Harley Hicks v The Queen
[2015] VSCA 14
•11 February 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0152
| HARLEY HICKS | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY, WHELAN and BEACH JJA |
WHERE HELD: | BENDIGO |
DATE OF HEARING: | 10 February 2015 |
DATE OF JUDGMENT: | 11 February 2015 |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 14 |
JUDGMENT APPEALED FROM: | DPP v Hicks [2014] VSC 266 (Kaye J) |
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CRIMINAL LAW – Murder – Sentence of life imprisonment with 32 year non-parole period – Application for leave to appeal against sentence – Whether absence of remorse treated as circumstance of aggravation – Whether non-parole period manifestly excessive – Murder of infant by 19 year old offender in course of burglary – Reason for killing unexplained – No remorse – Prior offending, including armed robbery in 2011 – Offence committed whilst subject to community corrections order - Anti-social personality disorder - Poor prospects of rehabilitation – Need for protection of community – Manifest excess not reasonably arguable – Absence of remorse not treated as circumstance of aggravation - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Hallowes with Ms F Todd | Robert Stary Lawyers |
| For the Crown | Ms S Borg | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
WHELAN JA:
BEACH JA:
On 9 April 2014, a Supreme Court jury at Bendigo found Harley Hicks guilty of the murder of Zayden Veal-Whitting, and of aggravated burglary and theft.
On 13 June 2014, he was sentenced to life imprisonment for the murder. Sentences of imprisonment were imposed for the other offences. Concurrency applied. The judge fixed a non-parole period of 32 years’ imprisonment.
Now he exercises his statutory right to seek leave to appeal against sentence and, if leave to appeal is granted, seeks that his appeal be allowed and that he be re-sentenced. He relies upon these grounds –
Ground 1:The non-parole period is manifestly excessive, particularly in view of the following matters:
(a)the age of the applicant;
(b)the risks to the applicant while in custody in the light of the nature of the offence;
(c)the applicant’s likely permanent status as a protection prisoner;
(d)the chaotic, abusive and traumatic background against which the applicant’s personality was wrought;
(e)the fact that that (sic) those chaotic and abusive forces that shaped the applicant’s character were entirely visited upon him by the adult world and not of his making;
(f)the fact that the killing took place without planning but was instead spontaneous and impulsive;
(g)the absence of features of vengeance and premeditation and attend the comparable of (sic) cases where children are victims of murder.
Ground 2:The learned sentencing judge erred by aggravating the sentence upon a finding of the absence of remorse.
Although Ground 2 is drawn widely enough to encompass an appeal against the head sentence, the submissions for the applicant limited its relevance to an attack upon the non-parole period.
Circumstances
The applicant is a man born 16 December 1992, and so on 15 June 2012 he was aged 19.
On the night of 14-15 June 2012, the applicant committed a series of burglaries in the Long Gully area of Bendigo. The last of the burglaries was at premises at 199 Eaglehawk Road, Long Gully. In those premises lived four people – Zayden Veal-Whitting, then aged 10½ months, his older brother, Xavier, then aged three, his mother, Casey Veal, and her then partner, Mathew Tisell.
All were asleep when the applicant entered the premises some time after 2.30am on the morning of 15 June.
When he entered the premises, the applicant was armed with a baton which the sentencing judge described this way:
It consisted of a large number of copper wires which were tightly wrapped by multiple layers of insulating tape. The implement … was very heavy and, in the wrong hands, it was potentially a lethal weapon.[1]
[1]Director of Public Prosecutions v Hicks [2014] VSC 266 [8] (‘Sentencing Remarks’).
The judge noted, in his sentencing remarks, that the baton had not been used to facilitate any of the burglaries which the applicant had committed that night. His Honour concluded, and this finding is not challenged, that –
The only reasonable inference, available on the facts, is that you took the baton with you to use for the purpose of threatening violence, or engaging in violence, with it.[2]
[2]Sentencing Remarks [32].
