Saeed Noori v The Queen
[2021] VSCA 46
•10 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0113
| SAEED NOORI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, NIALL and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 March 2021 |
| DATE OF JUDGMENT: | 10 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 46 |
| JUDGMENT APPEALED FROM: | DPP v Noori [2019] VSC 172 (Hollingworth J) |
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CRIMINAL LAW — Appeal — Sentence — Murder and associated offences — Applicant deliberately drove at speed into crowd of pedestrians at busy CBD intersection — One death and multiple serious injuries — Sentenced to life imprisonment for murder with non-parole period of 30 years — Whether manifestly excessive — Offending extremely grave — Reckless murder no less serious than intentional murder — Adequate weight given to applicant’s mental condition and guilty plea — Sentence needed to adequately punish applicant and protect community — Leave to appeal refused — R v Aiton (1993) 68 A Crim R 578 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC | Grigor Lawyers |
| For the Respondent | Mr M Gibson QC with Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA
T FORREST JA:
Introduction and overview
At about 4.40 pm on Thursday, 21 December 2017, the applicant drove a motor vehicle into the intersection of Flinders and Elizabeth Streets, Melbourne, against a red light and deliberately ran down a number of pedestrians who were crossing. One of those pedestrians, Mr Antonios Crocaris, suffered head injuries from which he later died. A further eleven people suffered serious injury. More still had their lives endangered.
On 7 December 2018, the applicant pleaded guilty in the Supreme Court to murder[1] (one charge – charge 1), recklessly causing serious injury[2] (11 charges – charges 2 to 12) and reckless conduct endangering life (five charges – charges 13 to 17).[3]
[1]Murder is a crime at common law. Pursuant to s 3 of the Crimes Act 1958, the maximum penalty is life imprisonment.
[2]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
Following a plea occupying some three days, Hollingworth J sentenced the applicant on 28 March 2019 to life imprisonment for murder (and to concurrent individual terms of imprisonment on all of the other charges),[4] and fixed a non-parole period of 30 years.[5]
[4]On each charge of recklessly causing serious injury, charges 2 to 12, the judge imposed individual sentences of five years’ imprisonment. With respect to the charges of reckless conduct endangering life, the judge imposed individual sentences of two years’ imprisonment on charges 13 to 16, and four years’ imprisonment on charge 17.
[5]See DPP v Noori [2019] VSC 172 (‘Reasons’).
The applicant sought leave to appeal against his sentence on a single ground as follows:
In imposing a life sentence on the charge of Murder the Learned Sentencing Judge imposed a sentence for that offence which was manifestly excessive.
In his oral submissions in this Court in support of that ground, counsel for the applicant conceded that the applicant’s was ‘dreadful offending’, but contended that it neither merited the ‘dreadful sentence’ of life imprisonment imposed, nor the non-parole period of 30 years.
We disagree. In our view, the applicant’s offending merited the sentence imposed. Hence, the applicant’s challenge to his sentence cannot succeed. Our reasons follow.
The offending
Objectively, the applicant’s offending was extremely grave. To appreciate its truly chilling nature, it is necessary to describe it in some detail.
In December 2017 the applicant was living in Heidelberg West with his pregnant wife and 18 month old son. On Thursday, 21 December 2017 he left home at about 1.00 pm, and, at 1.35 pm, caught a bus to Preston where he visited an Avis rental car business. He could not rent a car, however, because he could not provide a credit card.
The applicant then went to a nearby Europcar car rental business. Once again he could not rent a vehicle because he did not have a credit card.
Later that afternoon, the applicant went to his mother’s home in Oak Park and borrowed her car, a Suzuki Vitara SUV. He then drove into the Melbourne central business district, apparently driving in a normal manner.
Shortly before 4.40 pm, the applicant drove west along Flinders Street. As he approached the intersection with Elizabeth Street, the traffic lights turned red, causing him to stop about 36.5 metres east of the intersection behind two stationary vehicles. When the lights turned red, pedestrians were able to cross the intersection in any direction they chose. The applicant waited at the red light for seven seconds, watching people pouring into the intersection. It was the Thursday before Christmas, and the intersection — one of the city’s busiest — was, as might be expected, very busy. The applicant, whilst stationary, was able to observe and assess the extent of pedestrian traffic. He then suddenly, and quite deliberately, pulled his vehicle out and onto the tram tracks. The lights were still red. And there were then more than 70 pedestrians crossing at the intersection.
