them both around, and grabbed the toe rings.  The CCTV footage shows you acting in a fast and frenzied manner, entirely consistent with somebody on ‘ice’. 

The O’Tooles were both in their 60s, and clearly no physical match for you.  At the time you stabbed Mr O’Toole, he was lying on his back, in a vulnerable position.  You were standing between him and the door and, at that stage, could have left the store.  Instead, you moved around his legs and body, moving further into the store, in order to reach over and stab him.  The fatal stab involved you thrusting the knife into Mr O’Toole’s chest to the full depth of the blade.  You fled the store without checking to see how he was.[92]

[92]Reasons [19]–[22].

1. Later, her Honour said:

As far as current sentencing practices are concerned, there have been so few people sentenced for s 3A murder, that it is difficult to find comparable cases. However, balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, for the offence of murder I sentence you to imprisonment of 20 years.[93]

In a footnote to this part of the reasons, her Honour said:

Defence counsel referred to the sentences for eight individuals who have been sentenced for s 3A murder between 2008 and 2014. Neither the prosecution nor the court could locate any other cases. I agree with the prosecution that your offending and personal circumstances are at least as serious as those in Kelly v R [2013] VSCA 336 and Zaim v R [2011] VSCA 80.[94]

[93]Ibid [68].

[94]Ibid [68] n 7.

1. The judge also stated in her sentencing remarks that the offender’s use of ice was ‘not a mitigating factor, given [Perry’s] previous habitual usage of the drug, and the fact that [he] knew how it made [him] behave’.[95]

   [95]Ibid [24].

The Director’s appeal

1. The cornerstone of the Director’s appeal submission was the proposition that statutory murder was no less serious than common law murder.  According to the written case:

There is no basis to treat a s 3A murder as warranting a lesser sentence than a common law murder. Although elementally different from common law murder, the words of the statute making a person ‘… liable to be convicted of murder as though he had killed that person intentionally’ create no rationale for adopting a different sentencing regime from that applying to common law murder. As much was submitted by the prosecutor at the hearing of the plea.[96]

[96]As already noted, the prosecutor correctly drew her Honour’s attention to the statement of principle in the New South Wales Court of Criminal Appeal.

1. The Director calls in aid the statement in Zaim that[97]

a crime of violence where intentional violence results in unintentional death must be considered more grave than accessorial involvement in a homicide where death is truly accidental.

This was, as the CCTV footage made clear, intentional violence.  Moreover, it is said, Perry ‘selected and stole the knife, and then engaged in a dangerous and violent course of committing armed robbery.’  The Director draws attention to the judge’s finding that this was ‘a very serious instance’ of statutory murder and submits that, in those circumstances:

to fix upon a term of 20 years is illogical and tends to bring the sentencing process into disrepute.

[97]See Zaim [2011] VSCA 80 [48].

1. Senior counsel for the Director submitted that, because intention did not have to be proved for statutory murder, the offender’s intent in doing the act which caused death was ‘irrelevant for all purposes’.  The judge would have fallen into error, it was said, had she investigated that issue.  Senior counsel submitted that the New South Wales cases were wrongly decided insofar as they treated intent as relevant to sentence.

1. According to the submission, the seriousness of the offending had to be judged by reference to the ‘objective dangerousness’ of the violent act that caused the death, and the foreseeability of the consequences of that act.  The sentencing court had to decide, it was said, what a reasonable person in the position of the accused would have appreciated was the likely consequence of his actions.

1. The Director relies upon the sentencing judge’s characterisation of the offending as ‘very serious’.[98]  He argues that the only comparable case is Kelly, in which the Court emphasised that the 17 year sentence imposed on the offender for statutory murder was a lenient one.[99]  Since the present offending was more serious than that in Kelly, the sentence of 20 years’ imprisonment was therefore manifestly inadequate.

   [98]See Reasons [19].

   [99]See above [78]–[80].

1. According to the Director, a higher sentence was also required because of Perry’s extensive prior convictions, poor history of complying with court orders, going to his prospects for rehabilitation, and the fact that he was on parole in relation to other armed robberies at the time of these offences.  Relying on Veen v The Queen [No 2], the Director contends that Perry’s antecedent criminal history, including serious crimes of violence, demonstrates a continued disobedience of the law such that ‘retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted’.[100]  He also relies, as an aggravating factor, upon Perry’s commission of the offence under the influence of ice, whilst being a regular user of ice.  He is therefore taken to have been aware of its effects on him.[101]

   [100](1988) 164 CLR 465, 477.