Having entered the premises from the rear, the applicant stole several items and, in time, proceeded to the front of the house. There he entered the victim’s room.
The applicant disconnected a baby monitor which the child’s mother had set up; and then he bashed the child to death. The sentencing judge described the bashing this way:
… you went over to his cot. There you repeatedly, and with considerable violence, brutally struck multiple blows to his face, head and upper body with the baton which you were carrying, thereby killing him. You then placed Zayden at the end of his cot, pulled one of his blankets over part of his face, and departed from the premises.[3]
[3]Sentencing Remarks [13].
The injuries which the applicant inflicted upon his victim were horrific. The judge said this:
The pathologist, Dr Lee, noted that there were a minimum of 25 blunt impact injuries to his face, and a minimum of eight blunt impact injuries to his scalp.[4]
[4]Sentencing Remarks [18].
The blows caused multiple skull fractures with brain injury, and also fractures of the child’s right collarbone and rib on the right side.
The nature of the injuries showed that the child had been bashed not only with the length of the baton, but also with its end.
The sentencing judge concluded, and this finding is not challenged, that the only reasonable inference was that the applicant had ‘specifically intended to kill’ his victim.[5]
[5]See Sentencing Remarks [20].
The child’s mother did not discover that her son had been fatally injured until later on the morning of 15 June. Attempts to resuscitate the child were made, but they failed as inevitably they must have done.
The reason why the applicant killed the child remains unknown. The applicant went to trial denying that it was he who had been in the premises at all that night. Indeed, to meet the stark fact that DNA which matched his profile and that of the child were found on the baton, his counsel raised the possibility at trial that the applicant’s twin brother had committed the killing. This possibility was excluded. This was, we note, the second occasion upon which the applicant sought to implicate another person in the killing. Early on in the police investigation, he had implicated another man, who was arrested and questioned, but who turned out to have what the sentencing judge described as an ‘iron clad alibi’, a fact which the applicant ultimately admitted at trial.
In the event, the applicant has never given an explanation for the killing.
The Crown proposed at trial that the child might have woken up when the applicant entered his room. There was evidence that the child was suffering from a cold, and had not been sleeping well. Then, the Crown proposed, the applicant may have assaulted the child in order to prevent him making noises as would or might have woken up the other occupants of the house.
As to that suggested explanation for the killing, the sentencing judge said this:
Certainly, that explanation is consistent with the fact that Zayden was not sleeping well at the time because he had a cold, and also with the fact that you disconnected the baby monitor. If that explanation constituted your motive for killing Zayden, then you murdered an innocent child so that you could escape from the premises with the valuable items you had stolen from it. On the other hand, if that was not your motive, then your murder of Zayden was simply an act of unmitigated evil committed by you for the sheer sake of it. On either view, there are absolutely no extenuating circumstances attaching to your appalling crime.[6]
[6]Sentencing Remarks [37].
In summary, focusing upon the circumstances of the offending, the sentencing judge concluded that the case was ‘in the worst category of offences of murder which come before the courts’. It was ‘an appallingly violent and callous murder of an innocent, helpless ten-month-old infant’. The applicant’s conduct was ‘totally and utterly evil’.[7] Those conclusions are not now put in issue.
[7]See Sentencing Remarks [31].
After putting the applicant’s personal circumstances, to which we will refer hereafter, into the sentencing synthesis, his Honour concluded that a head sentence of life imprisonment should be imposed in respect of the murder. That conclusion is not now challenged.
The applicant’s personal circumstances
As we have said, the applicant was aged only 19 at time of offending. He was aged 21 at time of sentence. His youth, considered alone, bore upon the question, inter alia, whether some and what non-parole period should be fixed.
The applicant came from a broken family. His parents’ break up – it happened when he was aged about 8 – was acrimonious, and acrimony between his mother and father persisted for years. It is clear that the applicant was adversely affected by the situation, one of the consequences of which was that, from time to time, the applicant was put ‘in care’.
