R v Peet - [2018] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PEET
[2018] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Doyle and The Honourable Justice Hinton)
5 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Application by the Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to the murder of Ms Wilson-Rigney and her two children, ages five and six, on 30 May 2016 at their home in Hillier.
The circumstances of the offending were that early on the morning of 30 May 2016 following an argument with Ms Wilson-Rigney, in which she slapped and kicked and hit the respondent with a vacuum cleaner pole, the respondent struck her with a crow bar a minimum of six times. The respondent dragged her body to the laundry where he placed a cable tie around her neck and tightened it. The combined effect of the blows and the compression of her neck caused her death.
Not long after this occurred the children woke. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking went away.
At some point, and possibly whilst the people were still at the front door, the respondent went back to each child. The respondent restrained the six year old using cable ties then placed a sock in her mouth and fixed it in position with packing tape. He placed a cable tie around her neck and tightened it. Her death was caused by the combined effect of suffocation and asphyxiation.
The respondent also restrained the five year old with cable ties and then placed a cable tie around his neck resulting in his death. When police later found the five year old there was a ring of packing tape around his neck but not covering his mouth. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway.
For each murder the respondent was sentenced to life imprisonment as required by s 11 of the Criminal Law Consolidation Act 1935 (SA). Under s 32 of the Criminal Law (Sentencing) Act 1988 (SA) the sentencing Judge fixed a non-parole period of 30 years backdated to commence on the day the respondent was taken into custody being 30 May 2016. The sentencing Judge accepted that the respondent was experiencing a degree of dissociation when he killed the children.
On appeal the Director of Public Prosecutions contended that the 30 year non-parole period was manifestly inadequate. The inadequacy was so great, having regard to the gravity of the offending in particular, that it provided strong reason for the Court to interfere to increase the non-parole period to ensure the maintenance of adequate standards of punishment for the offence of murder.
The respondent conceded that the non-parole period was manifestly inadequate and that it should be set aside and a new non-parole period fixed.
Held by the Court, granting permission to appeal and allowing the appeal:
1. The non-parole period fixed by the sentencing Judge was manifestly inadequate. A non-parole period of 36 years is substituted backdated to commence on 30 May 2016.
Criminal Law Consolidation Act 1935 (SA), s 11; Criminal Law (Sentencing) Act 1988 (SA), ss 32(5)(ab), 32, 32A, referred to.
R v Lean (2017) 128 SASR 451; R v A,D (2011) 109 SASR 197; R v Stewart (1984) 35 SASR 477; Munda v Western Australia (2013) 249 CLR 600; R v Gooley (1996) 66 SASR 380; R v Davey [2017] SASCFC 151, applied.

R v PEET
[2018] SASCFC 91
Court of Criminal Appeal: Kourakis CJ, Doyle and Hinton JJ
THE COURT:
Introduction

The respondent, Steven Graham Peet, pleaded guilty to the murder of Yvette Wilson-Rigney and her two children, Amber Rose Rigney and Korey Lee Mitchell. For each murder he was sentenced to life imprisonment as required by s 11 of the Criminal Law Consolidation Act 1935 (SA). Under s 32 of the Criminal Law (Sentencing) Act 1988 (SA) a Judge of this Court determined that the respondent should be eligible to apply for parole after serving 30 years in prison backdated to the day he was taken into custody. The Director of Public Prosecutions seeks permission to appeal against that non-parole period. He contends that it is manifestly inadequate and that this Court should interfere to increase the non-parole period to ensure the maintenance of adequate standards of punishment for the offence of murder.
The respondent conceded the application and the appeal. Despite this we have arrived at our own conclusion after analysing the materials before the sentencing Judge and the Judge’s remarks, and after considering the Director’s submissions and the limited submissions made by counsel for the respondent.
We would grant the Director permission to appeal and allow the appeal. We would set aside the non-parole period imposed and substitute in its place a non-parole period of 36 years. Our reasons follow.
The applicable legal principles
The principles governing an application for permission to appeal against sentence and an appeal against sentence made by the Director are well settled. In R v Lean those principles were stated as follows: [1]
…before this Court will grant the Director permission to appeal error in the House v The King sense must be demonstrated and, in addition, this Court must be persuaded that strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. Strong reasons are required because of the premium that the common law places upon a person’s freedom from interference by the State. Generally, strong reasons will exist where it is necessary to intervene “to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
In addition, the cautionary advice of King CJ in R v Osenkowski should not be overlooked. King CJ said:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.
(Footnotes omitted)
[1] (2017) 128 SASR 451 at [4]-[5].
As mentioned the Director contends that the non-parole period is manifestly inadequate with the consequence that the sentencing Judge erred in the House v The King sense.[2] The Director further contends that the inadequacy of the non-parole period is so great, having regard to the gravity of the offending in particular, that it provides strong reason justifying intervention by this Court to increase the non-parole period and outweighing the public interest in the respondent not being twice vexed.
[2] (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
In Dinsdale v The Queen Gleeson CJ and Hayne J observed that manifest inadequacy was a statement of conclusion that did not depend upon attribution of error.[3] A sentence was either plainly inadequate or not plainly inadequate. Accepting this, it follows that to determine whether a sentence is or is not plainly inadequate, it is necessary to, in effect, repeat the sentencing task undertaken by the sentencing judge and, doing so, consider whether the sentence imposed by the judge did not lie within the permissible range such that it may be said to be plainly inadequate. Thereafter, if error is established, this being a Crown appeal, the Everett principles, the effect of which is summarized in the passage taken from R v Lean above, must be applied.[4]
[3] (2000) 202 CLR 321 at [6].
[4] Everett v The Queen (1994) 181 CLR 295.
The circumstances of the offending
The respondent and Ms Wilson-Rigney had been in a relationship and living together since February 2016. Before that, for five years they had shared an on-again, off-again relationship. Initially the respondent and Ms Wilson-Rigney lived together with Ms Wilson-Rigney’s two children at an address in Elizabeth North. In late April 2016 they all moved to premises at Hillier.