   [101]Martin (2007) 20 VR 14.

1. In response, Perry submitted that the sentence could be seen to reflect her Honour’s view that his offending and personal circumstances were ‘at least as serious’ as those in Zaim and Kelly.  Counsel for Perry pointed out that he had received a sentence three years longer than the sentence imposed in those cases. 

Consideration

1. For the reasons given earlier, murder under s 3A should not be viewed as inherently less serious than common law murder. To that extent, the Director’s submission is correct. What the Director’s written case failed to do, however, was to make any reference to the course of Victorian decisions, set out above, which have to varying degrees expressed or assumed the contrary view.

1. As we have seen, the approach of the court in each of Zaim, MM, JLE and Kelly reflected (explicitly or implicitly) the view that the acceptance of a plea to statutory murder had the following consequences for sentencing:

(gg)            the killing had to be treated as unintentional, however strongly the evidence might suggest to the contrary;

(hh)            the offence was therefore less serious, and/or the offender less culpable, than if the offence were common law murder;  and

(ii)              the sentence should therefore be lower than if the offence had been common law murder.

1. None of those sentences was the subject of a Director’s appeal.  Zaim and Kelly were both offender appeals, and the only relevant ground of appeal was whether the sentence was manifestly excessive.  There is nothing in the reasons of this Court in either case to suggest that the point of principle now under consideration was ventilated.

1. The position today might be quite different if, for example, there had been a Director’s appeal in Kelly.  Given that it was a serious instance of statutory murder, such an appeal would have been well justified.  Had that course been taken, it would have enabled the Director to raise the point of principle which has now — belatedly — been raised.  Instead, the decision in Kelly — holding that a sentence of 17 years was not manifestly excessive — formed part of the sentencing framework within which the sentencing judge in the present case was obliged to proceed.

1. At the same time, the fact that the point of principle has never been agitated on appeal means that there is no obstacle to the Court in this case overruling the hitherto-prevailing view, that statutory murder is inherently less serious than common law murder and the offender’s culpability necessarily lower.  The statement to that effect in Kelly merely reflected the (unchallenged) assumption on which the Court was evidently invited to proceed.  Such a statement is not binding on future courts.[102]  (The same applies to what has previously been said about the need to prove that the killing was unintentional.)[103]

   [102]Baker v The Queen [1975] AC 774, 788; CSR Ltd v Eddy (2005) 226 CLR 1, 11 [13]; Markisic v Commonwealth (2007) 69 NSWLR 737, 748 [56]; Jimmy v The Queen (2010) 77 NSWLR 540, 584 [183].

   [103]See above [42]–[45].

1. Sentencing practice for statutory murder will need to change to take account of the conclusions we have reached.  Assessments of offence gravity, and of offender culpability, must hereafter be carried out on the basis that it is immaterial whether the offence is common law murder or statutory murder.  What matters for sentence is what is admitted, or proved, about the violent act which caused the death and about the offender’s state of mind in committing that act.  Contrary to the Director’s submission, evidence of intent (if available) will always be relevant to sentence.

1. The range of sentences for statutory murder should be encompassed within the range of sentences for common law murder.  Where within that range a particular offence of statutory murder sits will depend upon the evidence.  Evidence of intent will be relevant, not to prove the offence but as bearing on the assessment of offence gravity and offender culpability.

Accepting the plea to statutory murder

1. It is always a matter for the Director  to decide on the charges to which a plea of guilty will be accepted.  In this case, given that the CCTV footage captured all of Perry’s offending in the jewellery shop, it was inevitable that the question would arise as to why the Director had accepted pleas of guilty to statutory murder, rather than common law murder of Mr O’Toole, and intentionally cause injury, rather than intentionally cause serious injury, to Mrs O’Toole. 

