Sadler v Tasmania

[2022] TASCCA 9

[2022] TASCCA 9

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Sadler v Tasmania [2022] TASCCA 9
PARTIES:	SADLER, Jack Harrison Vincent
v
STATE OF TASMANIA
FILE NO:	CCA 1363/2021
DELIVERED ON:	2 September 2022
DELIVERED AT:	Hobart
HEARING DATE:	30 August 2022
JUDGMENT OF:	Blow CJ, Estcourt J, Marshall AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Murder – Intentional killing – Planned execution – Body dismembered – Head and limbs disposed of in roadside garbage bins and not recovered – Sentence of

32 years' imprisonment with parole ineligibility period of 20 years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	R Mainwaring
Respondent:	E Judd

Solicitors:

Appellant:	Tasmania Legal Aid
Respondent:	Director of Public Prosecutions

Judgment Number:	[2022] TASCCA 9
Number of paragraphs:	36

Serial No 9/2022

File No CCA 1363/2021

JACK HARRISON VINCENT SADLER v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ ESTCOURT J MARSHALL AJ 2 September 2022
Order of the Court (30 August 2022):

1            Appeal dismissed.

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File No CCA 1363/2021

JACK HARRISON VINCENT SADLER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
2 September 2022

1             On 28 May 2021 Pearce J sentenced the appellant, Jack Harrison Vincent Sadler, to imprisonment for 32 years on a charge of murder, and ordered that he not be eligible for parole until he had served 20 years of that sentence. The appellant appealed, contending that the head sentence and the non-parole period were manifestly excessive. On 30 August 2022 this Court dismissed the appeal, reserving its reasons for publication at a later date. I joined in the dismissal of the appeal for all of the reasons referred to in the judgment of Estcourt J.

2             There is a little that I would like to add in relation to the impact of this murder, and the way in which the appellant dealt with the victim's body after the killing, on the partner and family of the victim. The learned sentencing judge received victim impact statements from the victim's mother, his father, one of his sisters, one of his brothers and his partner. Each of them, as well as other family members, had to deal somehow with the terrible information as to what had happened to a person they loved.

3             Anything that a murderer does with his or her victim's body shortly after the murder is relevant for sentencing purposes: Director of Public Prosecutions v England [1999] 2 VR 259; Bell v The Queen

[2003] WASCA 216 at [23]–[25], [61]–[62]; Colledge v Western Australia [2007] WSCA 211 at [16]; R v Wilkinson (No 5) [2009] NSWSC 432 at [60]–[61]. The appellant's conduct in this dismembering

and disposing of the body, and the impact of that conduct on the partner and family of the victim, were very significant aggravating factors that, together with other factors, warranted an unusually long sentence.

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File No 1363/2021

JACK HARRISON VINCENT SADLER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J

2 September 2022

The appeal

4            The appellant, Jack Harrison Vincent Sadler, appeals against a sentence imposed upon him by Pearce J on 28 May 2021.

5   The appellant had been found guilty of the crime of murder by a jury on 20 May 2021.

6             The learned sentencing judge convicted the appellant and sentenced him to a period of 32 years' imprisonment and ordered that he not be eligible for parole until he had served 20 years of that sentence.

7             The single ground of the appellant's appeal asserts that both the head sentence and the non- parole period were manifestly excessive. No specific error is alleged.

8            At the conclusion of the hearing on 30 August 2022 the Court unanimously dismissed the appeal. These are my reasons for joining in the order of dismissal.

The law
9	In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter J agreed, summarised the principles relevant to appeals such as the present at [8]- [9] as follows:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.

It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476:

'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment

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are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions'." (Emphasis added.)

