Hunter v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0173

STEVEN JAMES HUNTER	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 November 2013
DATE OF JUDGMENT	19 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 385
JUDGMENT APPEALED FROM	DPP v Hunter [2013] VSC 440 (Bell J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Life imprisonment without parole – Whether open to sentencing judge to conclude that inappropriate to fix non-parole period – Nature of the offence – Past history of the offender – Murder conviction 26 years earlier – Similar aggravating circumstances – Concealment and destruction of body – Violent offending in breach of parole – Whether relevant to consider future risk of offending – No sentencing error – Not manifestly excessive – Appeal dismissed – Sentencing Act 1991 (Vic) s 11(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T R Marsh with Mr P J Smallwood	Victoria Legal Aid
For the Crown	Mr P B Kidd SC with Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
COGHLAN JA:

Steven Hunter pleaded guilty to one charge of murder. He was sentenced to life imprisonment without parole. He now seeks leave to appeal against sentence. For reasons which follow, we would grant leave to appeal but dismiss the appeal.

The grant of leave to appeal reflects our view that the challenge to the sentence was properly brought. Life imprisonment without parole is the most severe sentence which can be imposed on a person. As explained below, Parliament has defined quite strictly the conditions which govern the decision of a sentencing judge not to fix a non-parole period. That there was a proper basis for this application is conclusively demonstrated by the fact that the Court is divided as to the outcome.

The application for leave to appeal was funded by Victoria Legal Aid (‘VLA’). The applicant was very capably represented by a senior public defender employed by VLA, who had also represented him on the plea before the sentencing judge.

The fact that the applicant pleaded guilty to a horrific murder does not mean that he forfeited the right to challenge the lawfulness of the sentence imposed on him. Our system of law guarantees that right to every person. For those who are unable to pay for their own legal representation, VLA performs a vital function in supporting the rule of law.

The decision not to fix a non-parole period

Both grounds of appeal were directed to the decision of the sentencing judge not to fix a non-parole period. The terms of s 11(1) of the Sentencing Act 1991 (Vic) governed the making of that decision. The subsection provides as follows:

(1)If a court sentences an offender to be imprisoned in respect of an offence for—
(a) the term of his or her natural life; or
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.[1]

[1]Emphasis added.

Several points may be noted about this provision. First, it imposes a statutory obligation on a sentencing judge to fix a non-parole period unless the judge considers that the fixing of such a period is inappropriate. Secondly, the phrase ‘unless [the court] considers’ makes it clear that it is for the sentencing judge to form his/her own opinion on the question whether the fixing of a non-parole period would be inappropriate. Thirdly, the subsection specifies ‘adverse facts alone, of two kinds … [which] will warrant a determination not to fix a non-parole period’,[2] namely:

·the nature of the offence; and
·the past history of the offender.

[2]R v Lowe [1997] 2 VR 465, 488 (‘Lowe’).

The first ground of appeal is that the sentencing judge erred by taking into account, for the purposes of deciding the s 11(1) question, the risk of reoffending which his Honour considered the applicant would present even in old age. The likely future risk presented by an offender was said to be an irrelevant consideration for the purposes of s 11(1). We agree with Priest JA that this ground cannot be sustained, for the reasons which his Honour gives.

The second ground is that the decision not to fix a non-parole period rendered the sentence manifestly excessive in light of the applicant’s early plea of guilty. As this Court has repeatedly made clear in recent years, the ground of manifest excess is difficult to establish. For it involves persuading the appellate court that, although there was no specific legal error in the sentencing, the sentence arrived at is nevertheless so plainly outside the range of sentences available to the judge in the circumstances of the case that appellate intervention is warranted.

As a five-member bench of this Court said in Clarkson v The Queen:

[T]he ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[3]

[3]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (citation omitted).

In the present case, the ground of manifest excess could only succeed if we were persuaded that it was not reasonably open to the judge to conclude, on the basis of the applicant’s offending and past history, that the fixing of a non-parole period was inappropriate. Put another way, it would have to be shown that, if proper weight had been given to all relevant matters, no other conclusion was open but that a non-parole period should be fixed.

There is an instructive parallel here with public law. Unusually, the particular sentencing power conferred by s 11(1) — not to fix a non-parole period — is expressly premised on the formation of an opinion by the sentencing judge. On conventional public law principles, the exercise of a discretionary power of that kind cannot be interfered with (absent specific error) unless it is shown that it was not reasonably open to the decision-maker to form that opinion.[4]
[4]Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, 303, 308.

We have had the advantage of reading in draft the reasons for judgment of Priest JA. As his Honour has pointed out, the sentencing judge acknowledged the utilitarian benefits of the applicant’s plea of guilty and said that there was ‘a profound public interest in encouraging offenders to plead guilty’.[5] The judge said that it was

beyond question that appropriate credit for pleading guilty, and doing so early, must be given in almost every case.[6]

[5]DPP v Hunter [2013] VSC 440 (Bell J), [105] (‘Reasons’).

[6]Ibid [104].

In the present case, as Priest JA points out, the applicant’s plea of guilty had the significant consequence that the friends and family of Ms Cafferkey were not put through the ordeal of a trial, and witnesses were not required to testify. In his Honour’s view, the imposition of life imprisonment without parole meant that the applicant did not receive the credit he deserved for the early plea of guilty. Accordingly, in his Honour’s view, the manifest excess ground must succeed.

We respectfully disagree. It may be accepted that, but for the plea of guilty, the applicant would have had no prospect at all of having a non-parole period fixed. Certainly, in a case as grave as this, the entry of a plea of guilty was a necessary condition of the fixing of a non-parole period. But it is not correct, in our view, to view it as also being a sufficient condition. As the sentencing judge correctly pointed out, this Court has recently reaffirmed that some cases are of such gravity that the maximum sentence remains appropriate notwithstanding the entry of a plea of guilty.[7]
[7]Phillips v The Queen (2012) 222 A Crim R 149, 167–8 [67].

Plainly enough, the applicant’s plea of guilty deserved to be accorded considerable weight in the sentencing synthesis, for the reasons which the sentencing judge gave. It is clear from what the judge said that he treated the early plea as a consideration of the first importance. But, as we shall explain, there were very significant aggravating features of this offence, and very concerning features of the applicant’s prior criminal history, which were also properly to be given significant weight in the sentencing synthesis.

When the competing considerations are weighed up, it is simply not possible, in our view, to say that the only conclusion reasonably open to the judge was that a non-parole period should be fixed. On the contrary, in our view, it was well open to the judge on the material before him to come to the conclusion which he did. We begin with the applicable principles.

Life imprisonment without parole

In R v Coulston,[8] the applicant had been convicted (after a trial) of the murder of three young people. Each of them had been shot at close range in the back of the head after being bound and gagged with a sock. He was sentenced to life imprisonment without parole. The Court of Appeal (Winneke P, Brooking JA and Southwell AJA) unanimously rejected his application for leave to appeal against sentence. In deciding not to fix a non-parole period, the sentencing judge had relied only on ‘the nature of the offence’. The decision did not rest at all on ‘the past history of the offender’. The judge regarded the ‘wicked nature’ of the crime as sufficient in itself to justify a refusal to fix a non-parole period. The attack on this conclusion was rejected.[9]
[8](1997) 2 VR 446 (‘Coulston’).
[9]Ibid 461.

The Court cited the following passages from the judgment of Crockett J in R v Denyer,[10] where an offender had successfully appealed against a sentence of life imprisonment without parole:
[10][1995] 1 VR 186.

Guilt of the crime of murder, of itself, is not sufficient to require the sentencer to abstain from fixing a non-parole period. We were told of a number of cases where such a period was fixed where murder was the offence and the circumstances of its commission were every bit as sickening as those in the present case. Moreover, perpetrators of multiple killings have not been denied the benefit of an order fixing a non-parole period.
…
Since the abolition of the death penalty for murder and the creation of a power to fix a non-parole period for those sentenced for murder, with one exception, no prisoner has been denied such an order.[11]

Their Honours also cited the following passage from the joint judgment in R v Iddon:
Of course, the crime of murder is grave and the applicants’ conduct in this case loathsome. Nor can any significant extenuating features be found. But that is probably true of most, if not all, premeditated killings that can be described as ‘executions’. … [I]t is obvious that many cases calculated to arouse much greater abhorrence than did this one regularly come before the courts.[12]

[11]Ibid 192–3.

[12]R v Iddon (1987) 32 A Crim R 315, 326.

The Court in Coulston cautioned that these passages should not be taken as establishing any of the following propositions, with which their Honours expressed their disagreement:

·that it will scarcely ever be appropriate to refuse to fix a non-parole period in a case of murder;
·that an appropriate case for such a refusal may be expected to arise very rarely — perhaps once in a decade;
·that because cases of murder where the crime is very sickening and of the most extreme cruelty and barbarity are not so very rare a sentencing judge should not be much impressed by the horrifying circumstances of such a crime in considering whether to fix a non‑parole period;
·that the fact that the offender is to be sentenced for more killings than one is irrelevant or of little weight in the consideration of whether to fix such a period.[13]

[13]Coulston (1997) 2 VR 446, 462–3.

Their Honours continued:

Horrifying murders are not as rare as they used to be. Sentencing and appellate judges may gain considerable familiarity with these crimes. It would be unfortunate if the fact that truly horrifying murders are no longer as rare as they once were gave rise to the impression that they may not in appropriate circumstances be punished with the utmost severity. And sentencing and appellate judges must not allow their familiarity with horrifying crime to blunt their sensibility. Sentencing is governed by the intellect, but the emotions also have their proper part to play. These include abhorrence of what is abhorrent as well as merciful compassion. Often a moral judgment from which emotion cannot be absent must be made about the wickedness of a crime. Victim impact statements may, as this very case shows, serve as a reminder to judges to whom vile crimes are no novelty of their effect on the indirect victims and of the lasting grief and legitimate indignation to which they may give rise.
As regards what may for brevity be called multiple murders, generally speaking at all events, the fact that the offender has committed not one but two or more murders is an important matter in considering whether to decline to fix a non-parole period. Judges who sentence murderers must not fail to have a proper regard to what used to be called the sanctity of human life — a phrase not heard nowadays in the criminal courts (but see Wilson v R (1992) 174 CLR 313 at 341) — in considering what justice according to law requires having regard to the terms of s 11(1). Perhaps in recent years other considerations have at times been allowed to overshadow this. The criminal who kills not one but two, three or four human beings can be given no longer sentence than the killer of a single victim. Two, three or four life sentences, served, as they must be, concurrently, are of the same duration as a single one. Differentiation is possible only as regards the non-parole period — by increasing that period or by refusing to fix one at all. Of course, everything depends on the circumstances. The perpetration of multiple killings may in a given case not even warrant the imposition of a life sentence, let alone the further momentous step of denial of the possibility of parole. We wish only to make it plain that, while everything depends on the circumstances of the particular case, those who kill a number of victims in horrendous circumstances, where no substantial factor pointing towards clemency is present, must in general expect to be seriously considered for the possible imposition of life sentences unmitigated by the hope of parole.[14]

[14]Ibid 463 (emphasis added).