The applicant drove onto the westbound tram tracks of Flinders Street and accelerated heavily towards the intersection. He had achieved a speed of around 50 kilometres per hour before he hit the first of a number of pedestrians. CCTV footage, which we have viewed, makes it abundantly clear that the applicant did not at any time attempt to stop, slow down or avoid people in the intersection. Indeed, he drove his car straight into the intersection — deliberately colliding with many pedestrians who were in the process of crossing — before veering to the left. (Whether the applicant veered to the left in an endeavour to hit more pedestrians, or in an attempt to avoid the tram stop that was located on the western side of the intersection, is unclear.) His vehicle then braked and collided heavily with the bollards protecting the tram stop, coming to an immediate stop, less than 20 seconds from when he had first pulled out onto the tram tracks.
Arrest, interview and investigation
Sergeant Francis Adams, an off duty policeman, had just gotten off a tram when the incident occurred, and observed what happened. After he saw the applicant’s car collide with the bollards at the tram stop, Sergeant Adams ran to the car and restrained him. He told the applicant that he was under arrest. The applicant resisted attempts to restrain him, shouting ‘Allah Akbar’ at least two or three times. Shortly afterwards, the applicant was taken into custody by the Critical Incident Response Team.
Homicide Squad detectives interviewed the applicant in hospital just before 8.00 pm. He acknowledged that he was the driver; that he had acted alone; that his actions were intentional; that the victims were innocent people; that he knew (at least subconsciously) that what he was doing was wrong; and that he had acted ‘in the name of Allah’, having been told or commanded in a dream to do it. The applicant also told police that he felt that he had no choice, having for two weeks had a voice constantly in his head. He said that he was sympathetic to Islamic State, and that he supported his religion. Whilst as a Muslim suicide was forbidden, the applicant said, he intended to be a martyr, since it was acceptable to die in a war. Further, the applicant claimed that the Australian government was racist, and that it oppressed Muslims. He expressed a belief that he, and Muslims in general, were being spied upon and targeted by ASIO, and compared what he had done to the actions of the Australian government killing and injuring people in Afghanistan, Iraq and Syria.
Subsequent examination of a computer seized from the applicant’s home on 22 December 2017 revealed that it contained a number of encrypted images, including stills showing various terrorist attacks, including attacks in 2017 in London, Charlottesville and Barcelona, accomplished with the use of motor vehicles. There were also videos about ISIS; images from warzones in Syria and Iraq; images relating to protests concerning Muslim travel bans imposed by the United States of America; and photographs of the applicant holding firearms. As Hollingworth J observed, this material demonstrated that the applicant ‘had an interest in terrorist attacks, the war in Syria and Iraq, and global politics associated with the perceived oppression of Muslims by the West’.
Death and injury
When delivering her reasons for sentence, Hollingworth J observed that the applicant’s offending had devastating consequences for many people. The applicant’s actions, she said, ‘have profoundly affected the lives of so many people — not only those who were there at the scene, but also people in the wider community’. So much cannot be gainsaid.
In order that the enormity of the applicant’s offending, and the suffering it has caused, may be appreciated, it is necessary to summarise the impact it has had on the applicant’s many innocent victims.
As we have indicated, Antonios Crocaris, who was aged 83 years when struck by the vehicle driven by the applicant, sustained head injuries from which he died in hospital eight days later. His death founded the charge of murder (charge 1).
Gichan Park, a 69 year old South Korean tourist, was part of a family group crossing towards Flinders Street Station when struck. He sustained a brain injury, multiple rib and pelvic fractures, a fracture to his spine, and other injuries, and was in a critical condition in an intensive care unit for some time (charge 2 — recklessly causing serious injury). His great nephew, Chaejin Park, aged four years, was being carried by his grandfather when struck, receiving a skull fracture, fractures to his right tibia and fibula, abrasions and swelling over his right hip and elbow, swelling to his back, and lacerations to his stomach and forehead (charge 3 — recklessly causing serious injury). Chaejin Park’s grandfather, 61 year old Jisoo Kim, sustained head injuries, and fractures to his pelvis and leg. He was in a critical condition in an intensive care unit for some time, and required lengthy hospitalisation and extensive physiotherapy (charge 4 — recklessly causing serious injury).
