Kells v The Queen

[2013] VSCA 7

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0066
JADE MELISSA KELLS	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and TATE JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 September 2012
DATE OF JUDGMENT	7 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 7
JUDGMENT APPEALED FROM	[2012] VSC 53 (Macaulay J)

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CRIMINAL LAW – Appeal against sentence – Conviction for manslaughter – Sentenced to eight years’ imprisonment with a non-parole period of five years – Manifest excess – Whether sentencing judge gave insufficient weight to the mitigating factors or undue weight to the aggravating factors – Judge did not attribute inappropriate weight to factors – No ‘usual’ standard or normal non-parole period – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Galbally & O’Bryan
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. In my opinion, the appeal should be dismissed for the reasons stated by Tate JA.

TATE JA:

1. On 13 December 2011, the appellant, Jade Melissa Kells, was acquitted by a Supreme Court jury of one charge of murder, but found guilty of manslaughter.  She had offered to plead guilty to manslaughter during the trial.  She was sentenced to eight years’ imprisonment with a non-parole period of five years.[1]  She appeals[2] on the ground that the head sentence imposed and the non-parole period are each manifestly excessive. 

   [1]The appellant was sentenced on 24 February 2012.

   [2]Pursuant to leave granted by Harper JA on 25 June 2012.

1. The ground of manifest excess is difficult to satisfy.  As this Court emphasised in Clarkson v The Queen,[3] the requirement imposed is a stringent one:[4]

[It] 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. 

[3](2011) 212 A Crim R 72.

[4]Ibid [89].

Volatile relationship with the deceased

1. The death of Mr Dean Winston Pye was caused by the appellant stabbing him once in the chest during an argument about money and mobile phones that she claimed he had stolen from her.[5] 

[5]I draw this summary of the events leading up to Mr Pye’s death largely from the sentencing remarks: R v Kells [2012] VSC 53 (‘Sentencing remarks’).

1. The appellant had been in a relationship with Mr Pye for approximately five months before his death on 26 January 2010.  That relationship had been, at times, a fractious one, characterised by frequent arguments and mutual abuse.  The appellant told the psychologist, Mr Newton, that they had ‘fought most days’ and that these fights regularly included physical violence.  She told the police, in her record of interview, that they had each threatened to stab one another ‘millions of times’.  She and Mr Pye has separated on several occasions but had always managed to reconcile.  

1. In November of 2009, when the appellant and Mr Pye were living together at Grace Street, Rye, one argument led to the appellant sending Mr Pye a text message challenging him to return to the house so she could stab him.  He indeed returned to the house and they each traded abuse.  The police were called to attend that incident;  Mr Pye then left that house to live elsewhere.

1. A week or so later, the appellant also left Grace Street and she resumed living with Mr Pye, this time at 52 Raymond Street, Tootgarook.  On the night of 25 January 2010, neighbours in and around Raymond Street, Tootgarook, reported hearing loud and violent arguments between the appellant and Mr Pye.  During that night numerous calls were made to ‘000’ either by neighbours, Mr Pye or the appellant.  Several police units attended the house and the nearby vicinity on a number of occasions during the night in relation to the dispute.  The dispute centred upon the appellant’s allegation that Mr Pye had stolen $1,000 and some mobile phones from her.

1. During the course of the argument with Mr Pye, the appellant threw one or more objects through a large front window of the house, smashing it.  Her demeanour was described by police, who attended the scene, as, variously, aggressive, uncooperative, not interested in what they had to say, just wanting to get her money back, erratic, upset and distraught.

1. She left the house at 52 Raymond Street in the early hours of the following morning, to stay at a friend’s house in Rye.  She did not stay there long, returning to Raymond Street between 6:00 am and 7:00 am.  Mr Pye was not there when she arrived back, although he must have returned shortly afterwards.  She then resumed her argument with him about the money and the phones.  She called ‘000’ at about 7:07 am, from outside the house.  She was in an angry state, complaining that Mr Pye would not give her her ‘stuff back’, that he had been smashing windows and further claiming that he had choked her and smashed her up against a wall.  That call ended at about 7:09 am.

