Edward Hill v The Queen
[2018] VSCA 190
•2 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0032
| EDWARD HILL | Applicant |
| V | |
| THE QUEEN | Respondent |
S APCR 2017 0034
| MATTHEW BRENNAN | Applicant |
| V | |
| THE QUEEN | Respondent |
S APCR 2017 0108
| CONSTANTINOS GEORGE SPALIARAS | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 February 2018 |
| DATE OF JUDGMENT: | 2 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 190 |
| JUDGMENT APPEALED FROM: | [2017] VSC 33 (Beale J) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Joint criminal enterprise – Sustained assault by three applicants – Whether verdicts unsafe and unsatisfactory – Scope of agreement – Agreement to assault conceded – Whether scope of agreement extended to murderous intent – Eyewitness evidence unchallenged – Inference of murderous intent open – Comments by prosecutor about ‘increasing number’ of drug-related murder cases –Application for discharge of jury refused – Whether substantial miscarriage of justice – Potential unfairness eliminated by jury directions – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Murder – Applicant sentenced to 24y with non-parole period of 19y – Heavier sentence than two co-offenders – Whether manifestly excessive – Whether principle of parity infringed – Significant prior convictions for violence – Subsequent convictions – Different role following murder – Knowledge of tendency to act violently when under the influence of ‘ice’ – Poor prospects of rehabilitation – Disparate sentences justified – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Hill) | Mr L Richter | Stary Norton Halphen |
| For the Applicant (Brennan) | Mr C G Mandy | Slades & Parsons Solicitors |
| For the Applicant (Spaliaras) | Mr J Desmond | Valos Black & Associates |
| For the Respondent | Ms S A Flynn SC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
PRIEST JA
KIDD AJA:
The applicants, Edward Hill (‘Hill’), Matthew Brennan (‘Brennan’) and Constantinos Spaliaras (‘Spaliaras’), pleaded not guilty to the murder of Brendan Bernard (‘Bernard’). On the 18th day of their joint trial, the jury returned verdicts of guilty in respect of all three applicants. They were sentenced as follows:
·
Hill: 20 years’ imprisonment, with a non-parole period of
15 years;
·
Brennan: 22 years’ imprisonment, with a non-parole period of
17 years; and
·
Spaliaras: 24 years’ imprisonment, with a non-parole period of
19 years.
Each applicant seeks leave to appeal against conviction. Spaliaras also seeks leave to appeal against sentence.
Hill seeks leave to appeal his conviction on the following grounds:
Ground 1: The verdict of guilty is unreasonable or cannot be supported having regard to the evidence led at the applicant’s trial as there was insufficient evidence available either to determine the role of the applicant or to ascertain the requisite mens rea for murder.
Ground 2: A substantial miscarriage of justice occurred because of prejudicial and irrelevant comments about other murder cases and the drug ‘ice’ made by the trial prosecutor during the prosecution opening address.
Brennan seeks leave to appeal his conviction on the following grounds:
Ground 1: The verdict of guilty on the count of murder cannot be supported on the evidence in that it was not reasonably open for the jury to be satisfied that the accused was part of an agreement, arrangement or understanding to kill or cause really serious injury to [Bernard].
Ground 2: There was a substantial miscarriage of justice arising from comments made by the learned prosecutor in his opening address.
Spaliaras seeks leave to appeal his conviction on the following grounds:
Ground 1: A substantial miscarriage of justice occurred because of impermissible submissions made by the prosecutor during his Opening address when he said:
a) ‘you are about to embark on another one of the increasing number of murder cases arising from the world of drugs, and in particular the drug ice’ …
b) … ‘we appear on behalf of the community of Victoria to assert that there has been a breach of the criminal law of the State’ …
when such remarks were both irrelevant, factually incorrect and highly prejudicial to the applicant. Further there was no evidentiary basis for those submissions.
Ground 2: The learned trial judge erred in refusing the application to discharge the jury by reason of the comments made by the prosecutor in his Opening address insofar as:
a) a high degree of necessity existed to discharge the jury;
b) no direction given by the judge was able to cure the ‘vice’ created by the prosecutor’s opening remarks.
Ground 3: The verdict is unreasonable or cannot be supported having regard to the evidence.
Spaliaras seeks leave to appeal his sentence on a single ground.[1]
[1]See [56] below.