From an early age, the applicant exhibited behavioural problems. He was diagnosed with ADHD, and with ‘oppositional defiant disorder’.[8] He came under the care of the Bendigo Child and Adolescent Mental Health Services. He repeatedly engaged in self-harm – ‘cutting’ – and at times exhibited suicidal ideation. The judge concluded, however, that neither at time of offending nor at time of sentence was the applicant suffering from ‘any psychological or psychiatric illness or disorder’, for which reason none of the principles set out in R v Verdins[9] applied. So to conclude was consistent with submissions advanced for the applicant at the plea hearing. His Honour’s conclusions about this issue are not now challenged.
[8]The latter describes a child whose behaviour is characterised by constant disobedience and hostility.
[9](2007) 16 VR 269.
The applicant’s schooling was pretty much a failure, although an examining psychologist opined that he was of average intelligence.
The applicant had no work record to speak of. The judge described it as ‘very limited and patchy, at best’.[10]
[10]Sentencing Remarks [62].
The applicant became a user of illicit drugs in his early teens. The judge summarised the situation as follows:
… you commenced to use alcohol and marijuana regularly. You developed a significant addiction to both substances. In due course, you also commenced to use other illicit drugs, including heroin, ecstasy and amphetamines. In 2006, you became a client of the Youth Substance Abuse Service. However, you only attended that service intermittently, and your involvement with that service did little, it would seem, to stem your continued abuse of illicit drugs. From approximately 2011, you used methylamphetamine on a regular basis.[11]
[11]Sentencing Remarks [58].
We pause in this account of the applicant’s personal circumstances to note that, on the afternoon which preceded the offending, the applicant had taken both marijuana and methylamphetamine. But the judge found that there was
… no evidence that the consumption by you of that substance caused you to act in an irrational or erratic manner, or that it significantly affected your judgment, on that night.[12]
His Honour thereafter explained why he arrived at that conclusion, a conclusion which is not now challenged.
[12]Sentencing Remarks [38].
We return to the applicant’s personal circumstances. The judge accepted that the applicant had been sexually abused on three occasions. The most recent incident, his Honour accepted, had been a violent rape inflicted upon the applicant, whilst he was on remand for an earlier offence, by a fellow inmate. This incident had occurred in July 2011. Unsurprisingly, a statement made by the applicant at the time and the report of an examining psychologist[13] reveal that the applicant was quite adversely affected by that assault.
[13]Dr Simon Kennedy, report 27 July 2011.
The judge accepted that the applicant’s long-standing behavioural problems were compounded, inter alia, by the abuse to which he had been subjected.
Prior offending
Thus far, we have said nothing about the applicant’s prior criminal history, which, the judge accepted, bore a relationship with his personal circumstances. His Honour said this:
39.You have a large number of criminal convictions, dating back to 2007 when you were 14 years of age. In particular, you have one previous conviction for armed robbery, one previous conviction for aggravated burglary, one previous conviction for reckless conduct endangering life, and four previous convictions for burglary. On a number of occasions, you have received sentences, which were designed to assist in your rehabilitation. Those sentences included releasing you on a good behaviour bond, on probation, subject to a youth supervision order and subject to a community corrections order. You have breached a good behaviour bond, two previous probation orders and two previous youth supervision orders. Your offending in this case constituted a serious breach by you of a community corrections order, which I shall refer to shortly.
40.Of particular concern is that your criminal history reveals an increasing level of violence associated with your previous offending. In November 2009, you were sentenced for offences of aggravated burglary and unlawful assault, arising out of an incident in May 2009. In that incident, you aided and abetted two associates, who entered the premises of a married woman, and terrorised her, with a view to exacting revenge on her husband or her son in respect of an assault, which you alleged had been committed upon you.
