Regina v McCaffrey; Regina v Rowsell

[1999] NSWCCA 363

CITATION:	Regina v McCaffrey; Regina v Rowsell [1999] NSWCCA 363
FILE NUMBER(S):	CCA 60693/98; 60815/98
HEARING DATE(S):	29 October 1999
JUDGMENT DATE:	23 November 1999
PARTIES :	Regina v Brian Andrew McCaffrey Regina v David Francis Rowsell
JUDGMENT OF:	Stein JA at 1; Hulme J at 41; Greg James J at 61

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0177
LOWER COURT JUDICIAL OFFICER:	Howie DCJ

COUNSEL:	R.A.Hulme (Crown) J.C. Nicholson SC/C Lyons (Applicant - McCaffrey) P.M. Skinner (Applicant - Rowsell)
SOLICITORS:	Director of Public Prosecutions (Crown) Baker Ryrie Rickards Titmarsh (Applicant - McCaffrey) T A Murphy (Applicant - Rowsell)
CATCHWORDS:	INTENT TO MURDER - victim stabbed with knife, intent of co-offenders formed while under the influence of alcohol, cannabis and LSD; AGGRAVATING FEATURES - premeditation - motive - circumstances leading to the wounding; SENTENCING - whether sentence manifestly excessive - disparity of sentences between co-offenders - mitigating and subjective features - treatment of issue of intoxication
ACTS CITED:	Crimes Act 1900; s 27 Criminal Appeal Act 1912; s 5(1)(c) Criminal Procedure Act 1986; s 21
CASES CITED:	R v Visconti (1982) 2 NSWLR 104 R v Bloomfield (1998) 44 NSWLR 734 R v Lane (1990) 48 A Crim R 161 R v De Simone (1991) 147 CLR 383 AB v R [1999] HCA 46
DECISION:	See orders at paragraphs 39 and 40

IN THE COURT OF
CRIMINAL APPEAL
No. 60693/98
No. 60815/98
STEIN JA
HULME J
GREG JAMES J


Tuesday, 23 November 1999

REGINA v Brian Andrew McCAFFREY
REGINA v David Francis ROWSELL

In February 1998 the victim, a seventeen year old schoolboy, decided to leave school early and hitchhike a ride to Taree. The two applicants picked up the victim and took him to a house where Rowsell lived. There it was suggested to the victim that he could live in the house and sell drugs for the applicants. During the evening the applicants and the victim consumed alcohol, cannabis and LSD. Later that evening the victim informed the applicants that he wished to return home. The applicants, fearing that the victim would tell the police that he had been given drugs and asked to sell them, became aggressive and repeatedly assaulted the victim. He was then tied up, blindfolded and dragged out of the house to McCaffrey’s vehicle and placed in the boot. The applicants drove to a secluded spot and Rowsell stabbed the victim in the back of the neck with the knife. He was then kicked or pushed down an embankment. The applicants believed that they had killed the victim and left the scene.

The applicants pleaded guilty to attempted murder under s 27 of the Crimes Act 1900. Both were sentenced to 15 years penal servitude, comprising a minimum term of 9 years and an additional term of 6 years. The applicants sought leave to appeal against the sentences imposed by Howie DCJ.

On appeal , it was argued that McCaffrey’s sentence was manifestly excessive for three reasons:

1. His Honour’s starting point, after taking into account all mitigating features, was too high;

2. Alternatively, his Honour failed to give sufficient weight to the mitigating circumstances in which the intent under s 27 was formed; and

3. There should have been a disparity of sentence in favour of McCaffrey.

In respect of Rowsell’s appeal, it was argued that his Honour erred in failing to consider the applicant’s intoxication, particularly by LSD, in sentencing the applicant.

Held (per Stein JA, Greg James J agreeing, Hulme J dissenting):

In respect of McCaffrey’s appeal:

1. The extent and relevance of aggravating features, together with an analysis of the facts as found by his Honour and the sentencing statistics indicate that his Honour’s starting point was too high, producing an ultimate sentence which was excessive;

2. His Honour did not fail to give appropriate weight to the mitigating features and was entitled to conclude that the matter fell within the upper range of seriousness for such offence. However, taking proper account of the mitigating factors and subjective features as found by his Honour, the appropriate sentence is a full term of 13 years penal servitude, comprising a minimum term of 7 years and an additional term of 6 years; and

3. His Honour was entitled to conclude that the subjective features of the co-offenders were similar and that they should not receive different sentences.