1. The appellant evidently re-entered the house.  On her account, she had a scuffle with Mr Pye; he then entered a bedroom;  she armed herself with a knife from the kitchen, approached the bedroom door and pushed it open to find him coming at her.  He was, in fact, unarmed.  In that doorway, the appellant stabbed him with the knife, one blow to the chest, penetrating to his heart.  By 7:11 am, she was on the phone to ‘000’ screaming that she had stabbed her partner in the chest.  He died at the scene.

1. The appellant claimed she had acted in self-defence.  She was sentenced on the basis that the jury, in finding her guilty of manslaughter by unlawful and dangerous act, found that the appellant caused Mr Pye’s death by a deliberate, dangerous and unlawful act, not intending to kill him or cause him really serious injury, but neither believing on any reasonable grounds that stabbing him, as she did, was necessary to defend herself.

1. Mr Pye died of the single stab wound that penetrated his heart.  The Crown’s case had been, however, that the appellant had inflicted many more superficial injuries to Mr Pye – around 30 in total – in the course of a violent assault that preceded his death.  The appellant’s defence had been that she did not inflict those injuries.  Rather, her case was that there was a very short struggle inside the house during which Mr Pye pushed her around and that the injuries to his face, arms, hands and legs must have occurred earlier in the night when he had committed a
   

   [6]It was clarified at the hearing of the appeal that the multiple incisions on Mr Pye’s body had been caused during a burglary he had committed during the evening prior to his death.  The judge accepted that the appellant was to be sentenced on the basis that she was not responsible for the multiple injuries.  The need for these matters to be resolved in a contest of fact at committal contributed to the delay in the appellant offering to plead guilty to manslaughter.

   burglary.[6]

1. The sentencing judge took the view that it was clear that the jury’s verdict reflected that it was not satisfied the appellant had inflicted the 30 or so injuries and that it was apparent that the struggle immediately preceding the stabbing took place in a very short space of time.  He therefore sentenced the appellant on the basis that she did not inflict those other injuries and that the immediate lead up to the fatal event was a brief struggle.

Factors taken into account by the sentencing judge

1. The sentencing judge took into account (1) the gravity and culpability of the offending;  (2) the appellant’s offer to plead guilty to manslaughter;  (3) the impact of the offence;  (4) the character of the appellant;  (5) the appellant’s mental health;  and (6) the appellant’s prospects of rehabilitation.

(1)       The gravity and culpability of the offending

1. The judge found that the stabbing incident occurred after a long night of frustration and angry conflict, ‘and was possibly attended … by intense emotional feeling, sleep deprivation and, possibly, a weakened physical state’.[7]  He found, nevertheless, that at the time of the stabbing, the appellant did not pursue the options available to her to escape the confrontation.  What had occurred was avoidable.  He considered that the jury’s rejection of the appellant’s defence of self-defence meant that it accepted that the appellant had too readily resorted to a violent retaliatory disproportionate response to the conflict, which ended tragically.

   [7]Sentencing remarks, [11].

1. The sentencing judge took into account the evidence of several earlier incidents with a previous partner, a man with whom the appellant had had two sons.  One of the earlier incidents involved the appellant using a corkscrew to stab him, and on two other occasions she had resorted to a broken bottle and then a knife with which to threaten him.  The judge considered these incidents to be proof of the appellant’s tendency to confront conflict with a violent response.

1. He considered, however, that the appellant had acted meritoriously in making no attempt to cover up what she had done to Mr Pye, remaining at the scene and calling ‘000’ seeking assistance.  He considered that this conduct was evidence that the appellant was truly remorseful.  Having listened to the calls and having read the record of interview, he said:[8]

Your screams for help in the ‘000’ calls were, in my view, genuine pleas for assistance for the injured victim.  In one call you said “It’s my fault” … and asked, “Is he going to be alright?” In the record of interview 24 hours later you said, at various points, … “I just wanted him to be alive” (Q 607);  then speaking of your own reaction you said, … “’Oh my God, what have you done?’” (Q 633);  at another point, you referred to the biblical statement against killing and lamented, “Great Christian I am” (Q 814);  and, rejecting the suggestion that you had tried to clean up before calling emergency services, you said… “I wanted to help him.  I wanted him to be alright, I didn’t want him to be dead” (Q 871).

[8]Sentencing remarks, [30].