For the reasons which follow, each application for leave to appeal must be refused.
Overview of facts and proceedings
Hill was friends with Brennan and Bernard, who lived together in a unit in North Melbourne. Hill lived in a different unit in the same block.
Spaliaras and his girlfriend (‘JK’) lived in a unit nearby. One night in late December 2014, Hill was walking past their unit when Spaliaras and JK invited him in to buy drugs. From that point on, Hill regularly purchased drugs from Spaliaras and JK.
On 26 January 2015, JK and Spaliaras visited Hill at his unit. Brennan and Bernard were also there. Hill introduced them. JK sold Bernard five morphine pills ‘on tick’[2] for $100. It was agreed that Bernard would pay her the next day. They exchanged mobile phone numbers.
[2]Meaning that he would receive the drugs immediately but pay for them at another time.
All five present — Bernard, the applicants and JK — consumed alcohol and drugs throughout the day. In the afternoon, neighbours complained to Brennan about the noise.
The following morning, 27 January 2015, Spaliaras talked to Bernard about the money he owed JK for the drugs. Bernard said he was getting money from his step-father (‘E’) later that day. E had agreed to buy some dexamphetamine tablets from Bernard for $100, which he deposited into Bernard’s bank account. Bernard withdrew the $100 and gave some of it to Brennan to pass on to Spaliaras and JK.
The applicants and JK were at Hill’s unit throughout the afternoon of
27 January. They talked about Bernard. Brennan did not give Spaliaras or JK the money Bernard had given him. He complained about Bernard not paying rent or sharing drugs. They decided to go down to the unit which he shared with Brennan. While they were there, they rummaged through Bernard’s belongings.
Bernard then returned home. What followed will be examined in detail below. For present purposes, a summary will suffice. When Bernard first entered the unit, the applicants jointly assaulted him in the front lounge room area. Spaliaras then choked Bernard in a sleeper hold. Bernard passed out and was left unconscious near the front door. The applicants went into Bernard’s bedroom.
While they were in the bedroom, Bernard woke up and tried to escape. JK called out to the applicants to alert them. They came out of the bedroom and wrestled with Bernard. He cried and asked them to stop. Pillows were put over his face to stifle his cries.
Bernard was then dragged into the kitchen, where Spaliaras flicked a black coloured ‘throat cutter’ knife at his face. He was then dragged to the bathroom. JK remained in the kitchen drinking. She heard banging in the bathroom for an extended period, after which there was quiet.
JK then went into the bathroom. She saw Bernard in the bathtub with a long rope around his neck. Spaliaras offered JK the rope and said, ‘Here, have a pull of the dog’. Spaliaras pulled the rope hard and Bernard’s head hit the bath tub. Bernard did not move or react. JK checked Bernard’s neck for his pulse but could not find it.
Bernard’s body remained in the bath for about a week. Spaliaras and Brennan cut up Bernard’s body in the bathtub.
On 3 February 2015, the applicants and JK disposed of the body parts in the Maribyrnong River. The head, torso and hands were put into a skip and wheelie bin. A forearm bearing a devil tattoo was found floating in the river on 5 February 2015. This discovery led to the identification of Bernard and to the arrest of the applicants.
The prosecution case was based on joint criminal enterprise. It was alleged that each applicant was a party to an agreement to kill Bernard or cause him really serious injury.[3] As discussed below, the key issue at trial and again on the appeal was whether the prosecution had proved murderous intent.
[3]Crimes Act 1958 s 324.
THE CONVICTION APPLICATIONS
The prosecution opening address and the application for discharge
At the commencement of his opening address, the Chief Crown Prosecutor said to the jury:
[W]e appear on behalf of the community of Victoria to assert that there has been a breach in the criminal [law] of the State. You are about to embark on another one of an increasing number of murder cases arising from the world of drugs, and in particular the drug ice, and our function at this stage is to tell you what the case is all about.
At the first opportunity, counsel for Brennan applied to the judge to discharge the jury, on the basis that the comments were irrelevant to the trial and highly prejudicial. He submitted that the reference to ‘an increasing number of murder trials dealing with the drug ice’ was unfair to the accused because it
invest[s] this prosecution and this jury’s task with some kind of wider responsibility for the social ills of ice as perceived, at least by the Chief Crown Prosecutor, and probably by the community. I appreciate it was no doubt [a] rhetorical flourish, but it doesn’t have anything to [do] with the facts of this trial that there are an increasing number of murder trials dealing with the drug ice, and it invites this jury to associate this offence with a topical social evil in an inappropriate way, in my submission.