1. As to the murder charge, senior counsel for the Director on the appeal ventured the  explanation that the decision was driven by  ‘pragmatism’.  He said that the intention was to avoid a trial and produce a conviction for an offence that carried the same maximum penalty and where the same penalty would be imposed.  Given, however, that statutory murder has consistently attracted lower sentences than common law murder, there could have been no expectation that an equivalent penalty would be imposed.  Later in his submissions, senior counsel acknowledged that, having regard to the CCTV footage, it was difficult to comprehend why — in the sentencing context which then prevailed — a plea to statutory murder had been accepted. 

1. Ultimately, what stands in the way of the Director succeeding on this appeal is the manner in which the prosecutor conducted the plea.  As we have noted, the prosecutor contended that the seriousness of the offending was a product of Perry having chosen a knife and proceeded ‘to use it in the fashion that he did’.  It might be taken to have been implicit in the prosecutor’s submission that the act causing Mr O’Toole’s death was intentional.  But — apart from referring to the passage from Jacobs — the prosecutor did nothing to challenge defence counsel’s  submission that the ‘absence of an intention to kill or cause really serious injury reduces the overall criminality from that which it would have been if [such] an intention was the foundation of what he did.’ 

1. As we have seen, the prosecutor did not suggest to the sentencing judge that her Honour was entitled to consider Perry’s specific intent in committing the act causing death, let alone that her Honour should be satisfied that Perry had the intention to cause really serious injury and that this should be viewed as an aggravating feature of the offending.  Had such a submission been made, of course, the defence would have objected that it was contrary to the agreed facts, the plea having been apparently ‘settled’ on the basis that this was an ‘unintentional’ murder and — for that reason — was less serious than an intentional (common law) murder.  Indeed, Perry may have sought to withdraw his plea of guilty.  But none of that occurred, as the prosecution advanced no such contention.

1. Critically for the purposes of this appeal, however, no argument was made in this Court that the sentence imposed on Perry was manifestly inadequate because of the absence of any consideration of his intention when he committed the act causing death.  (As we have noted, the Director maintained on appeal that intent was irrelevant.)  In any event, had the Director sought to advance that submission before this Court, he would have been precluded from doing so by the way the plea was conducted. 

1. Given the manner in which the prosecutor made submissions on the plea, the Director is also foreclosed from arguing on appeal that Perry’s use of ice constituted an aggravating feature of the offending.  As noted earlier, the prosecutor did not  in this case advance an argument that the use of ice during the commission of the offence, coupled with Perry’s foreknowledge of its effect on him, constituted an aggravating factor.[104]  

   [104]Martin (2007) 20 VR 14. See also DPP v Arvanitidis (2008) 202 A Crim R 300, 308–10 [24]–[29].

1. As is well established, the Director will not ordinarily be permitted to take a contradictory position on an appeal against sentence where the prosecutor has eschewed, or not pursued, a particular argument on the plea.[105]  That constraint on the Director reflects the broad common law principle applicable to appeals that a party is bound by the conduct of its case at the first instance.  It also reflects the jurisprudence governing Crown appeals against sentence in cases where the prosecutor provided insufficient assistance to the judge at first instance.[106]  In future, if the Director wishes to argue an appeal on a basis different from the position adopted on the plea, he should spell out precisely why in light of those principles he should be permitted to do so. 

   [105]DPP v O’Neill [2015] VSCA 325 [88], [93], [95]; DPP (Cth) v Gregory (2011) 34 VR 1, 21 [76]; Romero v The Queen (2011) 32 VR 486, 489–90 [11]; DPP v Bourozikas [2009] VSCA 29 [30]. See also R v Casey (1986) 20 A Crim R 191, 195; DPP v Bulfin (1998) 4 VR 114; DPP v Arvanitidis (2008) 202 A Crim R 300, 311­–12 [38]–[40]; R v MacNeil-Brown (2008) 20 VR 677, 681–4 [14]–[20].

   [106]CMB v A-G (NSW) (2015) 89 ALJR 407, 323–4 [64].

1. A sentence appeal is not the occasion for the revision or reformulation of the case heard below.  The prosecutor in this case took a considered decision to  amend the charge from common law murder to statutory murder, for the purpose of a plea bargain.  That was done despite evidence which obviously raised the question of murderous intent.  Having made that choice, the prosecutor remained silent when defence counsel emphasised that this was a murder that did not involve any intent.  Further, he failed to advance argument during the plea on the matters now relied upon.  Although he quoted New South Wales authorities holding that statutory murder should not be viewed as inherently less serious than common law murder, he did not address the contrary view expressed in Victoria, nor submit that current sentencing practice for statutory murder was too low.

