DPP v Ristevski
[2019] VSCA 287
•6 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0091
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| BORCE RISTEVSKI | Respondent |
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| JUDGES: | FERGUSON CJ, WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 November 2019 |
| DATE OF JUDGMENT: | 6 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 287 |
| JUDGMENT APPEALED FROM: | DPP v Ristevski [2019] VSC 253 (Beale J) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Manslaughter – Respondent killed and concealed wife’s body in isolated bushland – Embarked on protracted course of lies and deceit – Body found eight months later in decomposed state – Unable to determine cause of death – Plea of guilty to manslaughter – Sentenced to nine years’ imprisonment with non-parole period six years – Whether sentence manifestly inadequate – Appeal allowed – Dumping and concealing of wife’s body aggravating circumstance – Refusal to reveal how or why he killed his wife demonstrates absence of remorse – Domestic setting of offending aggravating feature – Resentenced by majority to 13 years’ imprisonment with non-parole period 10 years – DPP v England [1999] 2 VR 258, Mocenigov The Queen [2013] VSCA 231 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC with Ms R J Sharp | Mr John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D C Hallowes SC with Mr S Norton | Stary Norton Halphen |
FERGUSON CJ
WHELAN JA:
We have had the considerable advantage of reading Priest JA’s reasons. We agree with his Honour that the appeal should be allowed for the reasons that he gives, subject to what we say below. In particular, we take a different view from his Honour as to the appropriate sentence to be imposed.[1]
[1]In view of cls 8.1 and 8.2 of Practice Note SC CA 1 (30 September 2019) and Guideline for the Preparation of a Written Case prepared by the Court of Appeal Registry (January 2017) we make no comment in relation to the usefulness of particulars of manifest excess.
This case is a good example of why each sentence imposed must be determined based on the particular circumstances in which the offence was committed and the circumstances of the particular offender. Clearly, sentences imposed in other cases are not to be treated as precedents to be applied or distinguished.[2] While current sentencing practice is a factor to be taken into account, there are occasions when there are too few relevantly similar cases to enable a sentencing pattern to be discerned.[3] In our view, there simply are no truly comparable cases here.
[2]Wong v The Queen (2001) 185 ALR 233.
[3]See, for example, R v Kilic (2016) 259 CLR 256, 268 [25].
This offence was ‘atypical’ in the sense that there was no evidence of earlier domestic violence or serious discord between husband and wife. But it was also ‘atypical’ in that this is not a case where allowance can be made for a sudden loss of control in a ‘volatile’ emotional situation.[4] There is no evidence of the highly charged emotional environment in which domestic killings typically occur. In fact the evidence is to the contrary. There is no apparent reason for, or context to, what the respondent did. That consideration flows into the respondent’s immediate focus following the killing upon self-protection.
[4]As to this, see Felicite v The Queen (2011) 37 VR 329, 333 [19]–[20].
His conduct in disposing of Ms Ristevski’s body and the lies and deception he engaged in mean that how his wife died will never be known. What we do know is that he killed her by unlawful and dangerous act(s); put her body into the boot of her car; and disposed of her body in a remote location.
The respondent lied to his daughter, to family and friends. He lied to police. He participated in a media conference maintaining that his wife had left the family home after they had an argument saying that she was going to clear her head. During the course of the media conference, his daughter was visibly distressed. He stood next to her and put his arm around her. He was a pallbearer at his wife’s funeral, all the time knowing that he was the one who had killed her.
The respondent did more than maintain his right to silence. He took active steps to avoid discovery of his crime and how the death was caused.
The circumstances of this crime include the positive acts that the respondent took to hide his involvement in the death. He immediately removed his dead wife’s body from their home. He placed her body in the boot of her car. He then searched for and found a remote location a considerable distance away. He carried or dragged her body to a spot 66 metres from the road. In a manner which must have involved some significant time and effort, he concealed her body in such a way that she might never have been found. When it was found some eight months later, her remains were between two tree trunks lying parallel and almost completely concealed beneath a number of branches and logs. Three of the logs weighed between 13 and 39 kilograms. Those things make this crime more serious than it would have been had the respondent not engaged in that conduct.[5] We regard this conduct as significantly aggravating his offence.
[5]DPP v England [1999] 2 VR 258, 263.
The respondent accepted that ‘the conduct of the respondent in disposing of his wife’s body and subsequent lies and deceit were a circumstance of significant aggravation’.
The respondent’s conduct also reveals an astonishing lack of remorse. Remorse is a mitigating factor to be taken into account where it is present. Conversely, a lack of remorse is not an aggravating feature. To this day, the respondent has shown not one scintilla of remorse. He has subjected those affected by the death to the most awful state of the unknown.
All of the respondent’s conduct took place in a family setting. There was a time when the seriousness of such domestic violence offences was not properly recognised. That is no longer the case. It is also a significant aggravating feature of the crime committed by the respondent that he killed his wife in her home. She should have been able to live without any fear in her own home. It should have been a safe place for her. General deterrence and denunciation have particular importance in this case.
In favour of the respondent we take into account his good character before the commission of this crime; his prospects of rehabilitation, as to which the prosecution does not contest the sentencing judge’s conclusion that they are good; and his plea of guilty, which has utilitarian value.
Further, this is a case where it is necessary to take the greatest care to sentence the respondent for the crime of which he has been convicted. It is manslaughter, not murder.
The maximum penalty for manslaughter is 20 years’ imprisonment. The respondent has no prior convictions and he has pleaded guilty.