Counsel for Hill joined in the application. He submitted that:
[I]t is because they are the very first words that come out of the prosecutor’s mouth that that is the prism through which they will hear the rest of the opening, and unless something is done that misperception will persist.
The application to discharge the jury was refused. His Honour was not persuaded of the ‘high degree of necessity’ for discharge.[4] He did, however, consider that directions to the jury would be required to ‘cure the potential prejudice arising from the comments’. His Honour then read out to counsel the directions which he proposed to give, the relevant part of which was in these terms:
That phrase, ‘We appear on behalf of the community of Victoria’ could be taken to mean that, ‘We, the prosecution, appear on your behalf, members of the jury, because you are part of the community of Victoria. In other words, we are on your side’. Members of the jury, you are not on anybody’s side. You are completely independent of the prosecution and the defence.
Your role, as I told you yesterday, is, ‘To decide what the facts are in this case from all of the evidence given during the trial and to apply the law to the facts that you have found and by doing that decide whether the accused are guilty or not guilty of the offence charged’. The very next thing [the prosecutor] said to you in his opening address was this: ‘You are about to embark on another one of an increasing number of murder cases arising from the world of drugs, and in particular the drug ice’. Ladies and gentlemen, other murder cases are completely irrelevant to this trial. So too are the reasons for other murder cases.
Your focus is this trial and this trial alone. You must not allow yourselves to be diverted or distracted by irrelevant considerations.
…
[I]n relation to all of the issues in this case you must act like judges. You must dispassionately weigh the evidence logically and with an open mind, not according to your passion or feelings. Your duty is to consider the evidence using your intellect, not your heart. Irrelevant considerations like the one mentioned yesterday at the commencement of [the prosecutor’s] opening address can excite feelings of prejudice against an accused or sympathy for others. But you must not allow such feelings to interfere with the role you have to perform.
Do not misunderstand me. I am not suggesting that [the prosecutor] has deliberately sought to divert you from your duty by either of the comments that I have criticised this morning, but those comments needed correction and that is why I have given you these further directions.
[4]Terdputham v The Queen [2017] VSCA 123 [29].
His Honour then invited submissions from counsel about the content of proposed directions but none were forthcoming. Accordingly, at the conclusion of the prosecutor’s address, the judge directed the jury in the terms he had foreshadowed.
On appeal, each of the applicants maintained that the directions given could not have cured the unfairness which flowed from the Chief Crown Prosecutor’s statements. Particular emphasis was placed on his reference to ‘another one of an increasing number of murder cases arising from … the drug ice’. The essential complaint was that the linking of murder with that drug suggested a causal link between the use of ice and violent crime, in particular homicide. The implication of such a nexus, it was said, was likely to have affected the jury’s assessment of the applicants’ state of mind.
Consideration
As senior counsel for the Director properly conceded, the statements by the Chief Crown Prosecutor should not have been made. It was wholly inappropriate to introduce a generalisation about murder cases involving ice, the more so to suggest that this was an increasing social problem. To make such a statement ran contrary to the foundational principle of a criminal trial, namely, that the jury must decide the case on the basis of the evidence led by the prosecution, and nothing else.
We are satisfied, however, that there was no substantial miscarriage of justice.[5] The potential unfairness created by these gratuitous remarks was eliminated by the directions which the judge gave, promptly and comprehensively. The judge instructed the jury, in clear and compelling terms, to ignore what had been said and to concentrate on their task, which he had defined for them. The assumption upon which this Court must proceed, of course, is that juries follow directions and are able to decide cases in accordance with the law, ‘uninfluenced by extraneous considerations’.[6]
[5]Insofar as ground 2 of Spaliaras’s conviction application contends that the trial judge ‘erred in refusing the application to discharge the jury’, Maric and other cases make clear that any appeal is not against the failure to discharge, but against the conviction, so that the issue for determination is whether a substantial miscarriage of justice had occurred: Maric v The Queen (1978) 20 ALR 513, 521; Crofts v The Queen (1996) 186 CLR 427, 441; Terdputham v The Queen [2017] VSCA 123 [27]–[28]; Gul v The Queen [2017] VSCA 153 [57]. See also Criminal Procedure Act 2009 ss 276(1)(b), (c).