1. It is plain enough, from what was said on the plea by defence counsel, that the judge was invited to view statutory murder as inherently less serious than common law murder and as attracting a lower sentence for that reason.  When her Honour pointed out to the prosecutor that the available sentencing decisions in cases of statutory murder indicated a range distinctly lower than the range applicable to common law murder, the prosecutor made no attempt to advance the argument now raised, that the same sentencing parameters should apply to statutory murder as to common law murder.

1. As noted above, no adequate explanation was forthcoming on the appeal as to why a plea to statutory murder was accepted in light of the CCTV evidence.  Although the choice of charge is entirely a matter for the Director, it is particularly difficult to understand the course taken, given the then-prevailing view that  such a charge was less serious than common law murder and was therefore likely to attract a lower sentence. 

Manifestly inadequate?

1. Perry’s offending was markedly more serious than that seen in previous cases involving a charge of statutory murder.  First, the armed robbery constituting the foundational crime was premeditated.  Perry obtained the large-bladed carving knife some 20 minutes before he entered the store.  As soon as he met with some resistance, he was quick to use the knife against his victims.  Secondly, with respect to the statutory murder, Perry stabbed Mr O’Toole twice in the upper chest region to the full depth of the blade.  At the time, Mr O’Toole was lying on his back.  The position in which he lay was especially vulnerable, and Perry stabbed him with ferocity, in full view of his wife.

1. Perry had an extensive history of prior convictions.  Most of Perry’s convictions have been for property offences (mainly theft and burglary) and driving offences.  He also had a poor history of complying with court orders, having committed prior offending whilst on bail or on parole and being dealt with on five occasions for breaching youth supervision orders, intensive correction orders or community based orders.  At the time of the offending, he was on parole in relation to six armed robberies and two thefts committed between June 2008 and January 2009.

1. Set against those aggravating factors were only a limited number of mitigating factors.  Perry, 27 years of age at the time of sentencing, had suffered a disadvantaged upbringing.  He was brought up by a mother who suffered from chronic alcoholism and her violent partner.  By the age of 13, he was living in foster care and experienced social deprivation.  He suffered from a personality disorder and depression, although these conditions did not give rise to any considerations the subject of R v Verdins.[107]  These conditions bore upon the need to ensure his treatment in order to facilitate his rehabilitation. 

   [107](2007) 16 VR 269.

1. He had pleaded guilty at an early stage of the proceedings, facilitating the course of justice and sparing the community and family and friends of Mr O’Toole the cost and time of a committal hearing and a trial.  He had also exhibited some remorse to the psychologist who assessed him in June 2014, Ms Northey.  Finally, he would have to serve his sentence in protective custody, adding to the onerousness of custodial imprisonment.  It was well open on the facts to hold that the aggravating factors in the case were of such a high order that the mitigating factors should receive less weight in the sentencing exercise. 

1. As we have already pointed out, the prosecutor did not submit that the act causing death in the instant case was intentional, or invite the sentencing judge to take Perry’s state of mind into account.  Neither did he put the significance of Perry’s use of ice any higher than rejecting an argument that it should mitigate the offending.  Two highly pertinent aggravating factors, which would have materially increased the sentence, were therefore not put before the sentencing judge.

1. Because of the fundamental requirement of consistency in sentencing, the ground of manifest inadequacy must be considered by reference to current sentencing practice, which her Honour was bound to take into account.[108]  Account must also be taken of the manner in which the plea was conducted.  Approaching the matter in that way, we consider that it was reasonably open to her Honour to impose a sentence of 20 years on Perry.[109]  The Director’s challenge to the sentence imposed for statutory murder must therefore be rejected.

   [108]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [5], [119]–[120].

   [109]DPP vKarazisis (2010) 31 VR 634, 662–3 [127].