Taking all sentencing factors into account, including those matters that favour the respondent, and mindful of the fact that the crime is manslaughter with a maximum penalty of 20 years’ imprisonment, it seems to us that in all the circumstances it is just to impose a sentence of 13 years’ imprisonment. We would fix a non-parole period of 10 years.
Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for the respondent’s plea of guilty, we would have sentenced him to be imprisoned for 15 years, with a non-parole period of 12 years.
PRIEST JA:
Overview
Somewhere between 8.58 am and 10.43 am on 29 June 2016, the respondent, Borce Ristevski, killed Karen Ristevski, his wife of 27 years. How he killed her is unknown. That is because, after he killed her, the respondent dumped and concealed her body; so that, by the time her body was found eight months later, its state of decomposition was such that any post-mortem determination of the mechanism of death was impossible. Very significantly, despite having had ample opportunity to do so, the respondent has not disclosed how he took Karen Ristevski’s life.
Almost 18 months after the killing, on 13 December 2017, the respondent was arrested and charged with murder. A contested committal was conducted in July and August 2018, at the conclusion of which the respondent pleaded not guilty to murder. Shortly afterward, on 10 September 2018, the respondent made a written offer to the prosecution to plead guilty to manslaughter. Unsurprisingly, given that the respondent refused to reveal how he killed his wife, that offer was rejected.
On 12 March 2019, the respondent’s trial for murder was to commence. After legal argument on the issue, on 13 March 2019 the trial judge ruled that certain post-offence conduct by the respondent could not be used to prove murderous intent.[6] Later that day, the prosecution filed an indictment charging the respondent with
manslaughter, to which he immediately pleaded guilty.
[6]DPP v Ristevski (Ruling No 1) [2019] VSC 165. The prosecution did not seek to challenge that ruling by way of interlocutory appeal.
A plea hearing was conducted on 27 March 2019; and, on 18 April 2019, the judge sentenced the respondent to nine years’ imprisonment, with a non-parole period of six years.[7]
[7]DPP v Ristevski [2019] VSC 253 (‘Reasons’).
By a Notice dated 13 May 2019, the Director of Public Prosecutions appeals against the head sentence and non-parole period on a single ground, contending that they are manifestly inadequate. There are six ‘particulars’ subjoined to the ground:
The learned sentencing judge:
(a) failed to fix a sentence commensurate with the circumstances of the offending, giving too much weight to the lack of information about the unlawful and dangerous act;
(b) failed to have sufficient regard to significant aggravating features when determining the nature and the objective gravity of the offending (cf the circumstances of the killing), particularly in the context of family violence and the breach of trust;
(c) failed to have sufficient regard to the impact of the Respondent’s offending on the victims;
(d) failed to give sufficient weight to the principles of general deterrence, specific deterrence, denunciation and just punishment;
(e) failed to have sufficient regard to the maximum penalty for the offence; and
(f) placed too much weight on the matters in mitigation, particularly in light of the lack of remorse, including the Respondent’s plea of guilty and prospects of rehabilitation.
For the reasons that follow, I would allow the appeal and set aside the sentence first imposed. I would instead sentence the respondent to be imprisoned for 12 years, and would fix a non-parole period of nine years.
Karen Ristevski’s killing and its aftermath
Before turning to the merits of the appeal, it is necessary to say a little more about the circumstances of the respondent’s offending — so much as is known about it — and its aftermath.
As I have said, at some time between 8.58 am and 10.43 am on 29 June 2016, the respondent, then aged 52,[8] killed his wife, Karen Ristevski, aged 47, in their home in Oakley Drive, Avondale Heights.[9] The two had known each other for 30 years and had been married for 27 of those years.[10] Their only child, Sarah, then aged 21,[11] lived at home with them. Apart from the respondent, Sarah Ristevski was the last person to see her mother alive.
[8]His date of birth is 14 March 1964.
[9]They had bought a vacant block of land on 21 June 1994, and moved into a house that had been built on the block in 1997.
[10]They met in 1986 and married on 15 January 1989.
[11]She was born on 31 May 1995.
Within a very short time of killing his wife, the respondent put her body into the boot of her own car and then drove from the house. He left the house at about 10.43 am in search of a location to dispose of the body. Ultimately, his search led him to isolated bushland in Loch Road, Macedon.
About 24 minutes into the journey, the respondent turned off his mobile telephone to avoid it being traced or detected. A little later, he also deactivated the deceased’s mobile telephone to avoid detection. At some undetermined point, the respondent disposed of his wife’s telephone, handbag and wallet. They have never been found.
Upon arriving at Loch Road in the Macedon Regional Park, the prisoner dumped his wife’s body in an isolated and remote location. He concealed the body to such an extent that, as I have mentioned, it was not discovered for eight months. The respondent then returned home, arriving at about 1.03 pm. He activated his mobile telephone when he reached Keilor Park at 12.51 pm.
I pause to note the circumstances in which Karen Ristevski’s body was found. On 20 February 2017, two horticultural contractors had the job of poisoning pine trees growing in the Macedon Regional Park. At about 12.15 pm, they were in the Macedon Regional Park about 66 metres from Loch Road, Macedon, drilling into the base of a pine tree when they smelled something. They approached an area where they observed two large fallen logs lying parallel on the ground. Between the two logs they observed a human skull and a foot. The foot was protruding up through several other logs, leaf litter and sticks, which appeared to cover a body.