On the day prior to the murders, 29 May 2016, Ms Wilson-Rigney had been drinking and using cannabis and Ice. The respondent did not use amphetamine at this time and did not drink. That night Ms Wilson-Rigney and the respondent slept in the lounge room, she on the couch and he on a recliner chair. Not long after Ms Wilson-Rigney woke the next morning she and the respondent argued. She accused him of being unfaithful. She became violent. She slapped, hit and kicked the respondent, then took up a vacuum cleaner pole and began to strike him with it until he was on his knees. The respondent told Dr Brereton, a forensic psychiatrist who prepared a report for the Court, that he had had enough. He said he planned to leave Ms Wilson-Rigney in any event. He added, “everything came crashing down, I felt empty.” There was a crowbar close to hand. The respondent took it up and using it struck Ms Wilson-Rigney a minimum of six times. Then, thinking she was dead, the respondent dragged Ms Wilson-Rigney to the laundry. There he placed a cable tie around her neck and tightened it compromising her airway. He covered her body with a mattress and left, closing the door behind him. Then, using a mop and bucket, he cleaned the blood trail that had been left by his dragging Ms Wilson-Rigney to the laundry.
Soon the two children began to stir. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking, representatives from Families SA as it turns out, went away. It was around 10.15-10.35 am.
At some point, and possibly whilst Families SA were still at the front door, the respondent went back to each child. Using cable ties he secured Amber’s hands behind her back. He then placed a cable tie around her neck and tightened it, placed a sock in her mouth, wrapped packing tape around her head and face, and after covering her with clothing left her on the floor of her bedroom.
The respondent also used cable ties to tie Korey’s hands behind his back and his ankles together. Using more cable ties the respondent fixed Korey’s ankles to his wrists so that he was “hog tied”. The respondent then put a cable tie around Korey’s neck and tightened it. He covered Korey with clothing and a tent. When the police later found Korey there was a ring of packing tape around his neck but not covering his mouth.
The combined effect of the blows to Ms Wilson-Rigney’s head and the compression of her neck by the cable tie caused her death. Amber’s death was caused by the combined effect of suffocation due to the sock in her mouth fixed in position by the packing tape and asphyxiation by the compression of her neck. Korey’s death was the product of the compression of his neck caused by the cable tie. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway. The packing tape around his neck supports this suggestion.
Ms Wilson-Rigney was 28 years old. Her children, Amber and Korey, were six and five years old respectively.
Having murdered Ms Wilson-Rigney and her children the respondent went in search of a close friend, Mr Eyre. He asked Mr Eyre for a tarpaulin and to go for a drive with him. During the drive he told Mr Eyre that he had killed Ms Wilson-Rigney and asked Mr Eyre about getting rid of the body. They went to the Hillier property. By now it was after 12.30 pm. Mr Eyre left to speak to another man, Mr Burrell. Together Mr Eyre and Mr Burrell returned to the Hillier property. As Mr Eyre and Mr Burrell arrived the respondent was in the process of leaving. They intercepted him and asked him about the children. The respondent said “they’re gone” and that they could not be saved. The two men then assaulted the respondent before causing him to telephone the police. In that call he admitted killing “…my lady and her two kids…”.
The police arrived at around 1.40 pm. The respondent was arrested but was unresponsive. He was treated by ambulance officers who observed that he had bruising to his back, shin and elbow. He said he thought he had had a seizure but displayed no symptoms consistent with a person who had had a seizure that the ambulance officers could detect. He was then taken into custody.
When interviewed by police later that night the respondent purported to have no memory of killing any of Ms Wilson-Rigney, Amber and Korey. He said he did not know why Mr Eyre and Mr Burrell assaulted him. His lack of memory did not accord with what he had told the police who first attended at the Hillier property.
Toxicology results showed Ms Wilson-Rigney to have methylamphetamine, amphetamine and tetrahydrocannabinol in her blood.
The respondent’s personal circumstances
The respondent is 33. He is the second of two children. His parents separated when he was around 12 years old. The respondent went to live with his father whilst his sister went to live with his mother. Despite this the respondent has reported being quite close to his mother who he has always regarded as being supportive, attentive and loving. The respondent characterised his relationship with his father very differently. Whilst he was never subject to physical violence, physical or sexual abuse, or neglect, his father was emotionally detached and inattentive with the consequence that from a young age the respondent was largely left to fend for himself.
The respondent completed primary school. He reported being a “fairly quiet kid”. He progressed to secondary school and completed year 12 but returned to repeat it in an effort to improve his prospects.
Shortly after his parents’ separation and whilst the respondent was still in primary school he first had a seizure. He continues to suffer from seizures. In his early and middling teenage years the seizures occurred almost daily. Not infrequently the intensity of the seizures have left him “out of it”. The respondent has consulted a number of medical professionals about his seizures. He has been advised that they are stressed based. Over the years the respondent’s seizures have caused him embarrassment first at school and later at work.
Nonetheless, despite his seizures the respondent experienced little difficulty in finding work after leaving school. He studied for and obtained a Certificate II and a Certificate III in Hospitality and has worked in cafes and restaurants. When he was not working he has been in receipt of the disability support pension.
As at the time he left school the respondent was in a relationship with a woman named Jessica. They had a son together. That child was born in 2008. The relationship lasted for five years. Since the breakdown of the relationship the respondent has continued to play a significant parenting role in his son’s life.
The respondent does not have a substance abuse problem. Blood samples taken from him at the time of his arrest were not found to contain alcohol or any other form of drug.
As an adult the respondent has been treated for anxiety and depression. He has complained of mental health problems (particularly low mood, anxiety and anger) over the years. In 2014 the respondent consulted a psychologist. By this time he had commenced a relationship with Ms Wilson-Rigney only to be told that she no longer wished to see him. He could not understand why. The psychologist helped him gain insight and understanding regarding the relationship. He was prescribed anti-depressants by his general practitioner but did not take the medicine as he did not like the sound of the side effects.
The respondent first commenced a relationship with Ms Wilson-Rigney approximately four to five years ago. The pattern was that they would commence a casual sexual relationship and then Ms Wilson-Rigney would disappear without warning only to get back in contact some time later. Most recently Ms Wilson-Rigney came back into the respondent’s life in January 2016. Prior to then he had not seen her for approximately eight months. In January 2016 the respondent was renting a unit in Elizabeth North where he lived alone. When Ms Wilson-Rigney contacted him she had Amber and Korey with her. Ms Wilson-Rigney has a third child, SJ, but he was in the care of his father. Ms Wilson-Rigney and the two children were sleeping in her car or staying with friends wherever they could. The respondent invited them to stay with him. He reported to Mr Broomhall, a forensic psychologist who also prepared a report for the Court, that he developed a good relationship with each of the children.