The crime

10          In the course of his sentencing remarks the learned sentencing judge set out the relevant facts, necessarily at some length, as follows:

"The crime was committed on 15 August 2018 at the home in Dion Crescent, Riverside in which Mr Sadler then lived with his partner Gemma Clark. Mr Anderson-Brettner was aged 24. He arranged with Mr Sadler to meet at the house and arrived at around 7.30 pm. Soon afterwards he was taken into in one of the smaller rooms of the house. It was the type of room usually used as a small bedroom or study, but before that day was used only to store Mr Sadler's shoes. For that reason it was referred to at trial as the shoe room. Once inside that room Mr Anderson-Brettner was shot at least three times with the 9mm Smith and Wesson self-loading pistol which belonged to Mr Sadler and which he kept at the house with a silencer attachment. Each of the three shots entered Mr Anderson-Brettner's upper torso. One shot entered through his back and, I am satisfied, was fired when Mr Anderson-Brettner was standing. Two of the shots caused damage to his heart which was rapidly fatal. One of the shots was fired when Mr Anderson-Brettner was lying on the ground. Taking account that he was shot from within the room, the number and location of the bullet wounds, and the evidence that one of the shots was fired when he was on the ground, there is no room for any doubt that Mr Anderson-Brettner was shot by someone who intended to kill him. For reasons which will become obvious it could not be determined whether he was also shot in the head.

The only substantial issue at trial was whether the jury was satisfied beyond reasonable doubt that Mr Anderson-Brettner was shot by Mr Sadler. The jury rejected Mr Sadler's claim that Mr Anderson-Brettner was shot by one of three Victorian drug dealers he did not identify, who he said had come to his home to meet with Mr Anderson-Brettner about a very large drug debt, but then left without trace.

I am satisfied beyond reasonable doubt that this was a planned, intentional, execution style killing. Mr Sadler arranged for Mr Anderson-Brettner to come to his home. In preparation for his arrival, Mr Sadler emptied the shoe room and lined the walls and floor with builders' plastic which Ms Clark had purchased at his request the day before. During the day before, and the day of, the murder Mr Sadler also had Ms Clark purchase bleach, firelighters, disposable gloves, disposable overalls, safety glasses, a saw, more gloves, cling wrap, vinegar, reusable bags, cayenne pepper and chilli powder. After the last shopping trip, around 6.45 pm, Mr Sadler asked Ms Clark to park away from the house so her presence would not be apparent to Mr Anderson-Brettner. Mr Sadler asked Ms Clark to wait in the main bedroom, with her dog, out of sight. That room was next to the shoe room. From that room she heard Mr Anderson-Brettner arrive. Not long afterwards she heard the two men enter the shoe room. She heard Mr Anderson-Brettner say words like "please man, don't", which I find were a plea for his life, and the sound of gunshots.

After Mr Anderson-Brettner was shot and killed, Mr Sadler dismembered and disposed of his body. I am satisfied that the plan for dismemberment and disposal of the body was part of Mr Sadler's plan to kill Mr Anderson-Brettner. After shooting Mr Anderson- Brettner, Mr Sadler involved Ms Clark in the events which followed, although no-one suggested that she was part of the plan to kill him. Most of the items which she had purchased were used. I reject Mr Sadler's evidence that the purchase of plastic, gloves and disposable overalls, and the lining of the room with the plastic, were co-incidental events in readiness for the manufacture of MDMA tablets. The only evidence of the proposed manufacture came from Mr Sadler. There was no other evidence of the presence in the house of all of the materials and multiple items of equipment, including the very heavy pill press, and other paraphernalia he claimed were necessary. I believe

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Ms Clark when she said that she saw no such items in the house before the murder, and there was no plausible explanation of how they might have been removed afterwards. I also find that the other materials were purchased, on this occasion, in contemplation of the murder and disposal of evidence, although on other occasions such items had been used for different purposes.

The dismemberment of Mr Anderson-Brettner's body was a particularly gruesome exercise. Both arms were removed at the mid or upper section between the elbow and the shoulder. The right leg was removed at the upper thigh. The left leg was cut off at the knee. His head was removed at the junction of the neck and the shoulder but in such a manner that his lower jaw remained attached to the torso. Mr Sadler used, for the most part, a chopping implement, like an axe, and a knife. The nature of the injuries to Mr Anderson-Brettner's body discloses that the removal of his head and arms and legs was achieved in a most crude and violent manner, with ragged wounds and signs of chopping with the axe.