41.In April 2010, with two other associates, you stole a motor vehicle. While the vehicle was driven by another associate, it crashed into a service station in Long Gully. As a result of that incident, in May 2010, you pleaded guilty to a number of offences, including reckless conduct endangering life. You were sentenced to be detained in a Youth Justice Centre for a period of four months.
42.Of greater concern is your most recent conviction before the offending in this case. In April 2011, you carried out an armed robbery on a service station in Golden Square. The robbery was pre-planned. You recruited an associate to drive you to and from the place of the robbery. You were armed with, and you brandished, a large kitchen knife, while demanding that the staff member of the service station hand over money from the till. You grabbed a wallet, which was on the counter, and fled the premises.
43.You were arrested for that armed robbery on 27 May 2011, and you were taken into custody. Later that year, you were released on bail. On 13 April 2012, you pleaded guilty before the Melbourne County Court to the offence of armed robbery. You were sentenced to be subject to a community corrections order for 12 months, during which you were required to undergo treatment and assessment in respect of a range of issues, including drug and alcohol abuse. After attending the Bendigo Community Correctional Service on one occasion, you thereafter failed to attend a number of appointments arranged for you by that service.
44.Thus, at the time of your offending in this case, you were subject to a community corrections order, which had been imposed on you only three months earlier, in respect of a serious crime of violence committed by you. You had failed to comply with the terms of that order, and you had given no justification for doing so.
What his Honour said about the applicant’s offending is no more than the stark facts of the matter.
Prospects of rehabilitation
The judge found that the applicant’s prospects of rehabilitation were, ‘at best’, poor. That finding was based in part upon the opinion of an examining psychologist, in part upon the applicant’s previous convictions and his repeated failure to take the opportunities for rehabilitation which had been given him, and in part upon the nature of the present offending and what his Honour concluded was the applicant’s lack of insight and remorse with respect to it.
Pausing, the judge concluded, to the criminal standard, that the applicant was not remorseful for his offending on the present occasion. In aid of that conclusion, his Honour referred to the applicant’s conduct in the immediate post-offence period, his two unsuccessful attempts to implicate innocent men, and particular aspects of his behaviour during the trial.
Protection of the community
His Honour concluded that protection of the community was a pertinent sentencing consideration. In that connection, he referred to the circumstances of the present offending, the applicant’s prior convictions, the applicant’s diagnosed antisocial personality disorder, and the applicant’s absence of remorse. With respect to the last of those matters, his Honour observed that –
There is no evidence that you have come to grips, at all, with the horrific nature of the crime that you have committed.[14]
[14]Sentencing Remarks [71].
There is now no challenge to his Honour’s conclusion that the applicant was not remorseful for his offending. We cannot perceive, we add, how that conclusion could have been successfully challenged.
Sentencing remarks
We have referred, when describing the circumstances of the offence and the offender, to many pertinent aspects of the judge’s sentencing remarks. It is necessary, however, to add a little to what we have already said.
First, his Honour correctly identified all relevant sentencing considerations – just punishment, general and personal deterrence, protection of the community and prospects of rehabilitation. In synthesising those considerations with respect to the head sentence, and in fixing a non-parole period, his Honour had specific regard – as circumstances going in mitigation – to the applicant’s youth, to the disruptive aspects of his personal circumstances, to the prospect that he would serve his sentence in protective custody, and to such prospects of rehabilitation as endured.
Second, his Honour gave orthodox consideration to victim impact statements which had been submitted to the Court.
Third, his Honour was referred, on the plea hearing, to sentences passed in a number of instances of ‘worst case’ murders. His sentencing remarks show that he took an entirely conventional approach in gleaning from them such assistance as they could provide.
It was in the entire context of offending and offender which we have described that his Honour resolved to impose a head sentence of life imprisonment, and to fix the non-parole period of 32 years which is now under challenge.
Ground 2
We turn to the grounds of appeal, conveniently beginning with Ground 2.