Not long after Ms Wilson-Rigney and the children moved in with the respondent he resumed his relationship with Ms Wilson-Rigney. He told Mr Broomhall that he thought he loved her. She could be funny and they had good times he said. At the time she used cannabis but it did not change her personality. She also used methamphetamine, but not much at first.
The respondent’s lease was due to expire. With Ms Wilson-Rigney he searched for a new home that they and the children could share. That search resulted in them moving into the Hillier property in late April 2016.
In the weeks before they moved into the Hillier property, Ms Wilson-Rigney began to use methamphetamine more frequently. The respondent said she became more aggressive and paranoid. She was never physically violent toward him until the first night they stayed at the Hillier property. That night he went with a friend to a mate’s place to get a trailer. Whilst he was out Ms Wilson-Rigney called him. He told Mr Broomhall that when he returned to the Hillier property Ms Wilson-Rigney told him that during their telephone conversation she could hear women in the background. She accused him of cheating on her. She became abusive. She punched him in the face, smashed his phone, then got in the car and left trying to run him over as she went. When she returned Ms Wilson-Rigney took sliding doors off rails and up-tipped moving boxes before she punched the respondent, gouged the inside of his mouth with her finger, attempted to strangle him and smashed a table over his back.
The respondent’s son was present. He gave the police an account of the injuries his father sustained consistent with that given by the respondent to Mr Broomhall. The respondent said that Ms Wilson-Rigney did not calm down until the following morning. She saw the damage to his face, apologised and cried.
Over the ensuing month Ms Wilson-Rigney continued to use methamphetamine, cannabis and alcohol frequently and subjected the respondent to physical and emotional abuse. The respondent told Mr Broomhall that Ms Wilson-Rigney would assault him every two or three days. Incidents included Ms Wilson-Rigney holding a knife to his throat, kicking him in the groin and cutting his wrists whilst he was asleep.
Mr Broomhall’s and Dr Brereton’s opinions

Mr Broomhall considered that as a child the respondent experienced emotional neglect. In time his seizures undermined his confidence, self-esteem and self-concept, leaving him anxiety prone. He did not have an anti-authoritarian history nor a history of substance abuse. Mr Broomhall concluded that:
…up until the start of 2016, Mr Peet’s clinical and forensic presentation seemed to be of a man who was relatively meek and unassertive, with low self-confidence and low self-esteem, mild depressive symptoms, who seemed somewhat bound and fearful that epileptic seizures would ruin his chances for ongoing employment or stable, positive relationships. He had, however, engaged in employment, albeit sporadically, and maintained a positive relationship with his son. There were no indications of domestic violence, physical aggression, substance abuse or acute mental health difficulties.
Mr Broomhall considered that Ms Wilson-Rigney’s treatment of the respondent produced “fear, anxiety and placatory behaviours” in him. His fear manifested itself in his becoming sexually dysfunctional which fuelled Ms Wilson-Rigney’s suspicion of his infidelity and at times led to her being violent toward him. This pattern repeated itself in the weeks before Ms Wilson-Rigney’s murder. Mr Broomhall said:
I formed the opinion, based on the current assessment and review of materials provided, that in the weeks before and at the time of the behaviours leading to the current charges, Mr Peet met the diagnostic criteria for both Partner Violence Physical (995.81) and Partner Abuse Psychological (995.82). Partner Violence Physical is defined in DSM-V as “non-accidental acts of physical force that result or have reasonable potential to result in physical harm to an intimate partner or that evoke psychological abuse including berating, humiliating, interrogating, restricting partner’s movements, threatening the victim with physical harm, stalking and harassing the victim. Whilst public perception of domestic violence in Western countries focuses on a male perpetrator and female victim, there is significant evidence which indicates that anywhere from 20-30% of victims of domestic violence from intimate partners are men.
(Footnotes omitted)
Mr Broomhall provided the following explanation for the respondent’s murder of Ms Wilson-Rigney:
…It seemed likely, in my view, that Mr Peet had been caught in a cycle of domestic violence and abuse perpetrated by Yvette, which against the background of his somewhat meek, unassertive personality style, resulted in placatory behaviours rather than assertiveness in the form of leaving or fighting back. However, on the day of the events leading to the current charges, Yvette had at some point prior consumed methylamphetamine and cannabis. Mr Peet maintained that he was beaten by Yvette with a vacuum cleaner pole. Mr Peet, seemingly believing an imminent sense of threat and danger to his personal safety, chose to react in a violent manner by striking Yvette with a crowbar.
Despite the conclusion in the passage from Mr Broomhall’s report quoted immediately above it has never been suggested by the respondent that he should be sentenced on the basis that he acted in self-defence or that he acted in excessive self-defence. Further it has not been suggested that he lost self-control.
Mr Broomhall considered that his explanation for the respondent murdering Ms Wilson-Rigney was difficult to reconcile with the subsequent murder of her two children. He considered the respondent’s personal history to show no indication of any personality type predisposed to acts of violence generally and noted that that history did not include any specific acts of violence toward children or toward Amber and Korey in particular. He formed the view that the respondent could not have acted in such a violent manner toward the children unless he was experiencing a dissociative state. In such state the respondent’s “intentions and behaviours changed course significantly from his normal underlying personality style.” In a dissociative state characterised by a constriction of the consciousness, depersonalisation, derealisation, perceptual disturbance, micro-amnesia, and/or alterations in sensory motor function, the respondent either, transferred his emotions of anger towards Ms Wilson-Rigney onto her children and viewed them as an extension of her, or, his actions were motivated toward keeping the children quiet. Underlying the action taken toward the children was the fact that Ms Wilson-Rigney had once “hog-tied” the respondent’s son.
Dr Brereton considered that the respondent had personality traits associated with a number of specific personality disorders. Accordingly, Dr Brereton considered the respondent to have a mixed personality disorder characterised by the respondent possessing antisocial traits, including a disregard for social norms, rules and obligations, and a proneness to blame others or offer rationalisations for his own behaviour that brought him into conflict with society. The respondent also had some borderline traits such as disturbed self-image, a history of intense and unstable relationships and a history of suicidal threats and acts of self-harm. Lastly, the respondent displayed some dependant traits resulting in the subordination of his own needs to those upon whom he is dependant.
