R v Wilson

[2005] NSWCCA 112

Reported Decision: 153 A Crim R 257

New South Wales

Court of Criminal Appeal

CITATION:	R v WILSON [2005] NSWCCA 112
HEARING DATE(S):	02/11/2004
JUDGMENT DATE:	29 April 2005
JUDGMENT OF:	Bryson JA at 1; Studdert J at 40; Adams J at 53
DECISION:	Appeal allowed. Set aside the sentence imposed by Simpson J. Sentence the respondent to a term of imprisonment of fifteen years to date from 22 October 1999 and to expire on 21 October 2014. Set non-parole period of eleven years to commence on 22 October 1999 and to expire on 21 October 2010. Specify 21 October 2010 as the first date upon which the respondent is to become eligible for release upon parole.

CATCHWORDS:	CRIMINAL LAW – sentence – murder – intention to inflict grievous bodily harm – offender aged 18 years killed taxi driver with knife in confrontation over payment of fare – Crown appealed against sentence 12 years, non-parole 8 years – appeal allowed and sentenced to 15 years, non-parole 11 years. - CRIMINAL LAW – appeal- division of opinion in CCA – Bryson JA (most severe sentence) supported Studdert J (intermediate opinion) in order to achieve decision.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 (NSW) Judiciary Act 1903 (Cth) Mental Health (Criminal Procedure) Act 1990 Supreme Court Act 1970 (NSW)
CASES CITED:	Arbest Pty Ltd & Ors v. State of New South Wales [No.2] (unreported, NSWCA, 2 February 1996) Elliott & Hitchins v R (1983) 9 A Crim R 238 Gilmore v. R (1979) 1 A Crim R 416 Henderson v. R (unreported, NSWCCA, 18 December 1975, L.W. Street CJ) R v. CJP [2004] NSWCCA 188 R v Fleige (unreported, NSWCCA, 19 November 1982 ) R v Holder [1983] 3 NSWLR 245 R v. Houlton [2000] NSWCCA 183 R v. Huynh [2001] NSWCCA 269 R v Kalache (2000) 111 A Crim R 152 R v. Merritt [2000] NSWCCA 365 R v. Mills (unreported, NSWCCA 3 April 1995) R v. M M [2002] NSWCCA 431 R v. Phung [2001] NSWSC 115 R v. Simpson (2001) 53 NSWLR 704 R v. Thomson (2000) 49 NSWLR 383 Rohde v Director of Public Prosecutions (1986) 161 CLR 119 Tasmania v. Victoria (1935) 52 CLR 157 Woolworths Ltd v. Kelly (1990) 22 NSWLR 189
PARTIES:	Regina - Crown Shannon Blake Wilson - Respondent
FILE NUMBER(S):	CCA 2004/1807
COUNSEL:	P. Miller - Crown R. Hulme SC - Respondent
SOLICITORS:	S. Kavanagh (Solictor for Public Prosecutions) - Crown S. O'Connor (Legal Aid Commission) - Respondent

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70073/01
LOWER COURT JUDICIAL OFFICER:	Simpson J.

2004/1807

BRYSON JA
STUDDERT J
ADAMS J

FRIDAY 29 APRIL 2005

REGINA v. SHANNON BLAKE WILSON

Judgment

1 BRYSON JA: The Crown appeals against the sentence imposed on the respondent by Simpson J on 7 July 2004 upon his conviction on a plea of guilty to a charge of murder. The respondent was sentenced to imprisonment for 12 years commencing on 22 October 1999, with a non-parole period of 8 years; the earliest date on which he is eligible for release is 21 October 2007.

2 The following statement of the objective circumstances of the offence is taken from Simpson J’s Remarks on Sentence.

6 Mr Lester was a taxi driver. At about 12.30 pm on 15 October 1999, Mr Wilson, using the name “James”, telephoned from Nowra Fair for a taxi. Mr Lester was allocated the job and picked up Mr Wilson. Mr Wilson initially asked to be taken to West Nowra and then to Thompson’s Point. A map of the area, and photographs, show Thompson’s Point to be an undeveloped bushland area, some of which is reserve, on the outskirts of Nowra. When Mr Lester asked Mr Wilson for the fare, Mr Wilson replied that he had no money. A fracas then developed between the two men, during the course of which Mr Wilson produced a knife with which he stabbed Mr Lester in the chest, causing Mr Lester’s death. He then stole money from the taxi and from a wallet near Mr Lester’s body and drove the taxi to another location, leaving Mr Lester on the ground, concealed among scrubby vegetation. He then returned, in the taxi, to the scene of the murder where he set fire to the vehicle, concealed the knife in the ground, and threw away the car keys. He began walking back towards West Nowra when he encountered a motorist whom he knew and who drove him into town. He gave her a false account of the circumstances that led to his being in that place.
7 Mr Lester’s body was found the next day. On subsequent days the knife sheath, Mr Lester’s wallet and his bag containing papers and other items were found.

8 By 22 October 1999 Mr Wilson had become aware that he may have been a suspect in the murder and attended at the police station, where he made the exculpatory interview to which I have already referred, followed by a further interview in which he admitted his involvement. He told the interviewing police that he didn’t know why he had asked to be taken to Thompson’s Point; that, at the time of calling the taxi, he had not intended to steal money or property, and had decided to do so only after the stabbing; that, after telling Mr Lester that he had no money, he had alighted from the taxi to run away, but that Mr Lester had grabbed him by the leg to stop him; that Mr Lester had put him (Mr Wilson) “on the ground”; that when he produced the knife, Mr Lester stepped back and then came forward; that he (Mr Wilson) began to put the knife down, but that Mr Lester came forward and grabbed him by the arm; that when he wielded the knife, his intention was to “sort of scratch him on the arm”, but that Mr Lester turned around and moved his body into the way of the knife, causing the stab wound; that he attempted to help Mr Lester and stop the bleeding, but that Mr Lester pushed him away, and that he then ran away into the bushes; and that he then returned, looked for Mr Lester, found his body, rolled it over and attempted first aid before driving off in the taxi and then returning, and setting fire to the vehicle, throwing away the keys and wallet and the torch (presumably whatever it was that he had used to set the taxi alight) and concealing the knife. He said that he had burned the car in the hope that he might be able “to get away with everything” and leave no evidence. He admitted taking the coins and money from the wallet. He said he had then returned to where Mr Lester’s body lay, in an attempt to help him. He said that he carried the knife for protection, specifically because local Aboriginals tried to steal his bike at night.