In the course of this terrible process, Mr Sadler wore gloves and one of the disposable suits. He asked Ms Clark to wait outside the door of the shoe room with large plastic garbage bags, one inside the other, as he handed out parts of Mr Anderson-Brettner's body into the bags she held open. How many pieces or bags there were cannot be determined. A mixture of the vinegar, baby oil, pepper and chilli powder was added for the purpose of disguising odour. Mr Anderson-Brettner's torso was wrapped in sheets and a mattress protector and loaded into the back of a four wheel drive vehicle which had been lined with plastic bags. With Ms Clark driving and Mr Sadler as passenger, the torso was driven to a location on a steep forested section of the Tasman Highway about 40 kilometres from Launceston. On the way they stopped to buy petrol and drinks and more garbage bags. Once at the site they removed the torso from the car and from its wrapping. Mr Sadler somehow propelled it down the steep bank to a point below the road where it was abandoned. After returning to Launceston Mr Sadler and Ms Clark looked on the internet to discover where roadside household rubbish disposal bins were to be removed the following morning. They then drove to places in and around Launceston to place the bags containing body parts into bins. By the time they arrived back at the Riverside house in the early hours of the following morning, Mr Anderson- Brettner's partner was there looking for him. Mr Sadler lied to her, saying that Mr Anderson-Brettner had not turned up at the house, and that he had also been out looking for him.

After removing and discarding Mr Anderson-Brettner's body, Mr Sadler and Ms Clark then set about destroying evidence of the murder. The process took at least the rest of that day. The materials in which the torso had been wrapped, clothing, the plastic and pieces of carpet, all of which must have carried a considerable amount of blood, were burned in the wood heater. The house was cleaned with bleach. The curtains and the rest of the carpet were removed from the shoe room, and either burned or put into garbage bags which were, over the course of the following evening, also driven around to be put in roadside rubbish removal bins. The pistol was vacuum packed and concealed in the garden close to the back of the house. Ammunition and the pistol silencer were taped into a piece of PVC pipe and hidden over the fence. Fired cartridge cases were put in a bag and into a drain at the front of the house, and the key to Mr Anderson-Brettner's car was put into a different drain near one of the locations in which bags were put into roadside bins. As all of this was occurring, Mr Sadler spoke to police officers and others who were looking for Mr Anderson-Brettner and told more lies about his presence at the house the previous evening.

That Mr Anderson-Brettner had likely been harmed quickly became apparent to the investigating police. Ms Clark was interviewed and eventually told the police about what occurred. She took them to the location where the torso had been dumped, without which it would not likely have been found. Most regrettably, the delay meant that the parts of Mr Anderson-Brettner's body which were removed and disposed of were not discovered, despite the very extensive searches by the police, emergency services volunteers and Council staff. They were permanently lost."

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Comments on passing sentence

11   On passing sentence the learned sentencing judge said:

"I have taken time to summarise the events which followed the murder because they substantially aggravate what is already a crime in a most serious category of murder. Mr Anderson-Brettner was not only intentionally killed in a calculating and cruel way, but his body was then subjected to gross indignity. The way in which Mr Sadler mutilated and disposed of his body, especially given that his head and limbs were not recovered, greatly added to the emotional and psychological distress caused to Mr Anderson-Brettner's family and friends. The traumatic effect will likely last for the rest of their lives. I have heard and read statements from Mr Anderson-Brettner's partner, mother, father, sister and brother describing the terrible impact of his death. They are to be read with the required circumspection. However they describe the type of feelings which may be expected to follow the murder of a close family member. The overwhelming sentencing consideration is the Court's duty to uphold the law, and to reinforce the sanctity with which life is regarded in our society.