As to the possibility that the respondent suffered from a dissociative state, Dr Brereton started by observing that a diagnosis of dissociation was heavily dependent upon the patient’s account of their subjective experience. He did not think either the respondent’s account of what occurred or the collateral information made available pointed to a diagnosis of dissociation as being appropriate. Dr Brereton said:
Dissociation is generally defined as a disruption of the usually integrated functions of consciousness, memory, identity or awareness of body, self or environment. Characteristic symptoms can include impaired consciousness (i.e. decreased responsiveness to external stimuli), memory impairment, confusion about one’s identity, depersonalisation (a sense of detachment from one’s self), and derealisation (the sense that the external world is strange or unreal). It is important to note from the outset that dissociation is a controversial subject within psychiatry. As mentioned, it is a highly subjective experience and claims regarding dissociative amnesia, for example, are easy to make and hard to disprove.
Dr Brereton considered dissociations to occupy a continuum from normal experiences of derealisation and depersonalisation to a controversial extreme where the conscious mind and bodily action are decoupled. He considered that it was open to debate whether a person ever travels so far along the continuum that they have extreme states of complete decoupling of consciousness from actions. Dr Brereton conceded that there were aspects of the respondent’s history that might dispose him to an acute dissociative reaction – he suffers from epilepsy and has described some derealisation and feelings of depersonalisation. Nonetheless, Dr Brereton considered the respondent’s description of killing Ms Wilson-Rigney more consistent with a loss of temper in the face of physical and verbal abuse. As for the killing of the children, Dr Brereton said:
…The chain of events, in my opinion, indicates a degree of willed, planned and purposeful behaviour that is incompatible with dissociation and automatism. I would expect that, if Mr Peet had an overwhelming catastrophic emotional reaction sufficient to decouple his consciousness from his actions, i.e. a ‘psychological blow’ as the result of being assaulted and then killing Ms Wilson-Rigney, then the effect would have occurred immediately after the violence. As it was, by his own account, Mr Peet hid the body, went outside for a smoke, made the children breakfast and formulated a plan to take the children to their father’s, which he told them about. In fact, it appears he was taking time to gather his thoughts/mentally compose himself. This was then disturbed by the arrival of Families SA. Their arrival caused Mr Peet to feel “scared” and “he wanted [the children] to be quiet while Families SA was there” because “I was freaking out, I don’t want to be in gaol, I’m not made for gaol”, i.e. Mr Peet was worried about discovery of his offence. Mr Peet then took steps to prevent discovery which involved immobilising the children by tying them up and preventing them from making a noise by, not only comprehensively preventing air entry through their mouths and nose, but also by placing cable ties tightly around their necks. “I put ties around their necks, I just wanted them to be quiet so I could figure everything out. I didn’t know what I was doing”. Mr Peet told me he could not recall occluding their mouths but he could recall “a little bit” that he placed cable ties around their necks “to make them be quiet”. He told me twice he could recall placing cable ties around their necks. As well as recalling this aspect of the offence when talking to me, it appears from the witness statements that Mr Peet told Mr Eyre and/or Mr Burrell he had killed the children in addition to their mother, and even mentioned he had placed Korey under a tent. Mr Peet subsequently told the emergency phone operator “I killed my lady and her two kids … this morning”. He went on (while he was in an ambulance) to tell a police officer where in the house to find Ms Wilson-Rigney and Amber. Five hours later, Mr Peet told police he could not remember anything about killing either Ms Wilson-Rigney or the children.
In harming the children, I believe Mr Peet showed a process of thought and decision making, i.e. the need to act to prevent discovery of his crime, that is not compatible with a lack of conscious control. Mr Peet trussed up the children in a complicated manner. He used socks and sticky tape and covered the bodies with material (presumably to hide them), possibly even shutting Korey in a wardrobe at one point. He demonstrated a complex and protracted sequence of goal-directed behaviour that does not indicate involuntariness. Furthermore, using cable ties and sticky tape and hiding bodies is not the type of habitual, overlearned behaviour that might conceivably occur unconsciously (e.g. the process of getting dressed). He would have needed an awareness of purpose, an ability to plan and sequence actions, an awareness of his environment and an ability to adapt his behaviour to the reactions of the children. In these circumstances, in my opinion, it is not credible for Mr Peet to assert he did not know his actions would almost certainly result in the deaths of the children.
Mr Broomhall provided an addendum to his original report after being presented with further evidence, including Dr Brereton’s assessment.
Mr Broomhall agreed with Dr Brereton’s characterisation of dissociation as lying along a continuum of intensity and severity. He further agreed that dissociations did not necessarily render a person incapable of controlling their actions or unaware of the nature and quality of their actions. However, he believed there was a tipping point on the dissociation continuum after which an individual may not be able to control their actions or know the nature and quality of their actions.
Nonetheless, in the light of the new material provided to him Mr Broomhall concluded:
In the summary and opinion of the forensic psychological report 9 August 2017 I had formed the viewpoint that it could not be ruled out that Mr Peet, under the influence of the impact of an acute dissociative state, did not know the nature and quality of his actions in perpetrating the acts which ended the children’s lives. Having viewed the new material in the preparation of this addendum report, I formed the viewpoint that this formulation can now be ruled out. I believe that, although Mr Peet was impacted by an acute dissociative state, this state was not of sufficient intensity or severity as to render him unable to know the nature and quality of his conduct or to be able to control the conduct. This viewpoint was formed on the basis that Mr Peet had demonstrated in the past a propensity not only for violent action but also by his own admission an intent to murder another individual which represented a significant over-reaction in the context of the situation. Further, that in providing more detailed information to Dr Brereton it appeared that Mr Peet had sufficient time and acted in a purposeful manner in providing breakfast to the children and lighting himself a cigarette, that he was in control of his behaviours and actions. Further, that with the arrival of Families SA workers, Mr Peet’s motivation was self-interested to conceal the nature of his violent conduct towards Ms Wilson-Rigney by keeping the children quiet. While Mr Peet had not shown any propensity of behaviours of violence towards children, and professed his love and nurturance towards the victims, his behaviours were seen as an over-reaction in the context of wanting to keep the children quiet. He had recalled putting cable ties around their necks but not suffocating them. Whilst these behaviours were an over-reaction on his part, they were, in my view, in keeping with goal-directed behaviour which was within his knowledge and control to avoid detection of his crime and self-preservation.
Mr Broomhall maintained that the respondent had experienced dissociation. He also believed that the respondent had depersonalised the children (they became ‘children who need to be kept quiet’ rather than Amber and Korey). However, Mr Broomhall did not think the dissociation suffered severe enough to deprive the respondent of knowledge of the nature and quality of his conduct or of control over his actions. While depersonalisation helped the respondent effect self-interested actions, he would have known that tying and suffocating the children would have ended their lives.