[6]Dupas v The Queen (2010) 241 CLR 237, 248–9 [28]–[29] (‘Dupas’).
The position might have been different had any part of the Crown case depended upon the proposition that consumption of the drug ice had made one or more of the applicants behave with excessive violence. But, as counsel for Brennan and Hill both pointed out in this Court, no such proposition was advanced. The issue of intent was addressed as a matter of inference from the conduct in which the applicants were alleged to have engaged. No reliance was placed on the consumption of ice. JK’s evidence was that she and the three applicants were taking ‘different drugs’.
The jury deliberated for five days before returning their verdicts. It can safely be inferred — consistently with the long experience of the criminal justice system — that this was a very conscientious deliberation, and that the verdicts were based on the evidence, not on irrelevant considerations.[7]
[7]Ibid 247 [26].
This ground of each application fails.
The unsafe and unsatisfactory ground
As noted earlier, the Crown case was that Bernard’s death resulted from acts of the applicants carried out pursuant to an agreement between them to kill Bernard or cause him really serious injury. At trial, both Hill and Spaliaras conceded before the jury that they had been party to an agreement to assault Bernard and that they could properly be convicted of manslaughter by unlawful and dangerous act. Brennan made no such concession at trial but his counsel made that concession at the commencement of oral argument in this Court.
It was common ground that the scope of the agreement between the applicants, and their intention, fell to be determined as a matter of inference from the entirety of the evidence as to what occurred. As none of the applicants gave evidence, the only account of what happened came from JK. As will appear, submissions were made on appeal about what her evidence established — or failed to establish — about the participation of individual applicants at particular times. Crucially, however, the essential elements of JK’s account went unchallenged in cross-examination.
For ease of reference, we will identify by numbers the separate stages in the sequence of events described by JK, as follows:
1. When Bernard entered the unit, he started to explain that he did not have ‘all the money’ to pay JK for the drugs she had sold him. As he was trying to explain himself, the applicants began yelling and screaming at him. This went on for about 15 minutes.
2. Spaliaras began to hit Bernard, and Hill and Brennan joined in. All three applicants were hitting Bernard with closed fists. None of the applicants was hit.
3. Spaliaras put Bernard into a sleeper hold, choking him until he became unconscious. The applicants left Bernard unconscious on the floor and went into his bedroom.
4. After about five minutes, JK (who had remained in the lounge room) saw Bernard begin to wake up. He went to the front door and tried to get out. JK shut the door and called out to Spaliaras to alert him. She did this because she ‘did not want [Spaliaras] to go to gaol’.
5. The applicants emerged from Bernard’s room. At this point, Bernard was ‘pretty bashed up’. He was pulled into the kitchen and the three applicants wrestled with him. Bernard was resisting. Spaliaras flicked a ‘throat cutter’ knife in his face.
6. When Bernard was on the floor, he kept crying and screaming out, saying that he ‘just wanted to go’. The applicants were telling him to shut up. Because he was still crying, they put pillows over his face. He kept crying, so they dragged him to the bathroom.
7. JK went and sat in the kitchen. She could hear noise coming from the bathroom. She heard ‘banging and stuff’ and the muffled sound of Bernard moaning. The applicants ‘came in and out of the kitchen a couple of times’. They told JK she was not allowed to leave. The noise from the bathroom went on for ‘about 40, 45 minutes’. Then ‘it got really quiet’.
8. JK went into the bathroom and saw Bernard in the bathtub. He was not moving. He had a big rope around his neck. Spaliaras had hold of the rope and he passed it to her, saying ‘Here, have a pull of the dog’. Spaliaras then ‘yanked him really hard’ and, when Bernard’s head hit the side of the bathtub, he did not react. JK asked Spaliaras if Bernard was still breathing. She checked his pulse and could not find it. She then went back to the kitchen.
9. There was discussion between the applicants and JK about whether Bernard had drugs on his body. It was thought that he might be hiding drugs and keeping them for himself. Hill went and conducted an inspection by himself. He came back and said that he had found nothing.
