R v Humbles - [2014] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMBLES
[2014] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)
13 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CONTRITION
Appeal against convictions and sentence. The defendant was convicted following a trial before judge alone of one count of murder and two counts of attempted murder. On 31 December 2012, the defendant, following an altercation with a friend, left a party carrying a pistol. The defendant encountered three young men. He fired the pistol at the three men, hitting one and causing his death. The only issue at trial was whether at the time of the offending, the defendant was so affected by the ingestion of alcohol and drugs that the prosecution could not prove beyond reasonable doubt the requisite specific intention. Expert evidence indicated that at the time of the offending, the defendant’s blood alcohol reading would have been in the range of 0.252 to 0.284 grams of alcohol in 100 millilitres of blood. The Judge found that the circumstances led him inexorably to the conclusion that the defendant had the intention to kill all three men. The defendant was sentenced in respect of the three offences to one sentence of life imprisonment. A non-parole period of 23 years was fixed.
Whether the Judge misdirected himself as to the issue to which the evidence of intoxication related. Whether the Judge, when considering the medical evidence, only addressed the question of the defendant’s capacity to form the specific intent and not whether the level of intoxication left open the rational hypothesis that the defendant had not formed the specific intent to kill. Whether the Judge erred in failing to address the issue of manslaughter as against murder. Whether the non-parole period of 23 years was manifestly excessive.
Held per Gray and Stanley JJ (Peek J agreeing) (dismissing the appeal against convictions):
1. It is apparent from the Judge’s reasons that he was well aware of the relevant distinction between basic intent and specific intent, that the issue in the case concerned specific intent and that the prosecution carried the onus to prove specific intent beyond reasonable doubt.
2. The Judge’s recounting of the effect of the medical evidence was entirely accurate.
3. The Judge reached the conclusion that the defendant was capable of forming an intention beyond the basic intent and, as earlier discussed, he expressly found that the prosecution had proved specific intent.
4. The findings made by the Judge and his conclusions concerning specific intent necessarily meant that a verdict of manslaughter in regard to the charge of murder was not a viable alternative.
Held per Gray and Stanley JJ (Peek J agreeing) (allowing the appeal against sentence):
1. While the Judge did have regard to the provisions of section 3 of the Young Offenders Act 1993 (SA), the sentence imposed gave insufficient weight to the objects, purpose and requirements of the legislation.
2. The non-parole period fixed failed to give proper weight to the defendant’s youth and personal circumstances at the time of the offending, his prospects for rehabilitation, the absence of any relevant prior convictions, the degree of remorse and contrition he has expressed, the impulsive nature of the offending, the lack of premeditation, the lack of motive and the fact that the offending arose out of a single, spontaneous course of conduct, together with his cooperation in the administration of justice by his admission to the objective elements of the offending
3. In all the circumstances, the non-parole period of 23 years is beyond the range of sentences that were reasonably open to the Judge.
4. Non-parole period of 17 years fixed after making a reduction of 14 months on account of time spent in custody.
Criminal Law Consolidation Act 1935 (SA) s 268; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Young Offenders Act 1993 (SA) 18A, referred to.
Viro v The Queen (1978) 141 CLR 88; Gillard v The Queen (2003) 219 CLR 1; Markarian v The Queen (2005) 228 CLR 357; Hasan v R (2010) 31 VR 28; R v Bradley (1980) 2 Cr App R (S) 12; Attorney-General v Davis (unreported, Court of Criminal Appeal, 9 May 1980); R v Sewell & Walsh (1981) 29 SASR 12; R v Coleman (1990) 47 A Crim R 306; R v Redenbach (1991) 52 A Crim R 95; R v Fletcher-Jones (1994) 75 A Crim R 381; R v Rosenberger; Ex Parte Attorney-General (Qld) (1994) 16 A Crim R 1; R v Angus (unreported, Court of Appeal, 1 February 1996); R v Walker (unreported, Court of Appeal, 31 May 1996); R v Phillips [2000] VSCA 225; Director of Public Prosecutions v G [2002] VSCA 6; Stanford v R [2007] NSWCCA 73; R v De Jesus (1986) 20 A Crim R 402; R v Lane (1990) 53 SASR 480; R v Gordon (1994) 71 A Crim R 459; R v Laffey [1998] 1 VR 155; R v Groom [1999] 2 VR 159; R v A, D (2011) 109 SASR 197; R v QTV (2003) 87 SASR 378; Baker v The Queen (2004) 223 CLR 513, considered.

R v HUMBLES
[2014] SASCFC 91
Court Criminal Appeal: Gray, Peek and Stanley JJ
GRAY and STANLEY JJ.

This is an appeal against convictions and sentence.
On 22 November 2013, following a trial before a Judge alone, the defendant and appellant, Liam Patrick Humbles, was convicted of the murder of Lewis McPherson, the attempted murder of James Peter Lamont and the attempted murder of Liam John Trewartha. On 5 March 2014, the defendant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in respect of the three offences to one sentence of life imprisonment. A non-parole period of 23 years was fixed.