In respect of Rowsell’s appeal:

1. His Honour did not err in his treatment of the issue of intoxication;

2. His Honour’s starting point was too high; and
3. The sentence imposed was excessive.

ORDERS


1. Grant leave to appeal and uphold the appeal by the applicant McCaffrey. Quash the sentence imposed and in substitution impose the following sentence. The applicant McCaffrey is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible.

2. Grant leave to appeal and uphold the appeal by the applicant Rowsell. Quash the sentence imposed and in substitution impose the following sentence. The applicant Rowsell is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible.

***********

IN THE COURT OF
CRIMINAL APPEAL
No. 60693/98
No. 60815/98
STEIN JA
HULME J
GREG JAMES J


Tuesday, 23 November 1999


REGINA v Brian Andrew McCAFFREY
REGINA v David Francis ROWSELL
JUDGMENT

1    STEIN JA: The applicants, Brian Andrew McCaffrey and David Francis Rowsell pleaded guilty before Howie DCJ to a charge that they did wound Andrew Patrick Byron with intent to murder him at Taree in February 1998. 2    On 15 October 1998 his Honour sentenced both applicants to 15 years penal servitude, comprised of a minimum term of 9 years and an additional term of 6 years. Special circumstances were found with respect to each applicant and the terms of imprisonment were to date from 17 February 1998. 3    Both applicants seek leave to appeal against sentence.

4    The following is a summary of the facts found by his Honour concerning the circumstances of the commission of the offence by the applicants.

5    The victim was a 17 year old school boy who decided not to return home from school because he was having ‘some problems’ at home. Instead he decided to hitchhike to Taree to visit a relative. While he was seeking to locate her, he was offered a lift by the applicants, which he accepted. He was offered beer and eventually taken to a house where he was told the applicant Rowsell lived, and also another male named Matt, who he also met. It was suggested to the young man that he could live in the house and, if he wanted, sell drugs for the applicants. During the evening the applicants and the victim consumed alcohol, cannabis and LSD, the latter produced by Rowsell. The victim became affected by the drugs and lay on the lawn outside the house. Rowsell took him back inside and showed him a room which was to be his. The applicants talked to him about living in the premises and the enjoyable lifestyle it would entail. 6    At some point of time the victim decided that he wanted to leave and return home. He asked if he could get a lift to the highway. At this, according to the victim (whom his Honour accepted as a substantially reliable witness) the attitude of the applicants and the third male changed. They became aggressive and repeatedly assaulted him. Among other things, they made him strip naked. The account of what occurred is graphically recorded in his interview with police. What became clear to his Honour was that the victim realised that he was being held in the house against his will. 7    According to his Honour, the victim was repeatedly assaulted when he indicated that he wanted to leave to go home because the applicants feared that he would tell the police that he had been given drugs and asked to sell them for the applicants. Also, that he would disclose that he had been assaulted by the applicants. 8    His Honour said:

The victim describes a number of assaults and acts of humiliation against him during the evening, including being asked to strip off his clothes at one stage and on another being burnt with a cigarette to his ear. On one occasion, the victim says that he tried to leave the premises by jumping through a sliding glass door which was closed at the time, but the glass did not break and he fell to the floor.
Eventually, the victim was tied up by Rowsell in a manner which has been described as being hog tied, so that his hands were tied to his feet. His shirt had been ripped during the assaults upon him and part of it was used to blindfold him. He was dragged out of the house to McCaffrey’s vehicle. The prisoners placed him, still bound and blindfolded, into the boot. Rowsell had, by this stage, taken possession of a large serrated knife from the kitchen. The prisoners had, at this point of time, determined to murder the victim.
While he was helpless in the boot, he was urinated upon and he heard the prisoner Rowsell say, in a sarcastic tone, ‘Sorry for pissing on you, buddy.” He was driven around in the boot of the vehicle for some time. At one stage during the trip, he heard the prisoner McCaffrey say, ‘How does it feel to know you are about to die?”. He was driven some thirty-two kilometres along bush roads in the Taree district. Eventually, in a secluded spot on a dirt road, the vehicle stopped and the boot was opened. The victim heard McCaffrey say, “The bastard is still alive”.

