Semaan v The Queen
[2017] VSCA 261
•21 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0037
| ALEXANDER JOHN SEMAAN | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2016 0238 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ALEXANDER JOHN SEMAAN | Respondent |
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| JUDGES: | PRIEST, BEACH and HANSEN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2017 |
| DATE OF JUDGMENT: | 21 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 261 |
| JUDGMENT APPEALED FROM: | R v Semaan (Unreported, Supreme Court of Victoria, Justice Beale, 6 September 2016 (Conviction), 4 November 2016 (Sentence)) |
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CRIMINAL LAW — Appeal — Conviction — Murder — Hearsay evidence — Whether statements made to police on night of offending admissible — Whether unreliable witness warning inadequate — No error — Leave to appeal refused — Evidence Act 2008 (Vic) ss 59, 62, 66.
CRIMINAL LAW — Appeal — Sentence — Crown appeal — Murder — Offender sentenced to 22 years’ imprisonment with non-parole period 18 years after trial — Whether manifestly inadequate — Cold-blooded killing — No remorse — Appeal allowed — Resentenced to 28 years’ imprisonment with non-parole period 24 years — Post-offence conduct — Whether uncharged attempts to pervert course of justice constituted aggravating circumstances — R v De Simoni (1981) 147 CLR 383; R v Newman and Turnbull [1997] 1 VR 146; DPP v England [1999] 2 VR 258 discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Respondent | Mr J F Desmond and Mr R F Edney | Valos Black & Associates |
| For the Director of Public Prosecutions | Mr C B Boyce SC and Mr J B Lewis | John Cain, Solicitor for Public Prosecutions |
PRIEST JA:
BEACH JA:
HANSEN JA:
Introduction
In late 2014, the applicant was living in a bungalow at the rear of his mother’s home in East Brunswick. It was in the rear courtyard of that home that he shot Michael Bekhazi dead, leading to his conviction for Bekhazi’s murder. The circumstances of the murder were as follows.
At about 9.00 o’clock in the evening of 1 December 2014, the applicant was sitting in his bungalow — with a gun in his lap — holding an ‘ice’ pipe. A relative, Tony Kanaan, came and stood in the open doorway. The applicant said to Kanaan, ‘I want to kill everybody’. When Kanaan asked, ‘Who do you want to kill?’, the applicant replied, ‘Everybody’.
Holding the gun, the applicant then walked out into the courtyard. Michael Bekhazi, a friend, was there looking through a bag. Whilst Kanaan looked on, the applicant put the gun to the back of Bekhazi’s head. As Kanaan tried to reason with the applicant, the applicant moved away from Bekhazi over to the back gate where he could see a neighbour putting out her bins. He pointed the gun at her. Once more, Kanaan attempted to reason with the applicant.
The applicant walked back to Bekhazi, who was standing up. The applicant pointed the gun at Bekhazi’s forehead. Bekhazi did not attempt to resist, and simply lowered his head. The applicant fired.
Bekhazi, fatally wounded, collapsed. Members of the applicant’s family heard the shot and went to Bekhazi’s aid. Cardio-pulmonary resuscitation was attempted under the instructions of a ‘000’ operator, but the attempt was futile. A post-mortem examination later found an entry wound to the deceased’s forehead but no exit wound, a part of the projectile remaining in Bekhazi’s brain. Significant amounts of gunshot residue were found near the bullet hole in Bekhazi’s forehead, demonstrating that the gun was discharged at close range.
After the fatal shot, Kanaan went into the house to fetch the applicant’s mother, in the hope that she might calm the applicant. He then went to get Youssef Semaan, the applicant’s brother-in-law, from a nearby hotel.
After shooting Bekhazi, the applicant returned to the bungalow. At one point his mother joined him, as did his niece, Margaret Khoury. Later that night, Khoury told the applicant’s sister, Noelle Semaan, that the applicant had pointed the gun at everyone in the bungalow as she tried to get the applicant’s mother out of the bungalow. Tony Kanaan made a statement to police in which he said that he saw the applicant shoot Bekhazi.
Having apparently been informed of the shooting, the applicant’s girlfriend, Megan Beljulji, and his sister, Hanna Semaan, arrived at the premises. Beljulji went into the bungalow. She and the applicant remained under siege there for several hours, despite pleas from his family and police negotiators that the applicant surrender himself.
The applicant claimed, when speaking to police negotiator, Christopher Jacques, on the telephone, that he had been asleep and knew nothing about the shooting. Beljulji told police the same thing.
