Eustace v The Queen
[2021] VSCA 142
•25 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0006
| DOUGLAS EUSTACE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST, NIALL and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 May 2021 |
| DATE OF JUDGMENT: | 25 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 142 |
| JUDGMENT APPEALED FROM: | [2019] VSC 189 (Taylor J) |
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CRIMINAL LAW — Appeal — Sentence — Murder – Appellant stabbed wife repeatedly with knife – Sentenced to 25 years’ imprisonment with 20 years non-parole – Whether sentence manifestly excessive – Use of comparable sentencing cases – Sentence outside range established by previous cases – Early guilty plea, remorse, previous good character, good prospects of rehabilitation and risk of deportation – Appeal allowed – Resentenced to 21 years’ imprisonment with 16 years non-parole – Wong v The Queen (2001) 207 CLR 584, Hili v The Queen (2010) 242 CLR 520, Barbaro v The Queen (2014) 253 CLR 58 and DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr P Tehan QC with Mr A Dinelli | Slades and Parsons |
| For the Respondent: | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA
T FORREST JA:
Introduction
Pursuant to leave granted by Priest JA,[1] the appellant Douglas Eustace, now aged 47 years,[2] appeals against a sentence of 25 years’ imprisonment, with a non-parole period of 20 years, imposed upon him on 26 March 2019 for the murder of his wife, Mary Freeman.[3]
[1]Eustace v The Queen (Unreported, Court of Appeal, Priest JA, 7 May 2020) (‘Leave Reasons’).
[2]His date of birth is 8 May 1974.
[3]R v Eustace [2019] VSC 189 (Taylor J) (‘Reasons for Sentence’).
The main thrust of the case made in support of the sole ground of appeal — which contends that the sentence is manifestly excessive — is that the sentence imposed upon the appellant is out of step with sentences passed in factually comparable cases involving the murder of intimate partners. Indeed, so counsel for the appellant submitted, the sentence imposed on the appellant is much higher than sentences imposed in cases where the offending was more serious, and cases in which — unlike the present — a plea of guilty was absent. The sentence is so high as to be outside the range of sentences reasonably open to the sentencing judge in the sound exercise of discretion.
Whilst accepting that the sentence is at the upper limits of the appropriate range, counsel for the respondent submitted that the sentence was not manifestly excessive.
When granting leave to appeal, Priest JA observed:
Bearing the admonitions in Dalgliesh[[4]] steadily in mind, and making due allowance for the limitations of so-called comparable cases,[5] my distinct impression is that the sentence imposed upon the applicant is considerably higher than those imposed in other relatively recent cases having similar features. Acknowledging that every case must depend on its own facts; that sentences in comparable cases are not precedents which must be applied unless capable of being distinguished; and that there are factual differences (of greater or lesser importance) between the sentencing cases relied upon by the applicant and the present case; the fact that the present sentence appears by comparison to be appreciably higher than sentences imposed in similar cases, at the very least invites scrutiny.
[4]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 (‘Dalgliesh’).
[5]DPP v Zhuang (2015) 250 A Crim R 282, 292–5 [29]–[37]; Dalgliesh, 447–8 [59] (Kiefel CJ, Bell and Keane JJ), 454 [83] (Gageler and Gordon JJ).
Having now had the benefit of full argument on the appeal, we are of the view that the appellant has made good the contention that the sentence imposed is manifestly excessive. We would thus allow the appeal, set aside the sentence originally imposed and sentence the appellant to imprisonment for 21 years, upon which we would fix a non-parole period of 16 years. Our reasons follow.
The offending
It is convenient to repeat the description of the appellant’s offending set out in the Leave Reasons:
5.Mary Freeman was aged 41 years at the time of her death. She was born in Renigunta, India, and migrated to Australia in 2003. The applicant and Ms Freeman met at a party on 14 July 2017 when the applicant was in Australia on a visitor visa. Two days later the applicant returned to India, and he and Ms Freeman maintained contact through social media. Ms Freeman ultimately agreed to marry the applicant, and he returned to Australia on another visitor visa on 25 August 2017.