1. For the assistance of sentencing judges dealing with this offence in the future, it is appropriate to record our view as to the kind of sentence which would have been open had her Honour not been constrained by the existing jurisprudence on s 3A and by the way the prosecutor conducted the plea. Had there been an affirmative finding of murderous intent, and had the judge been asked to take into account Perry’s foreknowledge of how the consumption of ice would affect him, we think — especially having regard to his prior convictions and his breach of parole — that a sentence of at least 25 years’ imprisonment would have been appropriate on the charge of statutory murder.

Cumulation of sentence imposed on foundational offence

1. The judge did not order the cumulation of any part of the sentence which she imposed on the foundational offence, the charge of armed robbery.  On the appeal, senior counsel for the Director submitted that some cumulation was required to reflect the discrete nature of the armed robbery.

1. As a statement of sentencing principle, the submission is unexceptionable.  Although the act of violence which caused Mr O’Toole’s death occurred ‘in the course or furtherance’ of the armed robbery, the offences — and their constitutive facts — are discrete.  The murder and the armed robbery constituted separate, very serious, forms of criminality, which would ordinarily require some measure of cumulation.

1. Once again, however, the judge’s decision to order full concurrency must be assessed in light of the position adopted by the prosecutor on the plea and also of established sentencing practice in this State.  Far from advancing an argument for cumulation based on the separate criminality involved, the prosecutor conceded that

a great deal of concurrency should occur between the armed robbery and the [s] 3A murder.  It’s inherent in the [s] 3A murder that it was the offence of armed robbery that was triggering it.

Unsurprisingly, that position was not controverted by defence counsel.  And the sentencing judge concluded that

[h]aving regard to the nature of the statutory murder charge, and the degree of overlap between the facts giving rise to the armed robbery and the murder charge, there should be total concurrency between those two sentences.[110]

[110]Reasons [70].

1. As to sentencing practice, our review of the Victorian decisions reveals that, in cases of statutory murder, either the foundational offence is not charged at all[111] or —when it is charged — the sentence for that offence is made fully concurrent with the murder sentence.[112]  In New South Wales, the position appears to be the same.  That is, either the foundational offence is not charged[113] or the sentence is made fully concurrent.[114]

   [111]R v Kelly [2013] VSC 144; DPP v Canham [2011] VSC 296; DPP v Zaim [2008] VSC 543;  R v Galas [2008] VSC 513.

   [112]JLE [2011] VSC 669;  Caratozzolo [2009] VSC 305;  MM [2009] VSC 336.

   [113]R v Isherwood [2013] NSWSC 1868;  R v Houri [2007] NSWSC 615;  Aslett v The Queen [2006] NSWCCA 360; R v Petrinovic [2001] NSWCCA 118; Mills (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Cole JA and Sperling J, 3 April 1995);  R v Penza [2010] NSWSC 16; R v Thurston [2004] NSWCCA 98.

   [114]Jacobs (2004) 151 A Crim R 452;  Raadv The Queen (2011) 220 A Crim R 471.

1. In those circumstances, although the prevailing practice should not be maintained, it can hardly be doubted that it was open to her Honour to order full concurrency.  The Director’s appeal must therefore be dismissed.

Perry’s application for leave to appeal against sentence

1. Perry submits that the orders for cumulation of two and a half years on each of the unrelated armed robberies, charges 1 and 2 on the second indictment, resulted in a total effective sentence and a non-parole period which offend the principle of totality. 

1. In the armed robberies on the second indictment, Perry was either armed with a knife or purported to carry a firearm.  He made explicitly violent threats against staff attending the two premises.  As noted earlier, he told the store manager (the victim on  charge 1) that he would ‘stab [his] eyes out’, and he told the staff member (the victim on charge 2) that he would ‘blow [his] fucking head off’.  Perry made off with not inconsiderable sums of money, approximately $1,000 on charge 1 and approximately $3,000 on charge 2. 

1. Perry submitted that, because the sentence on the charge of statutory murder took account of his prior convictions and the fact that his offending occurred whilst on parole, those factors should not again be treated as aggravating factors on the charges on the second indictment.  There is no merit in that submission.  All aggravating and mitigating factors are relevant considerations in fixing each of the individual sentences, the orders for cumulation and the total effective sentence.