Later that same year, in Lowe,[15] the Court (again constituted by Winneke P, Brooking JA and Southwell AJA) refused an application for leave to appeal against a sentence of life imprisonment without parole. The applicant had been convicted after a trial of the kidnapping and murder of a six-year-old girl. He was 57 years old at the time of sentence. It was contended on the application for leave to appeal that his age was an irrelevant consideration under s 11(1). The question of whether a non-parole period should be fixed should be answered in the same way whether the person being sentenced was young or old.
[15]Lowe [1997] 2 VR 465.

The Court rejected this contention, saying:

It could lead to remarkably unjust results if, in considering whether a non‑parole period should be fixed, a court could not have regard to the age of the offender, and in our opinion s 11(1) does permit this regard to be had. In such a case the court is not treating the age of the offender as part of his or her past history. Section 11(1) does not render irrelevant considerations other than the nature of the offence and the past history of the offender. For in considering whether the nature of the offence and the offender’s past history make it inappropriate to fix a non-parole period the court must consider how heavily the life sentence will bear on the particular offender. Are the nature of the offence and the past history of the offender such that it is inappropriate to fix a non-parole period? The posing of this question must permit regard to be had to how heavily the head sentence will bear on the offender if no non‑parole period is fixed.[16]

[16]Ibid 488.

Turning to ‘more general considerations’, the Court held that it had been ‘well open to the judge’ to conclude that the applicant should be denied the possibility of parole:

His Honour seems to have relied solely on the nature of the offence in determining that the applicant should never be afforded the possibility of parole. As to this, the judge rightly emphasised the enormity of this offence. The crime was a vile one; if it has any redeeming features, [defence counsel] was unable to draw them to our attention. And when one brings to account the past history of the applicant, the view that the possibility of parole should be denied is confirmed. The prisoner’s heartless concealment of the child’s body; his previous behaviour and his previous convictions; his subsequent conviction, which resulted (as we were informed) in a suspended sentence; his signal and singular lack of remorse; his conversations and other conduct after the offence, tending to show (as do his previous behaviour and convictions) that he is a danger to the community; the bleakness of his prospects of rehabilitation — all these considerations reinforce the view that a non-parole period ought not to be fixed. The applicant’s lack of remorse is strikingly shown by his statements that he wanted to put the incident out of his mind because he was looking forward to an enjoyable holiday which he had planned and the cost of which he did not wish to see wasted by any disagreeable thoughts. Not only was the judge entitled to conclude that ‘the nature of the offence or the past history of the offender’ made the fixing of a non-parole period inappropriate, but it would have been surprising if his Honour had reached a different conclusion.[17]

[17]Ibid 490.

In neither Coulston nor Lowe had the offender pleaded guilty. In that important respect, the circumstances of the present case are distinguishable. But the analysis in the judgments is of general application, and illustrates the different ways in which the nature of the offence and the past history of the offender are properly brought to bear on the s 11(1) decision.

The applicant’s past history

The applicant was born in October 1965. In April 1986, aged 20, he murdered Jacqueline Matthews, with whom he had been working at a local supermarket. One evening, Ms Matthews allowed him to enter her vehicle for the purpose of driving him to his home to collect some keys. The vehicle ended up in a secluded car park. There was some kissing and cuddling but then, according to the applicant, Ms Matthews rejected him. He stabbed her with a knife seven times, in the throat and in the heart. His defence was that she had abducted him in order to make sexual advances. The defence was rejected by the jury and described by the sentencing judge as ‘absurd’.[18]
[18]See Reasons, [61].

After the murder, the applicant returned home and burnt his bloodstained clothes, in order to destroy any incriminating evidence. He attempted to conceal the crime by taking Ms Matthews’ body to a remote location, where he splashed petrol over the body before setting fire to it. The body was burnt beyond recognition. When questioned by police, he denied any responsibility for her death. He was sentenced to 16 years’ imprisonment, with a non-parole period of 13 years.

In February 1990, he escaped from custody while serving the sentence for murder. He was subsequently re-arrested and returned to custody. He was released on parole in December 2000. In May 2002, his parole was cancelled after he committed the offence of recklessly causing injury. He was re-paroled in July 2002. His parole was cancelled again in October 2004, because of driving offences.

In April 2005, the applicant was convicted of kidnapping, false imprisonment, and intentionally causing injury. He was sentenced to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and six months. These offences were committed whilst he was still on parole in relation to the murder sentence.[19]
[19]The sentence was reduced by six months on appeal, because of the need to take into account the unexpired period of the original sentence, which had to be served following the cancellation of his parole: R v Hunter (2006) 14 VR 336.

The sentencing judge at the time said:

Your offending in relation to Counts 2, 3 and 4 could only be described as gross and violent. You kidnapped and detained [the victim] for financial gain. You sadistically tied him up and assaulted him. You terrorised and traumatised him. Your prior history for extreme violence demonstrates you to be a dangerous and violent individual. Your counsel conceded that nothing other than a substantial period of imprisonment was appropriate for all of your offences.

In April 2011, the applicant was released on parole in relation to the sentence imposed by the County Court for the kidnapping offences. In October 2012, he completed his parole sentence and became entitled to unconditional freedom. Only a matter of weeks later, he murdered Sarah Cafferkey. He was aged 47 at the time.

The victim[20]

[20]Paras [31]–[33] are taken from the sentencing reasons: Reasons, [2]–[4].

Ms Cafferkey was born on 20 June 1990 and was aged 22 years at the time of her death. She was a petite young woman of about 160 centimetres in height and 51 kilograms in weight. She was described as bubbly, attractive and engaging, as shown by the photographs of her which have been given to the Court.

Ms Cafferkey grew up in the close-knit rural community of Bacchus Marsh among loving family and friends. She completed year 11 at Bacchus Marsh College but could not continue due to illness. She made a failed attempt to complete year 12 by home schooling. She wanted to continue her education and was particularly interested in pursuing studies in the administration of justice.

Ms Cafferkey loved the fun and joy in life and, in her immaturity, commenced taking drugs, initially cannabis and ecstasy, then GHB and methamphetamines (known as ‘ice’), which are so-called ‘party’ drugs. She knew she had an addiction problem and had started the long journey towards recovery by seeking professional help. In August 2012, she entered a detoxification facility. After completing that one week program, she expressed a desire to change her life. As is unfortunately common for drug addicted people who genuinely wish to reform, she had a relapse about one month later. She wanted to get back on the road to recovery and was booked to re-enter the facility on 13 November 2012, three days after she was murdered.

Circumstances of the offending

The sentencing judge described the offending in terms which have not been challenged:

You met Sarah through a network of friends. She accepted you as you were. She knew you had a criminal background and had been in gaol but did not hold it against you. Your friendship centred on ‘partying’, that is, taking drugs with each other and friends. She would visit your rented premises at Unit 6, 1A Simpson Street, Bacchus Marsh and both of you would attend other premises together.
It appears that you had a genuine affection for Sarah and I do not think she would have been your friend if she did not want to be. Being aged 47 years, you were much older than her and saw yourself as a ‘father figure’. You were not in a sexual relationship with her.
On Wednesday 7 November 2012, Sarah and a female friend spent the night at your premises in Bacchus Marsh, consuming ice and GHB. You and Sarah communicated by i-messages during the afternoon and evening of Thursday 8 November 2012, during Friday 9 November 2012 and during Saturday 10 November 2012. On the afternoon of that Saturday, Sarah joined you at your premises at Bacchus Marsh where you both drank alcohol (some of which she brought) and smoked ice.
On the account which you have given through your legal representatives and which has not been challenged by the Crown, during the course of that afternoon, you were cleaning the premises and found a used syringe belonging to your former partner. You made a disparaging comment about ‘junkies’. Sarah mistakenly thought that it was directed towards her. The two of you argued and, despite your protestations, she continued to believe that you were calling her a junkie. At some point, she hit you on the back with her fists. Turning around, you overbalanced and fell to the floor. When you got up, she hit you again. Of course, being relatively so small and light and you being relatively so big and heavy, Sarah represented no kind of physical threat to you and you did not feel particularly threatened by her actions. But, on your account, which is the only one we have, you ‘snapped’ and brutally murdered Sarah with a hammer and a knife.
By your plea and by the account which you have given, you have accepted responsibility for this most heinous crime. But the account you have given of the circumstances is scant indeed. You have a memory of striking Sarah to the head with a hammer that had been lying on the lounge room floor, but have no memory of stabbing her.
On the medical evidence, the stabbing was shocking in its ferocity, especially given that Sarah was completely defenceless. That medical evidence was provided by a forensic pathologist who examined Sarah’s body after it was found. He said the cause of death was multiple stab wounds. There were 10 separate stab injuries to her head and neck, seven stab injuries to her chest and abdomen and two injuries, possibly defensive in nature, on her upper limbs. The injuries impacted the aorta, pulmonary aorta, carotid artery, jugular vein, lungs and liver. One of the stabs passed close to Sarah’s heart, severely damaging the aorta and pulmonary artery. As a result of this injury, it is likely that Sarah lost consciousness and died within a short period of time. There were also sharp and blunt injuries through Sarah’s skull, including a ‘punched-in’ type fracture caused by severe to extreme force. It is not possible to know in what order the various injuries were inflicted.
Shortly after murdering Sarah, you left the premises, only to return a little later to implement a plan to conceal the crime and dispose of her body.[21]
[21]Reasons, [7]–[13].