3 The respondent gave oral evidence in the sentencing proceedings on 11 June 2004. After reviewing this evidence Simpson J said:

12 In the light of this evidence, and of my impression of Mr Wilson, I am not able to be satisfied beyond reasonable doubt that he did, in advance of the events, formulate a plan to rob a taxi driver. In reaching this conclusion, I have in mind the absence of any history of violence, or indeed criminal conduct, on the part of Mr Wilson, his relatively low level of intelligence, and his family circumstances, all of which I will refer to shortly when I come to outline the subjective factors. It is at least reasonably possible that Mr Wilson, being under some financial pressure, did take the taxi to Thompson’s Point in order to be alone with his worries. He told police that he had, on previous occasions, hired taxis when he had no money to pay the fare.

13 I am conscious that, objectively speaking, there is a suspicion that Mr Wilson had planned a robbery. However, that suspicion does not enable a finding beyond reasonable doubt to that effect. Accordingly, I am not able to act upon the basis that the murder was committed in the course of the commission of a felony which was premeditated or planned. I propose to sentence on the basis that, no later than the time he produced the knife, Mr Wilson intended to inflict grievous bodily harm on Mr Lester.

4 Her Honour also said:

9. He expressed remorse for his conduct and for Mr Lester’s death. Despite a suggesting made to him in cross-examination that his regrets were attributable to his own custodial situation and not in relation to Mr Lester’s death, I am satisfied that he is genuinely remorseful and contrite.

5 Dealing with the respondent’s subjective circumstances her Honour said:

14 Mr Wilson was born on 13 December 1980. He was eighteen years of age at the time of the offence. His early history is recorded in a number of psychiatric and psychological reports. He is the second of four children of both of his parents, but one of ten surviving children of his mother, born to five different fathers. He grew up in Nowra, where he was born. His father left the home when Mr Wilson was about six years old and he thereafter had no contact with him for about ten years. There was then a short-lived reconciliation before the relationship broke down. From the age of about thirteen or fourteen Mr Wilson lived with another family, whom he came to regard as his own, although he has also maintained a close and protective allegiance to his natural mother and is reasonably close to one sister. His schooling finished part-way through year 8, with little educational attainment. Since leaving school he has had little paid employment but has undertaken some voluntary work in a pet shop and a bike shop. He began using alcohol and marijuana in his early to middle teen years.

15 Remarkably, when one considers his dysfunctional family life and background, Mr Wilson has no prior criminal convictions.

16 His intelligence is described as “compromised”. In a report dated 6 September 2000, Dr Westmore, a psychiatrist, wrote that Mr Wilson:

“is a troubled young man, he suffers from intellectual disability, educational poverty and currently depression.”

17 The extent of depression may be gauged against Dr Westmore’s assessment that, at the date of that report, Mr Wilson was not fit to be tried. Dr Westmore considered that he was unable to discuss the circumstances of the killing of Mr Lester in any sensible or extended way, or provide instructions for his defence, or for assessment of his mental state at the time of the killing. Dr Westmore recommended that Mr Wilson receive appropriate treatment. Dr Westmore again examined Mr Wilson on 4 October 2001 and then came to the view that, due to the intellectual disability and psychological problems, he remained unfit to be tried. Specifically, Dr Westmore considered that he would be unable to give evidence or respond to cross-examination.

18 Much the same kind of evaluation was made by Ms K Barrier, a psychologist, who assessed Mr Wilson in July 2000. She reported that Mr Wilson was suicidal. The psychological tests she administered revealed low educational levels, “undersocialisation”, poor social adjustment, difficulty relating to others, marked affective and interpersonal instability, an uncertain sense of self and rapid mood changes, an introversive and borderline personality disorder, very poor concentration and feelings of self worth and a history of serious family problems. She described him as “anxious, lonely and socially apprehensive”, timid and shy, highly self-deprecating with low expectations of relationships with family and peers.

6 In support of the appeal it was contended that Simpson J was wrong to sentence on the basis that Mr Wilson intended to inflict grievous bodily harm on Mr Lester, and was wrong in not acting on the basis that the murder was committed in the course of the commission of a felony which was premeditated or planned. In support of this contention counsel for the Crown referred extensively to evidence which tended to show to the following effects:

§ In the period before the commission of the offence the respondent was desperately short of money, had no significant resources and needed to raise $100 to pay outstanding board; he had been warned that if he did not pay he would have to leave the household where he was boarding;

§ Immediately before the offence he telephoned and booked a taxi using a false name;

§ He was dressed in camouflage clothing and had in his possession a knife, in a sheath, which he had taken from his landlord’s premises, without permission, that day;

§ He directed the taxi driver to take him to an area west of Nowra, then to Thompson’s Point which was an isolated area in bushland overlooking the Shoalhaven River;

§ When the respondent attempted to leave the taxi without paying Mr Lester detained him, apparently with the intention of taking him back to the point where the journey started. The respondent stabbed Mr Lester in the chest using the knife, and the stab wound caused Mr Lester’s death. The wound required moderate to severe force as the knife cut through the fourth left rib and penetrated through the right ventricle of the heart, the diaphragm and into the liver;

§ After the stabbing the respondent took Mr Lester’s money and other property; he drove the taxi from the area where the stabbing took place to another location, then drove it back to the place where Mr Lester’s body had been left, set fire to the taxi, took measures to conceal property of Mr Lester which he had taken, and buried the knife. He did however take Mr Lester’s money and spent it.

§ The respondent had given some false accounts of what he had done. He gave a false account to police on 22 October 1999 although, on the same day, he gave an account to police which was substantially correct, so far as can be checked, and showed police some significant locations, including the location of objects which he had concealed or thrown away;

§ When questioned by police about why he asked Mr Lester to take him out to Thompson’s Point the respondent replied that he did not know; in evidence before Simpson J he said that he went there because that was where he usually went when he wanted to think and get away from everything else;

§ The respondent denied that he planned to rob Mr Lester and that he had taken the knife for such purpose, and explained that he had the knife as he always carried a knife with him ever since he left home for the purpose of protection against local Aboriginals who tried to steal his bike.

7 The Crown contended that the only reasonable inference was that the respondent gave a false name when booking a taxi, took the knife with him, caught the taxi, and directed Mr Lester to drive him to an isolated place as part of a plan to rob a taxi driver so that he could obtain money to pay his outstanding debt.

8 In the recorded interview, which contained significant admissions, the respondent described the events in which the stabbing took place: he told Mr Lester that he did not have money to pay the fare and went to get out of the taxi to run off. Mr Lester grabbed him by the leg to stop him, and when the respondent got out of the taxi Mr Lester grabbed hold of him and put him on the ground. Mr Lester then got up and the respondent pulled out the knife from the sheath in his right trouser pocket. Mr Lester stepped back, but later came forward and grabbed the respondent by the arm. The respondent held the knife up but he only meant to “sort of scratch [Mr Lester] on the arm”; but Mr Lester turned around to move his body into the way of the knife and as a result the respondent “got [Mr Lester] in the chest”.