6.At that time, Ms Freeman lived in a share house in Hallam with a married couple, Nilushi and Palinda Pathirage, and another man, Rushan Attygalla. The applicant moved in and initially stayed in a separate bedroom. On 7 October 2017, the applicant and Ms Freeman married, at which point he moved into her bedroom. Ms Freeman was not happy in the marriage — there was tension and arguments — and they began to sleep in separate beds. By this stage, the applicant had been granted a bridging visa pending an application for a partner visa. Ms Freeman told Ms Pathirage that ‘she was fed up with the marriage’ and would only remain in it until the applicant received a permanent visa.
7.On Friday 26 January 2017, at around 7.45 pm, the applicant, Ms Freeman and Mr Attygalla were drinking alcohol together in the house. Members of the household would regularly have drinks together in the house on a Friday night. Nilushi and Palinda Pathirage, who had been out for dinner, returned to the house at around 10.00 pm. Ms Pathirage stayed up with the applicant, Ms Freeman and Mr Attygalla, while Mr Pathirage went to bed.
8.During the course of the night, the group had a discussion about whether men or women were superior. What started out as a joke turned into a heated argument between the applicant and Ms Freeman. At one point, Ms Freeman told the applicant to ‘fuck off right now to India’. The applicant reacted by saying, ‘I do whatever you want’. Ms Freeman was verbally aggressive towards the applicant and called him names. Ms Pathirage attempted to calm the argument, but to no avail.
9.At 12.10 am on 27 January 2017, Ms Freeman made a Facebook post in which she stated: ‘And so the story goes … when you tell me … about my upbringing … fuck you … I’m alone and stand alone … watch me … and watch this space’.
10.After Ms Pathirage and Mr Attygalla encouraged the applicant and Ms Freeman to sort out their differences behind closed doors, Ms Freeman went to her bedroom. Shortly afterward, the applicant went to the kitchen and retrieved a large kitchen knife which he put down the back of his pants. He then went into the bedroom and shut the door behind him. The argument continued.
11.The applicant later told police that after entering the bedroom he saw Ms Freeman flipping a small green paring knife in her hands. He said that he interpreted this as a ‘warning’ and that he was scared. The applicant asked Ms Freeman if she was planning something, and she replied, ‘oh, so that’s the game you want to play, let’s play’.
12.At that point the applicant took out the knife and began stabbing Ms Freeman. The applicant told police that Ms Freeman was ‘crouching’ during the attack, ‘covering herself and crying’.
13.At some stage, a neighbour, Elenoa Jovanovic, heard a man and a woman yelling. She heard a woman say, ‘let go of me’. The woman then screamed and said, ‘I am going to fucking kill you’. Ms Jovanovic then heard a male voice say, ‘I’m going to kill you too’.
14.Upon hearing Ms Freeman screaming and crying, Ms Pathirage and Mr Attygalla ran to the bedroom. Ms Pathirage arrived first and saw Ms Freeman covered in blood. The applicant was holding a knife. Ms Pathirage tried to pull the applicant out of the room, but he told her to leave him. She left the room and went to wake her husband. Mr Attygalla then entered the bedroom, put the applicant in a headlock and dragged him out. The applicant forced himself out of Mr Attygalla’s grasp and said, ‘let me go, I want to kill this bitch’. He returned to the bedroom and stabbed Ms Freeman twice more, once in her upper thigh and once in a slashing motion around her knee cap.
15.Mr Pathirage and Mr Attygalla then physically removed the applicant from the bedroom and disarmed him. They locked him outside and returned to assist Ms Freeman. The applicant fled on foot. Several calls were made to emergency services.
16.Police and paramedics arrived a short time later. Paramedics confirmed that Ms Freeman was ‘unconscious, non-breathing and pulseless’. Ms Freeman was pronounced dead at 1.14 am.