Concealing the crime and disposing of the body

As he had done after murdering Jacqueline Matthews, the applicant went to great lengths to conceal his crime. It is appropriate to set out the full description of those events from the sentencing reasons:

It appears from telephone records that, during the afternoon and early evening of Saturday 10 November 2012, you were still in Bacchus Marsh. At about 6.00 pm you telephoned a friend to say that you needed him to bring the spare keys which he was holding to your Bacchus Marsh premises, which he did. You were waiting at the letterbox for him to arrive. Later that evening you departed from those premises, leaving Sarah’s body in the kitchen.
On three occasions on Sunday 11 November 2012, you sent i-messages to Sarah’s mobile telephone, pretending that she was alive and trying to avoid suspicion with regard to her disappearance. On that day, you also drove to premises at 90 Fongeo Drive, Point Cook, where you were later to leave her body.
On Monday 12 November 2012, the female friend who spent the night with you and Sarah on Wednesday 7 November 2012 tried to contact her. She sent you an i-message asking whether you knew where Sarah was. You replied with the lie that you had not seen her since Saturday morning. That person sent you another i-message early that evening, telling you that Sarah’s mother had telephoned the police and asking you to inform her if you got in contact with Sarah. You did not get in contact with anybody about Sarah but continued with your plan to conceal the crime and dispose of her body.
During this day, you attended at your Bacchus Marsh premises and removed Sarah’s body from the kitchen. Wrapped in a bag, you placed her in the boot of your motor vehicle and left. At about 7.00 pm you went to the home of a friend and told that friend that you were in trouble and had ‘stuffed up’, that you had a body in the car and had to get rid of it, that you were house-sitting and had a party when things went wrong and a person had been killed by somebody who had been unable to dispose of the body. You asked your friend whether you could bury the body at his family’s property in the country. Realising that you were serious, your friend refused to help and encouraged you to leave the area.
You and your friend then drove separate vehicles to the city, where you bought food. You stated to your friend that you needed to do something quickly as Sarah’s body was beginning to smell. The two of you then went to a hardware store in a nearby suburb. You asked your friend if you could borrow his boat to dispose of Sarah’s body. At the store you purchased a 20 litre container of hydrochloric acid, three bags of rapid set concrete, one bag of lime and one roll of black plastic. After returning to your car, your friend refused your pleas for assistance and left.
In the evening of Monday 12 November 2012, Noelle Dickson, Sarah’s mother, contacted the Bacchus Marsh police station and made a formal report that her daughter was missing. At 9.45 pm that night the police sent you an SMS requesting that you contact them urgently in relation to missing person Sarah Cafferkey.
That brings me to Tuesday, 13 November 2012. By this time you had been concealing Sarah’s body for three days. On this morning, you drove to the Point Cook premises and removed the body from the boot of your car. In the garage of that premises, you placed the body in the bottom of a green wheelie bin, emptied in the bags of concrete, then mixed in water.
Later that morning, you contacted the Bacchus Marsh police station and left a message for the investigating officer to say that you had called. During that day, you had a conversation and further i-message communications with the female friend who had earlier been trying to contact Sarah. Despite her great distress, you maintained the pretence that you did not know Sarah’s whereabouts or why she had disappeared.
A police officer spoke with you by telephone that evening. You told the officer a mixture of truth and lies about what had happened on Saturday 10 November 2012. You said that you had been with Sarah at your Bacchus Marsh premises in the afternoon but you had left her there at about 5.00 pm. You said you did not return for two days and Sarah was not there when you went back. You said you were currently living at the Point Cook premises. After this conversation, you stopped using your mobile telephone. An external search of your Bacchus Marsh premises by the police later that evening revealed nothing out of the ordinary.
At about 8.30 am on Wednesday 14 November 2012, you returned to the Bacchus Marsh premises. You took Sarah’s car from the garage and drove it to a street in Maribyrnong. You parked it there and then left the area in a taxi.
Later that morning, the police conducted an internal search of the Bacchus Marsh premises. That, too, revealed nothing out of the ordinary.
In the early hours of Thursday 15 November 2012, you attended the home of another friend. By this time Sarah had been dead for five days. You slept through the day and awoke at about 2.00 am the next morning. You borrowed your friend’s car to collect some belongings. On returning, you asked whether you could sleep upstairs to avoid detection by the police.
On Friday 16 November 2012, the police seized Sarah’s motor vehicle in Maribyrnong where it had been observed the previous day. They also seized your vehicle where it had broken down in Melton.
You awoke at about 7.45 pm that day and asked your friend for pills with which to commit suicide. You said you would rather do that than go back into prison. You asked your friend to find somewhere for you to hide. Your friend refused to assist.
In the morning of Saturday 17 November 2012, investigators from the Homicide Squad attended at the Bacchus Marsh premises with a search warrant. They observed evidence of a crime, including recent attempts to clean the floors and walls and bloodstains on various items.
A little later, police attended at the Point Cook premises and executed a search warrant. While present outside the house, they could smell a persistent odour of decay. They tracked it down to the green wheelie bin inside the garage. In the garage they found empty bags of rapid set concrete, bloodstains on the floor and also on a nearby step ladder, and the container of acid. Inside the house, they found the jumper worn by you when attending the hardware store on 12 November 2012, a pair of bloodstained shoes and a second wheelie bin containing rubbish bags and bloodstained clothing.
Early in the morning of Sunday 18 November 2012, the wheelie bin with Sarah’s body was removed from the garage and taken by police to the Institute of Forensic Medicine. A scan revealed Sarah’s body in the bottom part of the bin, encased in lime and concrete underneath a quantity of solid concrete. Later that morning your friend, with whom you had been staying, told you of news reports that Sarah had been found murdered. Your friend asked you to leave. You again asked for help to find a place to hide and again discussed taking pills to commit suicide. Your friend agreed to your request to stay one more night only. You left these premises in the early hours of Monday 19 November 2012.[22]
[22]Ibid [14]–[30].

Consideration

The judge accepted that the murder was unplanned, unpremeditated and spontaneous, and was not motivated by either financial gain or revenge. Beyond the obvious context of drugs and alcohol, his Honour said, the crime remained ‘inexplicable’.[23] His Honour said:

Having regard to the manner and circumstances in which the crime was committed and the subsequent concealment and treatment of the body, the murder of Sarah Cafferkey … is in the worst category of the most serious offence in the criminal calendar.[24]

[23]Ibid [89].

[24]Ibid [90].

We respectfully agree. On any view, this was extremely serious offending. As the sentencing judge said, the infliction of multiple stab wounds ‘was shocking in its ferocity, especially given that Sarah was completely defenceless’.[25] The brutality of the killing strains credulity, as does the applicant’s concealment and ultimate destruction of the body. His culpability is of the highest order. Adapting the language used in Lowe, this was a vile crime, without redeeming features.[26]
[25]Ibid [12].
[26]Lowe [1997] 2 VR 465, 490.

The applicant’s past history was highly relevant to the decision under s 11(1). First, and most obviously, he had previously murdered a defenceless young woman and, on that occasion too, had sought to destroy the body so as to conceal his guilt. The fact that he could commit a second murder, with similar aggravating features, more than 26 years after the first, demonstrates powerfully just how dangerous a person he is. He has apparently learnt nothing from the lengthy term of imprisonment which followed.

Secondly, the applicant’s record shows that even conditional release on parole has not been sufficient to curb his violent tendencies. We referred earlier to what the sentencing judge said in 2005 about the kidnapping offences which he committed while on parole for murder. The judge said then that the applicant was ‘a dangerous and violent individual’. The 2012 murder emphatically confirms the correctness of that assessment.

Self-evidently, it is difficult to predict how dangerous the applicant is likely to be in, say, 30 or 35 years’ time, assuming he is still alive. But, as we have said, the commission of two brutal murders, separated by 26 years, demonstrates that the process of maturing has done nothing to reduce the risk to the community which the applicant represents. He was as dangerous at 47 as he had been at 20.

There was nothing in the evidence before the sentencing judge which should have persuaded him that the risk would materially lessen in the decades ahead. Of course, as the applicant gets older, he will be less physically strong. But little strength is required to administer a fatal wound with a knife and, on the basis of the expert evidence before the sentencing court, there is every reason to assume that there would be a continuing risk of such an occurrence should the occasion arise.

Professor Ogloff, the expert called by the defence, reported on a personality assessment he had conducted. The results were

consistent with a diagnosis of Antisocial Personality Disorder … [and] suggest that Mr Hunter’s level of anger and potential for aggression, as well as impulsivity involved in that behaviour, may rise to the level of an Intermittent Explosive Disorder (an impulse control disorder characterised by recurrent behavioural outbursts representing a failure to control aggression).

Professor Ogloff’s report also stated:

[W]hile his personality features and behaviours are necessary elements of the explanation for the homicides, in my opinion they are not sufficient. Many people share personality and behavioural characteristics with Mr Hunter but, indeed, very few engage in murder. In my opinion, Mr Hunter has either chosen not to reveal some of the key elements underlying his offending or he perhaps does not remember them.
…
Unfortunately, given the complexity of Mr Hunter’s personality, temperament and behavioural characteristics, coupled with his age — now 47 years old — the prognosis for his rehabilitation is particularly guarded. It is unfortunately unlikely that the positive effect that any treatment he may receive, with respect to either offender rehabilitation or substance misuse, would have an immediate and positive effect on him. Clearly, any attempts at treatment and rehabilitation will need to be intensive and long term.

Giving evidence before the sentencing judge, Professor Ogloff was asked whether Mr Hunter presented any particular risk to the community. He said that it was ‘patently obvious … that into the foreseeable future he would pose a significant risk to the community’. Asked whether the risk would decrease as the applicant aged, Professor Ogloff pointed out that the applicant’s age at the time of the second murder was ‘much older than we usually see these [extreme] behaviours’. He said:

So without the capacity to know how he’ll behave in the future, you couldn’t say with a degree of confidence that he would necessarily become less risky or volatile until significantly later in his life.

Asked to consider the effect of declining physical capacity with advancing years, Professor Ogloff said:
[T]he difficulty is — because we’re uncertain exactly what led to the extremely volatile attack, on this occasion and in fact on the previous occasion, one couldn’t be confident that even with the diminishment of physical capacity that the anger and aggression may not still be present.

Even if the evidence had established to the sentencing judge’s satisfaction that the applicant would in due course cease to be a danger to the community, it would not have followed that the judge would have been bound to fix a non-parole period. Enough has already been said about the nature of this offence, and the applicant’s past history, to demonstrate why that is not so. But the expert evidence made clear that no such prediction could be made. On the contrary, the judge was entitled to conclude that the applicant would continue to be a real danger to the community into the indefinite future.

PRIEST JA:

Sentences for Murder

Fewer than forty years ago the punishment for murder was death.

The death penalty was abolished in Victoria, with effect from 29 April 1975, by the Crimes (Capital Offences) Act 1975.[27]^,[28] Mandatory life imprisonment was substituted for the crime of murder. Judges had no power, however, to fix minimum terms of imprisonment.
[27]Section 2 of that Act inserted a new s 3 into the Crimes Act 1958:
3. Notwithstanding any rule of law to the contrary whosoever is convicted of treason or murder shall be liable to imprisonment for the term of his natural life
[28]As a result of amendments to the Death Penalty Abolition Act 1973 (Cth), effected by the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010, the death penalty may not be imposed either for breach of Commonwealth or State laws.

Mandatory life imprisonment as punishment for murder was abolished by the Crimes (Amendment) Act 1986 (‘the 1986 Act’), with operation from 1 July 1986. By s 8

of the 1986 Act a new s 3 was inserted into the Crimes Act 1958, permitting a sentencing Court to impose a sentence other than life imprisonment for murder. It provided:
Punishment for murder.
3. Notwithstanding any rule of law to the contrary, a person convicted of murder, is liable to imprisonment –
(a) for the term of his or her natural life; or
(b) for such other term as is fixed by the court –
as the court determines.