Mr Sadler was 26 when this crime was committed. He is now aged 29. He has no relevant prior convictions but he has no claim to be otherwise of good character. He gave evidence that he had been manufacturing and selling MDMA in large quantities since 2014. The evidence of the extent of his manufacturing and trafficking came only from him, although his involvement in the illicit drug trade is corroborated to some extent by Ms Clark's evidence of her observations since having been in a relationship with him, and the substantial quantity of drugs and money found in his car after the crime. His possession of a firearm of the type used to kill Mr Anderson-Brettner is at least partly linked to drug trafficking and for its use or threatened use in the course of that trade. I am not able to determine with certainty what motivated the crime. The evidence established that during the period leading up to the murder Mr Sadler was angry with Mr Anderson-Brettner despite them having previously been friends. I think it very likely that the disagreement arose from mutual dealings with illicit drugs. Mr Sadler claimed that Mr Anderson-Brettner had purchased MDMA from him for sale. He also claimed that Mr Anderson-Brettner owed a great deal of money to other men for the large scale supply of cocaine. I am satisfied that Mr Anderson-Brettner was involved in the sale of illicit drugs to some extent, but the nature and extent of his dealings cannot be determined. There was some evidence of him living beyond his otherwise modest income. Again, the description of the scale of Mr Anderson- Brettner's involvement came only from Mr Sadler, and is likely to have been fabricated or exaggerated to fit the fictional account he gave to the jury attributing the murder to drug dealers from interstate. There was also evidence of antagonism about a different and very small debt he owed to an associate of Mr Sadler, likely also to do with drugs. A planned killing motivated by financial or commercial reasons, especially a drug debt, is a serious murder whether the debt is big or small.

The murder is not accompanied by any mitigating circumstance. Mr Sadler is an intelligent and articulate man. His crime cannot be attributed to rage, passion or sudden impulse or other human frailty or deficit. Nothing has been advanced which suggests that fear, stress or pressure led him to act in a way which was out of character or an aberration. There was evidence that he was heavily using cocaine at the time but that does not mitigate the crime. The sentence is not to be increased because Mr Sadler exercised his right to trial, but he is not entitled to the mitigation a plea of guilty would have attracted because a lengthy and traumatic trial would have been avoided, and as an indication of the acceptance of responsibility and remorse. There is a singular absence of any expression or demonstration of remorse, and his conduct after the murder is a strong indication of the absence of remorse.

The maximum penalty for this crime is life imprisonment. Eligibility for parole is closely associated with the gravity of a sentence, and must be addressed even if a life sentence is imposed. The gravest penalty that could be imposed for murder is life imprisonment without eligibility for parole. In deciding whether to impose a life sentence, both the objective circumstances of the crime, and the circumstances of the offender are to be considered. For the reasons I have already stated, I regard the

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objective circumstances of this crime as involving a very high degree of seriousness. It was an intentional cold-blooded killing committed after pre-planning and preparation. Mr Anderson-Brettner realised, at least for a short time, his fate, and he was shot despite his pleas for mercy. Although his death would have been rapid, it was not immediate. The crime is very significantly aggravated by the mutilation and disposal of the body, all of which is to be regarded by members of a civilised society as abhorrent. It could only have been to hide the crime although, I can think of no reason why it was considered necessary at all. It was suggested at trial that the idea came from the lyrics of a rap song, but it matters not. The fact that Mr Sadler was capable of such conduct, wherever the influence or idea came from, suggests that he presents a future risk.

Despite the gravity of the crime I have decided to not impose a life sentence. Mr Sadler was and still is a relatively young man. He has no relevant prior convictions. Although for a crime of this gravity that consideration carries limited weight, there is no other evidence or indication suggesting a general demonstrated propensity for violence, or that he presents the type of broad ranging and long term societal risk which requires a life sentence. Nor do I consider that he is incapable of rehabilitation or that he does not have the capacity to lead a productive and responsible life. However a very long term of imprisonment must be imposed. The sentence must serve to administer the punishment which Mr Sadler deserves, and protect the community from the risk he may pose. It must also vindicate the victim and sufficiently represent public condemnation of the intentional taking of a life and the factors which seriously aggravate this crime. The sentence must also serve to deter others from such heinous conduct. Eligibility for parole should only be permitted after Mr Sadler has served the minimum term of imprisonment required, taking into account all of the circumstances of the crime and the need for punishment, condemnation, prevention and deterrence. I take account of his age when he will become eligible to apply for parole. Whether he is released on parole at the expiration of the non-parole period will be a matter for the Parole Board. Parole may be refused or revoked. He has been in custody since his arrest on 18 August 2018."