17.Meanwhile, the applicant had made several phone calls, including one to a friend requesting a lift to a police station. His friend collected the applicant and dropped him off at the Dandenong Police Station at around 1.00 am. The applicant was first interviewed by police at 1.24 am on 27 January 2018. He told police the following:
· his housemates told him to sort it out behind closed doors, but he knew what an arrogant and treacherous person she is so he went to the kitchen and took a knife with him by secreting it in the back of his pants;
· Ms Freeman had a smaller knife in her hand;
· he then took out his knife and stabbed her;
· the marriage was not working and they had been fighting;
· he took the knife thinking he would threaten her with it;
· he put it down his pants so that she wouldn’t see it; and
· he didn’t know how many times he stabbed her but after he stabbed her calf he threw the knife down and left it there.
18.Later that morning, at 11.00 am, the applicant was interviewed by Homicide Squad detectives. He confirmed what he had earlier told police about the offending, and also told them that:
· he and his wife had an argument;
· he got a knife to frighten Ms Freeman;
· they had only two arguments before;
· he was angry and drunk but had no right to take a life; and
· he was drunk and he did not know why he stabbed her.
19.A forensic medical examination of the applicant was conducted between the two police interviews. The applicant exhibited no signs of alcohol or drug related intoxication. He had a small blood smear on the palm of his right hand and inner right calf, and a superficial incision on his left index finger.
20.A post mortem examination of Ms Freeman’s body revealed 12 sharp force wounds to her body:
· four incised wounds to the right side of her chest;
· three incised wounds to her left breast;
· one small incised wound to her right iliac fossa (right inferior part of the abdomen);
· one incised wound above her right elbow; and
· three incised wounds to her right leg.
21.Two of the sharp force wounds to the body caused serious injury to underlying structures. One of the chest wounds extended through the sternum to a depth of approximately six centimetres, damaging the right ventricle of the heart and causing bleeding into the cavity around the heart. Another of the chest injuries penetrated the liver with associated bleeding in the abdomen. Two of the injuries to the right lower leg were deep into muscle and would have caused significant blood loss. The combination of injuries led to Ms Freeman’s death.
The reasons for sentence
It is also convenient to set out the summary of the Reasons for Sentence contained in the Leave Reasons:
22.The sentencing judge had considered and received six victim impact statements from people ‘who are devastated by the death of Mary Freeman’. Ms Freeman’s daughter, sister, ex-husband, and her housemates, all made it clear that she ‘was a much loved and valued woman, and those who were closest to her are still struggling with the impact of her death’.
23Outlining the applicant’s personal circumstances, the judge noted that he was aged 43 years at the time of the offending, and was 44 at the time of sentence. He had been born and raised in India, and was the oldest of five sons, his father being an aggressive alcoholic. The applicant’s schooling was ‘unremarkable’ and in 1993 he commenced work as a mechanic. Following the death of his father in 1996, the applicant worked as a sandblaster and rigging foreman in Bahrain. He went back to India in 2002 and worked as a mechanic, before returning to Bahrain a year later to again work as a rigging foreman. In 2007, the applicant returned once more to India. From that time until 2017, the applicant worked on oil rigs in various locations. The applicant had two significant relationships prior to meeting Ms Freeman. In 2004, he entered into an arranged marriage. The marriage did not last long. In 2005, the applicant met a woman who lived with her daughter in the Philippines. Until 2013, when that relationship ended, the applicant would travel there to see her and her daughter.
24The judge considered the applicant’s offending to be ‘extremely serious’, the killing of his wife after losing his temper being ‘at the extreme end of the scale of abominable acts’. That Ms Freeman was the applicant’s wife and that he murdered her in their home was a significantly aggravating feature. Family violence, particularly family violence resulting in death, are ‘matters of compelling and legitimate public concern’. The judge said that ‘principles of general deterrence, denunciation, and just punishment loom large in the sentencing exercise’. The use of the knife and the number of wounds inflicted, and that the applicant continued his attack after he had been restrained, were also aggravating factors.