9 The Crown contended that the respondent’s account of how he came to stab Mr Lester was so improbable that it should have been rejected. It was further contended that the respondent’s assertion that he was carrying the knife because he always carried a knife for protection was also so improbable that it should have been rejected, and that his claim to have directed the taxi to a remote location with the intention to go there and think was extremely improbable and was not believable. Counsel for the Crown referred to other circumstances in support of the contention that the accounts which Simpson J accepted were incorrect in fact, and that the findings should be set aside.

10 The Crown bore the onus of establishing, beyond reasonable doubt, any adverse matters relied on in the sentencing proceedings to aggravate the offence. Simpson J heard the oral evidence of the respondent, short though it was, had an opportunity to form an impression of him, and relied, among other things, on her impression of him. Simpson J had full assistance from submissions by counsel before coming to conclusions on the facts, expressed those conclusions with care, supported by detailed reasons, and found that the respondent intended to inflict grievous bodily harm. Her Honour acted on the basis that, no later than the time he produced the knife, the respondent intended to inflict grievous bodily harm on Mr Lester. In my view the finding which was made was reasonably open to her Honour, and I see no reason to conclude that the finding was erroneous. In saying this I have in view the standard of proof required, and I also have in view that the finding which in fact was made itself establishes that the offence was a very serious offence. In my opinion it has not been shown that the findings which have been challenged should be set aside on appeal.

11 These findings show that robbery, infliction of grievous bodily harm and use of the knife were not preconceived intentions in the mind of the respondent when he engaged Mr Lester and his taxi and proceeded to Thompson’s Point. In my understanding of the findings, use of the knife and the intention to inflict grievous bodily harm arose during the confrontation when the respondent did not pay his fare and attempted to leave, and robbing Mr Lester of his money and other property came into the respondent’s intention even later, probably when Mr Lester was dead.

12 Before going on to deal with other matters argued in support of the appeal I should refer to some events in the history of the proceedings and the disposition of the respondent after he was arrested and charged with murder on 22 October 1999. He has been in custody at all times since then. After committal proceedings in the Local Court at Nowra the respondent was committed for trial on 27 March 2000. On 2 June 2000 he was arraigned before the Supreme Court at Sydney and pleaded not guilty. Later an inquiry was conducted in accordance with Pt.2 of the Mental Health (Criminal Procedure) Act 1990 and on 20 November 2000 he was found unfit to be tried. The Mental Health Review Tribunal determined on 21 June 2001 that the respondent would not become fit to plead within 12 months following that finding. On 7 August 2001 the Attorney General directed that a special hearing be conducted, and a special hearing pursuant to s.22(1)(c) of the Mental Health (Criminal Procedure) Act 1990 was conducted between 11 and 20 March 2002 before Wood CJ at CL and a jury. The jury found that the respondent had committed the offence of murder. On 22 April 2002 Wood CJ at CL nominated a limiting term of 18 years commencing from 21 October 1999; and in doing so acted pursuant to s.23 (1) of the Mental Health (Criminal Procedure) Act 1990. The respondent filed a Notice of Intention to Appeal against the nomination of the limiting term, but later abandoned the appeal. By an order of the Supreme Court on 4 April 2003 the respondent was detained at Silverwater Jail (or elsewhere as nominated by the Department of Corrective Services) and not in a hospital. On 2 December 2003 the Attorney General directed a further fitness hearing, which took place before Simpson J (without a jury) on 3 May 2004; her Honour determined that the respondent was fit to be tried and fixed 5 May 2004 as the date on which the trial was to commence. The respondent was again arraigned on 5 May 2004 and then pleaded guilty to murder.

13 In Simpson J’s Remarks on Sentence her Honour dealt with a contention by counsel for the respondent that she should adopt as a sentencing starting point the limiting term of 18 years decided upon by Wood CJ at CL. Her Honour said:

26 I doubt whether it is appropriate to commence a consideration of the proper sentence by reference to the limiting term selected by Wood CJ at CL. There are a number of reasons for this. The evidence before his Honour was plainly, in a number of respects, different from the evidence that was before me. At the time his Honour selected that term there was little or no demonstrated rehabilitation. There was little or no evidence of subjective circumstances. The exercise in which his Honour was engaged was a different one, circumscribed by the limitations on the available evidence. In my opinion, my task is to sentence Mr Wilson on the evidence before me. This is not a circumstance analogous to sentencing after a second conviction that follows a successful appeal and new trial, where convention ordinarily requires that a sentence no longer than that originally imposed be fixed. [I] do not think the selection of the limiting term made by Wood CJ at CL should dictate or even guide my sentencing discretion, which is independent and is required to be exercised on the facts and circumstances exposed in the evidence before me. (That does not preclude my selection of a sentence of the same or similar length; it merely means that I should take my own route to the selection of the sentencing starting point.)

27 Nor do I accept the Crown’s contentions on this issue. It is not for me to pass an opinion upon the adequacy or otherwise of a term specified by another judge, in circumstances markedly different to those before me: Wood CJ at CL expressly observed that the subjective circumstances, to the extent that they were elucidated before him, offered little by way of mitigation, other than relative youth and immaturity; and those considerations were qualified by the objective gravity of the crime. That is far from the case before me: I have been presented with extensive evidence of Mr Wilson’s background, which I do treat as a mitigating circumstance; and of his successful efforts at rehabilitation, which is an even more substantial matter in mitigation of sentence. I am satisfied that the family history, his educational and intellectual poverty, and his youth are matters relevant to culpability.

28 Moreover, Wood CJ at CL selected the term of eighteen years as appropriate following a special hearing in which detailed evidence of the circumstances preceding, and surrounding, the offence were given, such that his Honour had no difficulty in concluding that the offence was properly characterised as “felony murder”. On the evidence before me I am not, for reasons I have already given, in a position to make such a finding on the high standard of proof that would be necessary.

14 Upon the appeal counsel for the respondent did not contend that the limiting term decided upon by Wood CJ at CL should be the starting point for consideration, or took any significant part in the matters under consideration, other than by observing (in written submission 30) that “It would be open to this Court to have regard to the fact that Wood CJ at CL regarded a limiting term of 18 years as being appropriate, on the evidence that was available at that time. It indicates that a total sentence of 18 years was regarded by him as appropriate for this offence, absent a plea of guilty and in the absence of some of the subjective material that became available later.”

