R v Haydon - [2006] SASC 238

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAYDON
[2006] SASC 238
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
10 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
The appellant appeals against sentence to the Court of Criminal Appeal and applies for leave to appeal on certain grounds refused by a Judge at the hearing of the applications for leave to appeal - the appellant was convicted after a trial in the Supreme Court of seven separate offences of assisting an offender contrary to s 241 of the Criminal Law Consolidation Act 1935 (SA) and sentenced to 25 years' imprisonment with a non-parole period of 18 years - each offence arose out of a course of conduct by the appellant that assisted other men to escape apprehension or prosecution in relation to seven separate murders - whether the sentence is manifestly excessive - consideration of the circumstances of the case including the appellant's age, predisposition to be influenced by others on account of a personality disorder and the nature of the offences - no error made out - whether the trial Judge wrongly treated the appellant's failure to extricate himself from assisting the principal offenders as an aggravating circumstance - no error disclosed by the trial Judge's reasons - whether the trial Judge erred by failing to refer to the principle of totality - a judge in sentencing is not required to refer to the principle of totality rather the judge must apply the principle accurately - no error made out - it cannot be said that the sentence is manifestly excessive - application for leave to appeal in respect of whether the trial Judge failed to make a sufficient reduction in sentence on account of the two offences to which the appellant pleaded guilty - the reduction of ten per cent was sufficient having regard to the time at which the pleas came - application for leave to appeal in respect of whether the trial Judge failed to reduce the sentence on account of the appellant abandoning certain appeal rights - there is no sentencing principle that requires a reduction on account of abandoning rights to appeal - application for leave to appeal in respect of whether the trial Judge wrongly held against the applicant the fact that he had given evidence at trial which conflicted with his subsequent guilty pleas - even after pleading guilty to two offences the appellant maintained a position that was inconsistent with the kind of contrition that might invite a further reduction - it is not arguable that there is any error disclosed by the grounds for leave to appeal - appeal against sentence dismissed - leave to appeal refused.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 241, referred to.

R v HAYDON
[2006] SASC 238
Court of Criminal Appeal: Doyle CJ, Gray and White JJ

DOYLE CJ: Mr Haydon is serving a sentence of 25 years’ imprisonment (with a non-parole period of 18 years) imposed by a Judge of this Court.
The sentence is a single sentence imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentence was imposed in respect of seven separate offences of assisting an offender contrary to s 241 of the Criminal Law Consolidation Act 1935 (SA).
Each offence arose out of a course of conduct by Mr Haydon that assisted one or more of Mr Bunting, Mr Wagner and Mr Vlassakis to escape apprehension or prosecution in relation to seven separate crimes of murder. Mr Bunting was involved in all of those murders. The other two were involved in some of them.
Mr Haydon has applied for leave to appeal against the sentence. He relies on fourteen grounds of appeal. A Judge granted leave to appeal on grounds 5, 6, 13 and 14 and refused leave to appeal on the remaining grounds.
Mr Haydon requested that his application for leave to appeal on grounds 3, 11 and 12 be considered by the Full Court. The Court ordered that the application for leave to appeal be listed for argument in open court, that the application be heard with the appeal on the grounds on which leave to appeal has been granted, and that the hearing of the application be treated as the hearing of the appeal on the further grounds, if leave to appeal were granted.
Grounds 13 and 14 raise a complaint that the sentence is manifestly excessive. Grounds 5 and 6 raise a complaint that the Judge wrongly treated Mr Haydon’s failure to disclose the murders, or what he knew about them, and his failure to extricate himself from his involvement with the murderers, as an aggravating circumstance or as part of the offence. The point is made that a failure to do something is not part of the offence, nor can it be an aggravating feature of the offence.
Grounds 3, 11 and 12 complain that the Judge did not make a sufficient reduction in the sentence in respect of two of the offences, being the two offences to which Mr Haydon pleaded guilty.
Facts in outline
I will begin with a brief summary, and then deal in a little more detail with each offence.
Each of the offences arose out of Mr Haydon’s involvement in a series of murders committed by Mr Bunting, Mr Wagner and Mr Vlassakis.