9    The victim was taken from the boot of the car still bound and blindfolded. The applicant McCaffrey said to him ‘you are about to die’. While on the ground he was stabbed in the back of the neck with a knife which broke off in the wound. He was then kicked or pushed down an embankment, where he ended up in a creek. He was unable to free himself of the ropes or blindfold and was in such pain and misery that he decided to drown himself. He attempted to do this but could not stay under water long enough. He lay in the creek for the rest of the night and in the morning was able to extricate himself and climb the bank to a dirt road. Eventually he found a farm house where he dialled triple O. Police arrived later and were able to note his wounds, which included his neck which still had the blade of a serrated knife embedded in it. 10    His Honour said that he was satisfied that the victim was:

… repeatedly assaulted by both prisoners and the other man Matt while being held against his will, both before and after he was bound. I am also satisfied that both prisoners placed the victim in the boot of the car intending that he should eventually die, either in the boot of the vehicle or when they reached their ultimate destination. After Rowsell stabbed the victim in the neck, both prisoners thought that the victim would die sooner or later and he was literally left for dead.

As a result of the attacks upon him, the victim received multiple abrasions, lacerations and bruising. These injuries were not of a severe nature and indicate, perhaps, that no great force was used in the assaults upon him at the house. It seems to me that the assaults upon the victim were in the nature of torture and were meant to degrade him as much as to hurt him. This is the reason why he was told to strip and left naked for a short period of time and why he was burned on the ear. He also received superficial injuries from being bound with the ropes. But clearly, the most serious injury occasioned to the victim was the knife wound to his neck and it was only a matter of very good fortune that this wound did not result in the victim’s death.