15 The decision of Wood CJ at CL relating to the limiting term was not a sentence imposed after conviction, and was not a punishment for crime. It was not imposed after a plea of guilty, and the respondent was not then in a position to make a plea of guilty or of not guilty. It was plain at the time, and it should reasonably have been understood by all concerned including by the respondent, that if and when the respondent came to be fit to make a plea on arraignment the proceedings before and decision of Wood CJ at CL would not govern the disposition of the respondent. The policy considerations which produce the “sound principle of sentencing” referred to in Gilmorev. R (1979) 1 A Crim R 416 at 419-420 (L.W. Street CJ) relate to resentencing after an appeal and do not apply where as here there was no appeal and the respondent exercised no right which might be deterred by imposition of a sentence which differed from the limiting term. That sound principle is not binding in all circumstances: R v. Merritt [2000] NSWCCA 365 at [31] and [32] and does not operate in this case and could have no influence. The situation is quite unlike one where what is called for is a decision whether or not a sentence earlier imposed (but set aside) should again be imposed, or whether some other more or less severe sentence should be imposed. There is no possible element, either in appearance or reality, of imposing an undue risk or an element of deterrence on a procedural decision made by an accused person, and there is no possible element of punishing or appearing to punish an accused person for exercising a right of appeal, or some other procedural right. Such things could not exist either in appearance or in reality because the respondent had no control or influence over whether, after a limiting term had been fixed, he would later be tried.

16 In my opinion the circumstances in which Wood CJ at CL made his decision about the limiting term are so different to the circumstances in which Simpson J acted that the limiting term should not have any influence on the decision of Simpson J. It was said in R v. M M [2002] NSWCCA 431 at [30] (Levine J) to the effect that the convention relating to resentencing “… may be to some extent described as cognate with ‘double jeopardy’”. Counsel for the respondent also referred to R v. CJP [2004] NSWCCA 188. In my view the analogy with double jeopardy is not close in any case and is not available at all in the present case. It is not in point that the Crown did not appeal against the limiting term, nor that the respondent abandoned his appeal. There is no element of double jeopardy, as the proceedings leading to the limiting term and the proceedings leading to the plea of guilty, conviction and the sentence are quite different in nature from each other. In my view her Honour was right to hold that the decision of Wood CJ at CL should not dictate or even guide her Honour’s sentencing discretion, and was right to say that her Honour’s sentencing discretion was independent and was required to be exercised on the facts and circumstances exposed in the evidence before her; and also to say that she should take her own route to the selection of a sentencing starting point. I do not suggest that it was not appropriate for her Honour to know what had taken place in the earlier proceedings, and to know the decision on the limiting term which had then been reached.

17 It appears to me that the earlier decision relating to the limiting term did not have any inappropriate influence, or in substance any influence at all on the decision made by Simpson J.

18 Counsel for the Crown made a number of observations in support of the contention that the sentence was manifestly inadequate on the view of the facts for which counsel contended, that is on the view that the murder was committed in the course of the commission of a felony, namely armed robbery, which was premeditated or planned. As I have not upheld this view of the facts, I will not address these contentions in detail.

19 It was further contended by counsel for the Crown that even upon the view of the facts on which her Honour had acted the sentence was manifestly inadequate. It was contended that it was still a very serious case of murder having regard to the objective facts. Counsel referred to R v. Mills (unreported, NSWCCA, 3 April 1995) and contended for the analogy that murder committed with the intention to inflict grievous bodily harm is not less culpable than felony murder generally. It was further contended to the following effects:

1. her Honour gave too much weight to the subjective factors relating to the respondent and paid insufficient regard to the objective seriousness of the offence;

2. her Honour’s allowance of a discount of 25% for the utilitarian value of the plea of guilty was excessive; and

3. her Honour was in error in taking into account the respondent’s youth, rehabilitation and prior good character both in reducing the head sentence and in finding special circumstances.

20 In dealing with these contentions I do not find it possible to maintain separation between them, and I will address them together.

21 In relation to the sentence imposed Simpson J said among other things:

29 Because the offence pre-dates 1 February 2003, I am required to sentence Mr Wilson in accordance with the now repealed s44 of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”). That means that I must fix the term of the (head) sentence, and then fix a non-parole period, which, pursuant to sub-s(2), must be not less than three-quarters of the head sentence unless I decide that there are special circumstances for so doing (in which case I am required to state the reasons for that decision). The Crown very fairly and properly conceded that it is open to me to make a finding of special circumstances, the reasons for that being Mr Wilson’s youth and positive rehabilitation. I am satisfied that, for those reasons, I should do so. In this context it is also appropriate to have regard to Mr Wilson’s prior good character and that this is the first time he has been incarcerated. That circumstance is relevant both to the selection of the head sentence as well as to a finding of special circumstances, although I bear in mind that it should not be used in such a way as unduly to increase its impact and give an excessive benefit.

30 I have concluded that, when all competing factors are balanced, a starting point of eighteen years is by no means too lenient. In reaching that conclusion I have not overlooked the tragic loss of Mr Lester’s life, or Mr Wilson’s clear culpability; nor have I overlooked the specific protection the law seeks to afford to individuals who, by reason of their occupation, are particularly vulnerable to violent offenders; nor the sternness with which sentencing judges approach offences involving the use of knives. I have balanced those against Mr Wilson’s seriously disadvantaged start in life, and his genuine and successful efforts towards rehabilitation.

31 There is an unusual combination of circumstances relevant to the sentencing exercise. On the one hand, Mr Wilson is entitled to, and will receive, the benefit of the four and a half years which he has put to good use in his rehabilitation. On the other, he is also entitled to, and will receive, the maximum benefit that comes to him as a result of his early plea of guilty. It is only on very rare occasions that a lengthy period of rehabilitation is combined with an early plea, but that is here the case.

32 I have concluded that, for the reasons I have outlined, but particularly having regard to the serious objective circumstances, including the vulnerability of Mr Lester, and the use of a knife, and also to those factors mitigating culpability, particularly Mr Wilson’s age, his family background, his prior good character and his rehabilitation, the appropriate starting point is a head sentence of sixteen years. I propose to reduce that by 25%, to give a head sentence of twelve years. Absent special circumstance, s44 of the Sentencing Procedure Act would call for a non-parole period of nine years. I propose to reduce that by one year, giving a non-parole period of eight years.

33 I am well aware that this sentence may appear lenient, but I trust that those who would so consider it will read these remarks and understand the reasons that have led me to this result.