25Significantly, the prosecution conceded that the applicant did not have murderous intent when he took the knife from the kitchen. The applicant had told Ms Carla Lechner, who had prepared a psychological report tendered at the plea, that he took the knife to ‘frighten her to shut up’. The judge said that the applicant formed murderous intent ‘at the time [he] inflicted 12 separate wounds to a vulnerable woman, crouching and covering herself in a vain attempt at protection against [his] fury’. His tenacity of his determination to kill Ms Freeman was evident by the applicant returning to the bedroom to inflict two further wounds, and from the nature of those wounds. The judge considered the objective gravity of the applicant’s offending and his moral culpability to be ‘very high’.
26Given that the applicant pleaded guilty after a committal hearing, the judge considered that the applicant’s plea came at ‘at a relatively early stage’, and demonstrated a ‘willingness to facilitate the course of justice’, having ‘significant utilitarian benefit’. It was accepted by the judge that the applicant’s remorse was genuine. The applicant had immediately surrendered himself to police and made admissions to the killing. He had also expressed his contrition to Ms Lechner, and in a letter of apology written to Ms Freeman’s family.
27The judge noted that that applicant would be deported to India upon the expiry of his sentence. She considered that the applicant’s knowledge of his certain deportation would make imprisonment more burdensome on him than on a prisoner who did not have that concern. The applicant had also lost the opportunity to settle in Australia. While the applicant had telephone contact with family members in Sydney, India, London and Dubai, the judge accepted that the applicant would be isolated in custody as family members in Melbourne had ceased contact with him.
28References tendered on the applicant’s behalf showed, the judge said, that he had been a hard-working man and of previously good character. The applicant ‘had made good use of [his] time in custody’ as evidenced by references from the Catholic Prison Ministry and other prisoners. It was ‘common ground’ that the applicant’s ‘prospects for rehabilitation are good, and both specific deterrence and the need to protect the community from [him] are of little moment in the sentencing exercise’.
The appellant’s submissions
In oral submissions, senior counsel for the appellant emphasised that the killing was not premeditated, and occurred in the course of an episode in which the appellant was experiencing great emotional turmoil. Indeed, the killing came as the culmination of a heated interlude, during which the appellant had been angrily abused by Ms Freeman, which included calling him names, asserting that he should ‘fuck off right now to India’, and adversely reflecting upon his upbringing.
Senior counsel submitted that in this case, unlike many other cases of intimate partner killings, there was no history of violence or animosity. The appellant had no prior convictions, and was a hard-working man of previous good character. He had pleaded guilty early, and, as the judge found, demonstrated genuine remorse. Further, as the judge observed, it was common ground that the appellant’s prospects for rehabilitation are ‘good’, and that both specific deterrence and community protection were of ‘little moment’.
Much of senior counsel’s argument was occupied with a survey of the circumstances of other sentencing cases involving the murder of domestic partners, comparing and contrasting the facts of those cases with the present.[6] Counsel contended that a review of the sentences in roughly comparable cases supports the proposition that the sentence imposed upon the appellant is wholly outside the range of available sentences. A sentence of the order imposed upon the appellant cannot be found in any case of the murder of a domestic partner (involving multiple stab wounds), where the combination of mitigating factors existing in the present case is a feature. So much demonstrates that the sentence is manifestly excessive.
[6]The cases included (the number of years’ imprisonment imposed, and non-parole period, in parenthesis): R v Banek [2017] VSC 11 (23/18); R v Singh [2015] VSC 738 (22/17); DPP v Browning [2016] VSCA 153 (21/16); DPP v O’Neill (2015) 47 VR 395 (18/13); McPhee v The Queen [2014] VSCA 156 (18/13); DPP v Zhuang (2015) 250 A Crim R 282 (22/17); Delich v The Queen [2014] VSCA 66 (20/16); R v Klaussner [2015] VSC 296 (19/15); DPP v Daing [2016] VSCA 58 (18½/14½).