In written submissions, applicant’s counsel relied upon the judge’s conclusion to the criminal standard that the applicant was not remorseful as demonstrating that his Honour treated absence of remorse as a circumstance which aggravated the offending. Orally, counsel accepted that his Honour had only referred to absence of remorse in connection with prospects of rehabilitation and protection of the community. But he submitted that we should infer, from language used by his Honour when describing the behaviour of the applicant at trial as he had observed it - this leading into the finding just mentioned - that in some undefined way his Honour had in fact used absence of remorse as a circumstance of aggravation.
The Crown submitted in writing that his Honour went further than he need have done in being satisfied of absence of remorse to the criminal standard. It pointed to the uses which the judge made of the finding – as bearing upon prospects of rehabilitation and the need for protection of the community – to show that the finding was not used as a circumstance of aggravation, but rather as a step in the consideration of relevant sentencing considerations.
Orally, counsel submitted that there was no warrant for drawing the inference which applicant’s counsel invited us to draw.
In our opinion, the applicant’s submissions cannot be accepted. The uses to which the judge put his finding of absence of remorse show that this is so. There is no instance in his Honour’s sentencing remarks which would indicate that he employed absence of remorse as a circumstance which aggravated the offence; and, in particular, there is no warrant for inferring that he did so in some unknown way. Use of the expression ‘beyond reasonable doubt’ was either a finding to a standard which was not in truth required, or else a matter of emphasis.
Ground 2, in the event, is not reasonably arguable.
Ground 1
We turn to Ground 1. It proposes, in substance, that there are seven matters which the judge must have undervalued when fixing the non-parole period.
The question whether a sentence or part thereof is manifestly excessive involves consideration of the sentence which is the product of the sentencing synthesis. The question which is raised stands distinct from an appeal which alleges specific error. The question is whether it has been shown that the sentence imposed was outside the range available in the sound exercise of the sentencing discretion.
An applicant who asserts manifest excess may, of course, draw attention to circumstances which, it is said, the judge must have undervalued. This is done commonly enough. Where such a circumstance is identified, it is implicit that it was necessarily relevant to sentence, and that the judge in fact took it into account. For if it was necessarily relevant and the judge did not take it into account, that would be specific error.
Not infrequently, the question whether a judge took a particular circumstance into account will only appear indirectly in his or her sentencing remarks. Sometimes, again, it can safely be inferred that a particular circumstance was taken into account although it is not mentioned in those remarks.
The observations which we have made in the three preceding paragraphs bear upon the circumstances raised by Ground 1(f) and (g). We will address those circumstances in a moment. But first we should note the circumstances raised by Ground 1 to which the judge explicitly referred.
Circumstances (a)-(e) fall into that category. Each of them, most importantly circumstance (a) in the particular case, was a relevant sentencing consideration. There is no doubt that the judge employed them to the applicant’s advantage. The remaining question is whether it has been demonstrated that they were undervalued.
We turn to circumstances (f) and (g). The first thing to note about them is that they are different in character to circumstances (a)-(e). Whereas the latter are matters conventionally raised in mitigation, circumstances (f) and (g) are directed to the proposition that, although this murder was in the worst category, there were features which made it not as grave as the worst murder of the worst kind. This was the gist of a submission for the applicant on the plea, in which his counsel referred to sentences imposed in a number of instances where a parent had killed a child,[15] and submitted that the applicant’s crime was deserving of a lesser head sentence and non-parole period.
[15]R v Acar [2011] VSC 310, R v Farquharson [2010] VSC 462, R v Freeman [2011] VSC 139, R v Fitchett [2010] VSC 393, R v Williamson [2000] VSC 115, R v Gill [2005] VSCA 65, R v Quarry [2005] VSCA 65. Counsel also referred to sentence passed in another ‘worst case’ murder: R v Arkan [2003] VSCA 170.