Appeal Against Convictions
The Prosecution Case
On 31 December 2012, at about 7.30pm, the defendant walked from a house at 26 Railway Terrace, Warradale. The defendant had a bare torso. He carried a small silver and black pistol in his right hand. The defendant turned left on to Sixth Avenue. As he walked along Sixth Avenue toward Dunrobin Road, he met three young men walking toward him; Lewis McPherson, James Peter Lamont and Liam John Trewartha.
As the three men approached, they walked fairly close together and greeted the defendant, saying, in effect, “What’s up?” The defendant said, “Fucking cunts”. The defendant moved from the footpath toward the centre of Sixth Avenue, cocked the pistol with his left hand, extended his right arm with the pistol in his right hand, and pointed it at Mr Lamont. The defendant was moving toward Mr Lamont as he cocked the pistol. When about two metres from Mr Lamont, the defendant fired at him. The shot missed.
Mr Lamont recalled that almost immediately, the defendant turned the pistol toward Mr McPherson and fired two shots in quick succession. Mr Lamont saw a blood stain on Mr McPherson’s shirt. Mr McPherson then stumbled back and collapsed.
Mr Trewartha recalled that the defendant first fired at Mr Lamont, then at Mr Trewartha, and then fired two further shots in Mr McPherson’s direction. Mr Trewartha recalled that he heard Mr McPherson yell out, saw that he had been hit in the area of his chest, and observed Mr McPherson fall to the ground.
After Mr McPherson fell, the defendant left the scene, running along Sixth Avenue toward Dunrobin Road. He was carrying the pistol. About two minutes later, Mr Lamont observed the defendant walking on Railway Terrace toward Sixth Avenue, looking very aggravated. He still carried the pistol in his right hand.
Allison June McGillick resided at 27 Railway Terrace, next door to 26 Railway Terrace. During the afternoon of 31 December 2012, she was aware of a party taking place next door. During the afternoon, she heard yelling and thought the scene was becoming threatening. She rang the police. Soon after telephoning the police, she heard a group of people move into Sixth Avenue and heard three bangs. She thought they were fireworks. She went and looked out and saw 10 or 12 young people on the street and a boy lying in the gutter at or about her driveway. As she approached and while still talking to the police on her cordless telephone, she saw the defendant walk straight to the boy on the ground. The defendant bent over and pushed a gun that he held in his hand into the boy’s stomach. Ms McGillick’s daughter was with her at the time. The defendant then stood up and pointed the pistol in the direction of Ms McGillick and her daughter, waving it backwards and forwards and then turned and ran along Sixth Avenue toward Dunrobin Road.
Ms McGillick gave evidence that, as the defendant pushed the pistol into the young man’s stomach, he said, “If you don’t stop being dead I’m going to make you really dead.” At the time, Ms McGillick’s cordless telephone remained connected but these words were not recorded at the police operations office. Ms McGillick explained that the words were not spoken loudly and may not have been picked up because of other noise. In Ms McGillick’s initial police statement, she made no mention of these words being spoken by the defendant. In her evidence at the trial, she explained that she required her initial statement to be corrected to include the fact that she heard these words uttered. Ultimately, the Judge did not rely on this evidence on the basis that he was not satisfied that the statement had been made.
Ms McGillick’s daughter gave evidence of attending to the boy on the roadway with her mother and of observing the defendant walk from Dunrobin Road, kneel down next to the boy, and put a pistol to his stomach. She did not hear anything being said by the defendant.
Pamela Collier, a resident of Warradale, was walking on Sixth Avenue toward Railway Terrace when she observed the defendant walking in the opposite direction. She noticed that the defendant had something shiny and silver in his pocket. She then saw a group of people around a person lying on the ground.
Bradley Terrence Walczak was a passenger in a motor vehicle being driven by his wife, Sherie Anne Walczak, along Dunrobin Road. His step-daughter, Christie-Anne Collins, was a back seat passenger. All three gave evidence that they saw the defendant point a small silver pistol at the vehicle and shoot at them. At the time, the defendant was unsteady on his feet and after the shot was fired he staggered across the road and fell. They said that the defendant’s hand was outstretched when he fired the pistol. Christie-Anne Collins recognised the defendant as a person she knew from school.
Nathan Ross, a probationary police constable, arrived at the scene at 7.42 pm. He attended to Mr McPherson before ambulance officers took over. At that point, his attention was drawn to Railway Terrace and somebody yelled out “The person that shot Lewis is down there”. Constable Ross walked to the intersection of Sixth Avenue and Railway Terrace and noticed two people standing at number 24 Railway Terrace, about 75 metres from his position. One of the two men was a young male with a bare torso. It was common ground that this was the defendant. Constable Ross shouted several time, “Stop, police, don’t move. Stay where you are.” The defendant then turned and ran west on Railway Terrace, with Constable Ross in pursuit. The defendant turned right and headed north on Seventh Avenue. As Constable Ross rounded the corner, he lost sight of the defendant. He then heard kicking and banging of a corrugated iron fence. At that time other police arrived. Constable Ross noticed the defendant poke his head up from a pergola in the area of the corrugated iron fence and another police officer yelled, “He’s on the roof”. Other police soon apprehended the defendant. The pistol was found on shade cloth covering the pergola.