The respondent’s submissions
During oral argument, senior counsel for the respondent emphasised the serious nature and circumstances of the killing. Counsel placed particular emphasis on the fact that, after Mr Attygalla had entered the bedroom following the infliction of the initial wounds and dragged the appellant away, the appellant returned to the bedroom and stabbed Ms Freeman twice more. Moreover, Ms Freeman was killed in her home, where she was entitled to feel safe.
In written submissions, the respondent’s counsel — not counsel who appeared in this Court — had submitted that sentences relied upon by the appellant’s counsel do not of themselves demonstrate that the instant sentence is wholly outside the available range; and, if those cases did represent the upper and lower limits of available sentences, then those limits would demonstrate that the range of sentences available was itself inadequate. Counsel had also made the bold submissions, first, that such a ‘range’ of previous sentences are lower than would be expected ‘flows from the same flawed thinking that infected the Court prior to the High Court’s decision in Dalgliesh’; and, secondly, that one reason that an ‘inappropriate’ range of sentences has developed ‘may be that sentences imposed after trial are also inadequate and have the artificially depressed sentences on pleas of guilty’. It is fair to say that senior counsel for the respondent in this Court did not rush to embrace these submissions, being instead content to submit that the particular circumstances of the appellant’s very serious offending justified the sentence imposed.
Finally, the respondent’s counsel submitted that the sentence imposed adequately reflects the matters in mitigation, including the appellant’s plea of guilty, his good character and the difficulties arising from the fact that he is a foreign national.
Discussion
As we have mentioned, counsel for the appellant took the Court to a number of previous sentencing cases involving the stabbing murder of an intimate partner in an endeavour to support the contention that the sentence imposed upon the appellant is outside the range of sentences available in the sound exercise of the sentencing discretion.
Having examined the sentences imposed in roughly comparable cases, and drawing on our own knowledge and experience, we consider there is force in the submission that the sentence imposed on the appellant is significantly more severe than sentences imposed in other cases bearing factual similarities to his. That said, we bear in mind the admonition in Wong that appellate intervention is not justified simply because the sentence under challenge is markedly different from other sentences that have been imposed in other cases. As Gaudron, Gummow and Hayne JJ observed:[7]
The actual sentence which a court imposes on an offender reveals very little about the reasons which the court had for fixing that sentence. …
So much is, or should be seen as, no more than a statement of elementary principle. If, however, further elucidation of the principle is necessary, it is evident in cases like House v The King[8] and the discussion of when an appellate court may conclude that a trial judge's exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.
[7]Wong v The Queen (2001) 207 CLR 584, 605–6 [57]–[58] (emphasis added) (citations as in original) (‘Wong’).
[8](1936) 55 CLR 499.
Of course, nothing in the passage immediately above derogates from the notion that consistency in sentencing is desirable. As was emphasised in Barbaro, consistency in the application of relevant sentencing principles is important. And in the strive for that consistency, sentencing judges must have regard to other cases which may establish a range and provide a yardstick against which to examine a proposed sentence (albeit that what has been done in other cases cannot mark the outer bounds of permissible discretion):[9]
The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.[10]
As the plurality pointed out[11] in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.[12]
[9]Barbaro v The Queen (2014) 253 CLR 58, 74 [40]–[41] (French CJ, Hayne, Kiefel and Bell JJ) (citations as in original).
[10]Hili v The Queen (2010) 242 CLR 520 at 535 [48]-[49].
[11](2010) 242 CLR 520 at 536-537 [53]-[54].
[12]cf Wong v The Queen (2001) 207 CLR 584 at 606 [59]; Hili v The Queen (2010) 242 CLR 520 at 537 [54]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 71 [304] per Simpson J.
The actual sentences passed in ‘comparable’ sentencing cases — as opposed to the legal principles to be derived from them — are not, however, precedents which must be followed unless capable of being distinguished. Prior to Dalgliesh, this Court had made so much clear in Zhuang:[13]
Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[14] Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis,[15] particularly insofar such an overview may provide a general guide to current sentencing practices.
The selection of a sentence involves the exercise of a judicial discretion which is informed by the nature of, and circumstances in which, the offence was committed; and by the character, antecedents and circumstances of the offender. …
[13]DPP v Zhuang (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA) (citations as in original) (‘Zhuang’).