1. The judge also considered that the later expression of remorse made to Mr Newton, was also genuine.  Mr Newton recorded that the appellant had said:[9]

I killed someone I loved: I still love him really.  If there is any way I could take it back I would, but the worst thing is there’s nothing you can do to take this back.

[9]See Sentencing remarks, [31].

1. In regarding these expressions of remorse as genuine, the judge rejected the Crown’s submission that the appellant experienced regret but not remorse.[10]

(2)       The appellant’s offer to plead guilty to manslaughter

[10]See Va v The Queen [2011] VSCA 426, [15], [17].

1. One of the factors that loomed large at the plea was the appellant’s offer to plead guilty to manslaughter during the trial and the timing of that offer.  In his sentencing remarks, the judge said:[11]

You were charged on 26 January 2010 and were held in custody pending trial.  During your record of interview with police, when accused of murder, you said … “It’s more like manslaughter, I didn’t mean to hurt him … “.  However you did not offer to plead to manslaughter straight away.  A committal proceeding was held on 7 February 2011.  Again you did not offer to plead guilty to manslaughter.  Your lawyers appeared on your behalf to test the evidence against you.

On 2 May 2011 Bell J heard argument concerning tendency evidence proposed to be led by the Crown at your trial.  His Honour’s decision went on appeal to the Court of Appeal and was remitted back.  On 23 May 2011 further evidence was heard before Bell J on that issue.  You made an offer to plead guilty to manslaughter three days later, pending his Honour’s decision.[12]  You then contested the charge of murder at the trial before me.

[11]Sentencing Remarks, [19]–[20].

[12]It was clarified at the hearing of the appeal that the appellant made the offer to plead guilty to manslaughter before Bell J made his decision, on the remitter, to rule on the tendency evidence even though both events occurred on the same day (26 May 2011).

1. Given that the offer to plead guilty to manslaughter was made late, his Honour considered carefully what weight he should attribute to it.  He said:[13]

What weight should be given to your offer to plead guilty to manslaughter as a mitigating factor?  Such weight will vary from case to case.  A wide variety of factors may be taken into account.  Matters to be taken into account include the timing of the plea, the strength of the Crown case, whether the offer is indicative of true remorse, whether witnesses or a complainant has been saved the trauma of giving evidence, and whether a grieving family has been saved the ordeal of a trial.  In addition there is the utilitarian benefit of avoiding the costs of the trial or lengthy proceedings.

The Crown says your offer to plead was late;  you exposed witnesses and the family to the ordeal of the committal;  and when you did offer to plead, it was when the tendency evidence dispute before Bell J looked like it was going against you.  The Crown also argued that its case against you for manslaughter was strong, although I did not understand it to be put – correctly in my view – so highly as to say it was necessarily your best conceivable outcome.

On your behalf it is argued that the prospect of negotiating with the Crown to resolve the matter was complicated because the Crown was convinced it had a very different case to the case that ultimately was presented to, or accepted by, the jury.  First, the Crown was initially confused by the presence of a very large amount of blood at the scene suggesting there had been an attempt on your behalf to clean up the scene before calling emergency services.  The blood later turned out to be your own blood, shed somewhat earlier, as a consequence of a medical procedure of your own.  Secondly, there were the numerous superficial injuries which, relying on the opinion of Professor Stephen Cordner, the Crown presented as being defensive injuries sustained by Mr Pye defending himself from your assaults.

In this context, it is somewhat understandable, as it was put to me, that your legal advisors would feel reluctant to try and resolve the matter with the Crown at an early stage, and would wish to explore the evidence at a committal thinking that a murder trial would be inevitable.  It was further submitted that a plea of guilty to manslaughter at an early stage may have entailed the apparent concession of an offence of a graver nature than was ultimately found to be the case.

Nevertheless, you did eventually offer to plead guilty to the lesser charge and these considerations do not entirely explain the length of the delay in doing so.  Against them there is the coincidence of the timing of your offer in relation to the proceedings on the tendency evidence, and the strength of the Crown’s case against you.

[13]Sentencing Remarks, [22]–[26].

1. The judge ultimately treated the offer to plead guilty to manslaughter as ‘consistent with a true sense of remorse and not regret’,[14] despite its apparent lateness, given the complications associated with the evidence and given that the appellant had consistently accepted responsibility for her actions.