The respondent’s criminal history
The respondent first came into contact with the criminal justice system as a twenty year old. He has never been imprisoned before with most of his offending being dealt with by the recording of convictions and the imposition of bonds to be of good behaviour. He has numerous convictions for driving and dishonesty offences. He has, however, four convictions for common assault, three of which were imposed in 2008. Dr Brereton recorded:
Mr Peet said he has been charged with assault on two occasions. In 2008 or 2009 while living at his friend, Matt’s, house, he attacked Matt’s partner and ambulance officers after having a seizure … The ambulance workers pressed charges. In the end the charges were downgraded. In 2004 or 2005, Mr Peet was involved in an incident because he suspected his then partner was being unfaithful with a certain man. Mr Peet was around at Sean Eyre’s house and described himself as “depressed and drinking”. They decided to confront the man in question; when they did so, Sean head-butted him. Mr Peet said, “I got done for assault, I didn’t touch him”.
Mr Peet went on to tell me, “I’ve never been violent”. Mr Peet stated he has been beaten up himself when “sticking up” for others, but he has never been in a fight and has never made threats.
I prompted Mr Peet to tell me about the incident in hospital in 2008. Mr Peet then told me the following. He had had a seizure and ended up in hospital. A friend called Daniel had borrowed his car. Daniel and some friends were drinking and his cousin drove the car into a tree. This damaged the car irreparably and injured a female passenger. “That car was everything I had”. When Daniel told Mr Peet the cousin was in a nearby hospital room, Mr Peet “grabbed a fire extinguisher, I’m pretty sure I hit him with the fire extinguisher”.
The sentencing Judge was provided with a transcript of the interview conducted with the respondent by the police regarding the 2008 assault. In it the respondent admits that upon being advised that his friend’s cousin had taken his car and damaged it he “jumped out of bed, ran outside grabbed a fire extinguisher and I took to him. So I have a very very short temper”. He added, “I just went to him like …I went to kill him” and “I would have killed him if someone hadn’t grabbed me.” Later in the interview he again says he intended to kill his friend’s cousin and to use the extinguisher as a weapon. When it was put to him that he picked up the fire extinguisher with the intention of assaulting his friend’s cousin he corrects the interviewer; “No, with the intention to kill him”. He agrees that the nurse who intervened would have feared that she would be assaulted, but he professes little memory of the nurse’s intervention or the events that occurred subsequently when he was returned to his room.
He was prosecuted for the assault upon the nurse and not for his actions toward his friend’s cousin. His friend’s cousin declined to assist the police.
The victim impact statements
Thirteen victim impact statements prepared by members of the victims’ family were read to the Court. It is to be observed that Ms Wilson-Rigney was an Aboriginal woman with a large extended family. Her family and the extended family of Amber’s and Korey’s father, Sean Mitchell, have suffered deeply. Ms Wilson-Rigney’s and Mr Mitchell’s surviving son, SJ, is not yet old enough to fully appreciate what has happened to his mother, brother and sister.
One of Ms Wilson-Rigney’s sisters explained the spiritual connection she shared with her sister and the children. She, and a number of their other family members, refer to Ms Wilson-Rigney by the name, Adeline. She describes Adeline as being a part of her story and her Aboriginality. She feels a “oneness” with her sister. The loss of Amber and Korey feels like the loss of her own children. She explains that the respondent’s actions have stolen the magic from her life. She feels as if her spirit no longer belongs in or inhabits her body. She is spiritually tormented. Since the offending she has struggled to keep the faith that has always sustained her in the past. She describes her life as now being devastating and bleak. Adeline was her connection to the land, her spirit, her love and her home. She tells of finding herself and her family in deep crisis.
Another of Ms Wilson-Rigney’s sisters states that before the respondent’s offending, she had never seen such evil. She attempted suicide after writing her victim impact statement. Ms Wilson-Rigney’s mother described wanting to die. Her younger brother tells of his depression following the offending and that he has no energy to do anything. Two of Ms Wilson-Rigney’s other brothers describe feeling lost.
Members of both sides of the family worry about the future for SJ. The childrens’ grandfather considered that he will have a hole in his heart forever. He says all of his family and friends have been impacted by the respondent’s actions. His partner replays the day she was told her grandchildren had died over in her mind and constantly thinks of “what ifs” or “should ofs”. Her children feel immense loss for their much loved niece and nephew. One of her sons says that immediately after the offending he was seeing the children everywhere. He saw them in his dreams as well as the images of what was done to them. He struggles to watch the trauma experienced by his parents. He feels depressed and unable to go to work.
Amber and Korey’s father is described as being a shell of the man he once was. The childrens’ great grandmother says that she has never seen someone so distraught and grief stricken. She explains that the respondent not only took the lives of Ms Wilson-Rigney, Amber and Korey, but also her family’s life as they knew it.
Overwhelmingly the victim impact statements convey a profound and enduring sense of loss and grief borne by the extended family.
The sentence
After referring to the circumstances of the offending, the respondent’s personal circumstances, the victim impact statements and to the content of the reports prepared by Mr Broomhall and Dr Brereton, the sentencing Judge turned to the factual basis on which the respondent was to be sentenced.

On the balance of probabilities the Judge accepted that the respondent’s account of his relationship with Ms Wilson-Rigney as provided to Mr Broomhall and Dr Brereton was accurate. The Judge then said:
You reported to Mr Broomhall and Dr Brereton that you had a good relationship with Amber and Korey and this was also corroborated by the witness statements taken by the police. You told Mr Broomhall and Dr Brereton that on the morning of 30 May 2016 Yvette again accused you of cheating, she hit you with a vacuum cleaner pole, you were lying on the floor protecting yourself with your arms, you grabbed the crowbar from the bookshelf and hit Yvette in the head with it several times and then dragged Yvette into the laundry.
I sentence you on the basis that you formed an intention to kill Yvette following her hitting you with the vacuum cleaner pole. There is no basis on which I could find otherwise. I accept the opinion expressed by Mr Broomhall and Dr Brereton that largely as a result of your epilepsy and your upbringing, you are generally timid and unassertive but on occasions you have been prone to outbursts of temper and violence.
While your murder of Yvette was not premeditated in the conventional sense, nevertheless your actions were deliberate and Yvette’s conduct towards you and your history and underlying personality are no excuse for your deplorable conduct. Yvette was only 28 years old when you took away her life.