Police eventually entered the bungalow and arrested him, finding him to be heavily drug affected, as was Beljulji. Indeed, the applicant was so affected by illicit drugs that he was unfit to be interviewed. The next day, 2 December 2014, the applicant was charged with murder. He has been in custody ever since.
At trial, the prosecution sought to rely on Kanaan’s evidence that he saw the applicant shoot Bekhazi in the head virtually at point blank range. The applicant’s case was that there was an unknown and armed intruder, who tried unsuccessfully to rob him in his bungalow, and who must have shot Bekhazi as he was leaving the property. Kanaan, the defence claimed, is an ‘ice’ user who is so lacking in credibility and reliability that his version of events cannot be accepted.
The prosecution relied on a recorded ‘000’ call to bolster the contention that Youssef Khoury and others saw the applicant with a gun. It was the prosecution case that Youssef Khoury and other family members could be heard yelling and screaming inside the residence, and that it could be inferred from what is being said that the applicant had a gun and they were all terrified. The prosecution also sought to rely on certain representations made by Youssef Khoury and Margaret Khoury that the applicant was in possession of a gun. We will set out the detail of those representations when we come to deal with the application touching conviction.
The applicant’s sister, Hanna Semaan, and Beljulji, faced trial on the same indictment charged with attempting to pervert the course of justice (charges 2 and 3).[1] Those charges arose out of conduct which occurred after the applicant’s arrest.
[1]Hanna Semaan was convicted by the jury of one charge of attempting to pervert the course of justice, and Beljulji was convicted on two charges. On 4 November 2016, both were sentenced to be imprisoned for three years with a non-parole period of two years.
In a series of recorded prison telephone calls with either his sister or Beljulji, commencing on 4 December 2014, knowing that the calls were being monitored and recorded by authorities, the applicant maintained his innocence. He relied on the self-serving content of these calls at trial.
Initially in the prison calls, the applicant asserted that he had been asleep in the bungalow when Bekhazi was shot. That version later changed, so that at trial the applicant claimed that an unknown intruder entered his bungalow when he was drug-affected and vulnerable. During a struggle, the intruder fired two shots, one in the bathroom and one in the lounge room. On the applicant’s version at trial, he passed out during the struggle in the lounge room. The intruder must then have shot Bekhazi in the courtyard as he left the premises. In the calls the applicant suggested that Kanaan must have been a party to the unsuccessful robbery and was covering up that involvement by falsely accusing the applicant of the murder. The applicant asserted during the prison calls that there was bullet damage in the bungalow that would vindicate him. Beljulji and Hanna Semaan went along with the charade.
On 18 December 2014, the applicant’s solicitors, at his request, advised the informant that there had been an armed intruder on 1 December 2014. The solicitors requested that police re-examine the crime scene. Police ballistics experts, who had examined the crime scene on 2 December 2014 — and who had then found no bullet damage — re-examined the crime scene on 23 December 2014. Just before they entered the bungalow to begin their search, Beljulji spoke to the officer-in-charge telling him that the applicant wanted the investigators to look for bullet damage in a painting — which on 1 December 2014 had been covering up the bathroom window — and in the roof of the bungalow. Despite there having been none found when the police first examined the scene, bullet damage was indeed discovered by police during their fresh examination on 23 December 2014.
On 31 March 2016, the applicant’s solicitors, acting on his instructions, asked the police to again re-examine the crime scene asserting that there was bullet damage in the shed which had earlier been missed by investigators. Photos of the bullet damage in the shed were provided. Police did not bother to re-attend the scene. During the trial, the applicant’s counsel introduced photographs of the bullet damage to the shed. It was claimed that the shed damage was consistent with an armed intruder having fired a shot in the bathroom on 1 December 2014, with that shot having penetrated the painting that had been covering the window between the bathroom and the shed.
The proceedings in this Court
Following the applicant’s trial in the Supreme Court, on 6 September 2016 a jury convicted the applicant of Bekhazi’s murder. Self-evidently, the jury rejected the ludicrous suggestion that an armed intruder murdered Bekhazi. Doubtlessly, as the judge observed when sentencing him, the applicant’s ‘desperate attempts to bolster that story by arguing that investigators had missed bullet damage backfired’. On 4 November 2016, the trial judge sentenced the applicant to be imprisoned for
22 years,[2] and fixed a non-parole period of 18 years.