[14]Director of Public Prosecutions (Vic) v Adajian [1999] VSCA 105 at [28] (Callaway JA).
[15]R v Giordano [1998] 1 VR 544 at 549 (Winneke P); cf Director of Public Prosecutions (Cth) v Edge [2012] VSCA 289 at [60] (Priest JA).
In a like vein, Gageler and Gordon JJ observed in Dalgliesh:[16]
Sentences are not binding precedents,[17] but are merely ‘historical statements of what has happened in the past’.[18] As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’[19] (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.
[16]Dalgliesh, 454 [83] (citations as in original).
[17]Wong (2001) 207 CLR 584 at 605 [57].
[18]Hili (2010) 242 CLR 520 at 537 [54] quoting Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 71 [304].
[19](2010) 242 CLR 520 at 537 [54]. See also Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181 at 196 [31].
Dalgliesh made clear (among other things) that reasonable consistency in the application of relevant legal principles does not require adherence to a range of sentences that is demonstrably contrary to principle,[20] and that current sentencing practices cannot be the determinative or controlling factor in the exercise of the sentencing discretion.[21] The Court also made clear that the imposition of a just sentence in a particular case is an exercise of judicial discretion concerned to do justice in that case.[22] Hence, Gageler and Gordon JJ said that[23]
the sentencing exercise requires the sentencing judge to identify and balance all relevant factors — factors that may point in different, conflicting and contradictory directions — and to make a judgment as to the appropriate sentence in the circumstances of the case.[24] Sentencing an offender is not a mechanical or mathematical exercise. And it is a task done in accordance with applicable statutory provisions governing sentencing.[25]
[20]Dalgliesh, 445 [50] (Kiefel CJ, Bell and Keane JJ).
[21]Ibid 444 [48], 450 [68] (Kiefel CJ, Bell and Keane JJ); 452 [79], 453–4 [82], 454 [84] (Gageler and Gordon JJ).
[22]Ibid 444–5 [49] (Kiefel CJ, Bell and Keane JJ).
[23]Ibid 452 [79] (citations as in original).
[24]Wong v The Queen (2001) 207 CLR 584 at 611 [75]; Markarian v The Queen (2005) 228 CLR 357 at 373-375 [37], 378 [51]; Muldrock v The Queen (2011) 244 CLR 120 at 131-132 [26].
[25]Markarian (2005) 228 CLR 357 at 371 [26]; Elias v The Queen (2013) 248 CLR 483 at 493 [25].
The administration of criminal justice should, however, be systematically fair, such systematic fairness (among other things) involving ‘reasonable consistency’. Gleeson CJ well-made that point in Wong:[26]
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
[26]Wong, 591 [6].
As was explained in Hili, when it is said that the search is for ‘reasonable consistency’, what is sought is the treatment of like cases alike, and different cases differently.[27]
[27]Hili v The Queen (2010) 242 CLR 520, 535 [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Bearing steadily in mind that the measure of manifest excess and manifest inadequacy is not ‘capped and collared by the highest and lowest sentences for similar offences hitherto imposed’,[28] an examination of the sentences imposed in roughly comparable cases, coupled with our own knowledge and experience, demonstrates that the sentence imposed upon the appellant significantly exceeds the range established by previous cases. Of course, that of itself is not determinative of the issue of manifest excess, but in circumstances where we are unable to see that established range — even when viewed with post-Dalgliesh eyes — is demonstrably contrary to principle, so much goes a long way towards showing that the sentence imposed on the appellant exceeds the range of sentences open to the judge in the sound exercise of discretion.
[28]DPP v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley and Redlich JJA agreeing), cited in Dalgliesh, 445 [51].
It is unnecessary to discuss in great detail the sentencing cases relied upon by the appellant’s counsel as illustrating the boundaries of the appropriate range. Reference to a small sample will be enough to distil their flavour.