Earlier that day, as noted above, there had been a party at 26 Railway Terrace, the home of John Tilley-Griffin. Louise Ann Woollard, aged 16 years at the time of the trial, was at the party. She went to 26 Railway Terrace that afternoon. She saw the defendant asleep on the floor in the house. She described him as having drunkenly passed out. Ms Woollard got the defendant up and sat him on the bed, lit him a cigarette and sat with him for several minutes. He smoked the cigarette. She asked if he was okay and he gave her the thumbs up. When she left the room, she went outside where Mr Tilley-Griffin was in an angry and aggressive mood as a consequence of an altercation concerning the sale of drugs. He said he wanted to go and get the defendant’s gun. Ms Woollard followed Mr Tilley-Griffin into the room occupied by the defendant. Mr Tilley-Griffin demanded that the defendant give him the pistol and a fight ensued between the two. The fight was broken up by others. After the fight, Ms Woollard described the defendant as crying and appearing distraught about the fact that he had had a fight with a really good friend. Ms Woollard later saw the defendant in the lounge room with a pistol in his hand. She had a conversation with him in which she said, “Put [the gun] down, you don’t need it. You’re a dickhead.” The defendant responded by turning around and telling Ms Woollard and others not to leave the house. Following this conversation, the defendant left the house and, soon after, Ms Woollard heard gunshots.
Melissa Emily Jupp, aged 15 years at the time of the trial, was also at the party. She observed the fight between the defendant and Mr Tilley-Griffin. She described Mr Tilley-Griffin’s efforts to wrest the pistol from the defendant and the defendant fighting him off. The defendant soon after left the house carrying the pistol she described as small and silver and as a pistol shown to her by the defendant some five months earlier. Shortly after the defendant left the house, she heard gunshots.
Other witnesses from the party gave evidence of seeing the defendant and Mr Tilley-Griffin arguing, and of the defendant coming out of a room in the house with a pistol.
Analysis of a blood sample that was taken from the defendant at about 2.00 am disclosed a blood alcohol content of 0.154 grams of alcohol in 100 millilitres of blood and 0.01 milligrams of 3,4-methylenedioxymethylamphetamine per litre of blood. Jason White, a professor in the discipline of pharmacology, gave evidence that at about 7.30 pm, the defendant’s blood alcohol reading would have been in the range of 0.252 to 0.284 grams of alcohol in 100 millilitres of blood. Professor White described the general effects that a person would experience with this level of alcohol in his blood. He considered that such a person would be grossly intoxicated and that an observer would note signs of intoxication which typically would include slurred speech, staggering when walking and glazed eyes. The person may be sedated, but that may vary from person to person.
Professor White noted that sometimes people will stay awake in a stimulated environment. In Professor White’s view, their level of mental functioning would be affected. They would be able to understand basic matters, but could not engage in complex conversations. Disinhibition may be evident, including impulsiveness and recklessness. Disinhibition may lead to aggressive behaviour and mental confusion may lead to misunderstandings. Memory is likely to be impaired, possibly to the point of no later recall. Professor White noted that people have different tolerance levels to the ingestion of alcohol. He considered that the ingestion of cannabis may slightly increase the effects of alcohol. He expected that there would have been no significant effects from the defendant’s use of the methylenedioxymethylamphetamine.
Professor White observed video footage taken of the defendant at the time of his arrest at about 8.00 pm through to about 2.00 am the following morning. He noted that at the time of his arrest, the defendant was able to stand and able to stay awake. Furthermore, at the time of the interview at about 11.30 pm, the defendant was able to respond to questions and the effects of alcohol were not very pronounced to Professor White’s observation. In Professor White’s view, having regard to the estimated level of alcohol in his blood, the defendant did show a tolerance to alcohol and he agreed that the higher the tolerance, the less the intoxicating effect for a given concentration. The Judge, in his reasons, summarised aspects of Professor White’s evidence as follows:
In cross-examination, Professor White said that, at the level that the [defendant] was intoxicated to at 8.00pm on the evening in question, the [defendant’s] ability to think through the consequences of his actions would be grossly impaired. He gave the following evidence on that topic:
Q. What about his ability to formulate in his mind an outcome from an action that he has embarked upon.
A. He would think about the immediate outcome of what he was doing but as to what might then subsequently happen as a result of that, he would have great difficulty or be unable to think through. So, what immediately occurred as a result of what he did it’s likely that he understood that and if he was asked he could explain that but what then might consequently ensue, that might be difficult for him.
[Footnote omitted.]