   [14]Ibid [33].

1. His Honour weighed the utilitarian benefit the plea of guilty would have brought, had it been accepted, together with the appellant’s expression of genuine remorse, as entitling the appellant to a ‘moderate discount’ off the sentence she would otherwise have received. 

(3)       The impact of the offence

1. When Mr Pye died, at the age of 37, he left behind his mother, father and two sisters who experienced immense grief and loss.  His mother believes she will never be able to come to terms with the loss of her son.  His father wonders when the pain and grief will subside.[15]  Mr Pye’s death clearly also caused the appellant immeasurable loss and pain.[16]  

(4)       The character of the appellant

[15]Victim Impact Statement of Norman John Pye, 5.

[16]Sentencing Remarks, [18].

1. The appellant was 26 years of age at the time of the offence.  Her mother was only 17 years old when she was born.  She had little contact with her biological father until she left home at the age of 13 and travelled to New South Wales to reside with him.  By then her relationship with her mother, who had found a new partner and had another child, had deteriorated.

1. The appellant had idolised her biological father from a distance and had firm expectations of a father-daughter bond.  The reality was vastly different.  Her father drank heavily and, after a few months, sexually assaulted her.  The appellant felt ashamed and her hopes of a harmonious family life being shattered, she left her father at the age of 14 to live with neighbours and eventually returned to Melbourne.  She has had no contact with her mother since the age of 19 and now has no contact with any of her family. 

1. She became a cannabis user in her early teenage years and she continued to use cannabis until her imprisonment.  She later used stimulants, prescription medications and opiates.

1. She left school in Year 10 and has since been unemployed, except for a 12-month course in childcare and a brief stint as a dancer.

1. The appellant had a good relationship with a man when she was a young adult and had a son from that relationship when she was 19.  She later had the two sons mentioned above to a man with whom she had a fractured and volatile relationship.  The Department of Human Services removed the children for a time for which the appellant felt guilty.  She experienced an intense sense of failure as a mother.  The relationship with that partner worsened and they ultimately separated. 

1. In another short relationship, in 2009, the appellant was convicted of carrying a controlled weapon without excuse (a knife).  It appears that she had told ‘000’ that her then partner had threatened to bash her and she ‘intended sorting it out with a knife’.[17]  She had previously been convicted in 2004 of possessing a controlled weapon without excuse.

(5)       The appellant’s mental health

[17]Ibid [43].

1. The principles in Verdins[18] did not apply.  Although the appellant had been prescribed Xanax to address symptoms of emotional volatility, she experienced no clinically significant symptoms of anxiety, depression or psychosis;  her underlying intelligence fell at the high end of the average range;  her thought processes were lucid;  and her moral reasoning was unimpaired. 

   [18]R v Verdins (2007) 16 VR 269, 276 [32].

1. Mr Newton considered the appellant’s personality to indicate the presence of severely dysfunctional personality traits having their genesis in her early environment.  Her early life-experiences had led her to be fearful that anyone she might allow to become close to her is likely to exploit or harm her.  At the same time she believed that she was not able to cope without the support of a more dominant partner.  While Mr Newton was unable to be definitive, he considered the appellant to have significant Borderline and Antisocial Traits and was at significant risk of developing a fully-fledged personality disorder unless she participated in effective medical treatment.

(6)       The appellant’s prospects of rehabilitation

1. In respect of the appellant’s prospects of rehabilitation, the judge took into account the cautious opinion expressed by Mr Newton.  Mr Newton raised concerns that the appellant would not respond to sanctions but would rather resort to re-offending.  He said:[19]

The severity of the personality problems from which Ms Kells suffers militates against unguarded optimism in her case.  Even with optimal treatment, the entrenched issues identified in her case suggest that she will require intensive rehabilitative input for at least the medium term and that she is likely to experience a very challenging treatment course.  Accordingly, it would be my respectful suggestion that there may be some benefit in considering a disposition which allows for a maximal treatment focus and a relatively lengthy period of supervision in the community.

Without the provision of intensive assistance, I would consider Ms Kells’ prognosis for recovery to be poor … .

[19]Sentencing remarks, [50].