Tong Li, a 24 year old international student from China, sustained multiple fractures to his skull, fractures to his face, spine and a rib (which punctured his lung), a brain injury, nerve damage and haemorrhaging, and also was admitted to intensive care (charge 5 — recklessly causing serious injury).
Rohit Kaul, a 45 year old service delivery manager, sustained open fractures to his tibia and fibula, multiple rib fractures, internal bruising, a fractured tooth, and abrasions to his face, upper limbs and right leg. He underwent orthopaedic surgery and requires ongoing physiotherapy (charge 6 — recklessly causing serious injury).
Rebecca Marchitto, a 35 year old administrative assistant, sustained bleeding on the brain, together with fractures to both wrists, left elbow, femur, tibia and fibula (charge 7 — recklessly causing serious injury).
Satinder Rangi, a 30 year old team leader, tried to jump out of the car’s path, but was struck by it, sustaining multiple facial fractures and a dislocated jaw, requiring two plates to be inserted into her cheek (charge 8 — recklessly causing serious injury).
Vishal Aggarwal, a 41 year old IT and business consultant, sustained head injuries, a ruptured carotid artery, facial fractures, renal laceration and multiple bruises and abrasions (charge 9 — recklessly causing serious injury).
Ngoc Huynh, a 47 year old baker, sustained facial fractures, fractured ribs, multiple pelvic fractures, and fractures to her left humerus, ulna and fibula. Many of her injuries required surgery. She was unable to bear weight for a couple of months, and required intensive physiotherapy (charge 10 — recklessly causing serious injury).
Cara Mullan, a 25 year old Irish woman who was in Australia on a working visa, sustained two fractures to her pelvis, a fracture to her spine, and lacerations and abrasions to her head, arms, legs and face. She was unable to bear weight for a number of weeks, and required significant rehabilitation to walk again (charge 11 — recklessly causing serious injury).
Kees Green, a 43 year old senior technical manager, pushed two women out of the car’s path before himself being struck. He received multiple fractures to his spine, a laceration and abrasions to his forehead and shoulder, bruising to his chest wall, and pain to his knee and shoulder (charge 12 — recklessly causing serious injury).
With respect to the circumstances of the charges involving non-serious injuries, Ethan Caruso, a 17 year old student, pushed his friend out of the car’s path before it hit him. He sustained multiple soft tissue injuries (charge 13 — reckless conduct endangering life). Andrew Lovett was 28 years old and working in sales. He sustained grazes, pain and bruising, but did not require medical treatment (charge 14 — reckless conduct endangering life). Luigi Di Vico, a 26 year old Italian chef who was in Australia on a working visa, sustained a broken thumb, multiple soft tissue injuries and abrasions (charge 15 — reckless conduct endangering life). Esperanza Arcella was a 25 year old Spanish student and waitress. The car drove past her so closely that it brushed her hand. She was then struck by an object or person, which caused her to fall to the ground. Ms Arcella sustained a sore back, and a minor cut and bruising to her left hand (charge 16 — reckless conduct endangering life). The final charge (charge 17 — reckless conduct endangering life) related to a group of people who were injured, either by being directly hit, or by colliding with others as they tried to escape the applicant’s car. Those injured, and the injuries they sustained, included Spiridon Dimitropoulos, aged 32, who suffered a soft tissue injury to his knee; Natalia Firth, aged 37, who sustained bruising to her head, leg and shoulder; Clare Fraser, aged 32, who was winded during the incident, and suffered from pain and shock; Nicole Galvin, aged 31, who suffered a broken scaphoid bone, and bruising to her arms and legs; Johanna Scurry, aged 33, who sustained a fractured left fibula; and Michelle Mason, aged 30, who received abrasions to her knee and elbow after pushing a colleague out of the way.
At the time that the applicant was sentenced, many of his victims continued to suffer from the physical effects of their injuries. Some were no longer able to perform the same work, or engage in the same leisure activities, as they did before the incident. And as Hollingworth J observed, given the speed and manner of the applicant’s driving, ‘it is only by sheer good fortune that more people were not killed or injured’.