The application of McCaffrey

11    On behalf of the applicant McCaffrey, it is submitted that the sentence imposed was manifestly excessive for essentially three reasons. 12    First, it is claimed that his Honour’s starting point, after taking into account all mitigating features, was too high. The applicant and co-offender both rely on sentencing statistics. 13    Second, and in the alternative, his Honour failed to give sufficient weight to the mitigating features. 14    Last, it is submitted that there should have been a disparity of sentences in favour of McCaffrey. 15    It is convenient to deal with the first two grounds together. His Honour found that one aggravating feature was that the offence was, to an extent, premeditated. His Honour noted that the applicants had ample time to reflect and desist notwithstanding the effects of alcohol and drugs. It is submitted that because of his Honour’s findings about the effects of drugs and alcohol on the applicant McCaffrey, the objective seriousness of the premeditation was substantially diminished. 16 I do not understand the applicant to be submitting that the premeditation was not an aggravating factor. Rather, it is submitted that the trial judge did not sufficiently diminish the degree of seriousness to be attached to it because of his finding of the effect of alcohol and drugs. 17 For my part, I do not see that his Honour erred in the respect suggested. It is not apparent from the reasons given on sentence that his Honour overestimated the objective seriousness because he placed too high a value on premeditation as an aggravating feature. His Honour said that the offence was premeditated but only ‘to an extent’. 18 The second aggravating feature, indeed found by his Honour to be a serious one, was the motive for the offence. To the extent that the fear of the applicants (of being reported to police by the victim) was found to be an irrational one and induced by drugs and alcohol, it is submitted that this should have mitigated the intent to kill required by s 27 of the Crimes Act 1900. 19 It was submitted that because of his Honour’s findings that the intent was not formed in a cold and calculating way and because alcohol and drugs had caused irrational fear and anger (which was foreign to the applicants) the intent was substantially mitigated. Further, that his Honour did not give appropriate weight to this and other factors, as mitigating the objective criminality. This meant, according to the submission, that his Honour’s starting point was too high. 20 During argument before us, the issue was raised whether motive is an aggravating feature or whether it is more properly part and parcel of the intent required by the offence. Although I do not find this question necessarily easy to resolve, I think that motive can be an aggravating feature. Accordingly, I do not see that his Honour erred in principle. 21 However, given the finding that the fear was an irrational one, induced by the intake of alcohol and drugs, I believe that his Honour erred in finding that motive was a serious aggravating feature. By using the word ‘serious’ it is reasonable to assume that it was a factor (among others) which lead his Honour to conclude that the offence was in the ‘upper range of seriousness’ and to impose the sentence that he did. This leads me to question whether his Honour’s starting point was too high or within the discretionary range. 22 The third aggravating feature, according to his Honour, was the circumstances leading to the wounding. The judge specifically referred to the repeated assaults; binding the victim’s hands and feet; placing him in the boot and telling him on a number of occasions that he was going to die. 23 It is difficult to know what to make of this. Both applicants appear to accept that insofar as the matters referred to by his Honour followed the formation of the intention to murder - the obtaining of the knife from the house and placing him in the boot - they could be matters of aggravation. However, insofar as they preceded such intention being formed, they should not have been taken into account as aggravating features of the offence. In my opinion, there is some substance in this submission. However, the applicants pleaded guilty and the pleas were, it appears to me, on the basis of a total criminality approach. According to the Crown, this was his Honour’s approach. Again, it is difficult to conclude whether his Honour erred in principle, or if he did, to what extent. 24 The sentencing statistics before the court, as well as a summary of s 27 cases heard by the Court of Criminal Appeal, are indicative that the sentences imposed on both applicants were among the highest with respect to both the full and minimum terms. While the court can consider the statistics in determining whether a sentence is out of line with existing patterns (R v Visconti (1982) 2 NSWLR 104) nonetheless caution is needed when reviewing such statistics (R v Bloomfield (1998) 44 NSWLR 734). 25 The factors discussed above concerning the extent and relevance of the aggravating features, together with an analysis of the facts as found by his Honour and the sentencing statistics lead me to conclude that his Honour’s starting figure was too high. His Honour plainly adopted a staged process of sentencing which, it may reasonably be assumed, started at around 20 years, thus producing an ultimate sentence which was excessive. It is unnecessary to examine whether such a process was appropriate because the result was that the sentence imposed was excessive. 26 In relation to the subjective factors, an alternative submission is made that his Honour failed to give adequate weight to the mitigating circumstances in which the intent (under s 27) was formed. It is maintained that his Honour did not give sufficient weight to the mitigating factors which his Honour identified as including assisting police, making full admissions and pleading guilty. 27 I do not accept the submission. A fair reading of his Honour’s reasons reveal that he gave appropriate weight to these mitigating factors, as well as the youth and other subjective features of the applicant. The maximum penalty for the offence is 25 years. The objective gravity of the offence was, as I have said, high. The victim’s statement, generally accepted by his Honour, emphasised the brutality and callousness of the prolonged and unprovoked attack. His Honour was entitled to conclude that the matter fell within the upper range of seriousness for such offence. However, taking proper account of the mitigating factors and subjective features, as found by his Honour has an effect on the appropriate full and minimum terms on re-sentencing. In my opinion, the appropriate sentence for McCaffrey, indeed on both offenders since the parity submission by this applicant is dismissed below, is a full term of 13 years penal servitude and, given the special circumstances as found by his Honour, a minimum term of 7 years and an additional term of 6 years is appropriate. 28 The last ground of appeal relates to the alleged disparity in sentences between the co-offenders. It is submitted that the role of the applicant, McCaffrey, was passive rather than active. 29 By comparison, it is submitted that the applicant Rowsell was the instigator of the most serious aspects of the offence. For example, Rowsell had tied the victim up, had obtained the knife and stabbed the victim. It is submitted that this should have lead to McCaffrey receiving a lesser sentence than Rowsell. Further, it is contended that his Honour should not have equated the breach of the bond by McCaffrey with the scheduled offences of Rowsell - possess LSD, supply LSD and stealing. 30 In imposing sentence on the applicants his Honour said:

I have considered whether or not I should impose different sentences upon each of the prisoners. It was not submitted to me on behalf of either prisoner that either one was more culpable than the other or more responsible for what occurred on this particular night. It seems to me that, taking all things into consideration, I should impose identical sentences. Although McCaffrey was on a bond at the time, and that is normally an aggravating circumstance and would lead to a lengthier sentence, on the other hand, the prisoner Rowsell has other matters which are to be taken into account when imposing the sentence. Their culpability seems to me to be almost identical and their subjective features are very, very similar indeed.

