Lee v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0163

RODNEY LEE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2024
DATE OF JUDGMENT:	31 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 258
JUDGMENT APPEALED FROM:	DPP v Lee [2023] VSC 437 (Elliott J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Shotgun killing of two – Individual sentences of 22 years’ imprisonment on two charges of murder – Eight years’ cumulation — Total effective sentence 30 years’ imprisonment – Non-parole period 24 years – Whether manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Mr J O’Connor and Ms A Renieris
Respondent:		Mr JCJ McWilliams and Ms B Goding
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
T FORREST JA:

Introduction

On 13 January 2022, the applicant, then aged 73 years,0F[1] took the lives of two of his neighbours, Tibor Laszlo and Saumoto Gasio, by shooting them with a single barrel shotgun. He pleaded guilty to their murders before a judge of the Supreme Court on 17 February 2023.
[1]His date of birth is 6 January 1949.
Following a plea conducted on 15 May 2023, the judge sentenced the applicant on 31 July 2023 to be imprisoned for 22 years on each of two charges of murder,1F[2] and ordered eight years’ cumulation between the sentences. The total effective sentence was thus 30 years’ imprisonment, upon which the judge fixed a non-parole period of 24 years.2F[3]
[2]By s 3(1) of the Crimes Act 1958, the maximum sentence is life imprisonment; and by s 3(2)(b), the standard sentence is 25 years’ imprisonment.
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the pleas of guilty, he would have sentenced the applicant to 40 years’ imprisonment with a non-parole period of 32 years.
The applicant now seeks leave to appeal against his sentence, contending that the total effective sentence and non-parole period are manifestly excessive.
There is no substance in that contention. We consider that leave to appeal must be refused. Our reasons follow.

The offending

The applicant moved into a unit complex in Mordialloc in October 2006. Among other things, he took an active role in maintaining the communal areas of the complex and he planted and maintained a communal garden. The applicant told police that he ‘put everything’ into the garden, which was his pride and joy.
Unhappily, the applicant’s relationships with other residents of the complex began to deteriorate around 2020. He complained about residents’ music, and was bothered by residents drinking alcohol in communal areas. The applicant took exception to other residents’ unwillingness to assist with gardening and taking out the bins. He also had repeated confrontations with other residents when they turned off a tap connected to a hose that the applicant would often leave running to water the garden.
On 13 January 2022, at around lunchtime, the applicant returned home from shopping. He turned on the tap connected to the hose to water the communal garden, and left the hose running while he returned to his unit, ate lunch and had a nap.
Sometime later that afternoon, the applicant went outside and discovered that the garden hose had been turned off. He yelled out in anger and frustration, ‘I’ll kill you, you bastards’. A short time later, the applicant had a heated exchange with a fellow resident, Robert Teear, which culminated in the applicant hitting Mr Teear with a garden chair.
Later in the evening of 13 January 2022, a number of residents, including Mr Gasio, Mr Laszlo and Mr Teear, were socialising in the communal outdoor area of the unit complex. At approximately 9.00 pm, the applicant left his unit to move the hose and found that it had again been turned off. When the applicant went to turn the tap back on, he and Mr Gasio started arguing.
None who witnessed the argument described Mr Gasio as being physically violent towards the applicant. Witnesses said that Mr Gasio accused the applicant of wasting water. In response, the applicant was abusive, in substance calling Mr Gasio a worthless individual and telling him to ‘go back to where [he] came from’. Mr Gasio told the applicant that he was not welcome at the social gathering and that he needed to leave. The applicant walked off without saying another word. He then returned to his unit, where he armed himself with a single barrel shotgun and several shotgun shells.
At approximately 9.08 pm, the applicant emerged from his unit with the shotgun and approached the group of residents sitting in the communal area. He was heard to say, ‘I’m going to kill all of you’, before taking aim and shooting Mr Gasio, who was seated on a garden bench. Forensic testing indicated that Mr Gasio was shot in the area of his left upper arm from a range of approximately 2.4 to 3.4 metres.
Mr Gasio and Mr Laszlo ran and took cover in Unit 1, a nearby ground floor unit. As this was happening, the applicant reloaded his shotgun and fired a single shot through the window of Unit 15, situated on the second storey of the unit complex.
The applicant then made his way to the rear entrance of Unit 1. By that time, Mr Gasio had collapsed on the floor in the kitchen. Mr Laszlo and Keegan Hunter, who lived in Unit 1, were providing such assistance as they could to Mr Gasio. Mr Hunter had called emergency services and was receiving first-aid instructions when the applicant appeared in the doorway holding the shotgun.
Whilst Mr Gasio was supine on the kitchen floor, the applicant shot him again, inflicting a fatal wound. Mr Laszlo and Mr Hunter, who could do little to protect themselves, attempted to take cover behind the refrigerator. The applicant took aim and shot Mr Laszlo, who immediately fell to the floor. Forensic testing indicates that Mr Laszlo was shot in the torso from a range of approximately 2.8 to 3.9 metres.
The applicant then exited Unit 1 and again loaded the shotgun. He fired another shot at Unit 15, this time hitting the front door. Despite fearing for his own life, Mr Hunter continued attempting to assist Mr Gasio and Mr Laszlo until emergency services arrived at the scene.
At approximately 9.15 pm, police arrived at the unit complex and located the applicant in his unit, still armed. From outside the unit, police demanded that the applicant put down his shotgun. He ignored the police demand and instead stepped outside and began raising the shotgun. Police again made demands for him to drop the weapon. Moments later, an unsuccessful attempt was made to shoot and disarm the applicant. He retreated back into his unit and began writing a note detailing the events of the day.
Mr Gasio and Mr Laszlo were pronounced dead at the scene at 9.34 pm.
A short time later, at approximately 9.41 pm, the applicant surrendered to members of the Victoria Police Critical Incident Response Team. At 10.05 pm, when asked by detectives if he knew why he had been placed in custody, the applicant said, ‘I killed them’. In a subsequent interview with police, the applicant made full admissions.