1. His Honour rejected the submission of counsel that the appellant had abruptly acquired a greater insight that her previous habit of violent response to conflict was not normal.  While he regarded the expression of remorse as ‘a start’, he was not satisfied that genuine remorse alone provided any confident basis for believing that there was a markedly reduced prospect of the appellant’s re-offending.  He considered that ‘although such remorse provides a better basis for optimism of rehabilitation than if it were lacking, there is otherwise no solid grounds for high optimism’.[20]  Accordingly, he did not place significant weight on rehabilitation as an objective in sentencing the appellant.

   [20]Ibid [60].

1. Ultimately, weighing up all these factors, the judge considered that the offending:[21]

[did] not sit at the particularly severe end at the range of manslaughter offences.  It involved a single, acute blow;  a degree of spontaneity;  [the appellant] stayed at the scene;  [she] expressed genuine remorse and [she] offered to plead guilty to the offence of which [she has] been convicted.

However, neither [did the] offence sit at the lowest end of the range of manslaughter cases.  [The] act emerged from a night of angry and aggressive conduct;  it could not be said to be the product of isolated, out-of-character behaviour;  [she was] not especially young at the time;  and [she] did have a series of opportunities to avoid the final confrontation.

[21]Ibid [58]–[59].

1. The judge, taking into account the maximum penalty of 20 years’ imprisonment;  current sentencing practices;  and the fact that the offence called for a sentence that reflected ‘just punishment for killing a relatively young man, and the court’s denunciation of [the appellant’s] resort to violence to deal with conflict’;[22] determined that a term of imprisonment of eight years’ was appropriate.  He accepted, however, that he should fix a longer than usual period of supervision during which the appellant would be eligible for parole, as recommended by Mr Newton, in order to maximise the ability of those responsible for the appellant’s well-being while on parole to ensure that the focus when re-integrating the appellant into the community is upon her treatment.   

   [22]Ibid [55].

The appeal

1. On the appeal, it was submitted that, given the judge accepted that the offence was neither ‘at the particularly severe end of the range’ nor ‘at the lowest end of the range’, and given that there were significant mitigating considerations, there was no proper basis for the sentence imposed to be higher than the prevailing median manslaughter sentence, namely, seven (7) years three (3) months during the period 2005-6 to 2009-10. 

1. Amongst the mitigating factors, on the appeal emphasis was placed upon the character of the offence as a single aggressive act committed at a time of emotional distress and in circumstances that afforded limited opportunity for reflection;  the fact that that the appellant sought assistance for Mr Pye and stayed by his side until police and ambulance arrived;  the appellant’s expression of genuine remorse immediately and during her subsequent dealings with the police;  the appellant’s offer to plead guilty to manslaughter and her limited criminal history.  The only significant aggravating factors were the appellant’s history of a tendency to respond to domestic conflicts by threat and aggression and the two previous findings of guilt for carrying and possessing a weapon, respectively.

1. It was submitted that, as the head sentence fixed was in excess of the prevailing median, it should be inferred that the sentencing judge gave insufficient weight to the mitigating factors or undue weight to the aggravating factors.

1. The same complaint was made of the non-parole period fixed.  It was argued that the judge placed too much weight upon the report of Mr Newton when assessing the appellant’s prospects of rehabilitation and failed to take into account sufficiently other factors relevant to rehabilitation, namely, the appellant’s limited prior criminal history and, given that the only previous sanctions imposed had been undertakings and fines, the absence of any previous failure to respond to a custodial sanction.

1. The Crown responded by arguing that the judge had fairly balanced all mitigating factors and afforded them appropriate weight.  In particular, the Crown emphasised that the two aggravating factors, the appellant’s tendency to resort to violence as a retaliatory response to conflict and the findings of guilt with respect to controlled weapons, gave context to the gravity of the offending as these were the primary contributors to Mr Pye’s death. 

1. I agree.  

1. The appellant’s tendency to violence may well be explained by her sad and distressing early experience as a child and her disillusionment with her natural father.  The latter was given much prominence during the hearing of the appeal to explain what a formative effect it must have had upon the appellant as an adolescent girl to be confronted by acts of sexual violence perpetrated by the very man whom the appellant hoped would provide the love and security of a healthy father-daughter relationship.  The form of emotional betrayal caused by the experience of being sexually assaulted by her father no doubt contributed to the dilemma experienced by the appellant to which Mr Newton adverted; the desire for support from a dominant partner together with the simultaneous fear that intimacy will bring with it exploitation and harm.