Police were called and Karen Ristevski’s remains were recovered. The body had been placed on the ground between the two trunks. When discovered, the body was almost completely covered by logs and branches. The remains — fully clothed apart from socks or shoes — were badly decomposed and partially skeletonised.
At a post mortem examination conducted on 21 February 2017 the cause of death could not be determined. It was noted that the deceased’s hyoid bone was incomplete but, due to the decomposed and degraded nature of the bone, it was not possible to ascertain whether this was due to ante mortem trauma, post mortem trauma or predation. Dental records were required in order to identify formally the remains as those of Karen Ristevski.
Returning to the day that the respondent killed his wife, police established that Karen Ristevski had used a computer at home to visit various websites between 8.02 am and 8.48 am. She had also accessed the messenger application ‘WhatsApp’ at 8.57 am to communicate with overseas suppliers of her clothing business. When Sarah Ristevski left home that morning to catch the train from Moonee Ponds to Flinders Street Station — she caught either the 8.24 am or 8.34 am train — she said goodbye to both her mother and her father.
When his daughter arrived home from work at about 6.30 pm, the respondent told her that the deceased had left the house between 10.00 and 11.00 o’clock that morning to clear her head.
The next morning, 30 June 2016, the respondent and his daughter reported Karen Ristevski missing to police. Knowing that he had in fact killed his wife the day before, the respondent told police that his wife had become upset the previous day when they were discussing the takings from her shop, and had left the house saying, ‘I can’t talk to you right now, I’m going to clear my head’.
From the time of the initial report to police, the respondent was asked by police on multiple occasions to provide a detailed account of his movements and those of his wife on 29 June 2016. The respondent failed, however, to provide a full account of his movements. He misled police and deliberately lied about his movements and those of his wife. Thus, at a media conference arranged by police on 2 July 2016, the respondent maintained that he and his missing wife had an argument about her shop’s takings, and she had left the house to clear her head. During the conference, he stood next to his daughter, and put his arm around her to comfort her. The next day, 3 July 2016, he made and signed a statement to police which was replete with lies about what had occurred on the morning of 29 June 2016 (and, for that matter, other things).
In the afternoon of 4 July 2016, the respondent disclosed for the first time to police that he had driven his wife’s car at about 10.30 am on the morning of her disappearance, falsely suggesting that the fuel gauge had not been working. He then made an additional statement, confirming details of his previous statement and providing a more thorough and detailed account of his personal life, his relationship with his wife, the business and their financial situation. Once more, the statement was replete with lies, designed to mislead police and divert them from discovering that the respondent had killed his wife and disposed of her body.
In the course of their investigations, police obtained CCTV footage from various locations and telecommunication data from various service providers. Data so obtained indicated that, at about 10.44 am on 29 June 2016, the mobile telephones of the respondent and his wife left the area of Oakley Drive. This was the respondent leaving home driving his wife’s Mercedes-Benz. He had recently killed her. Her body was in the boot. He had commenced his journey to find a hiding place for the body.
On 8 July 2016, police conducted a record of interview with the respondent. He made a ‘no comment’ interview. Later, on 28 July 2016, police had another recorded conversation with the respondent under caution, in the course of which he continued to lie and mislead police in an effort to avoid any responsibility for killing his wife. Moreover, in the course of their investigations, police used listening devices and telephone intercepts. During many monitored conversations, the respondent continued to lie, so as to distance himself from the killing.
A particularly unpleasant aspect of the respondent’s elaborate course of deceit is that, in full knowledge that he had killed his wife and disposed of her body, the respondent was a pallbearer at his wife’s funeral on 6 March 2017, and comforted a number of her relatives and friends.
The respondent was finally arrested on 13 December 2017. By that stage investigations had established that his accounts of his movements could not be true and the evidence could only be explained if he did indeed drive to Macedon Regional Park on 29 June 2017. Once again, he made a ‘no comment’ record of interview. He was charged with the murder of Karen Ristevski and remanded in custody, where he has remained ever since.
The submissions on the plea
Turning briefly to summarise the submissions made to the sentencing judge, counsel for the respondent on the plea submitted that, although the plea of guilty was entered on the basis that the respondent had killed Karen Ristevski by an unlawful and dangerous act, there was no basis for making any finding as to the circumstances of the killing, and thus no basis for determining that the respondent’s offence fell within any particular level or range of unlawful and dangerous act manslaughter. Counsel submitted that, perhaps unusually, the respondent had no history of violence with respect to his wife; although it was accepted that the sentencing considerations relevant to crimes of violence committed in a ‘domestic’ setting had a role to play. Significantly, the respondent’s counsel accepted the respondent’s disposal of his wife’s body, and the manner in which this was done, was an aggravating factor. It was submitted that the respondent had no prior convictions (and there were no intervention orders in place); the respondent’s daughter had given evidence that he was never aggressive towards her deceased mother. The respondent’s counsel submitted that the plea of guilty should not be regarded as a late plea, and that the plea had significant utilitarian benefit.
Counsel for the Director submitted that the respondent’s offence fell at the ‘high end’ of the range of seriousness. It was submitted that the sentencing judge should view the respondent’s offending as very serious for four reasons:
· first, the respondent killed his wife of some 27 years which places it as one of the worst examples of domestic violence;
· secondly, he killed his wife in their home, where she should have felt safe, secure and protected;
· thirdly, the respondent has never revealed how he killed the deceased (this also being relevant to the issue of remorse); and
· fourthly, he has never revealed why he killed her (also relevant to the issue of remorse).