One of them was Browning.[29] In that case, the respondent — who had suffered a significant psychological deterioration in his mental state in the critical period leading up to the offence — in a ‘frenzied attack’ stabbed his wife of 23 years repeatedly to the chest, neck and throat, inflicting some 15 separate stab wounds, from which she died.[30] The respondent pleaded not guilty at trial, but the jury convicted him of murder. A sentence of 18 years’ imprisonment, with a non-parole period of 14 years, was imposed. The Director successfully appealed that sentence, this Court substituting a sentence of 21 years’ imprisonment, with a non-parole period of 16 years. Weinberg and Whelan JJA stated that ‘the question before this Court is whether, as the Director submitted, the sentence of 18 years’ imprisonment with a non-parole period of 14 years, though possibly just within the range had there been a plea of guilty coupled with a high degree of remorse, was manifestly inadequate in the absence of such mitigating factors’,[31] and said:[32]
Given the nature of this offence, and the various aggravating features to which the Crown rightly drew attention, we are satisfied that this sentence should not be permitted to stand. A brutal and wholly unprovoked killing of a defenceless woman in her own home, coupled with the sentencing judge’s conclusion that he was not persuaded that the respondent’s remorse was ‘of a significant level’, must have warranted a lengthier sentence than that imposed. That is so, notwithstanding the various matters of mitigation to which we have had full regard.
[29]DPP v Browning [2016] VSCA 153.
[30]Ibid [2].
[31]Ibid [64].
[32]Ibid [93]. See also [112] (Kaye JA).
By way of comparison, the appellant, who had pleaded guilty, was remorseful, and had also acted after experiencing emotional turmoil, received a sentence (and non-parole period) four years higher than that imposed on the respondent in Browning upon appeal.
Zhuang did not involve the killing of an intimate partner — the respondent killed her daughter-in-law — but did involve another brutal murder. In that case, the respondent and her daughter-in-law initially had a good relationship, but it deteriorated. During the course of an argument, the respondent struck her daughter-in-law’s face and head more than 30 times with a hammer, killing her. She placed the body in a suitcase and disposed of it. She pleaded not guilty at trial, claiming self-defence. The jury convicted her of murder, and the trial judge sentenced her to 18 years’ imprisonment, with a non-parole period of 13 years and six months, taking into account by way of mitigation her prospects of deportation, and her personal circumstances (including that she: had grown up in poverty in a rural part of China; was illiterate; had received no education; was of borderline intelligence; and was of otherwise good character). This Court allowed an appeal by the Director, and re-sentenced the respondent to 22 years’ imprisonment, with a non-parole period of 17 years; that is, three years less than the sentence imposed upon the appellant. Unlike the appellant, however, the respondent in Zhuang could call in aid neither a plea of guilty nor remorse.
Save to say that they support the appellant’s contentions about the applicable range, it is unnecessary to refer to the individual circumstances of any of the other cases that counsel relied upon to establish that range. An overview of the sentences imposed in those cases has, however, naturally played a role in informing our own instinctive synthesis of all factors relevant to the appellant’s sentence.
Ultimately, having regard to the appellant’s early plea of guilty, remorse, previous good character, prospects of rehabilitation and risk of deportation, and further taking into account the circumstances of the offence (including the judge’s finding that the appellant did not intend to kill his victim when he obtained the knife), we have, as we have said, concluded that the sentence under challenge is manifestly excessive. In so concluding, we have taken into account the various propositions summarised in Leimonitis:[33]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[34] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[35] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[36] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[37]
[33]Leimonitis v The Queen [2018] VSCA 198, [32] (citations as in original).
[34]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[35]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[36]Ibid.
[37] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
Conclusion
The appeal will be allowed, and the sentence of imprisonment originally imposed will be set aside. In lieu, we will sentence the appellant to 21 years’ imprisonment, with a non-parole period of 16 years.
We will make an appropriate declaration of pre-sentence detention. All other orders of the sentencing judge will be confirmed.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the appellant’s plea of guilty, we would have sentenced him to 25 years’ imprisonment, with a non-parole period of 20 years.
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