31    From this it may first be noted that his Honour had not been asked to find one offender more culpable than the other. Second, it is apparent that his Honour considered whether different sentences should be imposed and, for reasons he gave, determined that he should not. In my opinion, he was entitled to so conclude. His Honour was clearly entitled to conclude that the subjective features of the offenders were similar. Indeed, they were. Further, it appears to me that his Honour was entitled to form the view that the Form 1 offences to be taken into account regarding Rowsell, given the particular circumstances, and the breach of the bond by the applicant McCaffrey, cancelled themselves out. Mere disparity in sentences between co-offenders is not enough for the court to intervene. Manifest disparity is needed, Lowe v R (1984) 154 CLR 606. 32 I would grant leave to appeal and uphold the appeal by the applicant McCaffrey, quash the sentence imposed and in substitution impose the following sentence. The applicant McCaffrey is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible.

The application of Rowsell

33    The principle ground of attack on the sentence by the applicant Rowsell is that his Honour erred in consideration of the applicant’s intoxication, particularly his intoxication by LSD. It is maintained that LSD is in a different category to other drugs. It is said that the fact that the intent to commit murder was formed as a result of Rowsell’s intoxication makes it less culpable. However, it is submitted that his Honour applied the circumstance (of his intoxication with drugs and alcohol) as an aggravation of the offence. It is submitted that his Honour’s reasoning process lead him to increase the sentence because of his intoxication and only then to take something off on account of the intoxication as a mitigating factor. As a consequence, it is contended that the applicant Rowsell did not receive appropriate mitigation. 34    I cannot accept the submission. His Honour said:

The use of alcohol and drugs is a matter which is not always mitigating and can, in some circumstances, be an aggravating feature. Had either of the prisoners’ experience of drugs made him aware that he might react in an irrational and violent manner, then I would have found the ingestion of drugs to be an aggravating feature. But the effects of alcohol and drugs consumed by the prisoners resulted in them acting in a way which was foreign to their normal behaviour and led to irrational fears of and anger toward the victim.

35    It is clear from this statement that his Honour did not consider the use of drugs or alcohol as an aggravating feature. It is also plain that he considered it as a significant mitigating factor. Giving a fair reading to his Honour’s reasons on sentence, I do not see how it can be concluded that his Honour increased the sentence of Rowsell by reason of his intoxication. I see nothing in his Honour’s reasons which indicates an inconsistent approach to the question of intoxication. Nor do I see that R v Lane (1990) 48 A Crim R 161, given the disparate facts between it and the present case, provides any assistance to the applicant. 36 I can see no error in his Honour’s treatment of the issue of intoxication. His Honour did not regard the applicant’s intoxication with, inter alia, LSD as an aggravating feature - rather it was the premeditation, motive and the circumstances leading up to the wounding which he so regarded. Because, quite obviously, intoxication was relevant to these aggravating features, it did not follow that his Honour was compelled to disregard them. Rather, it meant that his Honour had to consider the aggravating circumstances in the light of the intoxication. His Honour did this, as his reasons disclose, and I cannot see how he was in error. 37 However, for the very same reasons discussed above in the application of McCaffrey, I am of the opinion that the judge’s starting point was too high and the sentence imposed was excessive. It is necessary to resentence the applicant. In doing so I take account of the content of the affidavits of the applicant and his solicitor. As is apparent from what I have already said in relation to the applicant McCaffrey, I do not see that the sentences imposed on the two co-offenders should differ. 38 I would grant leave to appeal and uphold the appeal by the applicant Rowsell, quash the sentence imposed and in substitution impose the following sentence taking account of the matters on the Form 1. The applicant Rowsell is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible.

Orders

Applicant McCaffrey

39    Grant leave to appeal and uphold the appeal by the applicant McCaffrey. Quash the sentence imposed and in substitution impose the following sentence. The applicant McCaffrey is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible.