The Judge then turned to the murders of Amber and Korey. The Judge accepted that the respondent was experiencing a degree of dissociation at the time he killed the children but that that state did not prevent him from forming the necessary intent to kill. He said:
…it is obviously very difficult to comprehend how a person in your position could kill a six-year-old girl and five-year-old boy in the manner in which you did and given your previous relationship with them.
There are certain rules which apply to the determination of the factual basis on which a defendant is to be sentenced. Aggravating factors advanced by the prosecution must be proved by the prosecution beyond reasonable doubt. Mitigating factors advanced by the defendant must be proved by the defendant on the balance of probabilities.
Your killing Amber and Korey was a senseless and incomprehensible act. Mr Broomhall expressed the opinion that you were in a dissociative state which created an element of depersonalisation. Dr Brereton expressed the opinion that you did not suffer a dissociative disorder and experience such a level of dissociation that you did not know or understand the consequences of your actions or that you did not form an intention to kill Amber and Korey. However, he expressed the opinion that dissociations occur along a continuum and are part of normal human experience. He did not take issue with your experiencing some degree of dissociation.
In the absence of any other rational explanation for your conduct, I am satisfied on the balance of probabilities that you were experiencing a degree of dissociation when you killed Amber and Korey. However, this did not prevent you forming an intention to kill them which clearly was an extremely reprehensible act.
The Judge accepted that the respondent was genuinely remorseful for his actions. He accepted counsel’s submissions that since he had been in custody the respondent had been beaten and threatened by fellow prisoners due to the nature of his crimes. He remarked that he had taken into account a submission that the respondent’s time in custody was going to be extremely uncomfortable, whether he is housed in isolation or with other prisoners.
The Judge then set out the respondent’s antecedents before turning to sentence. In all of the circumstances the Judge remarked that “clearly a long non-parole period was called for”. He noted the mandatory penalty for each murder was life imprisonment and that the mandatory minimum non-parole period was 20 years. But for the respondent’s pleas of guilty, the Judge said he would have fixed a non-parole period of 33 years. He then said:
The maximum credit that can be given for your guilty plea is 10%. I am required in the circumstances to consider whether, if I allow credit for your guilty plea, the reduction would be so disproportionate to the seriousness of the offence or so inappropriate in your case that it would shock the public conscience. I consider that a reduction on account of your guilty plea to a non-parole period of 30 years is appropriate. This is a little less than 10% but a reduction below 30 years would be inappropriate.
The sentence was backdated to commence on 30 May 2016 when the respondent was taken into custody.
Submissions
The Director submitted that any one of the three murders could have justified sentencing from a starting point of not less than thirty years. Multiple murders fall within the worst category of offending of this type and call for the longest non-parole periods. To that must be added that the respondent killed his partner and two very young children in his care. If a starting point of 33 years was appropriate for a triple murder in the circumstances of this case then the sentencing standards for murder in cases of both single and multiple offences will erode. It was submitted that the public interest in the appropriate sentence being imposed in this case in order that standards be maintained outweighed the public interest in the respondent not being twice vexed and warranted intervention by this Court.
The Director submitted that the respondent’s account of his murder of Ms Wilson-Rigney suggests it was an act of retribution. As to the children, the Director noted that the sentencing Judge found that the “degree of dissociation” experienced by the respondent did not deprive him of an intent to kill. The Director emphasised that that “degree of dissociation” must be put in the context of the respondent’s admissions as to the sequence of events leading up to the childrens’ deaths. He emphasised in particular the not inconsiderable gap in time between the murder of Ms Wilson-Rigney and then the children. After the respondent had moved her body to the laundry and covered it, the children woke and watched TV. The respondent made them breakfast and went outside to smoke and collect his thoughts. While the children were watching TV he said he “heard a car drive up, realised it was Families SA and became scared". It was only then that the respondent killed the children. He killed the children as an act of self-preservation.
The Director submitted that while the respondent’s dissociation may go some way to explain how he could engage in such horrific conduct, it did not deprive him of the ability to decide to act in his own self-interest and undertake a series of complex goal directed tasks. Nor did it deprive him of the ability to form an intent to kill. The Director added that impairment of self-awareness and detachment are not unusual in a horrific murder.
Noting that care must be taken in comparing sentences, the Director referred the Court to five cases where sentences have been imposed for multiple murders. Mindful of what has fallen from the High Court the Director used these cases as a general indicator that a starting point of 33 years may have been more appropriate in a case with fewer victims and/or the presence of significant mitigating circumstances.[5]
[5] Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58.
In R v Downie the 18 year old defendant raped and murdered a 16 year old girl with whom he was infatuated in addition to killing both of her parents.[6] A non-parole period of 35 years was imposed, reduced from 42 years on account of the defendant’s pleas of guilty. A material difference between Downie and the present case, the Director submitted, was that this was not a frenzied attack. Here the respondent took time to collect his thoughts and consider what he would do after killing Ms Wilson-Rigney.
[6] SCCRM-11-331; 17 April 2012.
In R v Omonte-Extrada the 19 year old defendant murdered two victims by stabbing and wounding with an axe.[7] The defendant cooperated with police. A non-parole period of 33 years was fixed, reduced from 44 years on account of the defendant’s pleas of guilty.
[7] SCCRM-13-263; 29 November 2013.
In R v Olsson the 62 year old defendant murdered his partner and her mother while under the influence of methylamphetamine.[8] The defendant went to the police station and confessed. A non-parole period of 26 years was fixed, reduced from 35 years on account of the defendant’s pleas of guilty.
[8] SCCRM-17-236; 5 April 2018.
In R v Shove the defendant shot and killed two victims.[9] The defendant was drug affected and feared harm. A non-parole period of 26 years was fixed, reduced from 33 years on account of the defendant’s pleas of guilty.
[9] SCCRM-13-12; 4 October 2013.
In R v Tran the defendant murdered his former wife and her 22 month-old son.[10] He pleaded guilty at the earliest opportunity but was considered to be lacking in remorse. A non-parole period of 27 years was fixed, reduced from 32 years on account of the defendant’s pleas of guilty.
[10] SCCRM-09-236; 11 December 2009.
In sentencing in cases such as the present it was submitted that general deterrence attracts significant weight. In this connection particular emphasis was given to the need to protect the weak and vulnerable and for the Court to make it clear to the community that offences against children will result in a substantial period of imprisonment. The Director submitted that there was nothing in the respondent’s personal circumstances that mitigated his offending.