Mr Bunting was convicted in earlier proceedings on 11 counts of murder committed between 1992 and late 1998. Mr Wagner was convicted of murder in the same proceedings on 10 counts (he pleaded guilty to three counts), the first murder in which he was involved having been committed in about December 1995. Mr Vlassakis pleaded guilty to four counts of murder, the first of them being the murder of Troy Youde.
Mr Haydon had known Mr Bunting since about 1989.
In late August or early September 1998 Mr Haydon became involved (I will use this term as a convenient shorthand expression for conduct amounting to the offence of assisting an offender) in the murder of Troy Youde. By then Mr Bunting had already murdered six other persons. Mr Wagner was a party to each but the first of those murders. At first Mr Haydon was not aware of those other murders.
Later in September Mr Haydon became involved in three of the earlier murders, by assisting Mr Bunting and Mr Wagner and Mr Vlassakis, over a period of some months, to conceal the bodies of the victims and so the fact of the murders, as well as the identity of the offender. The three victims were Mr Gardiner who was murdered in about late August or September 1997, Mr Lane who was murdered in about late October or early November 1997, and Mr Porter who was murdered in about April 1998.
In mid September 1998 Mr Haydon became involved in the murder of Mr Brooks, who was killed at about that time, by assisting in the concealment of his body.
In late November 1998 Mr Haydon became involved in the murder at that time of his wife Elizabeth Haydon.
In late January 1999 Mr Haydon became involved in the murder of Mr O’Dwyer by moving a barrel containing his body. Mr O’Dwyer was murdered by the other three men in October 1998.
Mr Haydon was arrested in May 1999, as were Mr Bunting and Mr Wagner. Mr Vlassakis was arrested later.
Over the period from September 1998 to May 1999 Mr Haydon assisted the other three men by helping them conceal the bodies of the victims and, as I have said, in that way concealing the fact of the murder as well as the identity of the offenders.
Mr Haydon was tried separately from the others on an Information charging six counts of assisting an offender and two counts of murder (Mr Youde and Elizabeth Haydon).
The jury found him guilty on five counts of assisting an offender. The jury was unable to agree on the other count of assisting, and on the two counts of murder.
After some discussions with the Director of Public Prosecutions, Mr Haydon then pleaded guilty to charges of assisting an offender in relation to the murders (by the other men) of Mr Youde and Elizabeth Haydon. The Director declined to proceed further on the remaining charge of assisting an offender.
It is evident that the convictions entered against Mr Haydon are entered on the basis that each offence involved a course of conduct over the period in question. The particular acts that constitute each offence have not been separately particularised, but the details of the course of conduct are clear enough.
The offences
I will now deal with each of the seven offences.
In August 1998 Mr Haydon was friendly with Mr Bunting. The Judge found that Mr Bunting was a skilled manipulator of people. Through the friendship Mr Bunting was able to exercise influence over Mr Haydon. Mr Wagner and Mr Vlassakis were also acquainted with Mr Bunting.
Mr Bunting hated paedophiles. Mr Wagner and Mr Vlassakis had been abused by paedophiles as young men.
From time to time, within the group of friends, there was talk about paedophiles. Mr Bunting encouraged a hatred of paedophiles. Mr Haydon was involved in some of these conversations.
The prosecution case was that a hatred of paedophiles was the motive for a number of the murders. Some of the murders were committed because the victim knew about an earlier murder, or knew things that might disclose a murder, and might have disclosed that information to the police.
Mr Haydon’s involvement in crime began on the night of Mr Youde’s murder, late in August or early September 1998.
Mr Bunting telephoned Mr Haydon. He told Mr Haydon that Mr Youde had sexually abused Mr Vlassakis, and that he wanted to scare Mr Youde into moving from a house he occupied at Murray Bridge. The four men went to Murray Bridge.