The Defence Case
The defendant elected not to give evidence. The Judge correctly directed himself that in doing so the defendant exercised the right given to him by law and that he could suffer no prejudice as a consequence. The defence called one witness, Craig William John Raeside, a forensic psychiatrist who had reviewed depositions, studied the video footage of the defendant and read the transcript of evidence of Professor White. The depositions reviewed by Dr Raeside were not identified. Dr Raeside addressed the effects of the ingestion of alcohol on the brain, in particular, at the levels calculated by Professor White. Dr Raeside noted that people with this level of alcohol in their blood could exhibit a variety of behaviour; a person may be very sedated, drowsy or nodding off, and may be involved in bursts of anger or aggression. At a blood alcohol level of 0.28 grams per 100 millilitres of blood, a person could be expected to be severely affected by alcohol, exhibiting a lack of coordination, trouble standing, poor balance and obnoxious behaviour. He explained that the ingestion of alcohol slows down mental functioning; brain function and thinking processes are depressed. In Dr Raeside’s view, alcohol narrows the gap between a stimulus and a response to that stimulus, and a person may tend to react without giving thought to the consequences. The Judge summarised the effect of Dr Raeside’s evidence as follows:
As I understand Dr Raeside’s evidence, the ingestion of alcohol at a higher level can affect the thought processes so that although the basic intention is present, there may be an inability to formulate an understanding of the consequences of the act. In other words, at those higher levels the consequences of a person’s actions may not have been intended.
The Trial Judge

In the course of his reasons, the Judge noted the elements of the charged offences that needed to be established beyond reasonable doubt. There was no complaint on the appeal about this aspect of the Judge’s reasons. The Judge then discussed the mental element and the need for the prosecution to establish both basic intent and specific intent. The Judge noted, in particular, that both counsel were agreed that the issue at trial was whether the defendant was so affected by the ingestion of alcohol and drugs that the prosecution could not prove beyond reasonable doubt the requisite specific intention. The Judge then turned to section 268 of the Criminal Law Consolidation Act 1935 (SA), which relevantly provides:
268—Mental element of offence to be presumed in certain cases
(1)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a)     formed an intention to commit the offence before becoming intoxicated; and
(b)     consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)     However, subsection (2) does not extend to—
(a)     a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or
(b)     except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
...
The Judge then observed:
I direct myself that the effect of s 268 of the CLCA is to preclude self‑induced intoxication from being a defence to a crime of basic intent, but nevertheless it is a factor which is to be considered when considering whether a specific intent has been proved in such a crime when a specific intent is an element of the charge.
Accordingly, I direct myself that the question of self-induced intoxication is relevant to whether the specific intention required to make out the charge of murder has been proved.
I direct myself that the alternative charge of manslaughter is a crime of basic intent and may be available if the specific intent to make out murder cannot be proved.
I direct myself that the question of self-induced intoxication is relevant to whether the specific intention required to make out the charge of attempted murder has been proved. In relation to the alternative verdicts of aggravated endangering life, intoxication is also relevant to the specific, but less serious, intention necessary to make out that offence.
No complaint was made on the appeal about these directions.
The Judge summarised the submissions of counsel and recorded the substance of those submissions in his reasons. No complaint was made about the adequacy of these summaries.
The Judge then turned to the topic of his findings and, before doing so, made the following preliminary observations:
I have studied the evidence very carefully and have considered intently the careful and helpful arguments of counsel in this serious and tragic matter. In particular, I have studied carefully the contents of the footage shown in Exhibit P10.
I have clinically and objectively assessed all of the evidence.
I have put aside understandably subjective feelings such as the loss of an innocent young man’s life. I have set aside my feelings of indignation and horror that a young man, affected by drugs and alcohol, had access to a loaded weapon which he has openly taken onto a public street and discharged four or five times. There was every chance that as many as four people could have been killed on that evening.
I cast those thoughts aside and confine my deliberations to the specific issue I have to decide; has it been proved beyond reasonable doubt that when the [defendant] shot and killed Lewis McPherson, did he intend to kill him or at least cause him grievous bodily harm?
When he shot at James Peter Lamont and Liam John Trewartha, has it been proved beyond reasonable doubt that he intended to kill them?
Against this background, the Judge proceeded to make the following findings:
I find it proved beyond reasonable doubt that the [defendant] had the intention to kill all three people. The following proven circumstances lead me inexorably to that conclusion, namely:
1I find it proved from the evidence that the [defendant] was grossly affected mainly by liquor, but also drugs.
2Although affected to that extent he was involved in a fight at the party with John Tilley‑Griffin, who was trying to get the [defendant] to get his gun. However, the [defendant] was capable of resisting until the fight was broken up.
3The [defendant] left the party with a gun in his hand. I accept the evidence of Ms Woollard that she told the [defendant] to put the gun down as he was leaving the house but he turned around and told people there not to leave the house.
4I find it proved that the [defendant] walked onto Sixth Avenue from Railway Terrace and verbally abused the three victims, calling them “fucking cunts”.
5I find it proved that the [defendant] then cocked the weapon. I heard evidence from Brevet Sergeant Tobiasen as to how the gun would be cocked and I find it proved that he cocked it in that manner.
6I find it proved that the [defendant] then pointed the gun in the direction of the three victims.
7I find it proved that the [defendant] fired at the victim James Peter Lamont from a distance of about two metres.