Applicant Rowsell

40    Grant leave to appeal and uphold the appeal by the applicant Rowsell. Quash the sentence imposed and in substitution impose the following sentence taking account of the matters on the Form 1. The applicant Rowsell is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible. 41    HULME J: In these matters, I have had the advantage of reading the Reasons for Judgment of Stein JA. While I agree with most of what His Honour has said, there are some respects in which I do not. Nor do I agree with the order proposed by His Honour. In my view no significant error in is to be found in the reasoning of Judge Howie or in the sentences His Honour ordered and the appeals should be dismissed. 42    The sentences imposed, of 15 years, are but 60% of the statutory maximum of 25 years penal servitude. The minimum terms of 9 years are but a little more than one third of that maximum. The circumstances of the offence and of the Applicants which can legitimately be called in aid of a departure from the statutory maximum are adequately reflected in the difference. In my view the sentences imposed were well within the proper exercise of His Honour’s sentencing discretion. 43    The circumstances of the offence, including in that description not only the actions but also the states of mind of the Applicants and the causes of those states of mind, do not place their offence in a worst category. However the offence does not fall far short. Judge Howie was well entitled to regard the offence as one which, but for the subjective features of the Applicants, merited a imprisonment for 20 years - 80% of the statutory maximum. 44    The facts were horrendous. The victim was 17 years of age. By the time the Applicants formed the intention to kill him, he was already bound and blindfolded. He was then dragged to a car. After being lifted in to the boot, he was urinated on, Rowsell saying in a sarcastic tone, “Sorry for pissing on you, buddy.” The boot was closed and the Applicants then drove off. These events occurred against a background that the victim had earlier been beaten, burnt (albeit not badly) and made to strip naked. His terror, even before he heard McCaffrey say, “How does it feel to know you are about to die.” must have been greater than most people experience in their lifetime. 45    The drive continued. When the car stopped McCaffrey was heard to say, “The bastard is still alive.”. The victim was lifted out still bound and blindfolded and, placed on the ground. McCaffrey again said, “You are about to die” and Rowsell pushed a knife into his neck until the knife broke, leaving a portion embedded. The victim was then kicked or pushed down an embankment and left - presumably because the Applicants thought they had achieved his death. 46    Such was the pain that, unable to free himself of the bindings or blindfold, the victim tried to drown himself although, having tried, he seems to have changed his mind. (This is, I think, a more accurate way of stating the effect of the evidence than Judge Howie’s remark that the victim “was unable to keep his head under water sufficiently long to achieve his purpose”. However the difference is of minimal significance.) Then, with the broken off part of the knife in his neck, the victim spent the rest of the night bound and blindfolded beside the creek. One might rhetorically ask, how much more was needed at least so far as the objective circumstances are concerned, to bring the case into a worst category? 47    I agree that the sentencing judge was entitled to, as he did, regard the effect of alcohol and drugs as “a substantial cause for (the Applicants’) conduct and the formation of their intention to murder the victim”. I agree also that, at least once this conclusion was reached, His Honour was entitled to take the view that, in the particular circumstances, the case was not in a worst category. Nevertheless, it was close enough to warrant as a starting point in the sentencing exercise a term of, or of the order of, 20 years. 48    His Honour did not in fact indicate that this was his process of reasoning or that 20 years was a figure he had in mind. Having referred to the maximum penalty of 25 years penal servitude, His Honour went on to describe the offence as one in the “upper range of seriousness for offences of this kind”. However 20 years is a figure to which Stein JA refers, and it is a convenient reference point from which to indicate my disagreement with Stein JA and why I regard the sentences imposed as within the legitimate exercise of Judge Howie’s discretion. (As to the appropriateness of expressly enunciating a sentence judged only by the objective circumstances in a case - see AB v R [1999] HCA 46 at [14 and 102]. 49 Of course, on this process of reasoning, account had then to be taken of the subjective features of the Applicants. Such features included their youth, their unusual degree of co-operation with the police and, in Mr McCaffrey’s case turning himself in, their pleas, their remorse and their prospects of rehabilitation although it must also be recognised that, in their criminal records, there were factors operating in the other direction. However a five year reduction in the term otherwise appropriate and the unusually high proportion of the total term which the additional term occupies is sufficient, if not more than sufficient, to accommodate the subjective factors. 50 Nor do I think Howie DCJ erred in regarding the Applicants’ motive as a “serious aggravating feature”. Killing a witness to one’s earlier offending is an egregious response to the risk of being reported and while Howie J concluded that the effects of alcohol and drugs “led to irrational fears of, and anger towards, the victim”, and by any standards, the Applicants’ response to these emotions was utterly unreasonable, there remained a degree of logical reasoning behind it. 51 I referred above to a “background that the victim had earlier been beaten, burnt (albeit not badly) and made to strip naked.” To take those events into account as background is not to offend the principle for which R v De Simone (1991 ) 147 CLR 383 stands as a leading authority, viz. that the Applicants must be punished for only the offence charged. The effect on the victim of the conduct and the extent of their criminality which ensued may fairly be judged in light of the state of affairs which existed at the time of commencement of the actions or intention which constituted the offence charged and of which state of affairs all were aware. 52 In light of the conclusion at which I have arrived, it is unnecessary for me to consider the matter except upon the basis of only the actions of the Applicants after they formed the intention to kill their victim and began to put that intention into execution, and the state of affairs which existed at the time that intention was formed. However it is appropriate that I say that in the way the Applicants’ offending was dealt with in the District Court, J, I do not regard Judge Howie as having been bound to so limit his consideration. 53 An indictment containing 4 counts was presented some 2 months before the Applicants were sentenced. Unusually, they were invited to plead to only the charge of wounding with intent to murder. In his remarks on sentence, His Honour observed:-