[2]A sentence of two months’ imprisonment was imposed for breach of parole, and was ordered to be served cumulatively on the sentence for murder. The total effective sentence was thus 22 years and two months’ imprisonment.
The applicant now seeks leave to appeal against his conviction, and the Director of Public Prosecutions appeals against the applicant’s sentence.[3]
[3]It is convenient to describe him as ‘the applicant’, despite he being the respondent to the Director’s appeal.
With respect to the application for leave to appeal against conviction, the applicant relies on four grounds as follows:[4]
[4]At the outset of the hearing, counsel for the applicant informed us that the applicant may in the future wish to agitate a ground of appeal concerned with ‘GSR’ — gunshot residue — and ‘a picture’ (as to which, see [15]–[16] above.) Counsel informed us that his client does not presently have legal aid funding for an appropriate expert. The Court made it clear to counsel that there may be adverse consequences legally that flowed from arguing his application for leave to appeal against conviction without having first fully explored the issue of GSR. Leading counsel was emphatic, however, in his expressed desire to continue with the application, notwithstanding the cautionary note expressed by the Court.
1. The learned trial judge erred in ruling the previous representations made by Youssef Khoury (‘Khoury’) to police officers Seddon and Kerr, were admissible (Rulings 8 and 9) and further erred in ruling neither s 137 [of the Evidence Act 2008] nor the ‘Haddara’[[5]] discretion were engaged.
2. The judge erred in ruling the previous representation by Margaret Khoury (‘Margaret’) to Noelle Semaan (‘Noelle’) was admissible (Ruling 10) and further erred in ruling neither s 137 [of the Evidence Act 2008] nor the ‘Haddara’ discretion were engaged.
3. The judge erred in ruling the previous representation of Noelle Semaan (‘Noelle’) to police officer Cunha (‘Cunha’) was admissible (Ruling 10) and further erred in ruling neither s 137 [of the Evidence Act 2008] nor the ‘Haddara’ discretion were engaged.
4. The judge erred in failing to give adequate directions of law concerning ‘unreliable evidence’ as follows:
(a)in relation to the unreliable evidence direction the same was expressed by way of ‘routine’ or ‘formality’ with a risk arising the jury would minimize the importance of the direction;
(b)whilst the said direction was to be given concerning witnesses Khoury, Margaret, Noelle and others, the specific direction given omitted a reference to Khoury;
(c)the direction should have included a direction that the jury were not to reason any of witnesses Khoury, Margaret and Noelle had been ‘got at’ etc. by the [applicant];
(d)the direction failed to identify the representation of Noelle was admitted solely for the limited purpose that Margaret had made the representation to her and not in proof of the truth that [the applicant] was in possession of the gun.
[5][Haddara v The Queen (2014) 43 VR 53 (Redlich, Weinberg and Priest JJA) (‘Haddara’).]
The Director relies on two grounds:
1. The sentence imposed was manifestly inadequate.
Particulars
In fixing the sentence set out above in this Notice of Appeal, the sentencing Judge –
(a) failed to give sufficient weight to the objective gravity of the offending;
(b) failed to give sufficient weight to the seriousness of the offence;
(c) failed to give sufficient weight to the protection of the community;
(d) failed to adequately characterise this offence as a serious example of the offence of murder;
(e) failed to give sufficient weight to the principles of general deterrence, punishment, and denunciation;
(f) failed to give sufficient weight to the consequences of the offence;
(g) failed to have sufficient regard to the maximum penalties prescribed for the offence;
(h) failed to give sufficient weight to the absence of remorse;
(i) failed to give sufficient weight to the poor prospects of rehabilitation;
(j) failed to adequately give appropriate weight to the prior history of offending of the respondent, his status as a parolee and that he should not have been in possession of a firearm
(k) failed to give appropriate weight to the protection of the community;
(l) gave excessive weight to factors in mitigation; and
(m) failed to regard the respondent’s post offence conduct as a significant aggravating feature that was relevant to moral culpability.
2. The learned sentencing judge erred in failing to find that the post offence conduct of the respondent, in inventing an account, taking steps to falsify the crime scene to promote this account and enlisting the assistance of others to further this and pressure the main witness to change his statement, amounted to an aggravating feature that impacted on moral culpability.
The hearsay evidence
Relying on s 66 of the Evidence Act 2008, the prosecution sought to lead evidence that the applicant was seen in possession of a gun shortly after Bekhazi was shot. Representations to that effect were said to have been made by Youssef Khoury to two police officers, Sergeant Julie Seddon and Constable Amy Kerr (these were respectively the subject of Ruling 8 and Ruling 9); and by Margaret Khoury to the applicant’s sister, Noelle Semaan (the subject of Ruling 10).