The plea hearing

In brief summary, on the plea before the sentencing judge the applicant’s counsel relied on the following by way of mitigation. First, the applicant had made full and frank admissions and had entered an early guilty plea. The utilitarian value of the plea was of greater significance in the context of the continuing COVID-19 pandemic. Secondly, the applicant had no prior criminal history, no drug or alcohol issues and had been employed for most of his life. Thirdly, the applicant had an abusive childhood. Dr Matthew Barth provided a psychological report in which he expressed the opinion that the applicant’s abusive upbringing had an impact on his psychosocial development and resulted in the development of Paranoid Personality Disorder. On that basis, limbs 1, 3 and 5 of Verdins3F[4] were enlivened. Fourthly, the applicant suffers from multiple medical conditions. He has been confined to a wheelchair since shortly after being taken into custody, increasing the hardship of imprisonment.
[4]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Counsel for the applicant submitted that, whilst the seriousness of the offending cannot be overstated, and it is conceded that general deterrence, denunciation and just punishment had significant roles to play, the applicant is of advanced years. Due to his age and infirmity, the applicant would find prison more burdensome.
So far as the fixing of a non-parole period was concerned, the applicant’s counsel submitted:
Pursuant to s11A(4)(b) of the Sentencing Act, in relation to standard sentences, Your Honour is required, given the sentence will be in excess of 20 years, to impose a non-parole period of at least 70 per cent of the head sentence unless it is in the interests of justice not to do so.
If Your Honour chose to fix a sentence shorter than 70 per cent, Your Honour is required to give reasons. Your Honour, I suggest that is in this case, age, ill health and the avoidance of a wholly crushing sentence, and in that respect, I say to give even a modicum of hope to Mr Lee that he might one day be released, might cause you in this case to fix a non-parole period of 70 per cent.
The prosecution tendered five victim impact statements. Based on Dr Barth’s opinion that the applicant was able to assess the wrongfulness of the seriousness of his actions, the prosecution submitted that Verdins considerations ought result only in a moderate amelioration of sentence.
In relation to remorse, the prosecutor said
we don’t disagree with the proposition that the aspects of his psychological condition do have an effect. Well, one of the effects of that condition is that the accused not only has difficulty in expressing remorse but has difficulty in reaching that point itself. He continues, it seems, in discussions with Mr Barth to emphasise the conduct of others on this occasion rather than his own, and that seems consistent with the entrenched quantities of his diagnosis.