While Mr Haydon was at the house the others tortured Mr Youde over a period of some hours, and finally killed him. The killing of Mr Youde was particularly brutal. Mr Haydon knew that Mr Youde was being beaten severely. He pleaded guilty and was sentenced on the basis that he was not a party to this or to a plan to do this, and did not anticipate the infliction of death or serious harm. Mr Haydon was shocked by the violence when it began. He did not want to participate. The violence appears to have taken place in a bedroom and then in the bathroom. Mr Haydon spent most of the time in the lounge room. But once or twice, at the request of others, he went to the bathroom. He remained at the house.
In due course Mr Haydon saw Mr Youde dead on the floor of the bathroom. There could be no doubt about the circumstances of his death. At Mr Bunting’s request Mr Haydon and Mr Vlassakis went to a local shop and bought garbage bags and gloves. Mr Haydon helped the others put Mr Youde’s body in a shed at the property. He helped the others collect various items from the murder scene, put them in his car, drove Mr Wagner home, and stored the items that he had removed in a shed at his (Mr Haydon’s) home.
At his trial on the charge of murdering Mr Youde, Mr Haydon denied having been present. He denied anything that would have amounted to the offence of assisting an offender. He challenged vigorously the evidence of Mr Vlassakis, evidence that was substantially accepted for the purposes of the plea of guilty. By his later plea of guilty Mr Haydon admitted that his evidence at the trial was false.
I return to the facts. Some time after killing Mr Youde, Mr Bunting and Mr Vlassakis put Mr Youde’s body in a barrel, and kept it at Murray Bridge.
The next relevant event appears to be that on about 19 September 1998 Mr Bunting and Mr Wagner came to Mr Haydon’s house with three barrels which contained the bodies of Mr Gardiner, Mr Lane, Mr Porter and Mr Youde. The first three had been murdered some time earlier. They brought other items as well. Mr Haydon agreed to store all of these things in his shed. The Judge found that Mr Haydon suspected that the barrels contained bodies, and those suspicions were confirmed when the other men brought Mr Brooks’ body to Mr Haydon’s home (as to which see below).
Mr Brooks was murdered by the other three men on about 17 September 1998. The Judge sentenced Mr Haydon on the basis that at Mr Bunting’s request he agreed to keep Mr Brooks’ body in a pit at his home for some time. This must have been a week or so after the arrival of the barrels just referred to. Some time later Mr Brooks’ body was put in a barrel but continued to be kept at Mr Haydon’s property.
The Judge found that by this stage Mr Haydon knew that the other barrels contained bodies.
Mr Brooks was the son of Jodie Elliott, a sister of Elizabeth Haydon. Mr Haydon was present when Mr Bunting told Jodie Elliott a series of lies about Mr Brooks’ disappearance, no doubt intending to conceal the fact of his death. Mr Haydon stood by knowing that this was happening. However, that is simply part of the background, and is not conduct that is part of the offence.
The next murder was that of Mr O’Dwyer, at the very end of October 1998 or in early November. It appears that Mr Haydon did not become aware of this murder, or involved in it, until January 1999.
The Judge found that Elizabeth Haydon was murdered on Saturday 20 November 1998 at Mr Haydon’s house. Mr Haydon was absent from the house at the time. The Judge found that Mr Bunting told Mr Haydon by telephone of the killing, before Mr Haydon returned to the house.
Nevertheless, Mr Haydon returned to the house and more or less immediately began to tell lies to Jodie Elliott intended to conceal the murder from her. It was accepted that Mr Haydon had not known beforehand of a plan to kill his wife. I gather that Elizabeth Haydon’s body was also put into a barrel at Mr Haydon’s house, but the Judge did not make any specific finding on that point.
The effect of the Judge’s findings is that at his trial for the murder of Elizabeth Haydon, Mr Haydon told a series of lies, because he denied knowing that his wife had been murdered when he returned to the house on 21 November 1998.
On his plea of guilty Mr Haydon maintained that he did not know his wife had been killed, and was in one of the barrels, until January 1999. The Judge rejected that claim.
On the Judge’s findings Mr Haydon participated in telling a series of lies to the family and friends of Elizabeth Haydon relating to her whereabouts. This course of conduct began shortly after her death. The lies were all intended to conceal the fact of her death.