At the time that the trial judge ruled on the admissibility of the evidence of both representations, it was anticipated that, although both Youssef Khoury and Margaret Khoury would be called by the prosecution, neither would give evidence of having seen the applicant in possession of a gun. (In the event, when the trial proceeded and the witnesses were called, that anticipation was fulfilled.)
Relevant provisions of the Evidence Act 2008
Part 3.2 of the Evidence Act 2008 is concerned with ‘Hearsay’.
Section 59 provides:
59The hearsay rule—exclusion of hearsay evidence
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2)Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
...
So far as relevant, s 62 provides:
62Restriction to ‘first-hand’ hearsay
(1)A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
...
Section 66 governs the admissibility of a hearsay representation in criminal proceedings:
66Exception—criminal proceedings if maker available
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made—
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
...
(3)If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
...
With these provisions in mind, it is convenient to turn to the grounds of appeal touching conviction.
Conviction ground 1 — The Youssef Khoury representations to police officers
Sergeant Julie Seddon made two statements. She said that she attended outside the applicant’s mother’s address at 9.47 pm on Monday, 1 December 2014. Sergeant Seddon stated that Youssef Khoury approached her and they had the following conversation:
Khoury: ‘A man’s been shot in the head.’
Seddon:’Who is it?’
Khoury:‘I don’t know.’
Seddon: ‘Who shot him?’
Khoury: ‘My Uncle. You better move, don’t stay here because he’s in there and he’s still got a gun.’
Constable Amy Kerr arrived with Constable Nicholas Turner at the applicant’s East Brunswick address and saw approximately 15 people standing outside. At the direction of Sergeant Seddon, she attempted to move the people from the front of the house. As she was yelling at the milling crowd to move, Youssef Khoury approached her and said: ‘He’s crazy; don’t go in there, you need the SWAT or something’. Constable Kerr’s statement then reads:
… A female has also approached me stating that she needed an ambulance; I told her that an ambulance would not be coming while the offender was still armed but an ambulance was just around the corner and we are doing everything we can to make the area safe so that the ambulance could attend. At this time a second male then approached me who was talking on a mobile phone; I now know this male to be Tennous [sic] Semaan (25/01/1993). Semaan was talking to a 000 operator. He said to me, ‘She said they were coming’, in reference to the ambulance arriving. I heard the 000 operator ask Semaan, ‘Do the girls in the back ground know where the offender is?’ on hearing that I said to Semaan, ‘Where is he?’ in reference to the offender. Both Semaan and [Youssef] Khoury said that they didn’t know where the offender was or where he went. The female asked, ‘Who?’, and either Khoury or Semaan replied ‘Alex’. The 000 operator has then asked Semaan who ‘Alex’ was, to that Semaan passed the mobile phone to me. I then had a conversion with the 000 operator regarding the situation and was informed that the ambulance was in Holmes Street. I told the operator that police would not be entering the address as the offender was still armed and his location was not known.
I handed the phone back to Semaan who told me that he had tried CPR and that blood came out of victim’s mouth. Khoury said that the offender was ‘crazy’ and that he had pointed the gun at him. The female was hugging me saying that her mother was inside and that I needed to go inside and get her out.[6]
[6]Emphasis added.
In ruling that the evidence of what Youssef Khoury said to Sergeant Seddon was admissible, the trial judge observed:
The prosecution submits that I ought be satisfied that [Youssef Khoury’s] assertion that [the applicant] was still in possession of a gun was based on personal knowledge, that is, [Youssef Khoury] actually observing [the applicant] in possession of the gun. [The applicant] submits that it may have been based on something [Youssef Khoury] was told.
I am satisfied that it was based on what [Youssef Khoury] observed, mainly because of what [Youssef Khoury] told Constable Kerr just a few minutes after [Youssef Khoury] had spoken to Sergeant Seddon. As detailed below … [Youssef Khoury] told Constable Kerr that the offender had pointed a gun at him.[7] That [Youssef Khoury] was referring to [the applicant] when he referred to the offender follows from the fact that he had told Sergeant Seddon a short time before that his uncle was the shooter.