1. In my view, however, the psychological explanation for the appellant’s tendency to resort to violence in a context of conflict with a domestic partner cannot substantially reduce the importance of that tendency as a significant aggravating factor for the purposes of sentencing.  In particular, that tendency was earlier manifest in the appellant’s conduct in using a corkscrew to stab a previous partner and on other occasions using a broken bottle and a knife to threaten that same partner.  In addition, the appellant had armed herself with a knife against a different partner some years before.  Furthermore, the relationship with Mr Pye involved the appellant sending text messages in November 2009 challenging Mr Pye to return to the house so she could stab him, and on the night of Mr Pye’s death she smashed a window by throwing of one or more objects through it.  While the ultimate act causing death was a single aggressive act engaged in when emotions were intense, I consider that the judge was correct to appreciate that the act could not be viewed in isolation but that the gravity and culpability of the offence was worsened by the appellant’s tendency to engage in violence, and threats of violence, as her means of responding to conflict with someone with whom she was in a personal relationship.  As was submitted by the Crown on the plea:

When you’re sentencing the prisoner for this offence you’re not sentencing someone who has never been in charge of a weapon or a knife before, you’re not sentencing someone … who has simply gone off on a peak of anger and rage on one occasion.

She has a tendency in the past which the tendency evidence revealed, a tendency to become angry and violent during the course of arguments with partners.

1. I consider that the judge was correct in his appreciation of the significance of the aggravating factors and did not attribute to them inappropriate weight.

1. Furthermore, I consider that the emphasis the judge gave to the need for the imposition of just punishment expressing denunciation of the appellant’s conduct was correct, in the absence of strong mitigating factors such as youth, good character, or Verdins issues.  The mitigating factors that did exist, most especially the appellant’s early life experience and her remorse, were extensively canvassed by the judge and, in my view, given due weight.  Most importantly, his Honour found in favour of the appellant with respect to her expressions of remorse, including by her offer to plead guilty, and rejected the Crown’s submission that her conduct amounted to no more than regret. 

1. The appellant argued that although the judge stated that he intended to fix a longer parole period than usual, in fact the relationship between the parole period and the head sentence (63 per cent) left a gap that was hardly beyond what was usual.  This Court has repeatedly emphasised that amongst the principles governing appellate review of a non-parole period:[23]

[T]here is no ‘usual’ standard, or normal non-parole period expressed as a proportion of the head sentence. … The question to be determined is whether it was reasonably open to the sentencing judge to fix the non-parole period actually fixed in the case under consideration.   

What is important here is that the size of the parole period was fixed for the purpose of assisting in the appellant’s re-integration into the community, given the need, expressed by Mr Newton, for the appellant to receive proper treatment in the absence of which he considered her prospects of recovery and rehabilitation to be poor.  In my view the size of the parole period and its purpose were both appropriate.  

[23]Borthwick v R [2012] VSCA 180, [10] (T Forrest AJA, with whom Weinberg and Bongiorno JJA agreed), citing Wallace v R [2012] VSCA 114, [2]; Hili v R (2010) 242 CLR 520, 532–4 [36]–[45]; Muldrock v R (2011) 244 CLR 120, 131–3 [26]–[32]; R v Sotto [2009] VSCA 70, [27]–[28].

1. Moreover, the reliance placed by the appellant upon the sentencing statistics for manslaughter not only suffers from the flaw of focusing upon ‘numerical or mathematical equivalence’ rather than ‘the application of the relevant legal principles’,[24] but it also fails to take into account that the offence of manslaughter by unlawful and dangerous act is subject to considerable variance in the conduct constituting the commission of the offence and, as such, its gravity.  With respect to this type of offence reliance upon statistical surveys carries more than considerable limitations.

   [24]See Hili v R (2010) 242 CLR 520, 527 [18].

1. Given all the circumstances of this case, I consider that the sentence imposed was within the range reasonably open to the sentencing judge if appropriate weight was given to all relevant factors.  I consider that neither the head sentence, nor the non-parole period, was manifestly excessive.  In my opinion, the appeal should be dismissed.

T FORREST AJA:

1. I also agree with Tate JA.