The appeal submission for Brennan was that Bernard had died because of what happened in the bathroom and that this was conduct for which Spaliaras alone was responsible. His conduct went beyond the scope of the (admitted) agreement to assault Bernard. According to the written case, the jury could not have excluded beyond reasonable doubt the possibility that
Spaliaras went into the bathroom and put a rope around [Bernard’s] neck and killed him (consistent with his actions and demeanour), without the agreement of Brennan (who could not be placed in the bathroom at any time).
As it was expressed more than once in oral argument, Spaliaras was ‘on a frolic of his own’.
Counsel for Brennan (who had appeared for him at the trial) sought to emphasise the absence of evidence clearly locating their client in the bathroom at any point. This meant, it was said, that whatever happened in the bathroom could not be said to have happened ‘with his presence’. But, as counsel properly conceded, if what occurred in the bathroom was pursuant to a subsisting agreement between the applicants, his absence was irrelevant.
Counsel also conceded — properly, in our view — that Brennan’s participation in stages 5 and 6 showed that he was happy for Bernard to continue being assaulted. In that sense, counsel accepted, the taking of Bernard to the bathroom was pursuant to the agreement to assault which Brennan admitted. The key question, therefore, was whether Spaliaras had, indeed, gone beyond the scope of what had been (implicitly) agreed between the three of them.
Counsel for Hill (who did not appear at the trial) advanced a similar submission. The jury could only have convicted Hill, it was said, if they were satisfied that:
(a) the scope of the agreement between the applicants had been expanded to include an intention to cause Bernard really serious injury; and
(b) Hill was aware of that expansion of scope.
According to the argument, it was not open to the jury on the evidence before them to be satisfied that Hill had taken part in stages 5, 6 or 7. Counsel submitted that, when JK used the word ‘they’ in describing particular conduct, she was not specific as to which of the applicants she was referring to. Counsel accepted, however, that none of the applicants had pressed JK in cross-examination to be more specific. Nor had any of them put to her a positive contention that he had not been present at a particular point. When this lack of challenge was pointed out by the Court, counsel suggested that JK’s evidence had been ‘in such a state of ambiguity and disarray’ that defence counsel had been justified in ‘leaving it alone’.
Counsel for Spaliaras (who also did not appear at the trial) took a somewhat different approach. He conceded that murderous intent was ‘clearly’ an inference which was open on the evidence. He maintained, however, that there was a competing inference which the jury could not have excluded beyond reasonable doubt, namely, that the applicants’ intention was merely to ‘give the man a flogging’, which fell short of an intention to cause really serious injury.
Counsel for Spaliaras also submitted that, on the evidence, his client had been out of the bathroom ‘for a significant time’. It followed, so it was said, that Brennan or Hill might have been present in the bathroom at the time when Bernard was heard to be groaning. Counsel also argued that it was not a continuous assault, but had been broken up by — for example — the conversation in the bedroom. Given that ‘men can change their minds from time to time’, the jury could not have been satisfied beyond reasonable doubt that everything which occurred was accompanied by murderous intent.
Counsel for Spaliaras was asked specifically about his client’s conduct in the bathroom, when he pulled on the rope around Bernard’s neck when Bernard was apparently lifeless. He conceded — properly, in our view — that it was open to the jury to infer that Spaliaras was ‘not disappointed by the result’.
The submission for the Crown, as it had been at trial, was that this course of events constituted a continuous assault, albeit with breaks, and that the entire attack involved all three applicants. The initial attack on Bernard, with all three punching him, revealed an intention to cause him really serious injury. What ensued thereafter was simply a continuation of what the applicants had started, with the same intention.
Crucially, none of the applicants had shown any sign of withdrawal at any stage. As a result, it was said, nothing turned on who had struck particular blows, or who had been in the bathroom at a particular time, or whether any particular blow had been shown to have caused the death.
Consideration
In our view, it was well open to the jury to be satisfied beyond reasonable doubt that the applicants intended to cause Bernard — at the very least — really serious injury. Given the chronology of events, it strains credulity to suggest that any lesser inference was reasonably open.