Sentencing remarks

In the course of his sentencing remarks, the sentencing judge said that the offending was aggravated by the use of a weapon. Moreover, the victims were murdered at their place of residence, where they were entitled to feel safe. Although the offending was not planned over an extended period, the applicant did have ample opportunity to reflect on his actions and desist between the time of the argument in the garden and retrieving the gun and shooting the first victim; and again, before going to Unit 1 and shooting the second victim.
Despite the judge considering the applicant’s moral culpability to be ‘high’, the judge accepted that the applicant’s childhood deprivation reduced his moral culpability, noting that the impact of the applicant’s dysfunctional personality both reduced his moral culpability ‘to a modest extent’ and meant that imprisonment would weigh more heavily upon him. The judge remarked that the applicant’s lack of remorse was evident in his record of interview with police, accepting that the applicant’s difficulty in expressing remorse was a product of his psychological profile. He noted Dr Barth’s assessment that the applicant posed a ‘moderate’ risk of re-offending. And although the judge assessed the applicant’s prospects of rehabilitation as low, he said he regarded this factor to be of ‘less relevance’ on account of the applicant’s age and state of health (which he accepted would make imprisonment more burdensome).
The judge acknowledged that the fact that the applicant was likely to spend the remainder of his life in custody was a ‘weighty consideration’, but observed that this had to be balanced against the severity of the crimes. Further, the judge noted that the applicant fell to be sentenced as a serious violent offender with respect to the second charge.
As to the non-parole period, the judge said that although the applicant’s counsel had invited the court to order a non-parole period fixed at 70 per cent of the total effective sentence, ‘a non-parole period of 21 years would not adequately reflect the gravity of [the applicant’s] offending or the other factors that have been taken into account’.

Submissions in this Court

The applicant

In this Court, the applicant’s counsel submitted that the sentence, in particular the order for cumulation and the non-parole period — which is the equivalent of 80 per cent of the length of the head sentence — is manifestly excessive. Counsel submitted that the degree of cumulation ordered, and the non-parole period of 24 years, demonstrate that the sentencing judge failed to give adequate weight to matters in mitigation, in particular the applicant’s age and ill-health.
Counsel for the applicant drew the Court’s attention to the terms of s 11A(4) of the Sentencing Act 1991 and referred to a table of cases concerned with the fixing of non-parole periods. The applicant, counsel submitted, was of prior good character, made full admissions and entered an early plea. Both Bugmy4F[5] and Verdins considerations applied, and there was additional weight attached to the applicant’s plea and period on remand as a result of the impacts of the COVID-19 pandemic. Counsel also relied on the observations of Redlich JA in Iles5F[6] concerning the relevance to sentence of age and ill-health.
[5]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[6]R v Iles [2009] VSCA 197, [33]–[35].
The applicant’s counsel submitted that the applicant was aged 74 years when sentenced. Should he live to the expiry of the non-parole period, he will be 97 years of age. It may be inferred that, in fixing the non-parole period, the sentencing judge failed to give sufficient weight to the mitigating effect of the applicant’s age and ill-health and the ‘weighty consideration’6F[7] that the applicant is likely to spend the remainder of his life in custody. In all of the circumstances of this case, counsel submitted, a non-parole period of 24 years is wholly outside the permissible sentencing range.
[7]R v RLP (2009) 213 A Crim R 461, 475 [39] (‘RLP’).

The respondent

In written submissions, counsel for the respondent submitted that the applicant has failed to demonstrate that either the order for cumulation and resulting total effective sentence, or the non-parole period, were wholly outside the range of sound judicial discretion.
The respondent’s counsel submitted in writing that the inherent seriousness of the offence of murder, the objective seriousness of the circumstances in which these offences were committed, and the offender’s high moral culpability for the offences, plainly called for significant terms of imprisonment to be imposed on each charge. Since the second charge involved the taking of a second human life, substantial cumulation was required in order to reflect the separate criminality involved. Additionally, the applicant fell to be sentenced as a serious violent offender on the second charge,7F[8] so that the presumption of total cumulation applied.
[8]Sentencing Act 1991, s 6B.
No principle of law, counsel submitted, requires primacy to be given to the advanced age of an offender. On the contrary, the authorities make clear that it would be quite wrong to approach the sentencing task on the basis that the offender’s advanced age or ill-health must override the need to impose a sentence which is just and appropriate in all the circumstances of the case.8F[9] The sentencing judge correctly observed that the heavy burden of imposing a sentence that would see the applicant imprisoned for the remainder of his life did not relieve the court of its duty to impose a sentence that appropriately reflects the seriousness of the crimes committed and gives full weight to the sentencing purposes of just punishment, denunciation, community protection, and both general and specific deterrence. Counsel for the respondent submitted that there can be no doubt that the sentencing judge moderated the individual sentences, the order for cumulation, and the non-parole period to a significant degree, to give full weight to the applicant’s advanced age and poor physical health.
[9]R v Whyte (2004) 7 VR 397, 405–6 [29].