…
[Youssef Khoury’s] previous representation was not made for the purpose of indicating the evidence that he might give subsequently. It was not a formal or informal proof of evidence. Rather, it was made for the purpose of assisting the police to deal with a continuing and dangerous situation — a man had been shot and the suspected shooter, [the applicant], was believed to be still inside the premises in possession of a gun.
If evidence of this previous representation is admitted, I do not think there is a risk that the jury will misuse the evidence or give it more weight than it deserves. The fact that it makes the prosecution case stronger is not prejudice of the relevant kind. Hence, neither s 137 or the Haddara discretion are engaged. I rule that evidence of [Youssef Khoury’s] previous representation to Sergeant Seddon may be adduced by the prosecution (Ruling No. 8).
[7]I am satisfied that [Youssef Khoury] observed [the applicant] pointing the gun at him before he spoke to both Constable Kerr and Sergeant Seddon. There is no reason to think that in the few minutes between [Youssef Khoury] speaking to Sergeant Seddon and [Youssef Khoury] speaking to Constable Kerr that [Youssef Khoury] observed [the applicant] pointing the gun at him.
And in ruling that what Youssef Khoury said to Constable Kerr was admissible, the judge said:
The previous representation that is the subject of this ruling is that the offender pointed the gun at Youssef.
The prosecution submits that the asserted fact is that Alex pointed the gun at [Youssef Khoury]. Having regard to what [Youssef Khoury] told Sergeant Seddon when she first arrived at the crime scene — in particular, that his uncle had shot the victim[8] — I am satisfied, on the balance of probabilities, that when [Youssef Khoury] told Constable Kerr that the offender pointed the gun at him, he was referring to [the applicant].
…
As with [Youssef Khoury’s] previous representation to Sergeant Seddon, I am satisfied that his previous representation to Constable Kerr was made to assist the police to resolve an ongoing, dangerous situation, not for the purpose of indicating the evidence that [Youssef Khoury] could give in subsequent proceedings.
I do not think there is a risk that the jury would misuse or overvalue the evidence. Hence, neither s 137 or the Haddara discretion are engaged. I rule that evidence of [Youssef Khoury’s] previous representation to Constable Kerr may be adduced by the prosecution (Ruling No. 9).
[8]This previous representation is not relied upon for a hearsay purpose. Rather it goes to [Youssef Khoury’s] state of mind concerning whom he believed to be the shooter. Proof of that belief assists in understanding who Youssef meant when he told Constable Kerr that the offender pointed a gun at him.
For the purposes of the present case, the asserted fact was that the applicant was in possession of a gun shortly after Bekhazi was shot. The source of the representation of that asserted fact was Youssef Khoury. Although he was available to give evidence of that asserted fact, Youssef Khoury was not going to do so. Hence, the prosecution sought to offer proof of the asserted fact through Youssef Khoury’s previous representations to Sergeant Seddon and Constable Kerr. The admissibility of those representations was — subject to the provisions of s 137 of the Act, or discretionary exclusion for other reasons — governed principally by s 66.
Section 66 imposes several pre-conditions for the admissibility of representations that would otherwise be inadmissible hearsay. Hence, the evidence of Youssef Khoury’s representations to Sergeant Seddon and Constable Kerr was admissible to prove that the applicant was in possession of a gun shortly after Bekhazi was shot if the following conditions were satisfied.
First, the person who made the previous representation — Youssef Khoury — must have been available to give evidence about the asserted fact. He was.
Secondly, the section requires that the person who made the previous representation — Youssef Khoury — ‘has been or is to be called to give evidence’. He was.
Thirdly, the hearsay rule does not apply to evidence of the previous representation that is given by a person who heard the representation being made — Sergeant Seddon and Constable Kerr — if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. It was well open to the judge to infer that it was.
Fourthly, subs (3) requires that the representation be made other than ‘for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding’. It was.
Youssef Khoury told Constable Kerr that the applicant had pointed a gun at him. It might thus be readily inferred that Khoury was asserting from personal knowledge that the applicant possessed a gun; and that, given the circumstances, the applicant’s possession of the gun was fresh in his memory. Moreover, it is clear that Khoury’s previous representation was not made for the purpose of indicating the evidence that he might subsequently be able to give. Rather, as the trial judge observed, ‘it was made for the purpose of assisting the police to deal with a continuing and dangerous situation — a man had been shot and the suspected shooter … was believed to be still inside the premises in possession of a gun’.[9]
[9]See Saunders v The Queen (2004) 149 A Crim R 174, 190–1 [60] (Crawford J).