The Director’s counsel submitted that the respondent has shown no remorse. It was submitted that the offer to plead to manslaughter was devoid of any factual basis, the respondent refusing to reveal how he killed the deceased. Whilst his failure to reveal what occurred in the family home on the morning of 29 June 2016 is not an aggravating feature, such failure indicates a complete and continuing lack of remorse. Counsel submitted that, given the failure to reveal how the killing was accomplished, and the fact that the killing occurred in a domestic context and without explanation, the respondent’s offence must be categorised as one of the ‘worst examples’ of manslaughter to come before the Court. The imposition of a sentence in the ‘mid-range’ would therefore be inappropriate.
Reasons for sentence
The judge’s reasons for sentence were careful and very thorough.
After discussing the respondent’s actions on the day of the killing (including the disposal of his wife’s body),[12] and his ‘rank deceit’ in the months afterwards,[13] the judge said that he accepted the prosecution submission that the respondent’s ‘disposal and concealment’ of his wife’s body and the ‘many lies’ he had told — ‘worst of all’ to his daughter — constitute a circumstance of significant aggravation’.[14]
[12]Reasons [2]–[9].
[13]Ibid [9]–[11].
[14]Reasons [12]. His Honour said that he had regard to: R v BA [2019] VSC 90; R v Boyle (2009) 26 VR 219; R v Boroviak [2018] VSC 793; R v Chang [2003] VSC 499 ('Chang’); DPP v England [1999] 2 VR 258 (‘England’); Mocenigov The Queen [2013] VSCA 231 (‘Mocenigo’); R v Sun [2004] VSC 276; and R v Veerman [2015] VSC 193
His Honour then turned to the victim impact statements.[15] It is unnecessary to set out what his Honour said in any detail. I note, however, that the judge remarked that a ‘constant source of anger and disbelief referred to in the statements was [the respondent’s] active participation in [his] wife’s funeral’,[16] and observed that the respondent’s
disposal and concealment of Karen’s body in Macedon resulted in family members not only having to cope with the anguish of her inexplicable disappearance but also with the fact that her remains were significantly decomposed when she was found, eight months after her disappearance.[17]
[15]Reasons [13]–[23].
[16]Ibid [20].
[17]Ibid [17].
The judge referred to the concession made by the respondent’s counsel that, given his ‘failure to make full and frank disclosure’, the respondent’s plea of guilty ‘is not evidence of remorse’. There is, the judge said, ‘an understandable bitterness expressed in some of the victim impact statements about [his] failure to demonstrate true remorse’.[18]
[18]Ibid [22].
Next, the judge set out the procedural history.[19] His Honour observed that, ‘particularly’ having regard to the respondent’s offer a month after the committal to plead guilty to manslaughter, he accepted the submission of the respondent’s counsel that he should not treat the plea as a late plea.[20]
[19]Ibid [24]–[29].
[20]Ibid [29].
The judge then discussed the objective seriousness of the offence.[21] After setting out the competing contentions of the parties, his Honour stated the following conclusions:[22]
Ultimately, the view that I have arrived at is that I have insufficient information to say whether your offence is a mid or upper range example of manslaughter, although it is clearly not a low range example of manslaughter because of the aggravating domestic violence aspect. Without knowing the level and duration of the violence perpetrated by you which caused your wife’s death, I simply cannot say whether your offending was mid or upper range. I do not regard your silence as to how you killed your wife as providing a sufficiently firm basis for drawing the inference that yours must have been an upper range example of the offence of manslaughter. Whilst the community and the courts rightly abhor domestic violence, it is simplistic to suppose that all domestic violence manslaughter cases necessarily fall into the upper range on the spectrum of seriousness for manslaughter. It takes little imagination to think of circumstances where a domestic violence manslaughter — for example, one involving a momentary loss of control and a comparatively low level of violence — could not reasonably be viewed as an upper range example of the offence of manslaughter.
[21]Ibid [30]–[37].
[22]Ibid [36].
His Honour then set out four things he did know about the respondent’s offence — as distinct from his post-offence conduct — which elevated the objective gravity of the offence ‘above the low range’:[23]
[23]Ibid [37].
· first, his was a serious case of domestic violence — notwithstanding its isolated character — because it resulted in his wife’s death;
· second, Karen Ristevski was not only his wife, but also the ‘devoted mother’ of the respondent’s daughter Sarah, with whom she was very close;
· third, the deceased was killed by an unlawful and dangerous act in her own home, a place which should have been a sanctuary for her; and
· fourth, the respondent’s wife was 47 years of age and, in the ordinary course of events, should have lived for many more years.
The judge then discussed the respondent’s personal circumstances and the various character references that had been provided in his support.[24] His Honour accepted that, apart from the commission of the instant offence (and post-offence conduct), the respondent had been a person of good character.[25]
[24]Ibid [38]–[51].
[25]Ibid [51].
With respect to the respondent’s plea of guilty, his Honour once more noted the concession by counsel that it did not indicate remorse, but observed that the ‘plea of guilty is still deserving of a significant discount for its utilitarian benefits’. Of course, so the judge noted, the respondent could not expect the kind of sentencing discount that he would have received had he made ‘full and frank disclosure’, enabling the judge to find that the respondent was truly remorseful and doing all that he could to ease the pain of Karen Ristevski’s loved ones.[26]
[26]Ibid [53].
The respondent’s prospects of rehabilitation, the judge found, were ‘good’, given his ‘lack of criminal antecedents and the unchallenged character references’.[27]
[27]Ibid [54].