The 1986 Act also amended the Penalties and Sentences Act 1985, so as to permit a minimum term to be fixed on a sentence of life imprisonment (again with effect from 1 July 1986).[29] A court was not required to fix a minimum term, however, if the court considered that ‘the nature of the offence and the antecedents of the offender render[ed] the fixing of a minimum term inappropriate’.[30] With respect to any person who had been sentenced to life imprisonment prior to the commencement of the 1986 Act, the Supreme Court was given power, on application by the sentenced person or the Director-General of Corrections, to ‘fix a minimum term … in any manner in which such a term might have been fixed had that person been sentenced to imprisonment by the Supreme Court for the term of his or her natural life on or after that commencement’.[31] The Penalties and Sentences Act 1985 was further amended so as to provide that ‘if a person had been convicted of murder and a court has fixed a minimum term in relation to the sentence of imprisonment imposed … the person must not be released from prison before the expiration of the minimum term’.[32]
[29]Penalties and Sentences Act 1985, s 17(1).
[30]Penalties and Sentences Act 1985, s 17(2).
[31]Penalties and Sentences Act 1985, s 18A(1).
[32]Penalties and Sentences Act 1985, s 19A.

As a result of the Sentencing Act 1991, which came into operation on 22 April 1992, the Penalties and Sentences Act 1985 was repealed. Much of what had found its way into the Penalties and Sentences Act through the 1986 Act was, however, essentially replicated in the repealing Act. Thus s 11 of the Sentencing Act 1991 now provides:[33]
[33]Emphasis added.

11 Fixing of non-parole period by sentencing court
(1) If a court sentences an offender to be imprisoned in respect of an offence for –
(a) the term of his or her natural life; or
(b) a term of 2 years or more –

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

By virtue of s 13(2), the Sentencing Act 1991 also permits the Supreme Court to fix a non-parole period in accordance with s 11 with respect to a person ‘who at the commencement of this subsection is serving a sentence of imprisonment for the term of his or her natural life in respect of which a non-parole period had not been fixed’, or ‘who at that commencement is imprisoned in accordance with a pardon granted by the Governor under the royal prerogative of mercy … whether or not the Governor fixed a period during which the person was not eligible to be released on parole’.

In Stone,[34] a Crown appeal, the Court (Young CJ, Murray and McGarvie JJ) substituted sentences of life imprisonment with minimum terms of 22 years[35] on two respondents who had been sentenced for a ‘barbarous and callous execution, deliberate and calculated, which must have inflicted much pain upon the victim before death’. When commenting on the regime which pertained prior to the 1986 Act, the Court made some pertinent observations about the lengths of time prisoners spent in custody for murder under that regime which, as I have observed, did not allow for judicially-pronounced minimum terms:[36]

In fixing the minimum term we note that the Attorney-General in his second reading speech on the Bill which became Act No. 37 of 1986 referred to the statistics relating to the length of time prisoners undergoing life sentences actually remained in gaol. We quote from Hansard (Legislative Council) for 26 March 1986, at p. 293, where the Attorney-General said: ‘Estimates of the length of time such people are liable to serve in prison are difficult to make, although a reasonable indication may be obtained by reference to the time that people who have had death sentences commuted spend in custody. These figures indicate that sentences served by such people ranged from a minimum of thirteen months to a maximum of 27 years and 4 months; the average being between fourteen and fifteen years.’

[34]R v Stone [1988] VR 141 (‘Stone’).

[35]Clive Stone was originally sentenced to imprisonment for 25 years with a non-parole period of 15 years, and Anthony Stone was sentenced to 21 years’ imprisonment with a minimum term of 12 years.

[36]Ibid 150 (emphasis added).

Stone was handed down on 27 May 1987. In August of the following year, the Honourable B.L. Murray[37] provided a report to the Victorian government concerning the leave of absence programme for prisoners then in place.[38] On 16 May 1988, the Minister for Corrections, Mr Crabb, had suspended the leave of absence programme following reports from ‘two of Victoria’s tabloid newspapers’ and ‘one of Melbourne’s television stations’. ‘The publicity surrounding the scheme initially concentrated on the granting of leave to two notorious Victorian prisoners, but gradually widened to include more general “law and order” themes.’[39] Under the Corrections Act 1986 the Director-General of Corrections could, by instrument, authorise a prisoner to be absent from a prison for a variety of purposes (work, educational, vocational and recreational purposes, and the like). Pursuant to those powers a leave of absence programme operated (a similar programme having operated for the previous 14 years under the Community Welfare Services Act 1970). Leave had been granted to two prisoners, Christopher Lowery and Charles King, who had been sentenced to death after having being found guilty of the callous murder of a teenage girl in 1971. Later, in 1973, their sentences were commuted to a maximum period of 60 years’ imprisonment, and a minimum term of 50 years’ imprisonment was set.[40] The programme was suspended after an article in the Sunday Press on 8 May 1988, and after The Sun ‘published a series of articles critical of the leave of absence programme specifically, and sentencing generally’.[41] In the report it was observed:[42]

My own experience as a Judge of the Supreme Court served to demonstrate to me that rehabilitation of long-term prisoners is not just a phantasy. Prior to 1975 all prisoners who were convicted of murder were, of necessity, sentenced to death. In the vast majority of cases the death sentence was commuted by the Governor in Council and replaced by a sentence of a fixed term of imprisonment with a minimum non-parole period. In many cases these terms were very much in excess of the periods actually served and very much in excess of any fixed term which would now be imposed. Usually upon the recommendation of the Parole Board, which is required to provide periodic reports on these prisoners, the Governor, by the Royal Prerogative of mercy, ordered the release of prisoners on parole long before the time fixed for release on parole. During the period 1941–65, 24 convicted murderers serving commuted sentences of imprisonment were released at an average of one per year. During the period 1966–75 (when the death penalty was abolished) 28 convicted murderers were released, at an average of 2.8 per year. Between 1976 and 1984, 30 convicted murderers were released at an average of 3.7 per year. The mean times actually served by these prisoners over these three periods were as follows:
1941–65: 14 years 1 month
1966–75: 13 years 5 months
1976–84: 14 years 1 month

[37]The Honourable B.L. Murray had retired from the Supreme Court on 11 May 1988, and had been a member of the Full Court in Stone.

[38]B.L. Murray QC, CBE, Review of the Leave of Absence Programme for Prisoners, Conducted by the Office of Corrections, Victoria, August 1988 (‘Murray report’).

[39]Murray report, 1.

[40]Upon their application for a non-parole period to be fixed under s 13(2)(b) of the Sentencing Act 1991, Coldrey J fixed non-parole periods of 20 years (the 60 year sentence fixed by the Governor-in-Council remaining in place): Re Lowery and King (unreported, 21 August 1992, Vic. SC, Coldrey J) (‘Lowery and King’).

[41]Murray report, 3 [3.1].

[42]Murray report, 33 [7.31] (emphasis added).

Coldrey J, in Lowery and King,[43] commented on the statistics set out in the Murray report:

These figures, which reflect administrative rather than judicial decision making, are of little assistance, but they provide an interesting comparison with current sentencing practice.

[43]Lowery and King, 6.

A little over two years earlier, in Bugmy,[44] when allowing an appeal to that Court, Dawson, Toohey and Gaudron JJ observed of current sentencing practice with respect to non-parole periods for murder:[45]

The information furnished to the Court of Criminal Appeal showed that there had been seventy-eight minimum term applications made, all of which had been acceded to. In nine cases a minimum term of fourteen years was fixed; in the others, with two exceptions, the minimum term was less than fourteen years. One of the exceptions was a case of double murder for which the minimum term fixed was sixteen years. The other was a case of triple murder for which the minimum term was fixed at seventeen years. In the present case, as Crockett J pointed out, the minimum term was effectively one of nineteen years, after taking into account pre-sentence detention, and was to be served immediately upon serving two years for other offences.

[44]Bugmy v The Queen (1990) 169 CLR 525 (‘Bugmy’).

[45]Ibid 538.

Since the commencement of the 1986 Act there has only been one occasion where a person pleading guilty to murder has been denied the fixing of a non-parole period. In Coombes,[46] Nettle JA refused, despite the prisoner’s plea of guilty, to fix a non-parole period for the strangulation murder of a young woman (whose body was dismembered), in circumstances where the prisoner had two previous convictions for murder. Having cited from Hall,[47] Nettle JA said:[48]

Consistently with what was said in R v Hall, I do not give your plea of guilty any weight. For the reasons I have stated, I do not accept that it is a reflection of remorse; not least, but not only because it was entered only at the ‘eleventh hour’ and in face of what I conceive to have been an overwhelming Crown case. Although it cannot be denied that it was of some utilitarian value, in this case I regard that as marginal. For, despite the importance of the general practice of allowing a discount on a sentence for a plea of guilty (to induce guilty offenders to plead guilty), I am satisfied beyond reasonable doubt that the nature and gravity of your offending, your lack of remorse and the absence of a significant prospect of rehabilitation render the idea of any discount on sentence in this case inappropriate.[49]

[46]R v Coombes [2011] VSC 407 (‘Coombes’).

[47]R v Hall (1994) 76 A Crim R 454, 469–470 (Crockett and Southwell JJ).

[48] Coombes, [90].

[49]Sentencing Act 1991, s 11(1).

Putting Coombes to one side, since the promulgation of the 1986 Act all other cases where there has been a guilty plea have, as I have said, resulted in non-parole periods being fixed, albeit that some have been very long. Thus in Denyer[50] the sentencing judge, having sentenced the applicant to life imprisonment for three murders of young women committed with exceptional cruelty and barbarity, refused to fix a non-parole period. The Court of Criminal Appeal (Crockett and Southwell JJ; Phillips CJ dissenting) allowed an appeal to that Court and fixed a non-parole period of 30 years’ imprisonment.
[50]R v Denyer [1995] 1 VR 186 (‘Denyer’).