The applicant’s personal circumstances
Born in Afghanistan in March 1982 — one of 10 children — the applicant was aged 35 years at the time of the offending and is now 39. His family fled to Iran as refugees when he was about 12. At age 22, he arrived in Australia on a humanitarian visa, having had little formal education. He became an Australian citizen in November 2006.
The applicant married in Afghanistan in 2012, although his wife did not join him in Australia until 2015. They had a child in April 2018. The applicant’s wife was pregnant with another child when he offended.
Although previously hardworking, the applicant commenced using illicit drugs in 2007, his usage apparently escalating after one of his brothers died in 2009. It seems that by 2011 he was a heavy user of ‘ice’ (methamphetamine), although he has also used cocaine, ketamine, heroin and ecstasy. Eventually his drug use became such that he could no longer hold down a job. He was unemployed at the time of his offending.
The applicant’s psychiatric condition
In October 2014, the applicant was detained involuntarily in a psychiatric institution. He was suffering from paranoid symptoms which he had endured for over a year. After his discharge in December 2014, the applicant refused to engage in any follow-up treatment.
Throughout 2015, the applicant travelled overseas to Iran and Afghanistan — using both heroin and ice — experiencing a lot of psychotic episodes during that period. Upon his return to Australia in February 2016, the applicant was once more admitted to a psychiatric unit, suffering paranoid and persecutory ideation. He was provisionally diagnosed with drug-induced psychosis.
The applicant returned to the Middle East later in 2016, trying to quit drugs. He returned to Australia on 9 January 2017, and, because of an outstanding warrant related to drug charges, his baggage was searched and he was questioned by Border Force officers. These events appear to have been a catalyst for the applicant’s belief that he was being monitored by ASIO.
Later, in September 2017, child protection workers from the Department of Health and Human Services (‘DHHS’) became involved with the applicant’s family, having received a notification about family violence and drug use. DHHS workers at the time described the applicant as being aggressive and paranoid about ASIO. He believed that the DHHS workers themselves were from ASIO.
During the period between late September and early December 2017, the applicant was regularly seen by mental health practitioners. He acknowledged using large amounts of ice, but did not accept that there was a relationship between his drug use and ongoing paranoid delusions. Despite being on various antipsychotic medications, he continued to display paranoid delusions that ASIO was interfering with every aspect of his life. Various treating psychiatrists differed as to whether the correct diagnosis was drug-induced psychosis, paranoid schizophrenia, or a combination of the two. The applicant was last seen by a psychiatrist on 8 December 2017, just short of two weeks before his rampage.
On the plea, Hollingworth J received reports from two forensic psychiatrists, Dr Lester Walton and Dr Andrew Carroll. They each had assessed the applicant personally, each having had access both to his mental health records and to documents relating to his offending. Dr Carroll also gave oral evidence.
Notwithstanding the applicant’s paranoid delusions, given that the applicant understood the nature and quality of his conduct, and that it would be perceived by reasonable people to be wrong, both psychiatrists concluded that a mental impairment defence was not open to him.[6]
[6]See Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, s 20(1).
Dr Carroll’s opinion was that, on 21 December 2017, the applicant’s ‘judgement was significantly impaired due to active psychotic symptoms, including persecutory delusions and auditory hallucinations’. In his evidence, Dr Carroll said that the applicant had suffered from a mental illness ‘for several years’. Asked to describe what that mental illness was, Dr Carroll said:
Mr Noori suffers from paranoid schizophrenia. This is a severe, enduring mental illness characterised by a deterioration in social functioning and more overtly, evidence of delusional beliefs and hallucinatory symptoms. So auditory hallucinations, also called hearing voices.
Senior counsel for the applicant asked Dr Carroll about differing diagnoses that had been arrived at by clinicians in preceding years. Dr Carroll explained that they had not had the benefit of all the clinical information that he had access to:
You were aware and a matter you had to take into account, is there’d been these different diagnosis of this man along the way, prior to the time of the offending?---The clinicians who’ve seen him at various public mental health clinics have fluctuated back and forth, in terms of their preferred diagnosis. That’s a very common picture, it’s no easy matter to, to draw these diagnostic distinctions. Those psychiatrists wouldn’t necessarily have had the benefit of all of the clinical information that I had. And of course, they wouldn’t have had the benefit of, that we’ve now had of Mr Noori in a secure prison setting and away from methamphetamine, as best as we can ascertain and yet still having clear psychotic symptoms.