With an eye on current sentencing practices, the judge had reviewed ‘a significant number of manslaughter cases’.[28] His Honour said that the respondent’s case was ‘atypical’, in light of the fact that many of the cases that the judge had reviewed involved a ‘history of domestic violence, not an isolated outburst of violence’.[29]
[28]The cases were: Chang; Mocenigo; Lee v The Queen [2018] VSCA 343 (‘Lee’); R v Ramage [2004] VSC 508; DPP v Turner [2017] VSC 358; R v Walker [2016] VSC 116; R v Veerman [2015] VSC 193.
[29]Reasons [55].
Finally, the judge noted that — as had been conceded by the respondent’s counsel — ‘principles of general deterrence, denunciation and just punishment must loom large’ in the sentencing process. The judge said that, since he found that the respondent’s prospects of rehabilitation are good, he did not place much weight on specific deterrence or the need to protect the community from him, although ‘specific deterrence has some part to play’ given the seriousness of the respondent’s offence, his post-offence conduct and his ‘continuing secrecy’.[30]
[30]Ibid [56].
The Director’s submissions on the appeal
Counsel for the Director in this Court submitted that, having regard to the seriousness of the respondent’s offending, and to his post-offence conduct and lack of remorse, the head sentence and non-parole period imposed upon him are wholly outside the range of those reasonably open in the proper exercise of discretion.
In submissions redolent of a complaint of specific error rather than manifest inadequacy, counsel for the Director submitted in writing that the judge ‘equated the inability to determine how [the deceased] was killed with an inability to determine the overall seriousness and gravity of the offending’, but that the true situation is that the known circumstances of the offending ‘combine to mean the offence is at the upper end of offending’. The inability to determine the circumstances of the killing, counsel submitted, arises directly from the conduct of the respondent in disposing of the body and remaining silent. Counsel for the Director submitted that, because the prosecution could not prove beyond reasonable doubt precisely how the respondent killed his wife, it could not be said that the circumstances of the killing were serious. But the converse is also true. It could not be said the circumstances of the killing were not serious. And simply because the circumstances of the killing cannot be described as serious (or otherwise), that does not preclude a finding that the circumstances of the offending as a whole were serious. Counsel submitted that the respondent’s disposal and concealment of the deceased’s body, and his post-offence lies and deceit, are significant aggravating features which simply are not reflected in the sentence imposed.
In the context of domestic violence, general and specific deterrence, denunciation and just punishment all had a significant role to play in the respondent’s sentence. Counsel submitted that they were not, however, adequately reflected in the sentence imposed. Too much weight, so it was submitted, must have been given to mitigating factors (such as the plea of guilty) and prospects of rehabilitation.
Finally, counsel for the Director submitted that there was no factor present that might attract the exercise of the Court’s residual discretion to dismiss the appeal.
The respondent’s submissions on the appeal
Counsel for the respondent submitted that the sentence is well within the appropriate range and demonstrates that the judge must have properly synthesised all relevant factors.
It was submitted that the contention that the respondent’s lack of remorse was an aggravating factor should be rejected, as should the tacit suggestion that the respondent’s silence had resulted in some mitigation of sentence. The judge, counsel submitted, undertook a ‘careful and nuanced analysis’ of all relevant features in assessing the seriousness of the respondent’s offending. Consistently with principle, so it was submitted, the judge was not satisfied to the requisite standard that the respondent’s silence demonstrated that the offence must have been an upper range example of the offence of manslaughter. The respondent’s counsel submitted that judge’s reasons demonstrate that he gave due weight to the aspect of domestic violence, properly noting that the respondent’s case was ‘atypical’ for domestic violence homicides given the absence of previous violence, threats or intimidation.
The respondent’s counsel argued that it is plain that the judge gave proper recognition to the impact of the respondent’s offence on its victims, and gave proper weight to general deterrence, specific deterrence, denunciation and just punishment. It was submitted that the plea of guilty had utilitarian benefits, and the judge was clearly correct to find that the respondent’s prospects of rehabilitation were good.
I note that no submission was advanced in support of the exercise of the residual discretion.
Discussion and analysis
Much of the argument on the appeal seemed directed to assertions of specific error. That may be because, as has become customary, the ground of appeal complaining of manifest inadequacy had six subjoined ‘particulars’. In my opinion, however, supposed particulars of manifest inadequacy are, at best, a distraction; and at worst, are calculated to subvert the essential inquiry that must be made when it is asserted that a sentence is manifestly inadequate. Indeed, undue attention to ‘particulars’ invites a piecemeal consideration of the relevant features of a case, inconsistent with an approach which intuitively synthesises all relevant factors. As I observed in Weybury:[31]
To my mind — and despite some recognition being given to the notion that a ground claiming manifest excess may be supported by particulars[32] (at least concerning the ‘weight’ to be given to certain features)[33] — such so called ‘particulars’ of manifest inadequacy are of little or no utility, since a conclusion that a sentence is manifestly inadequate does not depend upon attribution of identified specific error in the sentencing judge’s reasoning. Manifest inadequacy is a conclusion. Inadequacy is, or is not, plainly apparent. A sentence is, or is not, unreasonable or plainly unjust.[34] Perhaps more often than not, a conclusion of manifest inadequacy does not admit of elaboration save to state the respect in which the sentence is inadequate, such inadequacy resulting because the wrong kind of sentence was imposed, or because the sentence imposed is manifestly too short. The members of the appellate court will weigh for themselves all relevant features of the respondent and the offending — including those that aggravate and those that mitigate — and intuitively synthesise each factor bearing on the exercise of the sentencing discretion. In so doing the court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different directions.[35] Ultimately, appellate intervention on the ground of manifest inadequacy is not warranted unless, having regard to all of the relevant sentencing factors — including the degree to which the impugned sentence differs from sentences that have been imposed in cases which are truly comparable — the appellate court is ‘driven to conclude that there must have been some misapplication of principle’.[36]
[31]DPP v Weybury (2018) 84 MVR 153, 169 [50] (Priest JA) (‘Weybury’) (citations and emphasis as in reported version). See also DPP v Cramp [2019] VSCA 174, [56] (Priest, Niall and Weinberg JJA).