Shannon Blake Wilson: you are convicted of the crime of murder. You are sentenced to imprisonment for twelve years, commencing on 22 October 1999 with a non-parole period of eight years. The earliest date on which you will be eligible for release on parole is 21 October 2007.

22 Simpson J’s findings mean, and her Honour acted on the basis, that in the terms of subs.18(1) of the Crimes Act 1900, the respondent was guilty of murder in that his act causing Mr Lester’s death was done with intent to inflict grievous bodily harm upon Mr Lester, but not on the basis that the murder was done in an attempt to commit or during the commission of armed robbery (usually referred to as felony murder or constructive murder). The distinction has no effect on the statutory provisions relating to sentencing, which do not differentiate between these bases (see Crimes Act 1900 s.19A and Crimes (Sentencing Procedure) Act 1999 s.21). An offence of murder on some other basis than intent to kill is not necessarily of less culpability for that reason, and attention must be directed to the actual circumstances. See R v. Mills (Gleeson CJ and Cole JA).

23 Murder is a grave crime whenever and however it is committed, and some circumstances of the respondent’s offence make a strong claim on attention when addressing the contention that the sentence imposed was manifestly inadequate. The respondent was armed with a knife; it was his evidence that he usually carried a knife, and he gave nothing which could possibly be thought of as an adequate explanation for usually going about armed in that way. Carrying and use of a deadly weapon, in this case a knife, constitute a considerable aggravating circumstance. The knife was produced readily at a stage where the situation did not present the respondent with any real risk of harm. The use of deadly weapons, such as the knife used by the respondent, by young persons is abhorrent to the community: see observations of Wood CJ at CL in R v. Huynh [2001] NSWCCA 269 and R v. Phung [2001] NSWSC 115 at 78. Carrying deadly weapons such as knives and using them in the commission of crimes are behaviours that the community will not condone, and indeed cannot condone if it is to remain a community. The knife was no ordinary pocket knife, and was capable of inflicting, as it did, a lethal deep wound severing a rib. To be used it had to be and was removed by the respondent from his trouser pocket and unsheathed. He did this in a conflict with a much older man, about three times his age, whom he had severely wronged; there were no possible merits with the respondent. Mr Lester was altogether unarmed. Mr Lester was in a vulnerable situation when confronted by a much younger person who was armed with a knife, and the vulnerability of his situation was amplified because the respondent had directed Mr Lester to take him in the taxi to a remote place.

24 The vulnerability of taxi drivers to attack, and to armed attack, has been the subject of strong judicial observations on many occasions and over many years. Outrageous as murders are, the outrage is clear and striking when I consider the vulnerability of taxi drivers, who follow an honest occupation highly serviceable to the community at large which does not conceivably offer annoyance to anybody, and carry with them sums of money which while not large have been repeatedly found to offer temptation to violence; it is outrageous that taxi drivers should expose their lives to risk merely by following their occupation. The actual circumstances of Mr Lester, who answered a radio call originated by an order for a taxi made by the respondent using a false name, in the centre of Nowra, give his vulnerability a particularly clear call on attention; Mr Lester was following an everyday occupation in the midst of peace and civilisation and his life was taken from him while he was doing it.

25 Repeatedly Courts have made observations on the need for a strong element of general deterrence of attacks against taxi drivers, and on the appropriateness of condign punishment. There have been many judicial observations on the appropriateness of severe punishment, extending back for many years: see Elliott & Hitchins v R (1983) 9 A Crim R 238 at 266 where Lee J referred to Henderson v. R (unreported, NSWCCA 18 December 1975, L.W. Street CJ). Cases in which attention has been particularly directed to offences against taxi drivers were referred to by Wood CJ at CL when imposing the limiting term: [2002] NSWSC 297 at [7] and [8]. In my understanding the censure of the community and of the Court, when assessing appropriate punishment, must be severe indeed. A person contemplating such a crime should have the means to understand that he or she is forfeiting his or her liberty for decades, so that a person of mature years could not look forward to gaining liberty until he or she has reached age and decrepitude, while a youth could not look forward to regaining liberty until his or her youth is well over. The appropriate punishment is punishment which would mean that no one would dare to commit such an outrage.

26 Simpson J was of the view that the respondent was entitled to and should receive the maximum benefit from his early plea of guilty. A significant discount after taking into account the fact that the respondent pleaded guilty was appropriate: see s.22 of Crimes (Sentencing Procedure) Act 1999 and R v. Thomson (2000) 49 NSWLR 383. The plea of guilty was offered by the respondent on 5 May 2004, 4 years and 6 months after the offence. It might seem strange that a plea of guilty offered so long after the offence should be treated as an early plea of guilty. In 1999 and 2000 the respondent went through committal proceedings in the Local Court at Nowra and arraignment in the Supreme Court without entering a plea of guilty; indeed on arraignment he pleaded not guilty. However these events should not be treated as adverse to him, and the passage of an extended time before it was determined on 3 May 2004 that he was fit to plead, and his arraignment and plea on 5 May 2004, arose from circumstances of his mental illness and not from any circumstances within his own control. In my view her Honour was correct in accepting that the plea of guilty was made at what was, in practical terms, the earliest reasonably available time.

27 In my respectful view there is a degree of overstatement in her Honour’s Remarks on Sentence as there cannot ever be an entitlement to a discount of 25% of a sentence for a plea of guilty. It is established by R v. Houlton [2000] NSWCCA 183 that a discount may be allowed in a discretionary range of which 25% is usually the maximum; no course taken by a person offering a plea of guilty can create an entitlement to any particular discount, or to a discount at the maximum of this range. Adoption by Simpson J of a discount of 25% of the sentence which her Honour regarded as appropriate was however a decision reasonably available as a matter of discretion. The purposes for which such discount may be allowed are quite important, and in the convoluted procedural history of the present case those purposes were in substance achieved. While I am of the view that a less ample discount might reasonably have been made, Simpson J was not in error in her decision. The discount of four years produced by her Honour’s application of 25% to a starting point of 16 years was not erroneous and should be adhered to when resentencing. It would not, in my view, be adherence to her Honour’s decision to increase the discount to a greater number of years by applying 25% to the longer sentence which I regard as appropriate: the true expression of her Honour’s decision was as a discount of four years.