The position would have been quite different if, for example, the applicants had taken out their evident anger towards Bernard by punching him a few times and then letting him go. Nothing of the sort happened, of course. On the contrary, what began with a ferocious, sustained attack in company — with all three punching a defenceless Bernard with their closed fists — was immediately followed by him being rendered unconscious. As senior counsel for the Director correctly pointed out, being choked to unconsciousness is extremely serious in itself. And there was no challenge to JK’s description of Bernard as being already ‘pretty bashed up’ by this stage.
Critically, when Bernard tried to escape, the applicants made sure that he could not leave. Even then, he might simply have been restrained. Instead, the attacks on him continued, with the menace of the cut-throat razor, the wrestling, the pillows over the face and, importantly, the callous ignoring of his visible and audible distress and his requests to be allowed to leave.
At this point, as at earlier points, it would have been open to any of the applicants to register a protest, or withdraw, or suggest to the others that Bernard had been sufficiently ‘roughed up’ and that they should stop. Once again, no such thing occurred. Instead, ‘they’ dragged him to the bathroom, after which — as JK was asked to confirm during cross-examination by counsel for Spaliaras — ‘one or other of them [kept] coming out from time to time and going back in’.
What happened thereafter took place with either the active participation or the unquestioning acquiescence of each applicant. It could not reasonably be disputed that this was in continued effectuation of the agreement between the applicants to cause Bernard really serious injury. We reject the submissions for Brennan and Hill that the scope of the agreement changed without their knowledge or, alternatively, that Spaliaras was solely responsible for what happened thereafter.
In circumstances such as these, the scope of the agreement falls to be determined by reference to the conduct of the parties to the agreement. Whoever it was who did the acts which produced the banging sounds, and the moaning from Bernard, which JK heard coming from the bathroom, those outside the bathroom were evidently perfectly content to allow it to occur. Whether they knew precisely what was going on is of no consequence, although it could safely be inferred that they were able to hear, just as JK could hear, that Bernard was continuing to be violently assaulted.
The final stage is particularly telling, in our view. Spaliaras’s appalling conduct in the bathroom, tugging the rope around Bernard’s neck while speaking derisively about him, showed clearly that he was untroubled by Bernard’s apparent demise. We note that trial counsel for Spaliaras suggested to JK in cross-examination that
[w]hen [Spaliaras] pulled on the rope it was sort of like he was taunting him, trying to sort of teach him a bit more of a lesson for not paying for the drugs.
It seems that neither Hill nor Brennan took part in this disgraceful episode but there is no suggestion in the evidence that either of them expressed surprise or concern when they realised that Bernard was dead, or protested to Spaliaras that he had gone too far. On the contrary, it was evidently resolved that his lifeless body should be searched for drugs. The inference was well open that all three viewed his death as the outcome they had intended or — at least — as an unsurprising consequence of the vicious, sustained brutality they had inflicted on him.
It will be apparent from what we have said that our analysis does not depend on a conclusion as to the precise length of time which elapsed between the beginning and end of these events. As noted earlier, JK’s evidence was that she heard sounds coming from the bathroom (stage 7) for a period of 40 to 45 minutes. It was conceded on the appeal that none of the accused had challenged that part of her evidence. On the contrary, counsel for Spaliaras had her confirm in cross-examination that she had heard Bernard making noises ‘for a pretty long period of time’.
Defence counsel invited the jury — and this Court — to prefer the account given by a neighbour from the floor above, whose estimate of duration was a good deal shorter. Once again, as counsel for Brennan conceded, the lack of challenge to JK’s account carried the risk that the jury would accept her unchallenged evidence in this respect also. In the end, however, the inference of murderous intent was well open, on all of the evidence, whether stage 7 lasted for five or 45 minutes.
THE SENTENCE APPLICATION
Spaliaras is aged 34 years. As noted earlier, he was sentenced to be imprisoned for 24 years, with a non-parole period of 19 years, whilst Hill, aged 50, was sentenced to 20 years’ imprisonment, with a non-parole period of 15 years; and Brennan, aged 40, was sentenced to 22 years’ imprisonment, with a non-parole period of 17 years.
Spaliaras sought leave to appeal against sentence on the following ground:
The learned sentencing judge erred in imposing a manifestly excessive sentence upon the applicant insofar as the principle of parity was infringed and an unjustified disparity existed when compared to sentences of the co-accused.
In our view, Spaliaras’s contention that there is unjustified disparity between his sentence and those of his co-offenders is without substance.