8I find it proved that the [defendant] fired at the deceased from a distance of about seven feet.
9I find it proved that the [defendant] fired at the victim Liam John Trewartha from a distance of about eight metres, because Liam John Trewartha had moved away from the other two victims due to the threat of the [defendant] coming towards them.
10I find that the [defendant’s] anger and agitation were such that he went down to Dunrobin Road and, with his arm outstretched, fired at an oncoming vehicle.
11I find that the [defendant] returned in anger and pressed the gun into the deceased’s chest while he was still alive. I give the [defendant] the benefit of the doubt as to whether he said the words attributed to him by Mrs McGillick. If he did say those words they could not assist the [defendant’s] defence despite their bizarre nature.
12I find that he had the presence of mind to flee from Probationary Constable Ross into Seventh Avenue and attempt to hide the weapon on top of the pergola at 11 Seventh Avenue.
13I have looked at Exhibit P10 [the video evidence] carefully. Although when first spoken to by the police the [defendant] was in a clearly drunken condition and spent most of the journey from the scene to the police station asleep, nevertheless he gave coherent answers. He told the police his age, his name, his date of birth and his home address. As the evening went on, he clearly improved but this was of course due to the effects of alcohol wearing off.
All of these factors that I have found proved lead me to the conclusion that it has been proved beyond reasonable doubt that the [defendant] had the intention to kill on all three counts.
I add that even though the distance at the time of firing at Liam John Trewartha was in the vicinity of eight metres and greater than the distances when firing at the other two victims, nevertheless this occurred in the context of having fired at two other victims at almost point blank range. This indicates to me proof beyond reasonable doubt of a clear intention to kill Liam John Trewartha when firing at him.
The Judge then referred again to the opinions of the expert witnesses as follows:
I am cognisant of the opinions of the expert witnesses who gave evidence for both the prosecution and the [defendant].
I accept their evidence that there can be circumstances where the ingestion of alcohol and drugs can impair a person’s state and presence of mind to the extent that they may be incapable of forming an intention beyond that of basic intent. However, for the reasons I have given, I find it proved beyond reasonable doubt that such circumstances did not exist in this case.
The Judge then concluded:
Although his condition was one of gross intoxication and his behaviour was in many ways bizarre, nevertheless I find it proved beyond reasonable doubt that the [defendant] had the intention on Counts 1, 2 and 4 to kill.
The Appeal
Counsel for the defendant accepted that the single issue at trial and on appeal was whether the prosecution had proved beyond reasonable doubt that the defendant had formed the intent to kill or cause grievous bodily harm in regard to the charge of murder and the intent to kill in regard to each of the charges of attempted murder. There was no issue that the prosecution had established a basic intention on the part of the defendant in relation to the firing of the pistol. Counsel for the defendant said the issue in the case was whether the prosecution had excluded the rational hypothesis that the defendant by reason of his drunkenness caused the death without having the intention to bring about that consequence. In the case of the charges of attempted murder, it was said that the issue was whether the defendant had the requisite specific intent in respect of each charge.
Attention was drawn to the High Court decision in Viro and, in particular, to the following observations of Gibbs J:[1]
It would be contrary to fundamental principle to hold that evidence of intoxication not amounting to incapacity is irrelevant to criminal responsibility where the commission of the crime requires a special intent. In the case of such a crime the issue is not whether the accused was incapable of forming the requisite intent, but whether he had in fact formed it. The Crown must prove beyond reasonable doubt that the accused actually formed the special intent necessary to constitute the crime. If no more were proved than that the accused was capable of forming such intent, the case for the prosecution would not have been established.…
…
In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. …
[1] Viro v The Queen (1978) 141 CLR 88, 111-12.
The defendant contended that the Judge misdirected himself as to the issue to which the evidence of intoxication related. It was suggested that the Judge, when considering the medical evidence, only addressed the question of the defendant’s capacity to form the specific intent and not whether the level of intoxication left open the rational hypothesis that the defendant had not formed the specific intent to kill. In short, it was complained that the Judge failed to comply with the requirements of the law, as above extracted from Viro.[2]
[2] Viro v The Queen (1978) 141 CLR 88.
It is clear from the reasons of the Judge that he was fully aware of the need for the prosecution to prove both general and specific intent. In particular, as noted earlier, the Judge observed:
In fact both counsel from the very outset of the trial made it clear that, in relation to the charge of murder, there was no dispute that the accused shot and killed Lewis McPherson. Both counsel agreed that the issue at trial was whether the accused was so affected by the ingestion of alcohol and drugs that the prosecution cannot prove beyond reasonable doubt a specific intention to at least cause grievous bodily harm. …
[Emphasis added.]
Again, as earlier noted, the Judge, having regard to the terms of section 268 of the Criminal Law Consolidation Act, observed:
I direct myself that the effect of s 268 of the CLCA is to preclude self‑induced intoxication from being a defence to a crime of basic intent, but nevertheless it is a factor which is to be considered when considering whether a specific intent has been proved in such a crime when a specific intent is an element of the charge.