28 I should make it clear that I do not regard it as having been conceded by counsel for the Crown at the sentencing proceedings that a discount of 25% was appropriate. I have read the written submissions put forward on that occasion and the transcript of counsel’s observations, and it appears clearly to me that counsel for the Crown put forward, accurately, the existence of a discretion and a discretionary range of which 25% was the maximum, and did not advocate or concede the adoption of 25% or any other figure by Simpson J. There was no real debate on what should be the discount. The respondent’s youth, prior good character and adverse personal circumstances were relevant both at the stages of considering what should be the head sentence and also of addressing whether there were special circumstances and whether the non-parole period should be reduced because of them. See R v. Simpson (2001) 53 NSWLR 704 at [67] Spigelman CJ. I do not accept a contention on behalf of the Crown that there was some error of double counting in Simpson J’s considering relevant matters at both stages. In my opinion there is no occasion to make another assessment of the appropriate discount.

29 In the passage which I have set out Simpson J took into account the respondent’s youth, rehabilitation and prior good character in determining that the appropriate starting point for consideration was a head sentence of 16 years. All these elements had reality and weighed in favour of mitigation of the condign punishment which was appropriate having regard to the degree of criminality revealed by the circumstances of the offence. Although there is no significant discernible error in her Honour’s expressed reasoning, the adoption of 16 years as a starting point indicates that there must have been some very significant departure from principle. I must respectfully say that in my opinion her Honour’s conclusion that 16 years was an appropriate head sentence, after allowing for matters of mitigation, is manifestly inadequate, and calls for appellate intervention. Its inadequacy is so great and the circumstances so clearly call for a more severe sentence that the restraints which often operate in Crown appeals should not be applied.

30 Statutory rights of appeal against sentence conferred on the Crown are rightly to be exercised with restraint, and a number of considerations restrain intervention by the Court so that an appeal may not necessarily be allowed when some error has been shown in the sentencing process: see the principles collected and restated in R v Kalache (2000) 111 A Crim R 152 at pp180-182 [101]. One expression of the Court’s restraint is the consideration referred to, not altogether accurately, as double jeopardy, which has been stated in these terms:-

In determining what the quantum of sentence should be we have, as not infrequently occurs in the case of Crown appeals, borne in mind that the respondent has been twice in jeopardy in the matter of sentence. It will be distressing in the extreme for him to suffer the sentence passed on him some time ago being increased. This leads us to determine a sentence which is more lenient than would properly be appropriate if the matter were coming forward for sentence for the first time.

31 This passage from R v Fleige (unreported, NSWCCA, 19 November 1982) was set out with apparent approval in R v Holder [1983] 3 NSWLR 245 at 257 (L.W.Street CJ). In Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 128 Deane J (dissenting) said:

A statutory conferral of a prosecution power of appeal against the sentence passed by a trial court upon a person convicted of a criminal offence has been rightly described as “a marked departure from the principles theretofore governing the exercise of penal jurisdiction” (per Dixon J, Williams v R [No 2] (1934) 50 CLR 551 at 561) and as cutting across “time-honoured concepts of criminal administration” (per Barwick CJ, ; Peel v R (1971) 125 CLR 447 at 452). Such a prosecution appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal” (per Isaacs J, ; Whittaker v R (1928) 41 CLR 230 at 248). “The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court” (; R v Tait (1979) 46 FLR 386 at 389; 24 ALR 473). A conferral of such a prosecution right of appeal infringes the essential rationale of the traditional common law rule against double jeopardy in the administration of criminal justice in a manner comparable to a conferral of a prosecution right of appeal against a trial acquittal (cf ; R v Holder [1983] 3 NSWLR 245 at 255–6, 269–70).

32 These observations in a dissenting judgment state the difficulty referred to as double jeopardy so as to expose the undergoing concern, although with greater strength than the influence which the difficulty has had on the course of decision shown, for example, by Kalache, which is better accommodated to the reality of the legislated entitlement of the Crown to appeal. The regard paid to the distress occasioned by resentencing and the extension of leniency on that account take their place with other considerations.

33 In my opinion the sentence and the sentencing decision of Simpson J should be set aside because the head sentence adopted was manifestly inadequate, and the Court of Criminal Appeal should itself embark on determining the appropriate sentence.

34 The respondent grew up in dysfunctional and adverse family circumstances, with disrupted relationships with his father and other family members. His schooling finished early and with little attainment. He has had little paid employment since leaving school. His intelligence is compromised, and in a report by Dr Westmore, a psychiatrist, dated 6 September 2000 he was spoken of as “… a troubled young man, he suffers from intellectual disability, educational poverty and currently depression.” Depression, with intellectual disability and psychological problems, caused him to be unfit to be tried. Notwithstanding his significant disadvantages he has had no prior criminal convictions: as Simpson J said, this is remarkable, and in my view his circumstances enhance its significance.

35 Evidence read on behalf of the respondent during the appeal deals with his prison experiences and his response. His evidence shows that the impact of imprisonment on him has been severe, because of his characterisation as a serious offender and his consequent imprisonment in association with offenders whom he finds intimidating – “There’s a lot of big boys in here,” and because of his sense of the hostility of some prison officers, including one who is an ex taxi driver. He has expressed and shown interest and concern to have occupation, as a sweeper or otherwise, and to use whatever education and training opportunities may be available; in view of his classification, these have been limited but he has done all courses available to him in his present prison. He has studied and continues to study Art, subject to difficulties about the availability of art material in his cell; he tries to keep himself busy, trains in the gym and paints at nighttime. He has expressed, on oath and with apparent sincerity, his regret for his offence and his sorrow for Mr Lester’s family, and has shown an understanding of the enormity of what he has done. Evidence given by his solicitor on the narration of the psychologist whom he sees every fortnight confirms that when work and training were available he had established plans and goals to take them up, that he has done every course he possibly can and continues to study Art, and confirms his difficulties, problems and disappointment with his inability to get work such as work as a sweeper or on garden maintenance.

36 In a general way the evidence given on appeal confirms the views taken and expressed by Simpson J about the respondent’s personal circumstances and contrition. It also shows grounds for confidently expecting that, when parole becomes available to him, he will benefit from parole and supervision. Simpson J had regard to special circumstances so as to vary what would otherwise be the non-parole period of three-quarters of the head sentence imposed. There are circumstances affecting the respondent which support the decision that there were special circumstances for the purpose of s.44 of the Crimes (Sentencing Procedure) Act 1999. However notwithstanding his special circumstances as found by her Honour, the time available applying the statutory proportion to his sentence within which parole may be available is, in my opinion, altogether sufficient for anything which parole may reasonably be expected to achieve, and his special circumstances do not give sufficient grounds for providing for a longer parole period than the statutory proportion. Notwithstanding the existence of special circumstances, it was not in my opinion correct of her Honour to depart from the ordinary operation of s.44 and this Court should not do so.