Counsel for Spaliaras submitted that ‘the trial judge erred in his parity analysis’. Spaliaras received the heaviest sentence of the three co-offenders, despite being about five years younger than Brennan, and 15 years younger than Hill. Counsel submitted that Spaliaras’s criminality and moral culpability could not be distinguished from Brennan’s; Spaliaras had only 30 prior convictions, whereas Brennan had 130; and whilst Spaliaras had prior convictions for violence, Brennan had a prior conviction for possessing a controlled weapon (and had breached a suspended sentence). Further, Brennan had continued to use illicit drugs up to the point of his incarceration, and identified as a Nazi. Additionally, it was submitted, the distinction between Spaliaras and Brennan with respect to prospects of rehabilitation — the judge assessed Spaliaras’s prospects as ‘poor’, and Brennan’s as ‘fair’ — was ‘artificial at best’.
The respondent submitted that it was reasonably open to the sentencing judge to differentiate between sentences in the way that he did. There was no reason to differentiate between the three co-offenders with respect to their roles in the murder. There were, however, differences in their roles after the murder, and in their personal circumstances. Thus, the respondent submitted, it was open to the judge to differentiate between Spaliaras and Brennan, who were actually involved in the dismemberment of the body, and Hill, who was not involved in the dismemberment but was involved with the others in its disposal.
The most significant differences in the factors personal to Spaliaras and the others were, so it was submitted, the nature of his prior and subsequent convictions. Those differences alone meant that it was clearly open to the sentencing judge to differentiate between sentences in the way in which he did. Spaliaras had relevant prior convictions for violence as well as relevant subsequent offending. Of particular significance was his conviction for robbery and intentionally causing injury in 2015, which was found by the sentencing judge in that case to have occurred in the context of Spaliaras taking ice, and behaving in an irrational, violent and out of control manner. The fact that Spaliaras was aware that he had a tendency to act violently when under the influence of ice was an aggravating feature in his case, being another point of distinction vis-à-vis his co-offenders.
Moreover, the respondent submitted, Spaliaras’s prior and subsequent violent offending left it open to the sentencing judge to find that his prospects of rehabilitation were poor compared to the co-offenders. Although Brennan had a greater number of prior convictions, he had not been in trouble for 13 years preceding the murder; and, importantly, his prior history did not include any prior convictions for violence. And, whilst Hill had a greater number of prior convictions than Spaliaras, most of those were for dishonesty offences and driving, interspersed with several drunk and disorderly charges. Hill had only limited prior convictions for violence, the last significant prior conviction having been recorded in 2000. Furthermore, Hill had an intellectual disability that moderated the weight to be given to specific and general deterrence.
Notions of equal justice require identical outcomes in cases that are relevantly identical, but different outcomes in cases that are different in relevant respects.[8] So as to justify disparate sentences, a sentencing judge has the task of identifying any relevant differences between co-offenders’ cases. There is no warrant for appellate intervention where disparity between sentences imposed on co-offenders is justified by differences in age, background, criminal history, general character or the part each has played in the relevant criminal conduct or enterprise.[9]
[8]Wong v The Queen (2001) 207 CLR 584, 608 [65]. See also Postiglione v The Queen (1997) 189 CLR 295, 301; Green v The Queen (2011) 244 CLR 462, 472–3 [28] (‘Green’).
[9]Lowe v The Queen (1984) 154 CLR 606, 609; Green (2011) 244 CLR 462, 474–5 [31].
In our opinion, the different treatment of Spaliaras when compared to Brennan and Hill is satisfactorily explained. Thus, in the course of his sentencing reasons the judge gave the following reasons for imposing different sentences on Spaliaras and the co-offenders:
Mr Spaliaras, your sentence will be the heaviest because of your significant prior and subsequent convictions for violence. Your attitude to Mr Bernard’s fate, on the night of the killing and afterwards, also demonstrated a chilling callousness.
Both of you, Mr Spaliaras and Mr Brennan, will receive harsher sentences than Mr Hill because, for one thing, you two dismembered the body.
Mr Hill’s intellectual disability is also a point of distinction.[10]
[10]R v Spaliaras & Ors [2017] VSC 33 [84]-[85].
Spaliaras’ application for leave to appeal against sentence must be refused.
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