During evidence-in-chief, Dr Carroll went on to explain the effect of the applicant’s illness upon him in the following way:
That illness, that schizophrenic illness, what are the features of that in terms of this man? How does that affect him? Or how has it affected him, over the years?---Well, there’s the, there’s the kind of most obvious, you know, it’s sometimes called positive symptoms, of delusions and hallucinations. And I think in Mr Noori’s case, the delusions were of particular import, he developed early on in his illness, an entrenched persecutory delusional system that’s quite, really quite well organised and very tightly focused on, on ASIO … whereby he believes in a way that goes well beyond what an average person or even an average person of Afghan background might consider. He, he firmly believes that ASIO have targeted him, for particularly malevolent treatment. So, for example, he believes that ASIO arranged for a doctor to inject him with a substance that has made his shoulder pain worse. He believes that ASIO prevented him from moving forward with trying to legally gain access to his, to his son. [A]t times he’s believed that ASIO have had drones following him. He’s seen lights in the sky that he’s related to ASIO. He’s hidden in his attic at home, to try to escape persecution from ASIO. So there were a number of really quite – you know – sometimes bordering on the bizarre beliefs and behaviours, all of which centre on this delusional belief about ASIO. In addition, there’s been some evidence of auditory hallucinations, so hearing voices. And to some degree, they appear to still be present in prison. The extent to which they affect his behaviour, I think, is generally been fairly limited except for times when he’s become intoxicated with methamphetamine and become more, more acutely unwell.
Dr Carroll was asked in the course of his evidence-in-chief whether the applicant had endured ‘command hallucinations’. His evidence was as follows:
HER HONOUR: So they’re not what you’d call command hallucinations?---In terms of command hallucinations, Your Honour, I gave that a lot of thought. He describes at times being told to do certain things or at least encouraged to do things, so there was sometimes a command quality to them. In more recent times it’s been much more derogatory content, so such as simply saying that he’s a bad person. He describes sometimes having some commands but I think of significance is the fact that he’s never articulated to me a command that he feels is coming from an all-powerful source that will do him some terrible harm if he doesn’t comply with the command. So there were different levels, different levels of intensity command hallucinations and the ones that as forensic psychiatrists we take particular note of is where somebody experiences a command that is coming from an entity that is perceived as much more powerful than they are but that is also threatening them with some harm, often death or eternal damnation. So if one is hearing the voice of God threatening you with eternal damnation which you fully believe and you feel fully – you know, that you’re powerless in the face of that, than that is a very powerful command hallucination. I looked for evidence of this in Mr Noori’s case but I didn’t find it. I don’t think he ever had a very compelling command hallucination of that nature. Now – so they’re the positive manifestations but there’s also this more subtle manifestation of his illness which is that from around about five years ago Mr Noori has moved from being a fairly high functioning professional person within the Australia community, holding down a job, doing well in his job, to a person who’s been unable to hold down work, who spent long periods of time outside of Australia, and this – again, this is consistent with the onset of a schizophrenic illness which often does have so-called psychosocial deterioration as part and parcel of the picture, and this is also consistent with relative deficits in his motivation that are observed by the clinical staff now.
Under cross-examination, Dr Carroll said that the applicant’s paranoid schizophrenia would have impaired his ability to exercise appropriate judgment to a moderate extent:[7]
[PROSECUTOR]: Coming to the nub of this matter, in terms of your diagnosis of paranoid schizophrenia do you say that it would have impaired his ability to exercise appropriate judgment?---Yes.
And to what extent?---I think to a moderate extent. It’s not at the highest end, it’s not – as you’re aware, I didn’t support a mental impairment defence. [M]y opinion is that there was a clear link between his persecutory delusional system regarding ASIO and the offending. He alluded to thoughts of behaving in – of offending in a disturbing way all the way back in October when speaking to a [psychiatric] registrar in a way that drew very clear links between his distress, his frustration, his anger, about what ASIO were doing to him and what he felt to be a need, whether one would call it revenge or just to carry out some kind of action just to get them to leave him alone. He was kind – he was a man at the end of his tether because of distress and despair stemming from a delusional belief about ASIO and those delusions had been present for a number of years. So that degree his judgment as to the appropriateness of his behaviour was impaired by psychotic processes.