Accordingly, I direct myself that the question of self-induced intoxication is relevant to whether the specific intention required to make out the charge of murder has been proved.
I direct myself that the alternative charge of manslaughter is a crime of basic intent and may be available if the specific intent to make out murder cannot be proved.
I direct myself that the question of self-induced intoxication is relevant to whether the specific intention required to make out the charge of attempted murder has been proved. In relation to the alternative verdicts of aggravated endangering life, intoxication is also relevant to the specific, but less serious, intention necessary to make out that offence.
As discussed earlier, the Judge addressed the medical evidence, both from Professor White and Dr Raeside, as follows:
As I understand Dr Raeside’s evidence, the ingestion of alcohol at a higher level can affect the thought processes so that although the basic intention is present, there may be an inability to formulate an understanding of the consequences of the act. In other words, at those higher levels the consequences of a person’s actions may not have been intended.
On the appeal, there was no suggestion that the Judge’s reference to the medical evidence and the summaries earlier extracted were other than accurate.
As noted above, when summarising counsel’s final submissions, the Judge referred to the issue of specific intent. When dealing with the prosecution submissions, his Honour observed:
[The prosecutor’s] overall submission is that if one is to look at the surrounding circumstances on all counts (other than the alternative counts), a clear intention to kill has been proved.
[The prosecutor] emphasises that impulsiveness or disinhibition because of the effects of drugs and alcohol is not a defence if an intention to kill has been proved.
When dealing with the defence submissions, the Judge, inter alia, dealt with specific intent in the following passages:
[Defence counsel] submitted that just because the person, the [defendant] in this case, deliberately shoots at another person that that does not mean that he has an intention to kill. [Defence counsel] emphasised Dr Raeside’s evidence about the gap between the basic intention to shoot and the realisation of the consequences and puts that that is appropriate in this case.
…
[Defence counsel] put that the evidence of both the medical witnesses at least support the possibility that he did not form the appropriate intention when killing Lewis McPherson and when shooting at Mr Lamont and Mr Trewartha.
It is apparent from the Judge’s reasons that he was well aware of the relevant distinction between basic intent and specific intent, that the issue in the case concerned specific intent and that the prosecution carried the onus to prove specific intent beyond reasonable doubt.
The Judge, at the outset of his conclusions, identified that he was addressing specific intent:
I cast those thoughts aside and confine my deliberations to the specific issue I have to decide; has it been proved beyond reasonable doubt that when the [defendant] shot and killed Lewis McPherson, did he intend to kill him or at least cause him grievous bodily harm?
When he shot at James Peter Lamont and Liam John Trewartha, has it been proved beyond reasonable doubt that he intended to kill them?
[Emphasis added]
The Judge concluded that it had been proved beyond reasonable doubt that the defendant had the requisite intention to kill the three young men. As earlier set out, he identified each of the matters that led him inevitably to this conclusion. These matters were items of circumstantial evidence, including conduct by the defendant, from which the Judge drew inferences in reaching his conclusion of proof beyond reasonable doubt.
The Judge then referred to the medical evidence and, in that respect, remarked:
I am cognisant of the opinions of the expert witnesses who gave evidence for both the prosecution and the [defendant].
I accept their evidence that there can be circumstances where the ingestion of alcohol and drugs can impair a person’s state and presence of mind to the extent that they may be incapable of forming an intention beyond that of basic intent. However, for the reasons I have given, I find it proved beyond reasonable doubt that such circumstances did not exist in this case.
On the appeal, counsel for the defendant submitted that in the passage addressing the medical evidence, as extracted above, the Judge erred in only addressing the defendant’s capability to form intent. In our view, this submission should be rejected. To read the impugned paragraph as suggested is to take that paragraph entirely out of context.
The Judge’s recounting of the effect of the medical evidence was entirely accurate. Both expert witnesses expressed the view that the ingestion of alcohol and drugs can impair a person’s state and presence of mind. They did express the opinion that this may lead to an incapability of forming a specific intent. They did not express any opinion as to whether or not the defendant did form the requisite specific intent. As the Judge observed, this was a matter on which the finder of fact was to reach a conclusion having regard to all the evidence. The critical issue was whether it could be said that the Crown had proved beyond reasonable doubt that the defendant held the requisite specific intent. The Judge, in the passage extracted above, reached the conclusion that the defendant was capable of forming an intention beyond the basic intent and, as earlier discussed, he expressly found that the prosecution had proved specific intent. In the concluding paragraph of his reasons, the Judge confirmed his earlier finding as follows:
Although his condition was one of gross intoxication and his behaviour was in many ways bizarre, nevertheless I find it proved beyond reasonable doubt that the [defendant] had the intention on Counts 1, 2 and 4 to kill.
One further complaint was advanced concerning the suggested failure of the Judge to address what was described as “the issue of manslaughter as against murder”. It was said that as the Judge was sitting as if he were a jury, he was required to direct himself as to the alternative verdict of manslaughter and required to provide adequate reasons for his decision. Reference was made to the decision of the High Court in Gillard.[3] The findings made by the Judge and his conclusions concerning specific intent, as set out above, necessarily meant that a verdict of manslaughter in regard to the charge of murder was not a viable alternative.