1. Perry next submitted that the sentences on the two indictments must be considered in conjunction with sentences previously imposed in the County Court, including the parole sentence he must now serve.  He submits that, in total, he will serve up to 33 years in gaol.  The submission that in applying the principle of totality his previous period in custody should have been taken into account is also unsustainable. 

1. Perry had served the non-parole portion of his previous sentences for armed robbery — 6  years’ imprisonment — and was then released on parole.  As noted earlier, he had been at liberty on parole for approximately five months when he committed the offences on each indictment.  He was serving the parole sentence of one year, 11 months and 14 days at the time of sentence on the present matters. 

1. In Director of Public Prosecutions v Oksuz,[115] Kyrou JA (with whom Redlich JA agreed) explained why, when offences are committed by a person who has been on parole for some time, the relevance for totality purposes of time spent in custody before the release on parole is greatly reduced:

In my opinion, the question of whether a period in custody preceding an offender’s release on parole is to be taken into account in the application of the totality principle when the offender is being sentenced for offences committed while on parole, will depend on the length of the period that has elapsed between the release on parole and the subsequent re-incarceration for the offences committed on parole.  In other words, the question depends on the length of the interruption to the offender’s period of incarceration resulting from his or her release on parole.  The shorter the duration of the interruption, the greater the weight that can be given to the pre-parole period in custody.  For example, an interruption of one day would not preclude the application of the totality principle to the pre-parole period and would not diminish its weight.  An interruption of three months, on the other hand, would be sufficiently long to significantly diminish the weight that could be given to the pre-parole period for the purposes of the totality principle.[116]

[115][2015] VSCA 316.

[116]Ibid [134] (citations omitted).

1. His Honour identified a further difficulty in applying a conventional totality analysis to a case like the present, where offences are committed on parole:

As observed by this Court in Morgan v The Queen, in a case such as this, the totality principle cannot operate to moderate a sentence in precisely the same way as it did in Mill v The Queen.  In applying the principles of Mill v The Queen in a pure sense, the sentencing judge is required to pose the hypothetical question: what sentence would have been imposed had the offender been dealt with at the one time for two or more sets of offending? This requires that it was at least notionally possible for two or more sets of offending to have been dealt with at once.  However, where the offender is to be sentenced for offences committed while on parole for earlier offending, the abovementioned hypothetical question is less helpful.  This is because there has been intervening conduct on the part of the offender which disconnects the present offending from the past, and which itself constitutes an aggravating factor in assessing the gravity of that later offending.  In those circumstances, although thetotality principle requires that regard must be had to the continuous period in which the offender has been in custody prior to being sentenced for the present offending, appropriate weight must be given to the fact that the offences for which the offender is being sentenced occurred while he or she was on parole.[117]

[117]Ibid [150] (citations omitted).

1. In contending that the total effective sentence offends the principle of totality, Perry relies upon his very early plea.  On the charges on the first indictment he relies upon the short duration of the entire offending, namely, some 30 seconds, and the diminution of his criminality given the absence of a murderous intent alleged by the prosecutor.  Relevant to all sentences is the more burdensome nature of his incarceration.  He must remain in isolation for 22 hours a day whilst in protective custody.

1. The Director submits that, as all of the offences on both indictments were committed whilst Perry was on parole, s 16(3B) of the Sentencing Act 1991 applies so that — in the absence of exceptional circumstances — the sentences must be cumulated upon any time required to be spent in custody on cancellation of the parole order.  The Director relies upon the observations of McHugh, Gummow and Hayne JJ in R H McL v The Queen[118] that sentencing judges need to be astute not to undermine the legislative policy inherent in such provisions in applying the totality principle. 

   [118](2000) 203 CLR 452, 476–7 [76].

1. We do not accept that either the total effective sentence or the non-parole period infringes the principle of totality.  The criminality involved in the five offences was of a high magnitude.  The armed robberies on the second indictment constituted separate instances of criminality, directed against other victims and involving separate violations of Perry’s conditions of parole.  It was appropriate in the circumstances for the sentencing judge to give prominence to the need for just punishment and denunciation.  Perry’s disregard for the law, given his extensive prior criminality and the fact that he has reoffended a number of times whilst on bail or on parole, not only merited condign punishment but reinforced the need for general and specific deterrence.  Perry’s application for leave to appeal against sentence must also fail.

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