Against that background, we turn to circumstance (f). It is founded upon the premise that the killing did take place without planning but was instead spontaneous and impulsive. Implicitly, it proposes that a killing which is spontaneous and impulsive is less heinous than a killing which is planned. As a general proposition, that may be accepted. But there were circumstances in the present case which blurred any bright line which might otherwise exist between the two situations. It must be remembered that the applicant went out on the night of 14-15 June 2012 armed with a weapon the only purpose of which was to threaten, or to engage in, violence, and that his killing of the child, involving disconnection of the baby monitor and then the infliction of many, many blows, must have been conduct extending for some period of time. This was not ‘one blow’ offending. Further, counsel for the Crown was correct in submitting that the applicant had a non-violent option of leaving through the nearby front door if it was the case that the child awoke and there was prospect of noise being made as might alert the mother to the applicant’s presence.
It appears to us, in the event, that the premise upon which it is asserted that it was necessary for the judge to bring to account the circumstance described in Ground 1(f) – and then the contention that the circumstance must have been underweighed – is too broadly stated. As we have already noted, his Honour had been referred, on the plea, to instances of the pre-planned killing of children by parents. In those circumstances, it is inevitable that his Honour turned his mind to whether this was a spontaneous and impulsive killing; and, if it could be so categorised, whether it was any less heinous in the particular circumstances than a pre-planned killing. The absence of any specific mention of this matter in his Honour’s sentencing remarks is entirely compatible with his having concluded that the supposed distinction was of little moment in the particular case.
The circumstance alleged by Ground 1(g) is a second matter not specifically addressed by his Honour in his sentencing remarks. But it is altogether unlikely that his Honour did not take account of it, to the extent that it was relevant. It was the subject of submissions on the plea with respect to the ‘comparable cases’.[16]
[16]And see his Honour’s reference to those cases at Sentencing Remarks [77] and [83].
What we mean by our reference to ‘the extent to which it was relevant’ is this: The premise underlying Ground 1(g) is that it must be a worse crime for a mature person to kill his or her own child, as an act of revenge against a spouse or partner, by contrast with the particularly brutal killing by an armed youthful adult of a child unknown to the killer, done for an unexplained reason in the course of related criminal activity. That was the gist of the submissions made for the applicant on the plea. But we do not accept that his Honour was bound to regard a killing of the first kind as necessarily more grave than a killing of the second kind; and specifically that was so in this case. As counsel for the Crown submitted on the plea, a killing of the first kind is likely to have some explanation – albeit one that is abhorrent. The act will almost always have been founded in anger or frustration at some imagined wrong done by the spouse or partner, visited on the child in breach of trust. In some instances it will be a killing done by a person suffering from significant psychiatric upset.[17] But in the second kind of case, of which the present is an exemplar, there is an absence of explanation. Moreover, in the present case protection of the community was a substantial consideration. That is unlikely to be a sentencing consideration in a case of the killing of a child by a vengeful parent or partner.
[17]R v Fitchett [2010] VSC 393 (Curtain J) was such a case.
In this case, the absence of explanation took place in the context of a young man:
· who told a paediatrician in May 2009 that his main problem was anger, the doctor reporting that the applicant had significant problems, highlighting ‘significant anger and aggression’,[18]
[18]Dr K Armstrong, report 25 May 2009.
· who gave a history to an examining psychiatrist in February 2012 – that is, only four months before the murder – of a childhood fixation on killing things,[19]
[19]Dr Glowinski, report 21 February 2012.
· who that doctor reported – (a) had a ‘propensity to inflict damage on himself and others’; (b) had engaged in ‘highly concerning behaviour including arson and cruelty to animals’; (c) had a ‘shallowness to his expressions and emotions when talking of others, including the victims of his offences’; (d) told the doctor that ‘death never bothered me’,[20]
[20]When discussing incidents of self-harm.