[3] Gillard v The Queen (2003) 219 CLR 1.
We would dismiss the appeal against the three convictions.
Appeal Against Sentence
As earlier noted, the Judge imposed a single head sentence of life imprisonment and fixed a non-parole period of 23 years pursuant to section 18A of the Sentencing Act in respect of the conviction for murder and the two convictions for attempted murder.

In fixing the non-parole period the Judge started with a notional period of 24 years and two months. The Judge gave the defendant credit for 14 months spent in detention in setting the non-parole period of 23 years.
The appeal is against the non-parole period. The sole ground of appeal is that the non-parole period is manifestly excessive.
The approach of an appeal court in considering an appeal against sentence was explained by the High Court in Markarian, where Gleeson CJ, Gummow, Hayne and Callinan JJ said:[4]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[Footnote omitted.]
[4] Markarian v The Queen (2005) 228 CLR 357, 370-1.
The offending occurred when the defendant was a week short of his eighteenth birthday. He had left school without completing Year 11. He was homeless and reliant upon friends and acquaintances for accommodation while couch surfing. He was unemployed. At the time of sentencing the defendant was 19 years old.
At the time of the offending the defendant was upset and in a heightened emotional state. He was grossly intoxicated. As earlier noted, Professor White calculated he had a likely blood-alcohol concentration of between 0.252 and 0.284 grams per 100 millilitres of blood at the time of the offending. The defendant had not only consumed a large quantity of alcohol, but cannabis and amphetamines as well.
The offending was unplanned, unpremeditated and spontaneous. It was not motivated by revenge or financial gain. When he left the house at 26 Railway Terrace, there is no reason to think that the defendant intended to kill anyone, certainly not Lewis McPherson or his companions, Mr Lamont and Mr Trewartha. He could not have known he would encounter them. He bore them no animus. Beyond the obvious context of alcohol and drugs, the defendant’s crimes are inexplicable.
While the Judge’s sentencing remarks indicate he considered that the defendant showed no signs of contrition based on the pre-sentence report prepared under section 32 of the Young Offenders Act 1993 (SA), we are not satisfied that there is a lack of contrition on his part. The Judge’s view appears to be based on the observation in the report that the defendant struggled to articulate any contrition for his offending. The author of the report speculated that this might have been due to his gross level of intoxication, which appeared to have impacted upon his recollection of events. An inability to recall what occurred does not necessarily evidence a lack of contrition. On the contrary, Dr Raeside records the defendant reporting that he was “shocked” by his offending and regretted it. He stated that he would not have done it if he had not been drinking.
While the authorities increasingly emphasise that intoxication generally does not mitigate the seriousness of an offence or reduce the offender’s culpability,[5] the fact of the defendant’s intoxication does provide context to understanding the basis of the defendant’s expression of remorse and contrition.
[5] Hasan v R [2010] VSCA 352; R v Bradley (1980) 2 Cr App R (S) 12; Attorney-General v Davis (unreported, Court of Criminal Appeal, 9 May 1980); R v Sewell & Walsh (1981) 29 SASR 12; R v Coleman (1990) 47 A Crim R 306; R v Redenbach (1991) 52 A Crim R 95; R v Fletcher-Jones (1994) 75 A Crim R 381; R v Rosenberger; Ex Parte Attorney-General (Qld) (1994) 76 A Crim R 1; R v Angus (unreported, Court of Appeal, 1 February 1996); R v Walker (unreported, Court of Appeal, 31 May 1996); R v Phillips [2000] VSCA 225; Director of Public Prosecutions v G [2002] VSCA 6; Stanford v R [2007] NSWCCA 73; R v De Jesus (1986) 20 A Crim R 402; R v Lane (1990) 53 SASR 480; R v Gordon (1994) 71 A Crim R 459, R v Laffey [1998] 1 VR 155; R v Groom [1999] 2 VR 159.
In a different context, it is relevant to note that on 16 October 2013, counsel for the defendant informed the Judge that the defendant had no memory of the relevant events, but there was nothing in dispute apart from the issue of specific intent in respect of which Dr Raeside would be the sole witness for the defence. Counsel indicated that the defendant was willing to have the trial conducted on the papers together with Dr Raeside’s evidence. The Judge did not consider that to be an appropriate course but said, in view of counsel’s offer on behalf of his client to assist the administration of justice, that he would give him credit for the way in which he conducted the matter. However, the Judge made no reference to this matter in determining sentence. There must be considerable doubt that the Judge did give the defendant credit in relation to this matter.
In considering an appeal against the fixing of a non-parole period, it is crucial to consider the purpose of a non-parole period, particularly when sentencing a young offender. A non-parole period is the minimum term of imprisonment required to meet the punitive and protective purposes of punishment. The fixing of a non-parole period should reflect a decision about what is an appropriate period before the offender can be released. The fixing of a non-parole period should also reflect a decision about the length of time for which the offender should be on parole. The fixing of a non-parole period is a decision about time, not about the proportion of the non-parole period to the head sentence.[6]
[6] R v A, D (2011) 109 SASR 197, 206.