37 For reasons which I have stated earlier the respondent’s crime called for punishment of condign severity. I have to keep steadily in view that Mr Lester was knifed to the heart when the time came to pay the taxi fare. After making what I regard as considerable allowances for factors relating to the respondent’s prior good character, youth and family circumstances, which weigh in favour of mitigation of the severe punishment which such an offence calls for, an appropriate starting point is one of 24 years imprisonment. That starting point should be reduced, in accordance with Simpson J’s discretionary decision which should not be departed from, by 4 years to 20 years, which should be the head sentence imposed, and the non-parole period should be fixed in accordance with s.44 at three-quarters of that period, that is at 15 years. The period of 5 years available for parole is quite sufficient for anything which parole can reasonably be expected to achieve and is longer than the 4 years for which Simpson J allowed. The sentence should commence on the date of arrest, 22 October 1999, so that the earliest date upon which the respondent will be eligible for release on parole is 21 October 2014.

38 Since I prepared the earlier paragraphs of this judgment I have seen the judgments prepared by Studdert and Adams JJ. I have no doubt at all that the prospect of severe punishment tends to deter criminal behaviour, and that deterrence is an important and effective element in sentencing. This is a human truth that everyone knows. Of those who do not accept that the prospect of severe punishment tends to deter criminal behaviour I ask: “Would it influence your behaviour?” While I adhere to the views I have earlier expressed and to every word of them, there is a practical need to come to some conclusion about the order which the Court should make as no conclusion is supported by all or by two members of the Court. An older practice was that to achieve an outcome where there were differing views the most junior judge withdrew his or her opinion: see Tasmania v. Victoria (1935) 52 CLR 157 at 183 - 184 Dixon J. There are no statutory provisions which govern or deal with achieving an outcome: contrast Judiciary Act 1903 (Cth) s.23, Supreme Court Act 1970 (NSW) s.45 and Criminal Appeal Act 1912 (NSW) s.21A. The practice now is to look for the highest common denominator of opinion so as to secure an order of the Court: see Woolworths Ltd v. Kelly (1990) 22 NSWLR 189 at 200 (Kirby P), followed, for example, in Arbest Pty Ltd & Ors v. State of New South Wales [No.2] (unreported, NSWCA, 2 February 1996).

39 I do not think that it would be right to ask Adams J to withdraw his opinion: there would still be no agreed position if his Honour did so. Further Adams J reached the same conclusion as did Simpson J: this makes me reluctant to ask for its withdrawal. As this is a Crown appeal and a majority favour upholding the appeal, the most practical course is that I should concur in the order which Studdert J proposes. Accordingly I am now of the view that the Court of Appeal should make the orders proposed by Studdert J.

40 STUDDERT J: This is a Crown appeal against a sentence imposed by Simpson J. The respondent pleaded guilty to the crime of murder and her Honour imposed a sentence of twelve years, with a non parole period of eight years.

41 There were a number of matters the subject of submissions by the Crown on the appeal which I will address in turn.

1. That it was reasonably open to the sentencing judge to determine this was not a case of felony murder

42 I have had the benefit of reading the judgment of Bryson JA in draft form. I respectfully agree with what his Honour has written as to this first ground, and there is nothing I wish to add in relation to it.

2. That the discount of twenty-five percent for the utilitarian value of the plea of guilty was excessive

43 Bryson JA has recorded the history of events that led up to the plea of guilty, first expressed on 5 May 2004. That plea followed swiftly upon the finding of Simpson J that the respondent was fit to plead. I agree with Bryson JA that the discount of twenty-five percent allowed by her Honour was reasonably open to the judge in the exercise of her discretion, assessing the history of the matter and the utilitarian value of the plea.

3. That too much weight was given to the subjective circumstances

and

4. That the sentence was excessively manifest

44 These two grounds are linked and can conveniently be addressed together.

45 I consider that Simpson J was correct to approach the matter on the basis that her Honour was not bound by reference to the limiting term earlier set by Wood CJ at CL. True it is that under the Mental Health (Criminal Procedure) Act the limiting term was to be neither more harsh than nor more lenient than the sentence that would have been imposed as a total sentence: Mitchell (1999) 108 A Crim R 85, and the limiting term was to have regard to both the objective and the subjective circumstances: Mitchell (supra) and Wilson [2002] NSWSC 297. However, the judicial task before Wood CJ at CL in the earlier proceedings was a different task, and was addressed on different evidence. His Honour did not have before him the evidence in relation to subjective features of the case later presented before Simpson J nor was he required to factor in any discount in respect of a guilty plea. Again, I respectfully agree with what Bryson JA has written as to the limited relevance of the earlier limiting term

46 The relevant features of the respondent’s subjective circumstances were identified by the sentencing judge in the remarks on sentence in paras 14-21. They were generally favourable. The respondent had no prior criminal history and his prospects of rehabilitation were good. Indeed, her Honour considered that the four and a half years spent in custody before sentencing had been a period of “remarkable transformation”. The respondent has participated in a number of educational programmes, his literacy has improved significantly, he has acquired an interest in music, and he is now regarded as well behaved and cooperative by the prison authority.

47 I find no error of fact or misstatement of principle in the remarks on sentence, and it has to be recognised that the appropriate weight to be given to subjective circumstances is a matter upon which minds may differ, but I remind myself that there must be

“a reasonable proportionality between a sentence and the circumstances of the crime and…that it is always important to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place”: Dodd (1991) 52 A Crim R 349 at 354.”

48 I have concluded that the sentence imposed does not sufficiently reflect the total gravity of the respondent’s crime and I agree with Bryson JA that this Court should intervene. However, I respectfully disagree with the sentence proposed by his Honour.

49 There is to be due emphasis on the need for deterrence in determining a proper sentence, and the need to send out a clear message that the courts will severely punish the perpetrators of crimes of violence upon taxi drivers requires recognition. Bryson JA has referred to earlier judicial remarks about this matter and I will not repeat such reference. That said, however, in resentencing the respondent due regard must be made to these features:

(a) There must be allowance for the principle of double jeopardy: see Alpass (1994) 72 A Crim R 561; Warfield (1994) 72 A Crim R 516; Kalashe (2000) 111 A Crim R 152; and Giam (1999) 109 A Crim R 348 at 353 In my view, due recognition of this principle here calls for the imposition of a sentence towards what I perceive to be the bottom of the appropriate range: see Giam (supra).

(b) In resentencing, the Court must bear in mind that her Honour found that the intention formed by the respondent was an intention to inflict grievous bodily harm, not an intention to kill. Whilst this is not necessarily the case, murder committed where the intention is to inflict grievous bodily harm, whilst a most serious crime, is generally to be viewed as being objectively less serious than murder committed with the intent to kill: see Lowe (unreported, NSWCCA, 14 November 1995), Ashfield (unreported, NSWCCA, 27 February 1998) and Nelson (unreported, NSWCCA, 25 June 1996).