The police were told that Elizabeth Haydon was missing not long after 21 November 1998. The police came to Mr Haydon’s house on 26 November, and spoke to Mr Haydon. Mr Haydon lied to the police about her whereabouts.
A few days later Mr Haydon helped Mr Bunting and Mr Wagner load the barrels and other incriminating items into a four wheel drive vehicle that was then taken on a trailer by Mr Bunting and Mr Wagner to a property at Hoyleton, where the four wheel drive was stored. This was done because of a fear that the police would search the house. The owners of the property where the four wheel drive was stored had no idea what was in it.
In early January 1999 the owners of the Hoyleton property moved to Snowtown. Mr Bunting and Mr Wagner were helping the owners with the move. They enlisted Mr Haydon’s assistance. He helped them move bags containing incriminating items. Mr Haydon observed that the four wheel drive (with the barrels still in it) was moved to Snowtown.
About 27 January 1999, at the request of Mr Bunting, Mr Haydon joined with him in signing a lease for bank premises at Snowtown. They had been looking for a place to store the barrels.
Mr Haydon then helped move the barrels containing the bodies to the bank premises, storing them in the old bank vault. Mr Haydon helped move bags containing incriminating items as well.
That same day, at Mr Bunting’s request, Mr Haydon drove him to Murray Bridge. They collected a barrel from the house there and took it to the bank at Snowtown. Mr Haydon realised it contained a body. It was the body of Mr O’Dwyer, but Mr Haydon did not know who it was.
On several occasions thereafter Mr Haydon went back to the bank at Snowtown with Mr Bunting and Mr Wagner. On one occasion he helped Mr Bunting seal the vault with plastic to contain the smell from the barrels. Mr Bunting told Mr Haydon that there were seven bodies in the six barrels. On another occasion Mr Haydon helped transport acid to the bank.
Comments on the offences
The offence of assisting an offender is a serious one. The maximum punishment is imprisonment for ten years.
The seriousness of a particular offence of assisting will depend on the conduct of the offender and the seriousness of the offence in relation to which assistance is given (the secondary offence). When, as here, the secondary offence is murder, the offence of assisting offender has to be viewed most seriously.
In relation to the murder of Mr Youde, the first offence in time, Mr Haydon’s offence was very serious. Whatever might be said about his relationship with Mr Bunting (I will come to this later) he had the opportunity to leave the house at Murray Bridge once he knew what was happening. Once Mr Youde was dead Mr Haydon actively helped the others conceal a most brutal murder. The assistance continued. It was not a single act. It was not a spontaneous response to a situation. The assistance continued over a period of about eight months. It continued after the police began enquiring into Elizabeth Haydon’s whereabouts.
Either when Mr Bunting and Mr Wagner came to Mr Haydon’s house with four barrels containing bodies, or soon after, Mr Haydon knew that he was assisting men who had killed on other occasions. He must have known that they might do so again. He assisted them in relation to the concealment of these further murders, and that assistance continued over some time.
The seriousness of the assisting offences is increased by reason of the fact that Mr Haydon knew that he was assisting offenders who had committed a number of murders, and might commit more.
The fact that three more murders were committed after this time speaks for itself. However, I make it clear that the only relevance of these further murders is the way in which they illustrate the reality of the fact that Mr Haydon was assisting offenders who might kill again.
The same comment applies to Mr Haydon’s agreement to store and later move Mr Brooks’ body. Mr Haydon’s presence when Mr Bunting told lies to Jodie Elliott about Mr Brooks’ whereabouts does not add to the offending conduct, but illustrates the callousness of all concerned.
The offence arising from the murder of Elizabeth Haydon is particularly serious. Mr Haydon knew that she had been murdered in his own house, but more or less immediately began to tell lies about her movements to family members and then to the police.
Participating in the movement of barrels to Hoyleton and then to Snowtown and then to the bank demonstrates Mr Haydon’s willingness to continue the offending conduct over a substantial period of time. As I said earlier, the course of conduct that constitutes each offence cannot be mitigated on the basis that it was impulsive or committed under circumstances such that there was little or no opportunity for Mr Haydon to extricate himself.