As mentioned, the respondent conceded that the sentencing Judge erred in fixing the non-parole period that he did. The respondent accepted that he should be resentenced for the offending and relied on the submissions made on his behalf before the sentencing Judge. Counsel submitted that the respondent’s position was consistent with the respondent’s profound sense of remorse for his actions. He added that the task of resentencing should not be distorted by “unreal hypotheticals” and consideration of very different cases.
Consideration
The task confronting the sentencing Judge was to set one non-parole period in relation to an offender who had been sentenced to life in prison for each of three murders. It was not contended that this was a case where a non-parole period should not be set.
It is settled that a non-parole period reflects the minimum proportion of the head sentence that a judge determines justice requires the offender to serve having regard to all the circumstances of his or her offending.[11] This approach is, however, modified by s 32(5)(ab) and 32A of the Criminal Law (Sentencing) Act 1988 (SA) in relation to a person sentenced to life imprisonment for the offence of murder.[12] Section 32(5)(ab) provides:
If fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
[11] Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J), 538 (Dawson, Toohey and Gaudron JJ); Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); The Queen v Shrestha (1991) 173 CLR 48 at 60-61 (Brennan and McHugh JJ); Knight v Victoria (2017) 91 ALJR 824 at [8] (The Court).
[12] The same applies in relation to the sentencing of a person convicted of murder under the Sentencing Act2017 (SA); see ss 47(5)(b), 48.
And s 32A provides:
(1)   If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.
(2)   In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may –
(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)   In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct;
(b)if the offender pleaded guilty to the charge of the offence – that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.
(4)   This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.
This Court has considered the operative effect of ss 32(5)(ab) and 32A in a number of cases.[13] It is unnecessary to go through those cases because, in the present case, it is beyond doubt that a non-parole period significantly longer than the mandatory minimum is appropriate. Relevantly, in R v A,D Doyle CJ, Duggan, Anderson and White JJ said:[14]
If considering whether a non-parole period longer than the mandatory period should be fixed, the court must consider all “objective and subjective factors affecting the relative seriousness of the offence”. This must mean all factors that are relevant according to established principles. It is well-established practice to treat all relevant factors in sentencing as either objective or subjective. That must be what Parliament had in mind. Accordingly, the court will ask itself whether the factors that are relevant to the fixation of a non-parole period according to established principles support or warrant a longer non-parole period than 20 years.
But the mandatory period is not just a number. It identifies a non-parole period appropriate “for an offence at the lower end of the range of objective seriousness”. So the court must ask itself whether, bearing in mind that a 20 year non-parole period is an appropriate non-parole period for an offence of murder at the lower end of the range of objective seriousness, this particular offence (considering all relevant factors according to established principles) warrants a longer non-parole period.
By characterising the mandatory period as appropriate for “an offence at the lower end of the range of objective seriousness”, s 32A will increase non-parole periods. Experience indicates that 20 years is a high non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. Parliament must have intended to encourage longer non-parole periods for the offence of murder.
In this way the mandatory or prescribed period operates as a yardstick or benchmark. Parliament has chosen to identify 20 years as an appropriate non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. It is a strange benchmark. The benchmark is identified by reference only to objective seriousness. The court has to compare a particular case, taking account of objective and subjective factors, with a benchmark that is affected by objective factors only. The court is not able to compare like with like. The process is not easy to explain. But this is the statutory task.
We emphasise that although the court fixes such non-parole period as it thinks fit, it fixes the non-parole period that is fit in light of the comparison that must be made. The court does not exercise a discretion at large.
[13] For example, R v Ironside (2009) 104 SASR 54; R v A,D (2011) 109 SASR 197; R v Hallcroft (2016) 126 SASR 415.
[14] (2011) 109 SASR 197 at [35]-[39].
We do not understand any of the authorities since R v A,D to suggest any different approach where, as here, the Court was involved in the fixing of a non-parole period longer than the mandatory minimum non-parole period. The task requires the comparison of a “putative or potential non-parole period arrived at on one basis (a consideration of all relevant circumstances) with a non-parole identified by reference only to the objective circumstances or objective seriousness of the offence”.[15] Like is not compared with like, rendering the task difficult.[16]
[15] R v Ironside (2009) 104 SASR 54 at [43] (Doyle CJ) see also at [37]-[38].
[16] R v Ironside (2009) 104 SASR 54 at [39]-[43] (Doyle CJ).
In undertaking the task as described above it remains the case that the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant.[17] The punitive purpose in particular will reflect the gravity of the offending. In this regard the observations of King CJ in R v Stewart remain relevant:[18]
…Examples of categories of murder calling for longer non-parole periods than I will fix in the present case, would be multiple murders, terrorist murders, murders in the course of organised crime and certain other types of premeditated, cold-blooded murder, murders committed in the course of armed robbery and certain types of sexual crime, and murder of prison officials, police officers and other officials connected with law enforcement and the administration of justice.
That, of course, is not intended to be an exhaustive list of categories of murders which would be treated more seriously than the present one. Nor is the present crime in the least serious category. Examples of types of crimes in which shorter periods of non-parole should be considered are those committed by first offenders, and particularly by first offenders in compassionate circumstances, unpremeditated killings occurring in a sudden quarrel or emotional disturbance, and crimes in which the proved intent was not an intent to kill, but an intent to do grievous bodily harm.
[17] R v A,D (2011) 109 SASR 197 at [34] (Doyle CJ, Duggan, Anderson and White JJ).
[18] (1984) 35 SASR 477 at 478-479.
As a general proposition a murder at the lower end of the range of objective seriousness, where objective seriousness is determined having regard to the circumstances attending the commission of the offence exclusive of the offender’s personal circumstances,[19] is one where the defendant did the act causing death foreseeing that grievous bodily harm was the probable consequence. And then accessorial liability must be accounted for. The point is, the mandatory minimum non-parole period does not reflect the objective seriousness of an intentional murder.
[19] R v Hallcroft (2016) 126 SASR 415 at [46]-[47] (Kourakis CJ).
In the present case, the sentencing Judge found that the respondent intended to kill each of Ms Wilson-Rigney, Amber and Korey. As King CJ said in Stewart, generally speaking, multiple murders fall into the worst category of offending of this type. This is a case where condign punishment has to be afforded great weight. We hastily add that, all being agreed that a non-parole period should be set, the respondent should not be left without hope for spending some time in the community again in the future. Such hope promotes rehabilitation.