Discussion and analysis

As we have said, counsel submitted that the order for cumulation, and the non-parole period of 24 years, demonstrates that the sentencing judge failed to give adequate weight (in particular) to the applicant’s age and ill-health. We cannot agree.
After a review of authority, this Court in RLP made a number of observations, concerned with sentencing offenders who are aged and in ill-health, which bear on the resolution of the present application. Among other things, the Court said:9F[10]
[10]RLP, 475–6 [36]–[39]. (Citations as in original.)
[36] This Court has considered the principles which apply to the sentencing of an elderly offender who suffers from health problems on a number of occasions. In R v Van Boxtel10F[11] Callaway JA referred to the observations of King CJ in R v Smith11F[12] where his Honour said:
[11]R v Van Boxtel (2005) 11 VR 258.
[12]R v Smith (1987) 44 SASR 587 at 589; 27 A Crim R 315 at 317.
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.12F[13]
[13]R v Van Boxtel (2005) 11 VR 258 at [29].
[37] In R v Bazley13F[14] the Court (constituted by Crockett, Hampel and Smith JJ) warned:
[14]R v Bazley (1993) 65 A Crim R 154.
The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.14F[15]
[15]R v Bazley (1993) 65 A Crim R 154 at 158.
[38] The importance of just punishment, denunciation and general deterrence, continue to apply in the case of an elderly offender or one in ill health. As Chernov JA said in R v Cumberbatch15F[16] (in dealing with an appeal against a sentence imposed for murder):
[16]R v Cumberbatch (2004) 8 VR 9; 144 A Crim R 253.
It is also apparent, in my view, that the principles of just punishment and general deterrence are of considerable significance in the sentencing disposition in this case notwithstanding the age and health of the offender. In particular, I cannot accept that general deterrence can be materially moderated in a case such as this simply because the killer is aged 72 years and suffers from poor health.16F[17]
[17]R v Cumberbatch (2004) 8 VR 9 at 13; 144 A Crim R 253 at 259.
[39] We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
1. The age and health of an offender are relevant to the exercise of the sentencing discretion.17F[18]
2. Old age or ill health are not determinative of the quantum of sentence.
3. Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.18F[19]
4. It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.19F[20]
5. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released20F[21] and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6. Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.21F[22]
7. Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.22F[23]
[18]R v Bazley (1993) 65 A Crim R 154 at 158; R v Cumberbatch [2002] VSC 382; R v Smith (1987) 44 SASR 587; 27 A Crim R 315.
[19]R v Saw [2004] VSC 117 at [42]–[44]; R v Holyoak (1995) 82 A Crim R 502 at 507.
[20]R v Kien (2000) 116 A Crim R 339 at [16]–[17] (Cummins J); Austin v The Queen (1996) 87 A Crim R 570.
[21]R v Hunter (1984) 36 SASR 101; R v Yates [1985] VR 41; (1984) 13 A Crim R 319 and R v Crowley (1991) 55 A Crim R 201; R v Saw [2004] VSC 117.
[22]R vCumberbatch [2002] VSC 382.
[23]R v Bazley (1993) 65 A Crim R 154 at 158.