In short, Mr Haydon assisted offenders who had committed the gravest of crimes. The assistance that he rendered was substantial. It was sustained. It was given, after the early stages, with knowledge that the men he was assisting were repeat murderers who might commit further murders.
Mr Haydon’s circumstances

Mr Haydon was born in 1958. He suffered physical and verbal abuse from his mother from a very early age. She had been diagnosed as a paranoid schizophrenic. He grew up shy and withdrawn. He was bullied at school. He was a socially isolated person who had difficulty forming friendships.
The Judge was assisted by a detailed report from Mr Reid, a neuro psychologist and forensic psychologist. The Judge substantially accepted the opinions in his report. The following comments by Mr Reid summarise the views that he expressed. He said:
In the context of my knowledge of Mr Haydon, he has never developed a close, trusting relationship or friendship with any other person. He lacks social skills, is unassertive and uses avoidance to minimize potential conflict with other people. Due to all of his past experiences he perceived himself as being powerless and it is probable that he has never learned skills to deal with the various stressors which are normally faced throughout life. He has tended to use denial as a defence mechanism about any perceived threat which is ultimately maladaptive and tends to further reinforce the lack of power the person possesses.
…
I believe that Mr Haydon has been quite disempowered due to his life’s experiences, starting from a very early age and instead of developing the normal range of emotions and associated behaviours, he has lived a life of fear, stress, depression and poor self esteem. He has never learned effective mechanisms of dealing with issues and his perception of potential outcomes if he did act appropriately, were coloured by these previous experiences.
It appears from all the information I have to hand, that Mr Haydon has been somewhat of a helpless victim all of his life, subjected to constant fear and feelings of inadequacy. In the context of the extra fear instilled in him by virtue of the knowledge of Mr Bunting’s offences, I believe it probable that Mr Haydon was further disempowered and used inappropriate and ineffective means of coping with this, such as using denial or simply trying to sleep. At the time of discovering Mr Bunting’s offences, it seems that Mr Haydon was undergoing extra stressors, was increasingly depressed and did gain some minor benefit from the use of antidepressant medication.
For all of these above reasons, I believe it is probable that Mr Haydon was not in a mental state to effectively act in an appropriate manner after he discovered Mr Bunting’s offences and attempted to protect himself by being at Mr Bunting’s beck and call. This however did not extend to the point of partaking in any violent activities.
The Judge accepted that when Mr Haydon was told his wife had been murdered he was “in fear” and felt unable to remove himself from Mr Bunting’s control: [25]. The Judge also accepted that after the murder of Elizabeth Haydon Mr Haydon became rather depressed, and was on medication that might have made some contribution to his passive attitude: [110]. However, as the Judge said, it could not be said that he failed to comprehend the enormity of the crimes in which he was involved.
The Judge also accepted that Mr Haydon’s personality disorder, identified by Mr Reid, “substantially contributed” to the manner in which Mr Haydon behaved: [118].
The sentence
The Judge referred to the Victim Impact Statements that were put before him. For the purposes of the appeal it suffices to note that, not surprisingly, the murders of various victims had a dreadful effect on family members. However, the Judge accepted that these effects flowed from the murders themselves, and not from the assistance that Mr Haydon gave after the event.
For the two offences to which Mr Haydon pleaded guilty (relating to the murder of Mr Youde and the murder of Elizabeth Bunting), the Judge reduced by 10 per cent the sentence that otherwise would have been imposed. The Judge said it was not a case in which Mr Haydon had admitted his involvement but denied that he was guilty of murder. It was only after the jury verdict on the murder trial that Mr Haydon admitted the conduct on the basis of which he pleaded guilty to the assisting offences.
The Judge had regard to Mr Haydon’s personal circumstances, as outlined by me. The Judge accepted that Mr Haydon’s fear of Mr Bunting was a factor: [25]. Nevertheless, on several occasions the Judge noted that Mr Haydon had opportunities to end his involvement in the murders, and to inform the Police about them: [26].