The appellant's submissions

12           Counsel for the appellant, Ms Mainwaring, concedes that this was a particularly serious case of murder and that the learned sentencing judge was entitled to impose a sentence which "reflected a high level of deterrence, retribution and denunciation". However, she submits that the appellant was a young man with no propensity for violence, was not without prospects of rehabilitation, had no record of prior convictions and had never been sent to prison before. She submits that the sentencing discretion miscarried by the imposition a sentence of imprisonment of 32 years and/or by the imposition of a non- parole period of 20 years.

13           Counsel for the appellant submits, by reference to a table of sentences for murder in Tasmania since 1990, that the appellant received a sentence that exceeded almost all sentences imposed in

Tasmania upon offenders for a single count of murder. She contends that the appellant’s sentence is

exceeded by only one sentence for a single count of murder (leaving aside life sentences). And she submits, the non-parole period of 20 years exceeds other sentences for single count murders, save for three sentences.

14           Counsel for the appellant submits that the imposition of a sentence with both a substantial head sentence and a non-parole period requiring the appellant to serve 62.5% of the sentence, absent a propensity for violence and absent a record of prior convictions, is plainly excessive.

15           In the alternative it is submitted on behalf of the appellant that even if the head sentence cannot be properly characterised as plainly unjust such as to warrant appellate intervention, then the period of 20 years non-parole makes the sentence manifestly excessive.

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The submissions made on behalf of the State

16           Counsel for the State, Ms Judd, submits that past sentences can provide some measure by which a sentencing court can attempt to achieve consistency in sentencing and in the application of principle; (R v Kilic [2016] HCA 48, 259 CLR 256 at [22]), however she says, there is no suggestion that the history of sentences for murder establishes a range of sentences or that the history establishes a range for a category of murder such as intentional killing; (Hili v The Queen [2010] HCA 45, 242 CLR 520 at [48]-[54]).

17   Counsel for the State submits that while the table of murder sentences in Tasmania attached to

the appellant’s outline of submissions sets out sentences imposed for murder up until November 2021,

it reveals few sentences that have been imposed in circumstances where there was an intention to cause death, and less where the act of murder was pre-planned as to the method of killing and the dismemberment and the disposal of the victim's body.

18           In response to the appellant’s submission that his sentence is exceeded by only one sentence for

a single count murder, leaving aside life sentences, (Streets -12 October 2009 - 35 years), counsel for the State points out that the sentence is also equal to four other sentences (Harper[1]-1 October 2007 - and Duggan, Watt and Gray - 14 July 2005 - each 32 years) and that moreover, the sixteen life sentences in the table remain relevant as a sentence of life imprisonment was within the learned sentencing judge's discretion.

[1] Harper was in fact a case of double murder.

19           In response to the appellant’s submission that the non-parole period of 20 years exceeds other

sentences for a single count of murder, save for three sentences counsel for the State says that submission is not correct and that in fact the appellant's non-parole period of 20 years exceeds that of other sentences for single count murders, save for five sentences where the non-parole periods ranged from 22 to 25 years (Streets - 12 October 2009 - 22 years; Papadopoulos - 30 June 2010 - 25 years; Marlow - 12 April 2001 - 20 years; Street - 19 November 1999 - 25 years; and Hunt - 1 June 1999 - 25 years).

20           Counsel for the State accepts that the non-parole period of 20 years requires the appellant to serve 62.5% of the head sentence of 32 years before he will be eligible for parole but she points out that there have been at least 14 sentences for murder where the accused has been required to serve between 63% to 75% of the head sentence and 47 instances where the accused has been required to serve between the minimum of 50% to 62% of the head sentence.