I don’t mean to be repetitive but there are a number of criteria I just want to ask you about or a number of factors. What do you say as to whether his condition impaired his ability to make calm and rational choices or think clearly?---It would be my opinion that the psychosis which was active on the day did have that effect.
[7]Emphasis added.
Addressing the applicant in her sentencing remarks, Hollingworth J made the following observations, which, so it seems to us, capture the essence of Dr Carroll’s extensive evidence:[8]
Dr Carroll noted that the severity of your schizophrenia, and therefore the extent of your paranoid delusional beliefs about ASIO, had fluctuated over the years. He said that at the time of the offending, you were not in one of your more acute phases, and were not intensely pre-occupied with your persecutory beliefs. In particular, Dr Carroll was unable to find any evidence that:
(a) You were in a grossly disorganised psychotic state, or were suffering from severe mood symptoms, on the day of the incident;
(b) You had any delusions of any kind in respect of the pedestrians with whom you collided;
(c) The hallucinatory voices that you described, including that of Allah, were perceived as overwhelmingly powerful or intensely threatening to you personally;
(d) You felt that your actions at the relevant time had been entirely controlled by an external force or agency; or
(e) You believed that you were under imminent threat or danger.
[8]Reasons, [90].
Hollingworth J added:[9]
Even though you may not have been in a particularly acute or florid state at the time, both psychiatrists agreed that your judgment as to the appropriateness of your actions would have been impaired to some extent by your active psychotic symptoms. That is to say, there was a clear link between your longstanding mental illness and your decision to carry out some kind of action, whether that was to make ASIO or the government leave you alone, or to take some revenge on them for persecuting you. However, Dr Carroll described the extent of that impairment as ‘moderate’.
[9]Reasons, [91] (emphasis added).
The applicant’s contention in this Court
Counsel submitted that a sentence of life imprisonment — the maximum sentence available — could only have been imposed on the charge of murder if the applicant’s crime fell into the worst category.[10] There were, however, three principal factors which removed it from that worst category of cases of murder attracting the imposition of a sentence of life imprisonment: first, the applicant’s ‘relatively early’ guilty plea (which was accompanied by remorse, and which avoided a trial of considerable length that would have been traumatic for witnesses, victims and loved ones); secondly, the applicant’s paranoid schizophrenia (which impaired his judgement to a ‘moderate’ extent at the time of the commission of the offence); and, thirdly, the applicant had pleaded guilty to reckless — as opposed to intentional —murder.
[10]Counsel cited R v Kilic (2016) 259 CLR 256, 266 [20] (Bell, Gageler, Keane, Nettle and Gordon JJ) (‘Kilic’).
The respondent’s submissions
Counsel for the respondent submitted that, given the extreme seriousness of the applicant’s offending, it was well open to the sentencing judge to impose a sentence of life imprisonment, and to reflect the applicant’s guilty plea in the fixing of a non-parole period. Next, the respondent’s counsel submitted that the judge gave adequate weight to the applicant’s mental illness, and gave it appropriate weight by moderating the non-parole period imposed. Next again, counsel contended that an assessment of the applicant’s moral culpability could not be made solely by reference to the ‘category of malice’ involved in the charge of murder. The applicant’s offending was, counsel submitted, ‘evil and abhorrent’. Despite mitigating factors, it warranted a life sentence.
Discussion
We reject the contention that the applicant’s crime was less serious because it was characterised as reckless, rather than intentional, murder. In our view, no mitigation flowed from that fact.
A similar conclusion was reached in Aiton,[11] a case in which the Court of Criminal Appeal made it clear that reckless murder was not necessarily less serious than intentional murder. The adult male applicant in that case had killed a little boy by repeatedly punching him, the punches being the culmination of a protracted period of physical abuse. Seeking leave to appeal against sentence, the applicant contended that the sentencing judge had erred by ‘equating for sentencing purposes a reckless murder with an intentional murder’. Rejecting that contention, the Court said:[12]
There is no basis, of which we are aware, in the practice of the Court for the acceptance of the view that any such distinction exists, and none in principle why it should. As earlier pointed out, the High Court in Crabbe’s case[[13]] made it clear that no assessment can be made of the level of moral culpability attached to a person who commits the crime of murder by reference simply to the category of malice involved. Obviously each case must be considered in the light of its own particular relevant facts.