The Judge imposed a single sentence of imprisonment, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He sentenced Mr Haydon to imprisonment for 25 years. He set a non-parole period of 18 years.
Grounds 3, 11 and 12
These three grounds, on which Mr Haydon seeks leave to appeal, complain that the reduction of 10 per cent on account of the two guilty pleas is inadequate. Some related complaints are made, and I will deal with them first.
The Judge did not specify the sentence that he would have imposed on the relevant counts but for the guilty plea, nor did he specify the length of the sentence after reduction for the guilty plea. This means that there is no way of knowing the punishment imposed in respect of these two offences. But the relevant issue is the extent of the reduction. While it might have been helpful to know the number of months or years involved in the reduction, it is not an error to fail to specify this.
Nor was it necessary to make a separate reduction in the non-parole period. The non-parole period was fixed in relation to the reduced head sentence.
There is nothing at all in the submission that the Judge should have reduced the head sentence on account of the fact that when (after his trial) Mr Haydon pleaded guilty to two counts, he also abandoned his appeal against the convictions recorded at the trial. Neither the abandonment of the appeal (nor the pleas of guilty for that matter) appear to have been accompanied by an expression of remorse, or by indications of genuine contrition. We were not referred to any. In any event, I know of no case in which a sentence has been reduced because an appeal against conviction was abandoned. There is no sentencing principle that requires this to be done.
That is not to say that it might not be appropriate to do so in particular circumstances. But the fact that after his conviction Mr Haydon minimised his involvement in some counts on which he was convicted, in a manner rejected by the Judge, is another reason why there was no need to reduce the sentence by reference to the fact that he had abandoned his appeal.
As to the complaint about the amount of the reduction on the two counts on which Mr Haydon pleaded guilty, the complaint is unarguable. The plea of guilty was inconsistent with the case that Mr Haydon put, and the evidence he gave, at his trial for murder. This is not a case in which, late in the process, the Director accepted a version of events that Mr Haydon had maintained for some time. Moreover, even after the plea of guilty, Mr Haydon continued to minimise his involvement in the death of Elizabeth Haydon by putting forward a version of events that the Judge rejected for the purpose of sentencing.
Leave to appeal on these grounds should be refused. They are not reasonably arguable.
Grounds 5 and 6
These grounds complain that observations by the Judge indicate an erroneous approach.
Ground 5 refers to the fact that at one point the Judge referred to Mr Haydon having assisted the others to store bodies at the bank. The Judge said [at 71]:
“Your failure to report their offending and the assistance you gave to them is a serious breach of the law.”
It is true that the failure to inform the Police of what the others were doing was not an offence. But Mr Haydon’s involvement in the murders occurred in circumstances in which he had a number of opportunities to end his assistance and, moreover, to inform the Police of what was happening. There were occasions after the death of Elizabeth Haydon when the Police spoke to him, and he could easily have decided to end his involvement then. While the Judge’s observation is, strictly, incorrect as a matter of law, a consideration of his reasons as a whole indicates that he is doing no more than referring to the circumstances in which Mr Haydon’s offending occurred. Putting it a little differently, the Judge is saying no more than that the continuing course of assistance, in the context of opportunities to end things by informing the Police, was a serious breach of the law.
Ground 6 is a similar complaint. It complains that remarks made by the Judge indicate that he punished Mr Haydon for a failure to extricate himself from the situation, or for a failure to reveal what was happening.
I have considered each of the passages of which complaint is made.
A number of them do no more than note that the assistance was given in circumstances in which there were opportunities to extricate himself or to inform the Police: [26], [37], [109], [118]. That is a relevant factor. The seriousness of the offences might be somewhat less if Mr Haydon had not had such opportunities. The fact that Mr Haydon continued to assist the offenders after and despite opportunities to “get out”, is an aggravating factor.
Some of the remarks, for example, the comment that Mr Haydon stood by while Mr Bunting lied to Jodie Elliott about her son’s disappearance, merely identify conduct by the offenders that illustrates their heartless approach: [68], [121].