In Beckett[51] the applicant pleaded guilty to two counts of murder, described by the Court as ‘dreadful and deplorable crimes of unfathomable depravity’, and where the Court took ‘the sheer, wanton cruelty that preceded and accompanied them, viewed through the eyes of common decent people, to compound their wickedness’. The plea of guilty was early, and the applicant gave evidence in the trial of his co-accused, Camilleri (who ultimately was sentenced to life imprisonment without parole).[52] A sentence of life imprisonment with a non-parole period of 35 years was passed at first instance and upheld on appeal. The Court (Tadgell, Batt and Buchanan JJA) reflected upon the imposition of non-parole periods for murder:[53]

It will be recalled that until as recently as 1975 murder was a capital crime. After that, until 1986, the only penalty awardable for murder was imprisonment for life. It is therefore only within the last 12 years that judges have been called on to attempt, for sentencing purposes, to rank and classify crimes of murder such as the applicant’s. This we mention only lest anyone should be tempted wrongly to assume that the courts have long been accustomed – and perhaps enured – to the task of evaluating the criminality of individual crimes of murder, and comparing them one against the other. The fact is that until 1986 such a task of evaluation was performed, if at all, not by the courts but by the bureaucracy, who were not constrained, as the courts are, by rules of evidence and by sentencing criteria imposed by statute and by a requirement to give reasons for their decisions. …

[51]R v Beckett [1998] VSCA 148.

[52]R v Camilleri (2001) 119 A Crim R 106. See also R v Camilleri [2013] VSC 676, [89] (Curtain J).

[53]Ibid. [11].

Brazel[54] was a case where the applicant, who had been sentenced to imprisonment for two previous murders, whilst incarcerated voluntarily confessed to another murder, to which he ultimately pleaded guilty. The sentencing judge sentenced him to life imprisonment and fixed a non-parole period of 27 years. On appeal to the Court of Appeal the sentence of life imprisonment was left undisturbed, but a new non-parole period of 22 years was imposed.
[54]R v Brazel (2005) 153 A Crim R 152 (‘Brazel’).

More recently, in Williams,[55] King J sentenced the prisoner on three counts of ‘gangland execution’ style murder (and one of conspiracy to murder) to life imprisonment, upon which she fixed a non-parole period of 35 years. Her Honour made it clear that to fix a non-parole period was ‘pragmatic and utilitarian’. She said:[56]

… I do intend to impose a minimum term, but that is on the basis of one significant factor only, which are your pleas of guilty to these offences. Whilst I find that you do not have any genuine remorse for the crimes, I am still obliged to take into account in your favour that you have entered pleas of guilty. It is pragmatic and utilitarian to give you a discount for entering those pleas, for by doing so you have prevented this Court from spending anywhere between 5 to 10 years hearing your trials and the appeals from those trials. Equally you have released the police officers involved in this task force to move onto other pressing cases that need investigating, and enabled those in the Office of Public Prosecutions to pursue other prosecutions. The amount of money that has been saved as a result is considerable. That behaviour must be encouraged. It must be made clear to all charged with offences, of whatever type, that if they do enter a plea of guilty to the offences that they will receive a real and significant discount. Without your pleas of guilty I would not have imposed a minimum term for these offences, even allowing for the other mitigating material upon which your counsel relied.

[55]R v Williams [2007] VSC 131.

[56]Ibid [129] (emphasis added).

Hudson[57] was a case where, in a drug-fuelled rage, the applicant shot two ‘Good Samaritan’ bystanders who had come to the aid of his female companion, and had also shot his female companion, killing one of the bystanders and seriously wounding the other bystander and the female. This followed an earlier very serious assault on another female, which had caused her serious injuries. Coghlan J sentenced the applicant to life imprisonment, upon which he fixed a non-parole period of 35 years. On an application for leave to appeal against sentence, in which (among other things) it was claimed that the non-parole period was excessive in that it did not give sufficient recognition to the guilty plea, the Court (Ashley, Redlich and Harper JJA) said:[58]

Neither are we persuaded that a non-parole period of 35 years was not a sentence reasonably available. It fell within the range of sentences that was open to the sentencing judge. The conduct the subject of counts 2–5 placed them in the worst category of those offences. The non-parole period contained an important penal element which reflected the need for condign punishment that would satisfy the requirements of denunciation and general and specific deterrence. The non-parole period had to reflect the totality of the applicant’s offending and his degree of criminality. The fact that the applicant was under the influence of drugs and alcohol at the time of the offending did not reduce his culpability for these offences. The only matters which worked in mitigation of the sentence were his early guilty plea and his ‘limited’ cooperation with the authorities.

[57]Hudson v The Queen (2010) 30 VR 610.

[58]Ibid 621 [45] (emphasis added). Count 3 was one of murder; count 2, intentionally causing serious injury; and counts 4 and 5, attempted murder.

So, too, in Bayley,[59] the Court of Appeal upheld a non-parole period of 35 years fixed on a sentence of life imprisonment imposed following pleas of guilty to the ‘vicious and violent’ rape and murder of a young woman.
[59]Bayley v The Queen [2013] VSCA 295.

From this review, it may be seen that – with the exception of Coombes – where an offender has pleaded guilty, non-parole periods generally have been fixed on life sentences for murder, even where the offender had prior convictions for murder.

In this case the sentencing judge refused to fix a non-parole period on a life sentence for murder despite the applicant’s plea of guilty. To that extent the sentence imposed was, on its face, inconsistent with current sentencing practice as divined from the preceding examination of roughly comparable cases. The applicant contends that there was no justification for failing to fix a non-parole period.

I turn to the specific issues raised by this application.

Conviction and sentence

Upon arraignment on 11 April 2013, the applicant, who is now aged 48 years, pleaded guilty to one charge of murder. Following a plea on 12 August 2013, the applicant was, on 21 August 2013, sentenced to imprisonment for life.

Pursuant to s 6F(1) of the Sentencing Act 1991 he was sentenced as a serious violent offender.

The judge, as I have said, declined to fix a non-parole period.

Grounds of appeal

There are two grounds of appeal:

1. The learned sentencing judge erred in giving weight to an irrelevant consideration in determining that it was inappropriate to fix a non-parole period, namely his Honour’s finding that the Applicant presents a substantial risk of committing further crimes of violence and it is unlikely that the risk will be significantly reduced due to the physical decline which he will experience in his old age.
2. The learned sentencing judge erred by not fixing a non-parole period, a determination which renders the sentence manifestly excessive in light of the Applicant’s early plea of guilty.

For reasons that follow, in my opinion the second ground should be upheld.

Factual background

A chronology was provided in the Crown Opening, under the heading History of proceedings:

As to the history of the proceedings, the following is a brief chronology –
§ 10 November 2012 – accused committed offence
§ 20 November 2012 – accused charged and remanded into custody
§ 21 November 2012 – filing hearing in Magistrates’ Court
§ 27 March 2013 – committal mention in Magistrates’ Court – matter proceeded by straight hand-up brief and accused entered a plea of guilty
§ 11 April 2013 – directions hearing in Supreme Court – accused arraigned and entered plea of guilty to murder …
§ 26 June 2013 – plea hearing in Supreme Court

Under the heading Plea settlement, the Crown Opening contained the following:[60]

On 22 March 2013 the Crown agreed to settle this matter in accordance with a plea proposal put forward by the accused (through his legal representatives) on 18 March 2013.
That proposal involved the accused entering a plea of guilty to 1 count of murder with a narrative of facts that would not be challenged by the Crown. That narrative of facts contains statements by the accused as to what happened on the afternoon in question; a narrative which was not revealed in the record of interview nor could be established by the Crown through other evidence. The agreement as to the narrative of facts does not cover the period leading up to the day in question, nor what happened in the immediate aftermath.

Much of what follows concerning the day of the murder is drawn from the narrative which the Crown did not seek to challenge.

[60]Emphasis added; underlining in original.

Sarah Cafferkey, the victim, was aged 22 years at the time she was killed. She was petite. The applicant is tall and well built.

The two met through friends. Ms Cafferkey knew that the applicant had a criminal background. Their relationship was not sexual. It revolved around ‘partying’, which essentially involved taking drugs with each other and friends.

During the afternoon of Saturday 10 November 2012, Ms Cafferkey went to the applicant’s flat at Bacchus Marsh where they both drank alcohol and smoked ice (methamphetamine).

While cleaning the flat, the applicant found a used syringe belonging to his former partner, and made a critical remark about ‘junkies’. Ms Cafferkey mistakenly thought that the comment was aimed at her. They argued. Despite the applicant’s denials, Ms Cafferkey continued to believe that the applicant was calling her a junkie. At some point, she hit the applicant on the back with her fists. As he turned around, the applicant lost his balance and fell to the floor.

When he got up, Ms Cafferkey hit him again. Given that she was small, and the applicant was large, Ms Cafferkey presented no physical threat to the applicant. On his account, however, he ‘snapped’. It is plain that Ms Cafferkey was then brutally killed with a hammer and a knife. The applicant said he had a memory of striking Ms Cafferkey to the head with a hammer that had been lying on the lounge room floor, but claimed that he had no memory of stabbing her.

The cause of death was multiple stab wounds. There were ten separate stab injuries to Ms Cafferkey’s head and neck; seven stab injuries to her chest and abdomen; and two injuries, possibly defensive in nature, on her upper limbs. There were also sharp and blunt injuries through Ms Cafferkey’s skull, including a ‘punched-in’ type fracture caused by severe to extreme force.

Not long after the killing, the applicant left the flat, only to return a little later to carry out a plan to conceal his crime, including to dispose of the body. At about 6.00 pm he telephoned a friend to say that he needed him to bring the spare keys which he was holding to the Bacchus Marsh flat, which the friend did. Later that evening the applicant again left the flat, leaving Ms Cafferkey’s body in the kitchen.

On three occasions the next day, Sunday 11 November 2012, the applicant sent bogus text messages to the Ms Cafferkey’s mobile telephone, pretending that she was alive and trying to avoid suspicion with regard to her disappearance. He also drove to premises at Point Cook, where he was later to leave her body.

The next day, Monday 12 November 2012, a friend of Ms Cafferkey sent the applicant a text message asking whether he knew where she was. The applicant replied that he had not seen her since Saturday morning. Ms Cafferkey’s friend sent the applicant another text message early that evening. She told him that Ms Cafferkey’s mother had telephoned the police and asked him to inform her if he got in contact with Ms Cafferkey.

That same day, the applicant went to the Bacchus Marsh premises and removed the body. He placed the body, wrapped in a bag, into the boot of his motor vehicle and left. At about 7.00 pm he went to the home of a friend and told his friend that he was in trouble and had ‘stuffed up’; that he had a body in the car and had to get rid of it; that he was house-sitting and had a party when things went wrong; and that a person had been killed by somebody who had been unable to dispose of the body. The applicant asked his friend whether he could bury the body at his family’s property in the country, but his friend refused to help. He encouraged the applicant to leave the area.

The applicant and his friend then drove separate vehicles to the city, where the applicant bought food. He told his friend that he needed to do something quickly as the body was beginning to smell. They then went to a hardware store and the applicant purchased a 20 litre container of hydrochloric acid, three bags of rapid set concrete, one bag of lime and one roll of black plastic. His friend then refused to further help and left.