[11]R v Aiton (1993) 68 A Crim R 578 (Phillips CJ, Crockett and Vincent JJ) (‘Aiton’).
[12]Ibid 598. See also Barrett v The Queen (2010) 27 VR 522, 528-9 [24]–[30].
[13]R v Crabbe (1985) 156 CLR 464, 469 (Gibbs CJ, Wilson, Brennan, Deane, Dawson JJ).
In the present case, counsel for the applicant acknowledged that, by his plea, the applicant had admitted that he consciously, voluntarily and deliberately drove into the crowded intersection foreseeing the probability that he would cause death. Indeed, we think it plain that the applicant must have appreciated that the probability of causing death was very high, given the large pool of prospective victims and the speed at which he entered the intersection. Quite clearly, the potential for far more widespread death was substantial. We repeat once more — with our complete agreement — the sentencing judge’s observation that, given the applicant’s speed and manner of driving, ‘it is only by sheer good fortune that more people were not killed or injured’.[14] In these circumstances, we consider the applicant’s moral culpability to be extremely high. The fact that the applicant fell to be sentenced for reckless, rather than intentional, murder was a product of no more than the indiscriminate nature in which he chose to carry his criminal purpose into effect. It did not reduce his culpability and could not redound to his benefit.
[14]Reasons, [8].
There was, of course, some mitigation to be found in the applicant’s plea of guilty and in his mental condition. But neither of these things necessarily dictated that a sentence of something less than life imprisonment was warranted for the applicant’s crime of murder.[15] Indeed, we consider that both of those mitigatory features were given proper weight by the sentencing judge, resulting, as they did, first, in a non-parole period being imposed, and, secondly, its length.
[15]See Hunter v The Queen (2013) 40 VR 660, 663–4 [14] (Maxwell P and Coghlan JA) (‘Hunter’).
Contrary to the thrust of submissions advanced by the applicant’s counsel, it should not be thought that a plea of guilty alone in all cases will automatically result in something less than the maximum sentence being imposed. As was said in Phillips:[16]
The exceptional case arises where the gravity or aggravating features of the offending conduct are of such an order that even allowing the mitigatory effect of the plea, the maximum sentence remains appropriate. That is because the offender’s criminality so outweighs any circumstances of mitigation that are present. For example, for the offence of murder, a sentence of life imprisonment is sometimes imposed, notwithstanding a plea of guilty, because of the degree of criminality of the offence. In such cases the enormity of the offender’s criminality may be such as to require that, albeit exceptionally, the mitigatory effect of the utilitarian benefit yield to considerations of greater weight such as proper protection of the public, and the maintenance of the rule of law. The exception may also arise in the case of lesser offences where imposition of the maximum sentence for that offence is considered necessary notwithstanding the plea or other mitigatory factors.
[16]Phillips v The Queen (2012) 37 VR 594, 613 [67] (Redlich JA and Curtain AJA) (citations omitted); Hunter, 663–4 [14] (Maxwell P and Coghlan JA).
We consider that, in the circumstances of this case, the applicant’s plea of guilty must have influenced, first, the sentencing judge’s decision to afford the applicant the possibility of conditional release on parole; and, secondly, the judge’s assessment of the minimum period that he would have to serve before justice permitted that possibility to crystallise.
Moreover, it is clear that, consistently with the expert opinion put before her, Hollingworth J gave the applicant a ‘moderate’ reduction in sentence as a result of his mental condition. So much is plain from the following passage in her sentencing remarks, and from the very fact that she saw fit to impose a non-parole period:[17]
[17]Reasons, [91]–[94] (emphasis added) (citation as in original).
Even though you may not have been in a particularly acute or florid state at the time, both psychiatrists agreed that your judgment as to the appropriateness of your actions would have been impaired to some extent by your active psychotic symptoms. That is to say, there was a clear link between your longstanding mental illness and your decision to carry out some kind of action, whether that was to make ASIO or the government leave you alone, or to take some revenge on them for persecuting you. However, Dr Carroll described the extent of that impairment as ‘moderate’.