Other comments merely record as a fact Mr Haydon’s failure to react to the atrocious conduct of the others: [119].
The overall answer to this complaint is that there is no indication that the Judge misunderstood the conduct for which he was sentencing Mr Haydon.
Ground 13 and Ground 14
Ground 13 complains that the Judge failed to take into account the principle of totality. The Judge made no reference to it. Ground 14 complains that the sentence is manifestly excessive. It is appropriate to consider these grounds together.
This is a case in which considerations of totality were appropriate, having regard to the length of the sentence. The fact that Mr Haydon will be 72 years of age when his head sentence expires is also material.
However, it is not an error to fail to refer in sentencing remarks to a relevant principle. So the fact that the Judge made no reference to the issue of totality is not of itself an error, nor does it necessarily lead to the conclusion that the Judge failed to consider the matter of totality.
Although I agree that the issue of totality fell for consideration, the totality principle is not something that operates in isolation from other relevant principles and considerations. The seriousness of the crimes, and the interests of the community in appropriate punishment, also required consideration.
While consideration of totality comes at the end of the process of deciding upon an appropriate sentence, it remains something to be considered along with other relevant considerations.
I consider that the sentence of 25 years imprisonment is an appropriate sentence in all the circumstances. It does not appear to me, of itself, to be manifestly excessive.
As I have already indicated, the offences in relation to which the assistance was given are most serious, being offences of murder. They were cruel and ghastly murders. So Mr Haydon gave assistance in relation to seven crimes of the most grave kind. The assistance was more significant in some instances than in others. But in each case it was, at the least, assistance in concealing a body and the fact of a murder. The assistance was given over a prolonged period, and was given despite opportunities to desist.
There is no point in trying to compare this case with others. Each of the seven offences called for substantial punishment, while recognising that on some occasions what might be called one act (for example, helping to transport a number of barrels) amounted to assistance in relation to a number of separate crimes and so was part of a course of conduct constituting separate offences of assisting an offender.
Mr Haydon’s personality and his relationship with Mr Bunting were relevant considerations. But Mr Haydon was a man of average intelligence. There is no basis for suggesting that he could not extricate himself. The seriousness of the secondary offences could not have escaped him. He was afraid of Mr Bunting, but there is no evidence of Mr Bunting threatening him, and he had plenty of opportunities to go to the police. He must have known that. His role was a passive or subordinate one, but it was one that he accepted.
I can find no basis for criticising the length of the sentence for seven such offences. I have allowed for the fact that in some instances a single act or event amounted to assistance in relation to more than one offence, and thus to some extent the sentence for a particular offence should be concurrent with the sentence for another offence.
That does not mean that considerations of totality have no part to play. As I have already said, considerations of totality required consideration in this case as part of the process.
This is not a case in which it can be said that the aggregation of individual notional sentence has led to a result which, when one stands back, seems disproportionate to the gravity of the offending involved. It cannot be said that the process of aggregation has led to an inappropriate result. The gravity of the offending called for a sentence of this order. I am not persuaded that 25 years for this offending is manifestly excessive, heavy as it is.
The fact that Mr Haydon might remain in custody until he is 72 years of age also calls for consideration. But that consequence is attributable to the age that he now is and to the sentence that is appropriate. The prospect of him remaining in custody until that age is something which, were the offending less serious, might cause one to say that the sentence should be reduced as an act of mercy. But in the present case the gravity of the offences and the public interest in appropriate punishment stand in the way of that conclusion.
Accordingly, the sentence was not manifestly excessive, and considerations of totality did not call for a reduction in the sentence.
Conclusion
I would refuse leave to appeal on grounds 3, 11 and 12. Subject to that I would dismiss the appeal against sentence.
GRAY J: I would refuse leave to appeal on grounds 3, 11 and 12. Otherwise I would dismiss the appeal against sentence. I agree with the reasons of Doyle CJ.
WHITE J: I would refuse leave to appeal on grounds 3, 11 and 12. I would dismiss the appeal against sentence. I agree generally with the reasons of the Chief Justice. There is nothing which I wish to add.