Ms Cafferkey’s mother, having reported to the police that her daughter was missing, at 9.45 pm on the evening of Monday 12 November 2012 sent the applicant a text message asking that he contact the police urgently in relation to her missing daughter.

On the morning of Tuesday 13 November 2012 the applicant drove to the Point Cook premises and removed the body from the boot of his car. He placed the body in the bottom of a green wheelie bin which was in the garage, emptied in the bags of concrete and then mixed in water.

Later that morning, the applicant contacted the Bacchus Marsh police station and left a message for the investigating officer to say that he had called. During the day, the applicant had a conversation and further text communications with the friend who had earlier been trying to contact Ms Cafferkey. He maintained that he did not know Ms Cafferkey’s whereabouts or the reason for her disappearance.

That evening, a police officer spoke with the applicant by telephone. He told the officer a mixture of truth and lies about what had happened on Saturday 10 November 2012. The applicant said that he had been with Ms Cafferkey at the Bacchus Marsh premises in the afternoon but that he had left her there at about 5.00 pm. He said he did not return for two days. She was not there when he went back. He said he was currently living at the Point Cook premises. After this conversation the applicant stopped using his mobile telephone. An external search of the Bacchus Marsh premises by the police later that evening revealed nothing out of the ordinary.

At about 8.30 am on Wednesday 14 November 2012, the applicant returned to the Bacchus Marsh premises. He took Ms Cafferkey’s car from the garage and drove it to a street in Maribyrnong, where he parked it and then left the area in a taxi.

Later that morning, the police conducted an internal search of the Bacchus Marsh premises. That, too, revealed nothing out of the ordinary.

On Friday 16 November 2012, the police seized Ms Cafferkey’s motor vehicle in Maribyrnong. They also seized the applicant’s vehicle in Melton, where it had broken down.

The applicant woke at about 7.45 pm that day and asked a friend for pills with which to commit suicide. He said he would rather do that than go back into prison. The applicant asked his friend to find somewhere for him to hide, but his friend refused to help.

In the morning of Saturday 17 November 2012, police from the Homicide Squad attended at the Bacchus Marsh premises with a search warrant. They observed evidence of an apparent crime, including recent attempts to clean the floors and walls, and bloodstains on various items.

Shortly afterward, police attended at the Point Cook premises and executed a search warrant. While present outside the house, they could smell a persistent odour of decay. Police tracked the odour to the green wheelie bin inside the garage. In the garage they also found empty bags of rapid set concrete, bloodstains on the floor and also on a nearby step ladder, and the container of acid. Inside the house, they found the jumper worn by the applicant when he went to the hardware store on 12 November 2012, a pair of bloodstained shoes and a second wheelie bin containing rubbish bags and bloodstained clothing. A scan of the first wheelie bin revealed Ms Cafferkey’s body in the bottom part of the bin, encased in lime and concrete underneath a quantity of solid concrete.

On Tuesday 20 November 2012, the applicant’s vehicle was examined by police and found to contain a yellow poncho with bloodstains. Later that day, the applicant was tracked down to an address in Hawthorn. Police went to that address and called on the applicant to surrender himself. He did so. When was asked whether he knew why he was being arrested he replied, ‘Yes. Murder’.

The applicant was interviewed over five connected episodes of questioning during the afternoon of 20 November 2012. In the first episode of questioning, the applicant declined to tell police about what happened to the victim. The second involved the applicant stating that he did not want to talk about it, that he wanted to be locked up forever, that he was a friend of Cafferkey’s and that the two of them ‘clicked’ and got along well together. When invited to co-operate so as to provide Ms Cafferkey’s parents with some understanding of what happened, the applicant said, ‘I don’t understand myself’. A little later he added, ‘I can’t help anyone’. When asked to talk about himself, he said, ‘I’m nothing’.

In the third episode of questioning, the first applicant stated that he did not want to talk about what happened, but a little later admitted to killing Ms Cafferkey.

By the fourth episode, the applicant was prepared to tell police how he had tried to dispose of Ms Cafferkey’s body in the wheelie bin full of concrete; that he could not lift it because of the weight; that he was solely responsible for the killing; that he purchased the acid, lime, concrete and black plastic for disposing of the body; that Ms Cafferkey had come to his flats on Saturday 10 November 2012 because she wanted someone to drink with; and that the two of them drank alcohol and smoked ice together during that afternoon. He would not, however, elaborate on how he killed Ms Cafferkey, and he again asked to be locked up until he died.

In the final episode of questioning, the applicant said that he and Ms Cafferkey had argued but would not give any details. He said he did not know why he killed her. The applicant said, ‘I don’t understand why — I really don’t understand why. We argued, that’s it’. When asked whether the argument was about anything in particular, he said ‘no’; and when asked whether there was any sexual slant to it, he said, ‘No, nothing like that’. The applicant admitted to finishing a bottle of Sambuca and consuming some Jack Daniels during that afternoon.

At the committal mention on 22 March 2013 the applicant entered a plea of guilty to the single charge of murder.

Sentencing remarks

The applicant’s counsel conceded on the plea that a sentence of life imprisonment was appropriate. All of his submissions were aimed at persuading the sentencing judge to fix a non-parole period.

In his sentencing remarks, the judge outlined the circumstances of the offending[61] and the contents of the record of interview,[62] before turning to the applicant’s personal circumstances.[63] I need not recount those personal circumstances in detail. The applicant, who was born on 6 October 1965, had ‘a highly deprived upbringing, characterised by physical abuse, neglect, substance abuse and exposure to family violence’. Indeed, some of the childhood incidents of violence described in the sentencing remarks were truly shocking. The applicant, the judge noted, had ‘an extensive and varied history of substance abuse from the age of 12–14 years’, and recently had been ‘using ice and speed at least 4–5 times a week’.
[61]Reasons for Sentence, [7]–[31].
[62]Reasons for Sentence, [32]–[39].
[63]Reasons for Sentence, [40]–[49].

With respect to the applicant’s mental health and psychological condition,[64] the judge observed that Dr Danny Sullivan, a forensic psychiatrist, had found no indication that the applicant was ‘suffering from a psychiatric illness, cognitive impairment or other relevant mental condition’. Dr Sullivan expressed the opinion that the applicant has ‘a propensity to significant violence, not frequent but severe’. The judge also referred to the opinions of Dr James Ogloff, a Professor of Clinical Forensic Psychology, who assessed the applicant as having an Antisocial Personality Disorder, and whose prognosis for the applicant’s rehabilitation was ‘guarded’, given the applicant’s age, personality and criminal history. Dr Ogloff said that the applicant had expressed only ‘a degree of remorse’.
[64]Reasons for Sentence, [50]–[55].

The judge recounted the applicant’s criminal history.[65] His most serious — and, for present purposes, most relevant — prior conviction was for the stabbing murder of a teenage girl, for which, on 25 February 1988, when aged 21 years, the applicant was sentenced to be imprisoned for 16 years with a non-parole period of 13 years. The applicant had stabbed the victim multiple times after she had rebuffed his romantic advances, and had then attempted to dispose of the body by burning it. Whilst on parole for that murder, in March 2002 the applicant committed the offence of kidnapping and intentionally causing injury. He had been paid $500 by a female friend to kidnap an acquaintance, who was tied up, gagged and beaten. In the Court of Appeal he was resentenced to six years imprisonment, with a non-parole period of four years. He completed his parole for those offences on 30 October 2012, some eleven days before he murdered Ms Cafferkey.
[65]Reasons for Sentence, [56]–[75].

Various victim impact statements from family and friends were taken into account.[66] I need not set out their contents. As one would expect, they make for sad reading.
[66]Reasons for Sentence, [75]–[78].

The judge then turned to ‘sentencing considerations’.[67] Again, I need not set out in detail all that the judge had regard to. But there are, I think, some passages of his Honour’s sentencing reasons which cast light on his decision to decline to fix a non-parole period. He said: [68]

You are in good health and I have no reason to think that you would find a long term of imprisonment, including a term of life imprisonment, unusually burdensome. Like all people, you will decline physically over the years. But I think you are likely to remain powerful enough to represent a continuing threat to the community even in old age.

[67]Reasons for Sentence, [79]–[97].

[68]Reasons for Sentence, [86] (emphasis added).

His Honour regarded the applicant’s crime as being in the worst category of murder:[69]

Under s 3 of the Crimes Act 1958 (Vic), the maximum penalty for the crime of murder is imprisonment for life. It is the most serious offence in the criminal calendar. Having regard to the manner and circumstances in which the crime was committed and the subsequent concealment and treatment of the body, the murder of Sarah Cafferkey to which you have pleaded guilty is in the worst category of the most serious offence in the criminal calendar.

[69]Reasons for Sentence, [90] (emphasis added).

The sentencing judge reflected upon the relevance of the plea of guilty to the decision whether to fix a non-parole period. Given their importance to his ultimate decision not to set a minimum term, I set his Honour’s remarks out in some detail. He said: [70]

In relation to the head sentence, a sentence of imprisonment for life is a dreadful sentence which must be reserved for the most dreadful of cases and then only after anxious consideration. It is to your credit that you have conceded through your legal representatives that the sentence for the crime must be imprisonment for life. I will be imposing that sentence as you did commit a most dreadful murder. Your highly skilled legal representatives have focused their considerable ability on trying to persuade the court that I should impose a minimum term upon the completion of which you will be eligible to be released on parole, if it is then adjudged to be suitable and appropriate.
That an offender has pleaded guilty, and did so early, is a sentencing consideration of singular importance. A plea of guilty (especially at an early stage) is a mandatory sentencing consideration under s 5(2)(e) of the Act. Section 6AAA(1) requires the court to specify the sentence and the non-parole period, if any, which it would have imposed but for the plea of guilty. I note, however, that this is only required if the court decides to impose a less severe sentence than it would otherwise have done because the offender has pleaded guilty (s 6AAA(1)(a)).
Section 11(1) of the Sentencing Act requires the court to fix a minimum period upon the completion of which you will be eligible to be released upon parole, unless it considers that the nature of the offence or the past history of the offender makes the fixing of such a period inappropriate.
The specification of a period on completion of which the prisoner is eligible for parole serves important sentencing purposes which might be especially relevant where the head sentence is one of imprisonment for life. The purpose of specifying a minimum term is to provide mitigation of punishment in favour of the rehabilitation of the prisoner through conditional release on parole. Among other things, the specification of a minimum term represents a humane response to the capacity of almost every prisoner over time to rehabilitate themselves and atone for the crime which he or she has committed. The non-parole period is that period which, in the estimation of the judge in all of the circumstances, is the minimum period which justice requires must be served by the prisoner before there can be mitigation of the sentence in favour of his or her conditional release on parole.

The principles I have just stated are well established. The question is whether, under s 11(1) of the Act, I consider that the nature of your offence or your past history makes the fixing of such a period inappropriate. …

[70]Reasons for Sentence, [93]-[97] (footnotes omitted; emphasis added).