[32]So far as relevant, cll 7.2 and 7.5 of Practice Note SC CA 1 (30 January 2017), respectively provide (emphasis added):
7.2 Where a ground of appeal is expressed in general terms – such as ‘the conviction is unsafe and unsatisfactory or unreasonable’ – the ground must be sufficiently particularised to identify the matters relied on. …
7.5 The written case must, unless the Registrar otherwise directs:
…
d. set out the grounds of appeal, in accordance with the following requirements:
i. grounds must be numbered consecutively, and must be specific rather than expressed generally;
ii. each ground must be sufficiently particularised to identify the matters relied on;
iii. complaints about the weight attributed to particular sentencing factors are to be treated as particulars of a ground of manifest excess, unless it is to be contended that a statement about weight made by the sentencing Judge discloses a specific error in describing the facts or evaluating their significance, in which case the ground of appeal should be expressed accordingly; …
[33]Pesa v R [2012] VSCA 109 at [10]–[13] per Maxwell ACJ and Hansen JA; Director of Public Prosecutions v Terrick (2009) 24 VR 457; [2009] VSCA 220 at [5] per Maxwell P, Redlich JA and Robson AJA. Compare Director of Public Prosecutions (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22 at [37] per Priest and Beach JJA, and King AJA.
[34]Dinsdale v R (2000) 202 CLR 321; 175 ALR 315; [2000] HCA 54, 325–6 [6] (Gleeson CJ and Hayne J).
[35]See Elias v R (2013) 248 CLR 483; 298 ALR 637; [2013] HCA 31 at [27] per French CJ, Hayne, Kiefel, Bell and Keane JJ; Dalgliesh at [4] per Kiefel CJ, Bell and Keane JJ; at [79] per Gageler and Gordon JJ.
[36]See R v Pham (2015) 256 CLR 550; 325 ALR 400; [2015] HCA 39 at [28] per French CJ, Keane and Nettle JJ; Dalgliesh at [59] per Kiefel CJ, Bell and Keane JJ. See also Director ofPublic Prosecutions v Zhuang (2015) 250 A Crim R 282; [2015] VSCA 96 at [39]–[49]; Director of Public Prosecutions v McInnes [2017] VSCA 374 at [75].
Part of the difficulty in this case stems, so it seems to me, from the approach taken by the respondent’s counsel on the plea. Having provided the sentencing judge with written submissions, counsel made the following oral submissions:
And what we have said there is Your Honour [is] not in a position to say either this is a low level example or it’s within the lower end of the range of unlawful and dangerous act manslaughters and similarly Your Honour [is] not in a position to say it’s at the higher end or within the higher range of manslaughters by unlawful and dangerous act.
We say that in assessing the seriousness of the offending there [are] two aspects I wish to take Your Honour to. The first is what Your Honour can make or can’t make about the circumstances of the killing itself and then secondly the seriousness and what Your Honour can make of the conduct engaged in afterwards by [the respondent]. And we’ve endeavoured in our submissions to logically deal with those in turn but what we say is our first proposition about the seriousness of the offending within the range of manslaughter is Your Honour [is] not in a position to find it’s low level and you’re not in a position to find it's high level.
Prosecuting counsel, having set out a number of factors bearing on the seriousness of the respondent’s offence, submitted in response that
when one looks at those factors and absent an explanation they’re the sort of factors that Your Honour has, it doesn’t end up in our submission as being a killing that falls within the mid-range of offending; rather, it’s a killing that falls within the high end.
In his reasons for sentence, having noted that the practice of trying to determine whether a particular manslaughter is a low, mid or upper range example of the offence had recently been deprecated,[37] the sentencing judge nonetheless set about determining where in the suggested range the respondent’s offence fell. And as I have mentioned, the judge ultimately arrived at the view that he had insufficient information to say whether the respondent’s offence is a mid or upper range example of manslaughter (although it clearly was not a low range example of manslaughter).[38]
[37]His Honour cited Weybury, 165 [33]–[34] (Maxwell P and Hargrave JA), 170–1 [54] (Priest JA); and Lee, [31] (Ferguson CJ, Priest and Beach JJA).
[38]See [47] above.
The judge’s attempt to determine where in the range of seriousness the respondent’s offence fell was not a very productive exercise. Thus, Maxwell P and Hargrave JA observed in Weybury that[39]
[39]Weybury, 165 [33]–[34] (citations as in reported version).
it is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending in this case falls within a particular category such as ‘mid-range’ or ‘bottom of the high-range’ or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.