· with respect to whom a psychologist[21] reported in May 2014 as follows:
[21]Mr P Newton, report 8 May 2014.
As time has gone on, he has become increasingly alienated from mainstream society and this has reinforced his forensic and other behavioural problems. In turn, these experiences have taught [the applicant] that compassion and empathy are ‘emotional luxuries’ that he cannot afford in the context of the ‘real world’ of ruthless competition.
· who had previously been armed with a dangerous weapon – which he had threatened to use – in the course of criminal activity,
· who took a crude but particularly dangerous weapon with him on the night of 14-15 June 2012, its purpose (as the judge found) being to threaten or inflict injury,
· who used the weapon repeatedly when killing Zayden Veal-Whitting
· who thereafter sought to attribute the killing to others, including his twin brother.
In all the circumstances, we consider that his Honour was not obliged to treat this particular murder as being less heinous than the killing of a child by a parent;[22] or at least to regard any difference in gravity as being of no real moment. We do not doubt that this was his Honour’s approach. It shines out of his recitation of all the circumstances of the matter, and his consideration of what were said to be ‘comparable cases’.
[22]Which itself implies that every murder of a child by a parent is to be regarded similarly – a proposition which cannot be accepted, because each case has unique features.
Having discussed the matters raised by Ground 1(f) and (g) at some length, and having concluded that neither of them could much avail the applicant in the sentencing synthesis – this being the conclusion which his Honour no doubt reached for the reasons we have explained – we return to the broad question whether the non-parole period which the judge fixed was manifestly excessive in all the circumstances.
His Honour said this with respect to the considerations which pertained to fixing a non-parole period:
83.The question that remains is whether I should fix a minimum non‑parole period. Ms Williams, on behalf of the prosecution, in submitting that I should impose a life sentence, conceded that I should set a non‑parole period. In my view, that concession is correct for a combination of two reasons. First, you were young at the time of the offence, and you are still young. You face a long term of imprisonment in circumstances that will be more onerous than for other prisoners. If you survive to an age equivalent to the normal life expectancy, such a sentence would be extraordinarily long. Secondly, in almost all of the other cases, to which I have been referred, a non‑parole period was set. As I have stated, those cases are not precedents for your sentence. Nevertheless, cases such as Acar, Freeman and Farquharson, involved appallingly evil acts of murder of children, in the trust and care of the offender, for the basest of motives. In each of them, the offender was granted a non‑parole period. Principles of consistency of sentencing militate in favour of the setting of a minimum non‑parole period in your case also.
84.In determining the length of your non-parole period, the same principles and purposes apply, as those which are applicable to fixing your head sentence, save that, in the case of the non-parole period, more weight is attached to your personal circumstances, and, in particular, to the considerations of your age, your background, the likely circumstances in which you will serve your sentence, your prospects for rehabilitation, and the need to protect the community from you. It is for that reason that the non-parole periods fixed in the other cases, which I have already mentioned, are of less utility than in fixing your head sentence.
In short, this was a killing of the gravest kind, by a man with a prior criminal history of some relevance, who had little prospects of rehabilitation, who was not remorseful (having a lack of compassion and empathy for others), and from whom the community required protection. On the other side of the ledger, most importantly he was young at time of offending and young at time of sentence. His antisocial personality had been influenced by matters beyond his control. Imprisonment would be more onerous for him than for other prisoners (as his Honour accepted). To these circumstances were to be added such limited assistance as ‘comparable cases’ provided.
There is no doubt that the judge found this case to be very difficult from a sentencing standpoint. He said as much. Obviously, it was a grave step to impose life imprisonment on a man so young, and then to fix a long non-parole period. But we are unable to see any flaw in his Honour’s synthesis of the relevant circumstances. In short, in our opinion, it is not reasonably arguable that his Honour imposed a sentence outside the range which was reasonably available in the sound exercise of the sentencing discretion.
Order
We refuse the application for leave to appeal against sentence.
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