His Honour then turned to consider the ‘nature of the offence and protection of the community’.[71] He concluded that the applicant’s moral culpability for the murder was ‘very high’; and that, when viewed against the background of that offence and other crimes of violence of which he had been convicted, the murder of Ms Cafferkey shows that the applicant has ‘a propensity for extreme violence from which the community, and especially young women, need protection’.
[71]Reasons for Sentence, [98]–[102].

The judge then turned to the issues of ‘remorse and plea of guilty’. He said:[72]

It is beyond question that appropriate credit for pleading guilty, and doing so early, must be given in almost every case. …
A plea of guilty always carries with it both objective (or utilitarian) benefits in terms of the administration of justice and also usually indicates that the offender has experienced subjectively (that is, personally) an appropriate sense of remorse. A plea of guilty saves the court and the community very considerable cost and expense, as well as the great distress of a contested criminal trial with all that it involves. It helps to bring a sense of closure to victims. An appropriate sense of remorse suggests that the offender has prospects of rehabilitation which the court should recognise in the sentence. The objective benefits of a guilty plea must almost always be taken into account, whether or not the offender also demonstrates subjective remorse and whatever be the apparent strength of the prosecution case. There is a profound public interest in encouraging offenders to plead guilty and taking such pleas fully into account when determining sentence, as the provisions of the Sentencing Act require.

[72]Reasons for Sentence, [104]–[105] (emphasis added).

Having cited from Phillips,[73] and observing that ‘there is a kind of case, which must necessarily be exceptional, in which justice requires the maximum sentence to be imposed despite a plea of guilty’,[74] the judge assigned reasons for not setting a non-parole period. Due to their importance to the ultimate disposition of the case, I set them out in detail. His Honour said: [75]
[73]Phillips v The Queen (2012) 222 A Crim R 149, 167–8 [67] (Redlich JA and Curtain AJA).
[74]Reasons for Sentence, [106].
[75]Reasons for Sentence, [107]–[108] (emphasis added).

The crime which you committed was in the worst category of the most serious crime of murder, there were aggravating circumstances, your moral culpability is very high and the community, especially young women, need protection from your propensity for extreme violence. In my view, your case is therefore exceptional.
The weight to be given to your guilty plea must be considered together with the extent of the remorse which you have demonstrated. I am prepared to accept that you have demonstrated a degree of remorse, as Professor Ogloff said in your favour. I take that into account as a factor in mitigation of your sentence and in considering your prospects for rehabilitation and whether you will continue to be a danger to the community as an old man. I also take into account in your favour that you have provided important information, scant though it is, in relation to the circumstances of the offending. In all probability, a degree of remorse is all that you are capable of expressing at the present time. I am prepared to accept that, for whatever reason, you are unable to provide further information as to the circumstances of the offending. As you said in your interview with the police, you do not understand yourself and can offer no explanation for the crime. Whether you will over time achieve a greater degree of insight and sense of personal redemption seems highly unlikely, but I do not dismiss the possibility.

And the judge later said: [76]

However, s 11(1) requires me to must fix a minimum term on completion of which you will be eligible for release on parole unless I consider that the nature of the offence and your past history make that inappropriate. Because you are a serious violent offender, s 6D provides that the protection of the community must be the principal purpose of the sentence to be imposed. I must assess the considerations specified in these provisions prospectively on the basis of the evidence before the court at the present time. On that evidence, I have found that your prospects of rehabilitation are very poor and you are likely to remain a danger to the community even as an old man. I can take into account, as I do, the mere possibility that the actual situation in the very long term might be different, both as to your prospects of rehabilitation and your physical capacity to do harm. But, having regard to the great significance in this case of the nature of the offending and the need to protect the community, I cannot give much weight to the slim possibility of your ultimate rehabilitation and you ceasing to be a danger of further offending due to physical decline.
After anxious consideration I have concluded that I should not impose a minimum term despite your plea of guilty and the degree of remorse which you have expressed. The nature of the offence which you have committed is that it is in the worst category of the worst offence in the criminal calendar. There were aggravating circumstances. Your moral culpability for the offending is very high. Your past history is one of a bad criminal record for serious crimes of violence, including a previous conviction for a similar murder. You are therefore a serious violent offender. On the evidence presently before the court, your prospects of rehabilitation are very poor and will likely remain so for the rest of your life. You present a substantial risk of committing further crimes of violence and it is unlikely that this risk will be significantly reduced due to the physical decline which you will experience in your old age. The community, especially young women, need protection from your propensity for extreme violence. For those reasons, it is inappropriate to set a minimum term.

[76]Reasons for Sentence, [114]–[115].

Thus there appear to have been two features principally animating the sentencing judge’s decision to refuse to fix a non-parole period. Indeed, if I have understood the learned judge’s reasons correctly, it is the concatenation of these two features which made this an ‘exceptional case’,[77] permitting denial of a non-parole period. The two features are:
[77]Reasons for Sentence, [106]–[107].

·first, the applicant’s crime fell into the ‘worst category’ of the crime of murder; and
·secondly, the applicant was likely to remain a danger to the community even as an old man.

These features justified the ‘exceptional’ refusal of a non-parole period despite:

·the plea of guilty, which was entered at an early stage, had utilitarian benefits and was accompanied by a degree of remorse; and
·the fact that the applicant had provided ‘important information’ concerning the circumstances of the offending.

The first ground of appeal – taking into account an irrelevant consideration for the purposes of s 11 of the Sentencing Act 1991

Under cover of the first ground, which claimed that the judge had taken into account an irrelevant consideration — the applicant ‘presents a substantial risk of committing further crimes of violence and it is unlikely that the risk will be significantly reduced due to the physical decline which he will experience in his old age’ — counsel submitted that s 11(1) of the Sentencing Act 1991 permitted the judge to take into account two matters only in refusing to fix a non-parole period. They were the ‘nature of the offence’ and ‘the past history of the offender’. The judge erred, it was submitted, in taking into account a third matter; that being the finding that the applicant presents a substantial risk of committing crimes of violence, which risk is unlikely to be significantly reduced due to physical decline in old age. Citing Bugmy,[78] it was argued that the judge fell into error in taking into account a matter more apt to the setting of the head sentence. It was submitted that the failure to fix a non-parole period rendered the sentence ‘disproportionate and attended by an element of impermissible preventative detention’.
[78]Bugmy, 537 (Dawson, Toohey and Gaudron JJ).

As drafted, the first ground asserts that the judge took into account an irrelevant consideration (and not, for example, that the judge gave the identified factor undue weight). So formulated, the first ground cannot be upheld.

Section 11(1) of the Sentencing Act 1991 makes plain that a sentencing court may only refuse to fix a non-parole period if ‘the nature of the offence’ or ‘the history of the offender’ justify such a course. The purpose of scrutinising the nature of the offence and the history of the offender can only be to determine whether there is any utility in mitigating the period of a prisoner’s confinement by the possibility of conditional release on parole. There may be cases — albeit exceptional — where the characteristics of a given offence, or the criminal history of an offender, demonstrate that it is appropriate to refuse the possibility of parole. By referring to the applicant’s risk of descent into future violence — a risk that he did not think would diminish much with age — the judge was, in effect, taking into account the two matters set out in s 11(1). His Honour found the risk of future violence borne out by the very things he was required to take into account, they being the essential qualities of the murder before him, and the applicant’s past history of violent offending. He did not err by having regard to these aspects.

The weight that he afforded these factors is, however, another matter. That the judge was entitled to take the applicant’s risk of future violence into account does not carry with it the necessary concomitant that he gave it appropriate weight in the instinctive sentencing synthesis. Indeed, in my view he gave it too much weight, which has resulted in the imposition of a sentence which is manifestly excessive.

The second ground – the failure to fix a non-parole period renders the sentence manifestly excessive

In my opinion, the second ground — that the sentence is manifestly excessive — is made out.

A contention that a sentence is or is not manifestly excessive, it has frequently been observed, does not admit of much argument.[79] Sentencing judges instinctively synthesise all relevant features and arrive at a sentence thought appropriate. Appellate courts approach the task of assessing whether a sentence is manifestly — as opposed to merely arguably — excessive in much the same way. Members of the appellate court synthesise all relevant factors.[80] In so doing, however, even should the appellate court regard the impugned sentence as stern, or even if the members of the court would not themselves have passed the same sentence, appellate intervention is not warranted unless the sentence under consideration is so outside the range of those open in the sound exercise of discretion as to bespeak error.[81] An appellate court concluding that a sentence is manifestly excessive often does so being unable to point to any particular source of error (apart from, of course, the excessive nature of the sentence passed given all relevant circumstances). As I have said, I am persuaded that the sentence in this case — given the failure to fix a non-parole period — is manifestly excessive.
[79]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v The Queen [2013] VSCA 4, [12]; Allen v The Queen [2013] VSCA 44, [51]–[52]. See too Dinsdale v The Queen (2000) 202 CLR 321, [6].
[80]Ibid.
[81] Lowndes v The Queen(1999) 195 CLR 665, 671–672 [15].

Counsel for the applicant argued that sentencing judge’s determination not to fix a non-parole period rendered the sentence manifestly excessive in light of the applicant’s plea of guilty, which was entered at the earliest possible time; was ‘accompanied by a narrative which was not challenged by the Crown’; reflected an acceptance of responsibility; was attended by a degree of remorse; and where ‘the offending was unplanned, unpremeditated and spontaneous’.

In response, the Crown pointed out that the plea of guilty was entered in light of an overwhelming prosecution case, and where the narrative provided was ‘scant’.

Appreciating — as I do — that the complaint embodied in the second ground is one of manifest excess rather than of specific error, as I have already observed the judge’s refusal to set a minimum term seems to have been prompted by the fact that he regarded the offence in this case as being in the worst category of the crime of murder, and his assessment that the applicant will remain a danger to the community even into old age. The judge refused to fix a non-parole period in light of those features despite the early plea of guilty (carrying with it utilitarian benefit and a degree of remorse) and the provision of information as to the circumstances of the offence. At the risk of repetition, in my opinion he was wrong not to have imposed a non-parole period. His refusal to do so has rendered the sentence manifestly excessive. The sentencing discretion has miscarried.