(c) Further, it seems to me that in fixing a head sentence the discount factor of twenty-five percent determined as appropriate by her Honour for the utilitarian value of the plea should be maintained and applied to the sentence now to be set.

(d) This Court must take account of the evidence presently available as to the respondent’s experiences and progress in prison. Bryson JA has conveniently summarised these matters at para 52 of his judgment.

50 With the above considerations in mind, but for the discount for the utilitarian value of the plea, I would have proposed a head sentence of twenty years. However, the discount factor calls for a reduction of the head sentence to fifteen years.

51 Simpson J found special circumstances, observing when so doing that the Crown conceded that it was open to her to make this finding. I consider that finding ought not to be disturbed in the structure of the sentence I am about to propose. The respondent will need an extended period of supervision when released to parole, bearing in mind the special circumstances identified by the sentencing judge concerning his age and rehabilitation requirements.

52 For the reasons stated, I would allow the appeal and set aside the sentence imposed. I would sentence the respondent to a term of imprisonment of fifteen years to date from 22 October 1999 and to expire on 21 October 2014. I would set a non parole period of eleven years to commence on 22 October 1999 and to expire on 21 October 2010. I would specify 21 October 2010 as the first date upon which the respondent is to become eligible for release upon parole.

53 ADAMS J: I have had the considerable advantage of reading in draft the judgments of Bryson JA and Studdert J. The Crown appeal relied, in substance, on four submissions.

1. It was not reasonably open to the judge to determine that this was not a case of felony murder.

54 I respectfully agree with the judgment of Bryson JA in respect of this submission.

2. The discount of 25% for the utilitarian value of the plea of guilty was excessive.

55 Having regard to the unusual history of the proceedings, as helpfully set out in the judgment of Bryson JA, I agree with his Honour that the discount of 25% allowed by Simpson J was within the proper exercise of her Honour’s discretion.

3. That too much weight was given to the subjective circumstances and
4. That the sentence was manifestly inadequate.

56 These submissions are connected.

57 I agree with both Bryson JA and with Studdert J that Simpson J was not bound to sentence the respondent by reference to the limiting term earlier set by Wood CJ at CL. The subjective circumstances relevant to the respondent’s sentence are sufficiently set out in the judgment of Bryson JA and were rightly regarded by Simpson J as very significant. It is important to note that, whilst some subjective circumstances which must be considered in sentencing an offender – such as remorse, for example – do not reflect on the character of the crime itself, some – such as limited intelligence or psychological impairments – are relevant also to an assessment of the objective character of the crime. Anything approaching precise analysis is plainly impossible and the instinctive synthesis of all relevant factors is inevitable. Generally speaking, I agree with Bryson JA’s statement of applicable principle concerning the objective seriousness of the respondent’s offence.

58 The requirement of general deterrence is one of the elements of an appropriate sentence. But it cannot be the ultimate test of its appropriate severity. The moral culpability of the offender (a notion that must involve both the objective and subjective circumstances of the case) is even more important.

59 I must respectfully but emphatically disagree with Bryson JA’s statement that “the appropriate punishment is punishment which would mean that no one would dare to commit such an outrage”. This is incorrect in principle and is not the law of this State. Nor is it, so far as I know, the measure of punishment in any system of justice governed by the rule of law. The actual effect that the level of sentences has on those intending to commit crimes is of necessity speculative, though it has long been the subject of continuing research amongst criminologists. No one knows – or can know – what measure of punishment would be such that “no one would dare to commit” the crime committed in this case. It is obvious that even the death penalty fails to deter many criminals, let alone life sentences. Some offenders might be deterred by a sentence of ten years, whilst others might not be deterred by a sentence of less than twenty-five years and yet others may never be deterred, even on the questionable assumption that they actually undertake the calculation. The sentence of the offender in this case cannot depend upon the hardihood of some potential unknown offender and even less on the hardiest of all unknown potential offenders.

60 This Court is unhappily often confronted with cases of very serious crime. A coherent series of sentencing principles has been developed. They recognize that the difficult task of sentencing requires a number of relevant, often disparate and sometimes conflicting considerations to be weighed. The significance to be attributed to the various factors varies from case to case. The balancing of these factors should be done in a dispassionate way.

61 I respectfully agree with Studdert J that the principle of double jeopardy applies both generally to Crown appeals and in particular to this appeal. I also agree with his Honour that, so far as the objective circumstances are concerned, the fact that the respondent killed the deceased intending to inflict grievous bodily harm rather than with the intention to kill him is a significant feature. This will not be so, of course, in every case. Where, as here, it has been found that the injury causing death was inflicted without premeditation – though with the intention to cause grievous bodily harm – there is no reason not to apply the general principle. It is, after all, no more than an insistence upon fact and substance rather than form. This does not suggest, of course, that murder committed where the intention is only to do grievous bodily harm is anything but a very serious crime indeed.

62 The very unusual feature of this case that requires an amelioration of punishment is the great delay in sentencing, caused principally by the respondent’s unfitness to be tried. This, of course, was not the fault of the respondent. The effect was that he spent many years in custody with very serious psychological illness with the very real possibility that he could not be released for eighteen years before he was in a mental condition that enabled the criminal justice system finally to deal with and determine his case. This exceptional circumstance must have a significant effect on the sentence that it is appropriate to inflict at the end of the process.

63 As has been said, I agree that the exercise undertaken by Simpson J was very different to that undertaken by Wood CJ at CL. Even so, I would not dismiss as immaterial to the judgment that this Court must make the consideration that the limiting term thought by Wood CJ at CL to be appropriate, having regard to the objective circumstances (including a conclusion, not reached by Simpson J, that the crime was one of “felony murder”) found by him, was but two years longer than the starting point judged by Simpson J as appropriate, taking into account all the circumstances, including the subjective features.

64 It is clear from what appears in the judgments of Bryson JA and Studdert J that the task facing Simpson J was a difficult one. I agree with their Honours that there is no error either of law or fact manifested in her Honour’s reasons for sentence. I am not certain that I would have imposed the sentence imposed by Simpson J had I been sitting in her Honour’s place. At the end of the day, however, and with the greatest respect for those with whom I have the misfortune to differ, I am not persuaded that her Honour’s sentence in this unusual case was so manifestly inadequate as to require this Court to intervene to increase it, especially having regard to the consideration that this is a Crown appeal.

65 For these reasons I would dismiss the appeal.

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