The authorities make clear that the advanced age and ill-health of an offender are relevant to the exercise of the sentencing discretion, but cannot be determinative of the length or severity of the sentence. Although the fact that an offender is likely to spend the whole or a very substantial portion of the remainder of his or her life in custody is a ‘weighty consideration’, sentencing considerations other than age and ill-health — including just punishment, proportionality and general and specific deterrence — may influence the sentence to the extent that an offender may well be required spend the whole of his or her remaining life in custody. Age and ill-health cannot justify the imposition of a disproportionately lenient sentence.
In his report dated 5 May 2023, Dr Barth set out the applicant’s reasons for the killings:
[The applicant] claimed that his offending was motivated by feeling threatened by Mr Gasio’s behaviour and more generally, that he was being victimised by the other residents in the apartment complex. He was unable to explain why he specifically killed Mr Laszlo. [The applicant] had difficulty expressing remorse for his offending conduct. He provided an account which emphasised the purported culpability of the other residents in aggravating his behaviour and minimised any problematic behaviour on his part. …
So far as the applicant’s background was concerned, Dr Barth observed that the applicant
described a very chaotic and abusive childhood. He reported that there was severe domestic violence in the family home. [The applicant] stated that his father consumed alcohol heavily and was a violent man. He said that his father often became enraged over trivial incidents and was emotionally and physically abusive on a frequent basis to his mother, himself and his older sisters.
With respect to the applicant’s personality and behavioural adjustment, Dr Barth expressed the view that the applicant
presents with noteworthy personality dysfunction which appears to have its origins in his chaotic childhood. The reported violence and abuse from his father contributed to significant issues with [the applicant’s] psychosocial development. Primarily, he has developed a debased view of the world which has caused him problems in developing healthy attachments. He is suspicious of the intentions of others and hypersensitive to any potential situations in which he may be victimised, humiliated or controlled. Thus, he is prone to take personal offence and to react angrily even in instances where there may be relatively minimal provocation. [The applicant’s] temperament has therefore been perpetually ‘on-edge’, irritable and sullen.
…
Not surprisingly, [the applicant] is poor at coping with instances of conflict. Due to his hypersensitivity to being victimised and controlled, any perceived slights against him are interpreted in grossly exaggerated terms and he is prone to bearing grudges against those whom he believes have wronged him. For the most part, [the applicant] has a propensity to respond in a verbally hostile and intimidating manner. When this does not achieve the desired effect for [the applicant], he is vulnerable to discharging his hostility with physically aggressive behaviour.
[The applicant’s] personality and behavioural issues have resulted in significant interpersonal problems. I am of the opinion that he is highly likely to be suffering from a ‘Paranoid Personality Disorder’ by DSM-5-TR criteria. A potential differential diagnosis would be ‘Delusional Disorder – Persecutory Type’ although … this appears less likely.
[The applicant’s] paranoid personality traits are the primary feature of his psychological profile. The entrenched nature of these traits means that, even now, he continues to have difficulty expressing remorse for his behaviour due to his fixed belief that he was being victimised, mistreated and threatened by the residents in his apartment complex.
Significantly, Dr Barth also observed:
[The applicant’s] paranoid personality traits are also likely to have had some impact on his ability to exercise appropriate judgment during the emotionally intense confrontation which directly preceded his offending. His persecutory thoughts are likely to have been intense, particularly during a heightened emotional state. To be clear, despite his dysfunctional personality traits and the grossly distorted manner in which he perceived the confrontation, there was no indication that this impaired his functioning to the degree that he was incapable of fully understanding the wrongfulness or consequences of his offending behaviour.
A detailed violence risk assessment utilising the HCR-20 V3 indicated that [the applicant] is likely to represent no less than a ‘Moderate-Risk’ of recidivism. The extent to which [the applicant’s] risk is most relevant is in regards to situations where he feels victimised, threatened or humiliated by others. The main criminogenic factors which impact [the applicant’s] risk are the violent experiences he suffered as a child, his distorted attitudes towards aggressive behaviour, his dysfunctional personality, his long-term issues with social alienation and his poor insight into his offending. Moreover, he continues to present as irritable and agitated, experiences ongoing persecutory ideation and has been unwilling to engage with professional services.
Returning briefly to the judge’s sentencing reasons — which are a model of clarity and balance — the sentencing judge referred to Bugmy,23F[24] and stated that Dr Barth’s report made clear the link between the applicant’s mental state and his chaotic and abusive childhood, which included exposure to his father’s violence and alcoholism from a young age. The judge observed that the applicant’s childhood deprivation, the lasting impacts it has had on him and the role that they played in his offending have the effect of reducing the applicant’s moral culpability ‘to some extent’. And he said:24F[25]