Although the complaint in the second ground of appeal is not one of specific error, in my opinion one of the principal sources of the miscarriage of the sentencing discretion likely reposes in the judge’s assessment that the applicant may remain a danger to the community into old age. In approaching the fixing of — or, perhaps, the possible denial of — a minimum term, it needs to be remembered that the fixing of a non-parole period is not a guarantee of the prisoner’s automatic release into the community once the non-parole period has expired. The non-parole period is the minimum time that — barring executive action — the prisoner must serve before being eligible for consideration for conditional release on parole. Any decision whether to grant the prisoner conditional freedom once the minimum term of imprisonment set by the court has expired rests with the Parole Board, not the court. Presumably, in the applicant’s case, were a non-parole period imposed, he would not be granted parole if he were still considered a danger, or his release would be on such conditions as to ameliorate any residual danger he still posed. Southwell J made the point in Denyer:[82]

In the present case, I am of the view that it would have been possible for the judge to make a determination of the period which justice requires to be served, notwithstanding the fact that it cannot now be said with any confidence that at some future time the community would not be put at undue risk if the applicant were to be released. It must steadily be borne in mind that the court in fixing a non-parole period is not attempting to decide when (and where a life sentence has been imposed) or whether the prisoner is to be released; it is doing no more than empowering the Parole Board to make that decision after the expiration of the n on-parole period. (See R v Currey [1975] VR 647, per Young CJ at 650; per Lush J at 652-653.) If upon all the evidence available to it at the time, the board forms the view that the protection of the community demands the continued incarceration of a prisoner, then it would not grant release on parole.
For the reason given I am of opinion that the judge erred in holding that by reason of the fact that the extent of the potential risk posed by the applicant's release into the community cannot at this time be calculated, it was inappropriate to fix a minimum term.

[82]Denyer, 196 (emphasis added). See also Brazel, 162 (Callaway JA).

In R v Bugmy,[83] Crockett J in dissent made observations about the effect of a minimum term fixed on a life sentence, which are apposite in the present case:

… The punishment has always been, and will remain, one of imprisonment for life. This means that he will always be subject to detention. If paroled, and then guilty of a breach of that parole, he can always be reclaimed. In practical terms, the fixing of a minimum term is no more than stating the date after which the parole Board may grant parole. Commutation of the term of life imprisonment is no longer a realistic possibility. So to the day he dies he can be called upon to suffer incarceration. If at the expiry of whatever minimum term was fixed the applicant’s attitude and behaviour were as they now are, I should have thought that he could entertain no prospect of being paroled. On the other hand, no one can say that the stage might not be reached when the expert advice of Corrections Department authorities will be that the applicant is suitable for an attempt at parole, even though at present that day may appear far distant.

[83](Unreported, 21 June 1989, Vic., CCA; Crockett, Fullagar and Marks JJ). See also Bugmy, 537–8 (Dawson, Toohey and Gaudron JJ).

The judge’s attempted prediction of the applicant’s dangerousness was one that was difficult to make with any degree of certainty. Assuming that the best predictor of future dangerousness is recent and repeated violence, it was an almost impossible task that the judge assumed in endeavouring to predict what risk, if any, the applicant would pose in old age. It was a very serious — and, with respect, unwarranted — step for the judge to fail to mitigate the sentence for the plea of guilty, based on a necessarily speculative assessment of the danger the applicant might pose many years into the future.

I am not unmindful of the fact that the applicant was to be sentenced as a serious violent offender, and thus that in ‘determining the length’ of the sentence the Court ‘must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed’.[84] The ‘length’ of the sentence in this case is the maximum available — the term of the applicant’s life. But it ought not to be thought, all other things being equal, that — particularly where the principal sentence is a finite term of years — community protection will necessarily be advanced by the denial of eligibility for parole. Indeed, in some circumstances, an extended period under supervision on parole might actually advance community protection rather than derogate from it.[85] I need not pause to consider this aspect any further, however, since the imposition of a life sentence adequately reflects the need for community protection.[86]
[84]Sentencing Act 1991, s 6D.
[85]R v Lomax [1998] 1 VR 551, 567.
[86]The judge did not find it necessary to consider the exercise of the ‘power’ in s 6D(b), which permits the Court to ‘impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances’: Reasons for Sentence, [83].

As I have said, the judge also denied a non-parole period based on his categorisation of the applicant’s offending as being in the ‘worst category’ for the worst offence. Counsel for the applicant submitted that the present murder did not fall into the worst class of case. A similar submission was made in Stone, which moved the Court to observe:[87]

We do not think that it is possible to categorize murders with such precision. First the Court must decide whether the particular murder is appropriate to be punished by life imprisonment or by imprisonment for a term of years, bearing in mind that it is the indeterminate nature of life imprisonment that has led to its being criticized as inappropriate punishment. Without attempting to set the parameters within which murders appropriate to attract life imprisonment might fall we think that as the law stands at present this murder falls clearly within that class. It was a barbarous and callous execution, deliberate and calculated, which must have inflicted much pain upon the victim before death. We think that community horror at such a killing should be marked by a sentence of life imprisonment. In those circumstances we do not need to consider what term of years might otherwise have been appropriate.

[87]Stone, 149.

In my opinion, although one often encounters the use of the expression, to describe a given offence as being in the ‘worst category’ of a particular species of offence,[88] is often not very illuminating. As the Court (Buchanan, Ashley and Tate JJA) observed in Likiardopoulos:[89]

[U]sing what are described as ‘worst cases’ as a starting point and comparing the circumstances of those cases to the present case is to be deplored. Comparable cases at best are a general guide. A particular sentence is the result of the exercise of a judicial discretion in which the circumstances of the offence and the character and antecedents of the offender are of central importance.

[88]RSJ v The Queen [2012] VSCA 148, [2]–[3], [8], [40], [47]; DHC v The Queen [2012] VSCA 52, [101]; PDI v The Queen (2011) 216 A Crim R 577, [84]–[87]; Mansfield v The Queen [2011] VSCA 290, [23]; Hudson, 621 [45].

[89]Likiardopoulos v The Queen (2010) 30 VR 654, 690 [172].

It is enough to recognise the present offence as a bad example of the crime of murder, with a particular aggravating feature being – as the parties accept – the maltreatment of Ms Cafferkey’s deceased body.[90]
[90]Reasons for Sentence, [88]. See DPP v England [1999] 2 VR 258, 264–8 [19]–[36].

Moreover, the applicant’s prior commission of murder – also attended by maltreatment of the deceased’s body – was a highly relevant sentencing consideration. The applicant’s prior history bore on his moral culpability, his dangerous propensities and the need for community protection. As Charles JA said in O’Brien:[91]

It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence. In Veen v R (No. 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said at 477-8:
… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 642, at p 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.

[91]R v O’Brien and Gloster [1997] 2 VR 714, 718.

Allowing for the fact that this was a bad case of murder, and that the applicant’s prior history demonstrated a need for the community to be protected from his dangerous propensities, the applicant’s crime was not unmitigated. He pleaded guilty at the earliest opportunity. As the sentencing judge recognised, the plea had utilitarian benefit. Indeed, so much cannot be gainsaid. Although it might readily be concluded that the prosecution’s case against the applicant was very strong, experience demonstrates that, on occasion, even those faced with an overwhelming Crown case choose to ‘roll the dice’. In those cases, the family and friends of the deceased are put through the ordeal of a trial. Witnesses are put through the trauma of having to testify. Time is expended and expense occasioned. By his plea the applicant ensured that those undesirable consequences were avoided. He deserved – but did not receive – credit for that.

Although the judge recognised that –

·the fact that ‘an offender has pleaded guilty, and did so early, is a sentencing consideration of singular importance’;
·it ‘is beyond question that appropriate credit for pleading guilty, and doing so early, must be given in almost every case’;
·a ’plea of guilty always carries with it both objective (or utilitarian) benefits in terms of the administration of justice and also usually indicates that the offender has experienced subjectively (that is, personally) an appropriate sense of remorse’;
·a ‘plea of guilty saves the court and the community very considerable cost and expense, as well as the great distress of a contested criminal trial with all that it involves’;
·a plea of guilty ‘helps to bring a sense of closure to victims’;
·the ‘objective benefits of a guilty plea must almost always be taken into account, whether or not the offender also demonstrates subjective remorse and whatever be the apparent strength of the prosecution case’; and
·there ‘is a profound public interest in encouraging offenders to plead guilty and taking such pleas fully into account when determining sentence’;

nowhere, in my view, are those considerations reflected in the sentence passed.

Further, as I have said, quite apart from the utilitarian benefit, the applicant’s plea of guilty was accompanied by some remorse, which again does not seem to find ant recognition in the sentence actually passed.

Additionally, although it might be said that the information provided by the applicant as to the circumstances of the killing was scant, nonetheless it was relied upon by the Crown, and cast some light on how Ms Cafferkey met her death. Nowhere is that fact acknowledged in any practical sense in the sentence imposed.

There is a public interest in giving recognition to a plea of guilty even in the face of a very strong prosecution case. Those faced with the prospect of either pleading guilty or electing to contest a trial need to know that a plea of guilty will find recognition in the sentence passed. Whether it is described as a ‘discount’ or by some other label, the offender who pleads guilty ordinarily should be given credit for doing so, that being reflected in a significant amelioration of the sentence.

In this case, the sentencing judge relied on what fell from Redlich JA and Curtain AJA in Phillips[92] as a justification for denying a non-parole period. As I read what their Honours said in that case, they recognised that there may be cases of murder – albeit rare – where the objective gravity or aggravating features are of such an order that the maximum sentence remains appropriate even allowing for the mitigatory effect of the plea. [93] They did not suggest, however, if I understand them correctly, that the objective gravity or aggravating features of an offence will ordinarily be a justification for denying the fixing of a non-parole period once the available maximum sentence is imposed.
[92]Phillips v The Queen (2012) 222 A Crim R 149, 167–8 [67] (Redlich JA and Curtain AJA).
[93]See and compare Gordon v The Queen [2013] VSCA 343, [34], [41] (Ashley JA); [70] (Redlich JA).

Nowhere, in any practical sense, did the judge provide any amelioration of sentence for the utilitarian benefit of the plea of guilty (or the other mitigating features). He should have done so by fixing a minimum term. His failure to impose a non-parole period was out of step with current sentencing practice. In my view his failure to mitigate the life sentence by setting a non-parole period has resulted in a sentence that is manifestly excessive.

Conclusion

For the foregoing reasons, the application for leave to appeal against sentence should be granted and the appeal allowed.

I would confirm the sentence of imprisonment for life, but would fix a non-period.

Paying due regard to the circumstances of the offence and the aggravating features, and making due allowance for the mitigating features and the applicant’s personal circumstances, in my view the minimum term that the applicant should spend in custody without the possibility of conditional release on parole is 35 years. I would thus fix a period of 35 years’ imprisonment before the applicant might be considered eligible for parole.

Pursuant to s 6AAA of the Sentencing Act 1991, I would declare that, but for the plea of guilty, I would have imposed a sentence of life imprisonment and would have declined to fix a non-parole period.

I would also declare the appropriate number of days pre-sentence detention.

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[2013] VSCA 385

19 December 2013