The defendant was sentenced as an adult notwithstanding that at the time of his offending he was 17 years of age. The Judge was obliged to do so pursuant to section 29(4) of the Young Offenders Act. The defendant had to be imprisoned for life. The Judge correctly recognised that the provisions in the Sentencing Act prescribing the mandatory non-parole period of 20 years did not apply to the sentencing of the defendant.[7] However, the Judge was required, in fixing a non-parole period, to do so in a manner “governed by the requirements of section 3 of the Young Offenders Act with its emphasis on processes of rehabilitation.”[8] In QTV, this Court observed:[9]
The object specified in subs (1) of s 3 of the Young Offenders Act requires a sentence that allows for the care, correction and guidance necessary for the youth's development into a responsible and useful member of the community. It requires the court to assume that the youth has potential that can be realised. Those requirements are not necessarily the starting points in sentencing an adult. They will not be met by some notional discounting of what might be an appropriate sentence for an adult offender, nor will they be met by too crushing a sentence, particularly a first custodial sentence. In sentencing a youth much greater emphasis must be given to the youth's prospects and potential than will usually be the case in sentencing an adult, where punishment and general deterrence may well assume a more dominant role. On the other hand, community protection (s 3(2)(c)) in a case like this and deterrence within the ambit of subs (2a) are also important and must be brought into the scales.
[7]    R v A, D (2011) 109 SASR 197.
[8]    R v QTV (2003) 87 SASR 378, [61]; R v A, D (2011) 109 SASR 197, 211.
[9]    R v QTV (2003) 87 SASR 378, 388-9.
In fixing a non-parole period, a Court cannot lose sight of the fact that where a custodial sentence is necessary for a young offender, one of the most significant sentencing tools to assist in the implementation of the objects of the Young Offenders Act is the fixing of a non-parole period. Objectives of care, correction and guidance can often best be achieved under a careful and well monitored period of parole the subject of appropriately tailored conditions, the offender knowing that a breach of those conditions may well result in the resumption of the custodial sentence.[10]
[10] R v QTV (2003) 87 SASR 378, 391.
As was put by Kirby J in a different context, the fixing of a non-parole period for a young offender should acknowledge and promote the potential for individual change and reform; encourage good conduct while serving the mandatory life sentence; and hold out hope for the offender’s future, consistent with notions of individual redemption and human dignity.[11]
[11] Baker v The Queen (2004) 223 CLR 513, 555.
While the Judge did have regard to the provisions of section 3 of the Young Offenders Act, the sentence imposed, in our respectful view, gave insufficient weight to the objects, purpose and requirements of the legislation.
The offending was of the utmost seriousness. A young man’s life was cruelly ended. Two other young lives were put in jeopardy. It was fortunate that more lives were not lost or innocent people seriously injured. The use of a loaded firearm by the defendant in a state of gross intoxication was highly dangerous. That the defendant had access to a firearm is itself a matter of grave concern to the community and to law enforcement authorities. His offending has occasioned great suffering on the part of the deceased’s family and friends and the people at whom he fired the gun. A severe sentence was undoubtedly warranted by reason of the gravity of the offending, the importance of protecting the community and the need for specific and general deterrence.
Nonetheless, the Court, in fixing sentence, had to have regard and give proper weight to the defendant’s youth and personal circumstances at the time of the offending, his prospects for rehabilitation, the absence of any relevant prior convictions, the degree of remorse and contrition he has expressed, the impulsive nature of the offending, the lack of premeditation, the lack of motive, and the fact that the offending arose out of a single, spontaneous course of conduct, together with his cooperation in the administration of justice by his admission to the objective elements of the offending.
In our view, the non-parole period fixed failed to give proper weight to these matters.
Further, because of the approach taken by the Judge in utilising section 18A of the Sentencing Act in imposing a single non-parole period, it is unclear the extent, if any, to which the Judge gave consideration to the respective non-parole period for each of the offences for which the appellant was convicted. Accordingly, this Court cannot know the extent to which the Judge gave consideration to questions of whether the non-parole period was fixed having regard to cumulative or concurrent non-parole periods.
In our view the non-parole period fixed is manifestly excessive. In all the circumstances, we are satisfied that the non-parole period of 23 years is beyond the range of sentences that were reasonably open to the Judge.
In the circumstances we would allow the appeal against sentence. We would set aside the non-parole period imposed. We would fix a non-parole period with a starting point of 18 years and two months after making due allowance for the matters set out above. After giving credit for the 14 months the defendant spent in detention, we would impose a non-parole period of 17 years backdated to 5 March 2014.
Conclusion
We would dismiss the appeal against the convictions. We would allow the appeal against sentence. We would set aside the non-parole period imposed. We would fix a non-parole period of 17 years, backdated to 5 March 2014.
PEEK J. I agree with the orders proposed by Gray J and Stanley J. I agree with their Honour’s reasons on the sentence appeal and substantially agree with their Honour’s reasons on the conviction appeal.