“(Apart form the charge of wounding with intent to murder) there were other counts in the indictment arising from the incident but pleas were not sought in respect of those matters and the Crown does not intend to pursue them. However, the incidents which give rise to these counts in the indictment are part of the general circumstances surrounding the offence to which the Prisoners pleaded guilty and to some extent I can take those matters into account in sentencing the Prisoners on the charge that is before me.”

54 Putting aside a drug charge against only Rowsell, which seems to accord with an offence taken into account under s21 of the Criminal Procedure Act, the other counts were for assault occasioning actual bodily harm, and detaining with intent to hold for advantage, namely to prevent the victim from reporting a felony. 55 His Honour went on later to refer to the victim having been assaulted on a number of occasions, burnt with a cigarette on his ear, told that he was not going to be taken home, forming the view “rightly, that he was to be held in the house against his will” and tied up, all of which events would seem to have occurred earlier than those which constituted the offence to which they pleaded guilty and for which they were sentenced. 56 The transcript of the sentencing proceedings records the following:-

“His Honour: Remind me again, when did they plead guilty?

Crown Prosecutor: On 18 August.

His Honour: That was an indictment which contained other matters?

Crown Prosecutor: No. The indictment may well have done but the plea only was entered to –

His Honour: I understand that the other matters are not proceeding. Are they no billed?

Crown Prosecutor: They will be merged into the facts and circumstances of the current matter.

His Honour: I accept that is so. I don’t know if this is technically correct. Any way it is not the Crown’s intention to proceed with those matters in any other way?

Crown Prosecutor: No.”

57    There was no demur to this approach. No point was taken in the Grounds of Appeal, or in the written submissions advanced on behalf of the Applicants that there was any error by His Honour in this regard. It may be that technically the principle for which R v De Simone (supra) stands as a leading authority was breached, but in light of the approach of all parties apparent in the events and passages to which I have referred, I would infer that it was agreed by all parties that the totality of the Applicants’ criminality towards the victim was to be dealt with under the one charge. It may be that this was why a plea to only one charge was required. In the face of such an agreement, my inclination is to think that Judge Howie was entitled to take the criminality involved in these other offences into account too. Certainly, any leave to appeal granted under s5(1)(c) of the Criminal Appeal Act should in this case be limited so as to deny the Applicants any appeal on the basis that Judge Howie was not entitled to take that criminality into account.

58    While that criminality which preceded the formation of the intent to kill was, by comparison, mild it could not be so described otherwise. Inter alia the criminality included the victim being subjected to a substantial, if intermittent, beating by the Applicants and a third person over what must have been a significant period. Rowsell estimated this went on for an hour although McCaffrey’s estimate was that part of this activity took about 10 minutes. A report of a medical examination conducted on the victim’s admission to hospital said that he had evidence of “multiple superficial recent abrasion and contusions about his head, posterior back and limbs consistent with a history of assault”. The maximum penalty for the offence of assault occasioning actual bodily harm is 5 years penal servitude. 59    If one does take the assault occasioning actual bodily harm and the earlier detention into account, further grounds exist for concluding that the sentences imposed were not excessive. 60    The orders which the Court should make are:-

(i) Grant leave to appeal against sentence, providing that such leave shall not extend to allowing the Appellants to contend that the sentencing judge took into account criminal actions by the Applicants against Andrew Byron extending beyond the offence of wounding with intent to murder.
(ii) Dismiss the appeal.

61    GREG JAMES, J: I agree with Stein JA.

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