21           Counsel for the State submits that what can be taken from the appellant's table of sentences is that the sentencing range for murder is wide. This, she says, reflects the wide range of circumstances and culpability in which the crime can be committed. She cites Neill-Fraser v Tasmania [2012] TASCCA 2, where Crawford CJ (with whom Tennent and Porter JJ agreed), said at [220]:

"There are many variations between individual cases making it impossible to precisely calculate the appropriate sentence for most murders. However, since the abolition of mandatory life imprisonment in 1995, there have been a sufficient number of sentences and re-sentences for murder so as to enable a measure of consistency when sentencing for the crime. Generally speaking, a deliberate killing is more culpable than one that is not deliberate, and one that is provoked, committed because of a loss of self-control or through passion is not as culpable as a deliberate killing for personal greed. It may usually be expected that a sentence will be less severe for a person who is of good character compared to one who has a criminal record, particularly for violence."

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22           As to the particular circumstances of this case, counsel for the State points to the preplanning of the killing, the fact that Mr Anderson Brettner saw his fate and begged for his life and the manner in which his body was hidden and disposed of.

23   As to the last of those matters she refers to Neill-Fraser v Tasmania (above) where Crawford

CJ said at [210]:

"The consequences of a crime are commonly taken into account. Obvious examples are hurt caused to a victim or a victim's family by a crime of violence. Dumping or concealing the body of a victim has been regarded as an aggravating circumstance that may be taken into account when sentencing for murder. Director of Public Prosecutions v England [1999] 2 VR 258 at 263 at 266 [37]; R v Von Einem (1985) 38 SASR 207 at 218; Bell v R [2003] WASCA 216 at [25] and [61]-[62]; Colledge v Western Australia [2007] WASCA 211 at [16]; R v Cavkic (No 2) [2009] VSCA 43 at [134]; R v Wilkinson (No 5) [2009] NSWCA 432 at [61]." [Citations inserted.]

24           Counsel for the State accepts that his Honour could not determine with any certainty what motivated the appellant's crime but she submits that it was "pre-meditated, pre-planned, and a serious example of the crime of murder" and one for which there was no expression or demonstration of remorse.

25           As to the non-parole period of 20 years, counsel for the State submits that the appellant's age and lack of prior convictions were considered by the learned sentencing judge to establish prospects of rehabilitation however, given the objective seriousness of the crime, she submits that it was within the

proper exercise of his Honour’s sentencing discretion to set a non-parole period in excess of the

minimum.

26           She submits that particular consideration must be given to the minimum period of imprisonment that justice requires to be served in serious cases such as murder and cites Adams v The Queen [1998] TASSC 41, where Cox CJ said at 2:

"Where the crime is of a particularly serious nature, as in the case of murder, a sentencing court can be expected to give very careful consideration to the question whether the minimum period of 50 per cent of the finite term provided for by the Act in the absence of a direction from him to the contrary will represent the minimum term justice requires that the prisoner must serve and not be released even on parole. The figure of 50 per cent is an arbitrary one and may be appropriate in many cases; but each case must be individually considered. In Lennard v R [1984] 1 Qd R 1 at 10, Macrossan J (as he then was) said of the Queensland Offenders Probation and Parole Act 1980, which empowered the Parole Board to release prisoners on parole after the passage of time in accordance with the statutory formula, but subject to a power in the sentencing court to recommend the advance or delay of the time at which a prisoner would be eligible for parole, "a discretion is conferred by the legislation and the use of it should not be proscribed by any inflexible rules". (Italics added.)

27   Counsel for the State concludes her written submissions on the subject of the non-parole period

as follows:

"Where no specific error in respect of the setting of the non-parole period is alleged, the question for the Court is whether, having regard to the whole of the sentence, the setting of a lengthy non-parole period renders the sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 at [56]; Connelly v Tasmania [2015] TASCCA 15 per Wood J at [8]. Error is not merely demonstrated because the ratio of

non-parole period to head sentence is higher than the court’s 'usual' approach: Hili v

The Queen supra at [38], cited by Wood J in Connelly v Tasmania supra at [10]-[11]. There is no presumption that the non-parole period should be the minimum: Pickrell v Tasmania [2011] TASCCA 13 at [13].