In our opinion, it is best to avoid categorising cases as falling within a particular ‘range’ and, instead, for sentencing judges to have regard to relevantly comparable, and current, cases as ‘yardsticks’. This approach involves considering where a case fits on the spectrum of offending, and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis.[40]
And I said:[41]
Beyond saying that the maximum penalty must be reserved for cases in the ‘worst category’, and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category (properly so called),[42] in my view, attempts to shoehorn particular cases into categories of seriousness such as ‘upper’, ‘middle’ or ‘lower’, or to characterise moral culpability as ‘high’ (or ‘very high’), ‘middle range’ or ‘low’, are often calculated to obscure the essential nature of the sentencing task.
[40][DPP v Dalgliesh (2017) 262 CLR 428, 445] at [52] per Kiefel CJ, Bell and Keane JJ, at [82]–[83] per Gageler and Gordon JJ; R v Pham (2015) 256 CLR 550; 325 ALR 400; [2015] HCA 39 at [29]; R v Kilic (2016) 259 CLR 256; 339 ALR 229; [2016] HCA 48 at [22].
[41]Weybury, 170–1 [54] (footnote at end of passage omitted).
[42]R v Kilic (2016) 259 CLR 256, 265–6 [18]–[19] (Bell, Gageler, Keane, Nettle and Gordon JJ); Dalgliesh, 46–7 [45] (Kiefel CJ, Bell and Keane JJ).
In Lee,[43] these statements from Weybury were applied specifically in a case involving a sentence for manslaughter.
[43]Lee, [31]–[32] (Ferguson CJ, Priest and Beach JJA).
Plainly, all cases of manslaughter are serious, in the sense that a life has been lost and can never be restored. Manslaughter is, however, a crime which can be committed in ways the gravity of which markedly differ. By its nature, manslaughter may vary from the merely nominal ‘to the very confines of murder’.[44]
[44]Timbu Kolian v The Queen (1968) 119 CLR 47, 68 (Windeyer J); R v Osip (2000) 2 VR 595, 610 [46] (Batt JA); R v AB (No 2) (2008) 18 VR 391; Sherna v The Queen (2011) 32 VR 668.
For cases other than those dependent on criminal negligence, the foundation of the offence is an act (or acts) that is (or are) unlawful and dangerous. The unlawful act is commonly (though not always) an assault. In this case it may safely be inferred — I do not take it to have been contested by the respondent — that the respondent’s resort to unlawful violence against his wife amounted to an assault of some form or another (albeit whether it was by some kind of blow, or by strangulation, or by some other application of force, cannot be determined). Given the state of the evidence, however, it is impossible to reach any conclusion as to the level and duration of the respondent’s unlawful act (or acts) of violence.
Furthermore, by his plea, the respondent admitted that his unlawful act (or acts) was (or were) also dangerous, in that, from the standpoint of a reasonable person, his act (or acts) carried with it (or them) an appreciable risk of serious injury to his wife.[45] It can thus be said with certainty that the respondent assaulted his wife in a domestic setting, in circumstances where a reasonable person in the circumstances would have realised that his assault carried with it an appreciable risk of serious injury to her.
[45]Wilson v The Queen (1992) 174 CLR 313, 335 (Mason CJ, Toohey, Gaudron and McHugh JJ).
Notwithstanding the violence that he inflicted upon her, however, one cannot say that Karen Ristevski’s death was other than an unintended consequence of her husband’s assault. By abandoning the charge of murder, and accepting the respondent’s plea to manslaughter, the prosecution accepted that the respondent committed one or more unlawful and dangerous acts, without any intention of killing or causing really serious injury to his wife. No matter how despicable in nature were the respondent’s actions immediately after he had brought about his wife’s death, it must be borne steadily in mind that he did not fall to be sentenced as if he had murdered her.
On the plea, when addressing events that followed the killing, counsel for the respondent submitted to the judge that ‘what happens afterwards, both in the disposal of the body and then the lies told, are aggravating features which Your Honour has to take into account in relation to penalty, and they [are] we concede significant matters that Your Honour has to take into account’.
In my view, the respondent’s disposal of his wife’s body was a significant feature aggravating of his offending, and was emblematic of his complete lack of remorse. Thus in England, Brooking JA (with whom Batt and Chernov JJA agreed) said (albeit in the context of murder):[46]
The mere act of dumping the body after a murder has been viewed as an aggravating circumstance. So in R v Von Einem (1985) 38 SASR 207 King CJ, with whom Jacobs and Olsson JJ agreed, mentioned the dumping of the body in a remote spot as part of his ‘recital of essential facts’, which at 218 he described as amply justifying the sentencing judge’s view that the crime was of unique seriousness. In R v Lowe [1997] 2 VR 465 a very short time after the killing, the body of the murdered child was wedged into a storm-water drain, where it was found three months later. The Court of Appeal, at 490, referred to the prisoner’s heartless concealment of the child’s body, and it is to be noted, having regard to what I shall say later about remorse, that the hiding of the body was plainly regarded as not limited in its significance to the light which it threw on remorse. For the court, having referred to the hiding of the body and other matters, went on to mention as a distinct matter the prisoner’s signal and singular lack of remorse.
[46]England, 266 [27].
Not only does the dumping and concealment of the deceased’s body per se constitute a significant aggravating feature of the respondent’s offending, it also demonstrates that the respondent is not afflicted by any pangs of remorse. Thus, one can detect in the respondent no apparent sorrow or regret for what he has done, or any desire to atone for the harm he has caused and to redeem himself. Of course, the absence of remorse does not aggravate the respondent’s offending, but it represents the absence of a feature which often significantly mitigates sentence.