Also on the basis of Dr Barth’s assessment of your mental state, the prosecution accepted that the considerations set out in R v Verdins would have some application in the circumstances. I consider, consistent with Dr Barth’s findings, that your paranoid personality disorder and prominent persecutory ideation impaired your ability to exercise appropriate judgment and to make calm and rational choices, and so reduce your moral culpability to a modest extent. As your counsel submitted, it is also likely that these conditions will mean that a sentence will weigh more heavily on you, and I have taken this into account as a mitigating factor.
[24]Bugmy, 595 [44].
[25]Footnotes omitted.
In our opinion, each component of the sentence imposed by the judge — the individual sentences on each charge, the order for cumulation (and resulting total effective sentence) and non-parole period — demonstrates that the judge gave proper weight to all features in mitigation, including Bugmy and Verdins considerations (such as they were), and the applicant’s age and ill-health.
No complaint was — nor could have been — made concerning the individual sentences. On each charge, the judge imposed individual sentences of 22 years’ imprisonment, some three years less than the standard sentence reserved for a murder of this type. Mr Gasio, the victim on charge 1 of the indictment, was shot twice: once as he sat outside in the communal area, and a second time after he had taken refuge in Unit 1. The second shot was fired mercilessly, with an obvious intention to kill. Mr Laszlo, the victim on charge 2 of the indictment, was then pitilessly shot and killed, in circumstances where he had shortly before been endeavouring to minister to the hapless Mr Gasio. Sentences of 22 years’ imprisonment on each charge for the deliberate shotgun murder of unarmed and defenceless victims could hardly be said to be exceptionable. Indeed, it is evident — as counsel for the applicant acknowledged in oral argument — that mitigating features such as the applicant’s age and ill-health must properly have been taken into account, so as to have an ameliorating influence on the length of those individual sentences.
As we have indicated, counsel for the applicant nonetheless contended that the extent of the order for cumulation, and the length non-parole period, demonstrate that relevant features in mitigation must have been given insufficient weight by the sentencing judge when dealing with those aspects of the sentencing task. As we have also indicated, however, those contentions cannot be accepted.
The approach to a ground which contends that a sentence is manifestly excessive was discussed in Leimonitis:25F[26]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,26F[27] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.27F[28] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.28F[29] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.29F[30]
[26]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
[27]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[28]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[29]Ibid.
[30] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
Notwithstanding the earnest arguments advanced by the applicant’s counsel, we do not consider that the order made for cumulation between the sentences on each charge is open to any legitimate criticism. It was necessary that there be substantial cumulation of the sentence imposed on charge 2 so as to adequately reflect the overall criminality of the applicant’s conduct and so as to ensure that Mr Laszlo’s death was not reduced to the level of a meaningless statistic. The resulting total effective sentence of 30 years’ imprisonment certainly cannot sensibly be said to offend the principle of totality.
Finally, even if it be accepted that the applicant will probably die in custody, we do not accept that the non-parole period of 24 years’ imprisonment is manifestly excessive. If anything, all things considered the non-parole period for two murders as terrible as those committed by the applicant strikes us as lenient.
As to that, when assessing whether the non-parole period is manifestly excessive, it is important to recall the purpose of parole as explained by the High Court in Power: ‘to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’.30F[31] And as Winneke P explained in Mulvale:31F[32]
The fixing of a minimum period is no sinecure but requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.
[31]Power v The Queen (1974) 131 CLR 623, 629 (Barwick CJ, Menzies, Stephen and Mason JJ).
[32]Unreported, Court of Appeal, 20 February 1996.
To risk repetition, the applicant’s counsel submitted, by reference to ss 11(1) and 11A(4)(b) of the Sentencing Act 1991, that the sentencing judge should impose a non-parole period fixed at 70 per cent of the total effective sentence; that is, 21 years’ imprisonment. The judge rejected that submission, however, observing that ‘a non-parole period of 21 years would not adequately reflect the gravity of [the applicant’s] offending or the other factors that have been taken into account’.
In our opinion, the judge was correct to hold that, having regard to all the circumstances of his offence, justice required the applicant to serve at least 24 years of the head sentence before becoming eligible for conditional release on parole. Notwithstanding the applicant’s age and ill-health (and other mitigating features), just punishment and denunciation demanded no less. The contention that the non-parole period is manifestly excessive is wholly untenable.

Conclusion

The application for leave to appeal against sentence must be dismissed.
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[2024] VSCA 258

31 October 2024