An offender’s impaired mental functioning, whether temporary or permanent, may be relevant to sentencing in a number of ways:
(1) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances, and denunciation is less likely to be a relevant sentencing objective;
(2) The condition may have a bearing on the kind of sentence that is imposed, and the conditions in which it should be served;
(3) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;
(4) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the same considerations;
(5) The existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and
(6) Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
These considerations are generally referred to as the Verdins principles, after a Court of Appeal decision of that name.[18] Verdins principles may operate so as to moderate the minimum term and/or the head sentence, depending on the circumstances of the individual case.
In this case, your counsel argued that Verdins principles 1, 3, 4 and 5 apply as mitigating factors in sentencing you. I accept the evidence that your judgment as to the appropriateness of your actions would have been impaired to some extent by your active psychotic symptoms, which should lead to some reduction in your moral culpability, and in the need for general and specific deterrence. However, the extent of that reduction is only moderate, given the evidence as to the extent of your impairment at the time of offending.
[18]R v Verdins (2007) 16 VR 269.
Given the state of the psychiatric opinion, we agree with the assessment reflected in the immediately foregoing remarks that the extent of the reduction of the applicant’s sentence flowing from his mental condition could only be ‘moderate’ (or modest).
Having regard to the nature of the applicant’s crime and his circumstances, we consider — contrary to the submissions of his counsel — that the murder that he committed fell into the worst category, in the sense that it is an instance of the offence which is so grave that it warrants the imposition of the maximum sentence. As was said in Kilic:[19]
What is meant by an offence falling within the ‘worst category’ of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the ‘worst category’, it is beside the point that it may be possible to conceive of an even worse instance of the offence …
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty … a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called. …
[19]Kilic, 265-266 [18]-[19] (citations omitted; emphasis added). See also Hunter, 690 [126] (Priest JA).
We agree with the following observations made by Hollingworth J:[20]
Deliberately driving a vehicle into a crowd of people is a dreadful crime, one which undermines the right of ordinary citizens in a civilised society to be able to go about their normal daily activities in public, without fear of being harmed.
You chose to commit the offences in the public domain, in a crowded public space where your actions would have the most dramatic effect. Your actions have indeed horrified and traumatised many people.
The offending was entirely unprovoked, and displayed a callous disregard for the sanctity of human life. Whatever your motive was for committing these offences, it had nothing to do with the particular victims.
The victims of your offending were all in a physically vulnerable position; they were in a crowd of defenceless pedestrians, who were simply crossing an intersection with the traffic lights in their favour.
Driving into the crowd of pedestrians was not a spontaneous or impulsive act; it was something you had planned. ...
[20]Reasons, [39]–[43].
The enormity of the applicant’s crime, when considered against the limited mitigation to be found in his mental condition and guilty plea, well justified life imprisonment.
Finally, we should make it clear (if we have not already) that we consider the non-parole period imposed to be unimpeachable. In assessing in the first place whether it was proper to impose a non-parole period, and, in the second place, its length, it is necessary to bear steadily in mind that the applicant’s crime of murder did not stand alone. The murder was part of a criminal onslaught, the purpose of which was to cause maximum havoc. Not only did the execution of that purpose cause death, but it caused a number of innocent people to be seriously injured, and others to have their lives gravely endangered. Thus, the decision whether to impose a non-parole period, and the length of any non-parole period that it was decided to impose, fell to be considered in the context of the applicant’s overall criminality, including that his acts were calculated to — and did — cause wholesale devastation.
When considering the applicant’s complaints about the sentence imposed upon him, it is necessary to avoid a visceral approach to his offending, and to put emotion to one side. By any measure, however, his offending was horrifying. It was utterly cowardly and sickeningly callous. The sentence imposed needed adequately to punish the applicant for his appalling crimes, and to protect the community from him.
Synthesising all relevant sentencing considerations — including the circumstances of the offending and of the applicant, and the aggravating and mitigating features — we are far from persuaded that the sentence imposed on the applicant is manifestly excessive. Indeed, we do not consider that it is open to legitimate criticism.
Conclusion
For the foregoing reasons, we would refuse leave to appeal.
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