Furthermore, although the respondent is under no obligation to reveal how he killed his wife — thereby, perhaps, giving some small measure of comfort to her friends and loved ones — his failure to do so also bears directly on the issue of his remorse (or, more accurately, his lack of it). More importantly, in this case there is much more than a bare refusal to reveal how he killed his wife, since the respondent embarked on a cynical and protracted course of lies and deceit. Whether or not one accepts the concession by his counsel that the respondent’s lies constitute a significant aggravating feature of the offence, the respondent’s post-offence conduct shows generally that he is devoid of any remorse.
Recognising as I do the limited role of ‘comparable’ sentencing cases (so-called),[47] I note that, of the sentencing cases referred to by the respondent’s counsel, only the facts in Mocenigo bear some passing resemblance to those in the present case. In that case, the applicant had killed his de facto partner. His version was that, in an attempt to stop her from going to purchase drugs, he held the deceased in a bear hug, they fell, and she hit her head both when falling and when thrashing around while the applicant held her face down on a bed. After he realised that she had died, the applicant put the deceased’s body in a shed for a couple of days, before dumping the body in bushland concealed by branches. The body was found a day or so later. No cause of death could be determined. After some initial reticence, the applicant gave police an account of what he had done.
[47]See DPP v Dalgliesh (2017) 262 CLR 428, 445 [52] (Kiefel CJ, Bell and Keane JJ), 454 [83] (Gageler and Gordon JJ); R v Pham (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ). See also DPP v Zhuang (2015) 250 A Crim R 282, 292–5 [29]–[37] (Redlich, Priest and Beach JJA).
In Mocenigo the applicant was tried and convicted of murder. His conviction for murder was quashed in this Court, and a verdict of manslaughter substituted. The 36 year old applicant had offered to plead guilty to manslaughter, and had also offered to give evidence against another who had assisted him conceal his crime. There was no evidence that the applicant had previously been physically violent to the deceased (albeit that he had some relatively old convictions relating to offences of assault and damaging property). Sentencing the applicant to 11 years’ imprisonment, with a non-parole period of eight years, for manslaughter, this Court considered that the applicant’s offer to plead to manslaughter ought to be taken into account not only as having some utilitarian value but also as demonstrating some remorse, ‘leading to significant mitigation of the sentence to be imposed’. The applicant’s prior convictions were not regarded as being ‘particularly important’; his prospects of rehabilitation were considered to be good; and the need for specific deterrence and community protection were regarded as being of minimal significance. As against those matters, the applicant’s attempts at concealment of the body were an aggravating feature of the offence, and the Court did not ‘lose sight’ of the need for general deterrence, denunciation and just punishment.[48] I observed:[49]
Since the crime of manslaughter may be committed in an almost infinite variety of ways, sentences imposed for manslaughter fall into a very broad spectrum. Recourse to statistics and comparative sentences is not particularly helpful, merely emphasising that the sentences for manslaughter widely vary. Axiomatically, however, the sentence in any given case of manslaughter must depend on the facts peculiar to it.
[48]Ibid [85]–[86].
[49]Ibid [84] (Buchanan and Neave agreeing).
In the present case, the unlawful violence that caused Karen Ristevski’s death was inflicted by her husband in a ‘domestic’ setting, so much being an aggravating circumstance of the offence. It may be inferred that the respondent thought that the circumstances of the killing were sufficiently serious that he needed to dispose of his wife’s body so as to conceal the mechanism of her death. The manner in which he disposed of her body is, as the respondent’s counsel conceded, a significantly aggravating feature of his crime. Moreover, and also significantly, the respondent has displayed not one skerrick of remorse for having killed his wife, the mother of his daughter. Not merely has the respondent refused to reveal how he killed his wife, but he maintained the charade of a grieving husband whilst weaving a web of lies and deceit. Against those aspects, he can call in aid his previous good character and prospects of rehabilitation, and the utilitarian value of his guilty plea.
When looked at in this way, it may be appreciated that the head sentence and non-parole period imposed simply are not adequate to reflect the seriousness of the respondent’s offence. Plainly, in my view, the sentence imposed on the respondent was far too low to reflect the needs of general deterrence, denunciation and just punishment. This Court’s intervention is required to ensure that proper sentencing standards are maintained.[50]
[50]R v Clarke [1996] 2 VR 520, 522 (Charles JA).
Conclusion
The appeal should be allowed and the sentence first imposed should be set aside. In lieu, I would impose a sentence of 12 years’ imprisonment. Having given discrete consideration to relevant factors,[51] I would fix a period of nine years before the respondent be considered eligible for parole, so much representing the minimum period that justice demands the respondent serve before being a candidate for conditional release.[52]
[51]R v Mulvale (Unreported, Court of Appeal, Winneke P, Callaway and Hampel JJA, 20 February 1996); R v Bernath [1997] 1 VR 271, 278 (Callaway JA); R v Yates (1998) 99 A Crim R 483; R v Watts [1998] 4 VR 244.
[52]R v Morgan (1980) 7 A Crim R 146, 154 (Jenkinson J); Power v The Queen (1974) 131 CLR 623, 628–9 (Barwick CJ, Menzies, Stephen and Mason JJ). See also Deakin v The Queen (1984) 54 ALR 765; Bugmy v The Queen (1990) 169 CLR 525, 536 (Dawson, Toohey and Gaudron JJ).
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for the respondent’s plea of guilty, I would have sentenced him to be imprisoned for 14 years, with a non-parole period of 11 years.
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