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As has been noted by the Court on previous occasions, the setting of a non-parole period above the minimum is not unusual in cases of murder, even where the accused in question has no record of prior convictions: Nowoczynski v Tasmania supra at [19] per Estcourt J, Brennan v Tasmania supra at [33-36] per Wood J.

While a non-parole period may be set having regard to an offenders prospects of rehabilitation, including their age, whether they have past history and their prospects of re-offending, circumstances of particular gravity justify the imposition of lengthy non-parole periods. This is particularly so where the crime justifies the giving of prominence to denunciation and retribution, in that it reasserts societal values and gives proper weight to the harm done to victims: DPP v NOP [2011] TASSC 15 at [41] cited in Connelly v Tasmania [2015] TASCCA 15 per Wood J at [23]-[24].

It is submitted that the non-parole period imposed in this case allows for the appellant’s

release on parole while aged in his mid to late 40s with the ability to lead a productive life. The non-parole period does not act to make the whole of the sentence a crushing one upon the appellant." (Italics added.)

Conclusion

28          With the one exception, footnoted above, and leaving aside cases where the sentences include related offending, the submissions made on behalf of the State cannot, to my mind, be gainsaid.

29           In my view the appeal is without merit. This was a calculated, cold-blooded and callous killing carried out in the style of an execution and for which no remorse has been shown. Indeed, as noted by the learned sentencing judge, the manner of disposing of the victim's body and the appellant's refusal to disclose its whereabouts, indicate an absence of remorse. The learned trial judge carefully weighed the sentencing options available to him with particular reference to the appellant's age and lack of prior convictions. He eschewed imposing a life sentence.

30           In my view a sentence of imprisonment for the term of the appellant's natural life could not have been have shown to have been a manifestly excessive sentence had his Honour imposed such a sentence, notwithstanding the appellant's age, his lack of prior convictions and the possibility that rehabilitation might be achieved in the future. I do not regard either the head sentence or the length of the non-parole period, in such an horrific case, as plainly unjust. That is amply demonstrated, as pointed out by counsel for the State, by having regard to those sentences in the gravest cases of murder in this Court in the last 30 years, which are included in the appellant's table of sentences.

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File No 1363/2021

JACK HARRISON VINCENT SADLER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
2 September 2022

31          I have had the benefit of reading the reasons for judgment of Estcourt J. I agree with his Honour's conclusions. I only wish to add some brief observations.

32           Counsel for the appellant has not identified any appealable error in the reasons of the sentencing judge for coming to the sentence he imposed. There was no identification of any incorrect principle and no giving of weight to any extraneous or irrelevant matter. Nor did his Honour fail to give weight to any material considerations or make a mistake as to the facts (see Kirby J in Dinsdale v The Queen [2000] 202 CLR 321 at [58]).

33           The essential complaints of counsel for the appellant were not that there was a failure to give weight to material considerations but a failure to give sufficient weight to certain material considerations. They were said to be primarily the appellant's prospects for rehabilitation (in respect to the non-parole period) and his lack of prior violent offending (in respect to the head sentence).

34           The sentencing judge expressly did take these matters into account as set out in his comments on passing sentence. The real complaint is that his ruling taking into account these matters, should have led to a lesser head sentence and shorter non-parole period. However, it may be equally argued that his Honour gave excessive consideration to those matters in failing to sentence the appellant to life without parole, especially having regard to the gruesome post offence conduct of the appellant regarding the body of the victim.

35           The quarrel of the appellant's counsel with the sentence and non-parole period by relying on inexact notions, such as failure to give sufficient weight to a matter, stand in stark contrast to cases where no weight is given to a particular matter. The way the matter was presented to the Court of Criminal Appeal, although commendably argued on behalf of the appellant, may be viewed as an attempt to entice the Court to engage in an exercise of tinkering. That is not the role of a Court of Criminal Appeal on a sentencing appeal. That role is to correct error, if material error is discerned, in the sense discussed by Kirby J in Dinsdale.

36          For the above reasons, in addition to those of Estcourt J, I joined in an order dismissing the appeal shortly after the hearing of the matter on 30 August 2022.