In Ms Wilson-Rigney’s case the cable tie would have been fixed around her neck at a time when she had been disabled by the blows to her head. The only purpose in fixing the cable tie around her neck was to ensure her death. Mr Broomhall does not suggest that dissociation had any part to play in Ms Wilson-Rigney’s death. Her murder was the product of anger. The respondent did not dispute the Director’s characterisation of his actions toward Ms Wilson-Rigney as motivated by retribution.

We accept, as the Judge did, that the murder of Ms Wilson-Rigney was “not premediated in the conventional sense”. It must also be accepted that the murder of Ms Wilson-Rigney occurred in the context of a relationship that had become characterised by domestic violence. But the murder was brutal and the final act cold and lacking in humanity. There is, as noted above, no suggestion of the respondent’s acts being perceived as necessary in self-defence or there being any loss of self-control. The incident in 2008 where the respondent attempted to take to his friend’s cousin with a fire extinguisher is demonstrative of his capacity to act violently when angered. That tendency appears to have manifested itself a second time. Whilst the abuse he suffered at Ms Wilson-Rigney’s hands provided the trigger and goes some way toward explaining his conduct, his capacity for extreme violence explains what he was capable of doing and did do.
The sentencing Judge accepted that the respondent suffered a degree of dissociation at the time he murdered Amber and Korey. That conclusion and its relevance to the determination of the appropriate sentence is not further explained in the sentencing remarks.
The degree of dissociation experienced by the respondent did not prevent him forming the intent to kill nor did it prevent him from knowing the nature and quality of his actions. It did not prevent him knowing he was killing two children. It allowed him to depersonalise those children and thus enabled him to do as he did despite his affection for Amber and Korey. It did not prevent him taking action which, with the benefit of reflection, he had considered necessary for the purposes of his own self-preservation. It provides some explanation, but is hardly mitigatory.
The children would quickly have realised the peril they were in. It must have been terrifying for them. They should have been able to look to the respondent for care and nurturing. The sentencing Judge described the acts of killing the children as extremely reprehensible. Respectfully, he was right, but such words barely betray the repulsion the community feels when very young lives are taken.
The remarks of French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia are of particular relevance to the fixing of the non-parole period in this case.[20] Their Honours said:[21]
…The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.
A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.
[20] (2013) 249 CLR 600.
[21] Munda v Western Australia (2013) 249 CLR 600 at [53]-[55].
A just sentence in the present case must accord due recognition to the human dignity of three victims.
It has been said that the value of human life is intrinsic. The murderer denies their victim life and all the potentialities that accompany living which are of inestimable worth. Speaking generally, that denial, that exaction, cost or loss, is magnified where the victim is a child. The younger and more innocent the child the more the murderer repulses us as a community and the more grave or heinous the act of murder because of the value we place on life.
Then there is the loss felt by the family. Here the family must deal with the loss of three of its members. That loss is similarly inestimable. The meaning that Ms Wilson-Rigney with all her faults and her two children brought to their family and the loss now felt deeply and enduringly, as is evident from the victim impact statements, must also be reflected in the non-parole period fixed.
Bearing in mind the yardstick that the mandatory minimum non-parole period represents, we agree with the Director that the non-parole period imposed is manifestly inadequate. Whilst the murder of Ms Wilson-Rigney viewed in isolation may not have merited a starting point of 33 years, the murders of Amber and Korey taken together would. That in itself indicates inadequacy.
We have not overlooked the respondent’s personal circumstances. We have not overlooked his personality and the nature of the relationship he and Ms Wilson-Rigney shared, nor the abuse he suffered at her hands. As we have said it explains how he arrived at the point of killing her and suggests his prospects of rehabilitation are not unreasonable. His personal circumstances do not mitigate the murders of Amber and Korey. In that regard the only possible mitigatory factor is the degree of dissociation the respondent suffered which, for the reasons we have given, is not significantly mitigatory.
The sentencing Judge had regard to the fact that the respondent had been assaulted whilst in prison because of the nature of his offending. In R v Gooley Doyle CJ, with whom Williams J agreed, said that ordinarily an illegal act of other people cannot affect the punishment which an offender must receive.[22] He added that the law must do what it can to protect the appellant, as must prison authorities.[23] We make no allowance for the possibility of a future unlawful act.
[22] (1996) 66 SASR 380 at 382-383.
[23] R v Gooley (1996) 66 SASR 380 at 382-383.
We accept that the determination of a non-parole period in cases such as the present cannot be reduced to a formula and that to consider the non-parole period that would be imposed in the case of each murder separately and then aggregating the result is also inappropriate. Similarly we accept that other examples of non-parole periods imposed in cases involving multiple murders provide only the most general of guides. Fortunately multiple murders are not common and the circumstances of their commission and the circumstances of the offender are so disparate as to make any meaningful comparison of little assistance. Accepting this tends to suggest that the Director’s submission that standards of punishment for murder will erode if the non-parole period in this case is allowed to stand should not be accepted. In fact it tends to suggest that it is misleading to speak of standards. However, the erosion of standards is not so much to be found in a comparison of non-parole periods fixed in cases involving multiple murders as opposed to the imposition of a non-parole period that does not adequately accord due recognition to the human dignity of the victims.
In all the circumstances of this case we consider a starting point of 39 years appropriate. We would reduce that sentence in view of the respondent’s pleas to 36 years. We acknowledge that the respondent is entitled to a discount of up to 10 per cent on account of his guilty pleas, and we acknowledge the saving to the court, the community and the family, both monetary and human, that his pleas have occasioned. Still, to allow him any greater reduction would result in a non-parole period unacceptably disproportionate to the seriousness of the offending which would not vindicate the dignity of the victims.[24] The result is that the respondent will be eligible for parole when he is around 68 years old.
[24] R v Davey [2017] SASCFC 151 at [49]-[50] (Kourakis CJ).
The totality principle is applicable to the setting of a non-parole period in relation to a life sentence for murder. Standing back we do not think any further reduction warranted. The non-parole period we would fix is lengthy and accounts for most of the remainder of the respondent’s life. It will bear heavily upon him. However, it leaves him the prospect of some time free in the community in the future. True that is a way off, but three people, including two very young children, were murdered. In the circumstances we do not consider it appropriate to revise the non-parole period any further.
Conclusion
We would grant permission to appeal and allow the appeal. We would set aside the non-parole period fixed by the sentencing Judge and substitute in its place a non-parole period of 36 years. That non-parole period is to commence on 30 May 2016.