The applicant’s counsel submitted that, even were the conditions of s 66 satisfied, the judge should nevertheless have excluded the evidence of what Khoury said to Sergeant Seddon and Constable Kerr under s 137 of the Evidence Act 2008, or by reason of the Haddara discretion.
By reason of s 137, ‘the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused‘. Counsel for the applicant in this Court submitted that, given that it was a ‘chaotic scene’, the probative value of the evidence was ‘not high at all’. That submission cannot be accepted. In circumstances where the defence case was that Bekhazi was shot by a decamping robber, evidence that pointed to the applicant’s roughly contemporaneous possession of a gun was highly probative. And as the majority made clear in IMM,[10] when assessing the probative value of evidence for the purposes of s 137, a trial judge must proceed on the assumption that the jury will accept the evidence. No question can arise at that stage as to matters of credibility or reliability.[11]
[10]IMM v The Queen (2016) 257 CLR 300.
[11]Ibid 315 [52] (French CJ, Kiefel, Bell and Keane JJ).
Further, upon the assumption that there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial[12] — the so-called Haddara discretion — there was no occasion here for the judge to exercise it. We agree with the trial judge’s assessment that there was no real risk that the jury would misuse the evidence or give it more weight than it deserves.
[12]Haddara, 59–60 [16], 70–8 [51]–[72] (Redlich and Weinberg JJA); cf 102 [65], 104 [170] (Priest JA).
Ground 1 is without substance.
Conviction grounds 2 and 3 — Margaret Khoury and Noelle Semaan representations
Detective Senior Constable Dennis Cunha arrived at the general scene of the shooting at approximately 10.15 pm on 1 December 2014. Whilst there, he recorded a conversation with the applicant’s sister, Noelle Semaan, in which Ms Semaan recounted what she had been told by Margaret Khoury:
Male:‘Sorry. You said he’s in the bungalow?’
SEMAAN: ‘Yeah. At the back of my mum’s there’s a bungalow, my brother lives in the bungalow with his girlfriend.’
CUNHA:‘And that’s Megan [Beljulji] is it?’
SEMAAN:‘Megan.’
CUNHA:‘Is she safe?’
SEMAAN:‘I don’t know they’re both off their fuckin’ heads. They’re probably both ...(inaudible)... each other.’
CUNHA:‘On Ice?’
SEMAAN:‘Yeah.’
CUNHA:‘Okay. Alright. What kind of, do you know what kind of gun he’s got?’
SEMAAN:‘I didn’t even know he had a gun.’
CUNHA:‘Alright that’s fine.’
SEMAAN:‘He just come out of prison not long ago.’
CUNHA:‘Okay.’
SEMAAN:‘A couple of months ago.’
CUNHA:‘Alright. And he’s living with your mum. Is your mum, she’s 84 years old I understand?’
SEMAAN: ‘No 86.’
CUNHA:‘Is she in the bungalow or is she in the main part of the house?’
SEMAAN:‘Where she lives or where she is now?’
CUNHA:‘Yeah.’
SEMAAN: ‘Just.’
CUNHA:‘Both.’
SEMAAN:‘She lives in the house.’
CUNHA:‘She lives in the house?’
SEMAAN:‘But she went in the bungalow to see what was going on.’
CUNHA:‘Yeah.’
SEMAAN:‘And she ‘cause she’s got asthma and all that. She sat down...’
CUNHA:‘Yeah.’
SEMAAN:‘... Margaret was telling me, and Margaret’s trying to get her up and then my brother turned on everyone, so pointing the gun at everyone.’
CUNHA:‘Okay.’
SEMAAN:‘So Margaret left and called the police.’
CUNHA:‘Margaret left?’
SEMAAN:‘Yeah.’
CUNHA:‘And so Margaret’s the lady in the blue?’
The prosecution sought to rely on the previous representation attributed to Margaret Khoury, that the applicant ‘point[ed] the gun at everyone’, the asserted fact being that the applicant pointed a gun. Margaret Khoury’s previous representation was relied upon as indicating that it was based on personal knowledge of the asserted fact, not on what someone else told her. At the time of the ruling, whilst the prosecution intended to call her, it was not anticipated that Margaret Khoury would give evidence of making the previous representation, given that in her statement to police, and in her evidence at committal, she made no mention of having entered the bungalow on the night of the shooting. (Indeed, according to her evidence at committal, she lived across the street from the crime scene, she heard a commotion and went across the street to investigate. When she entered the backyard through the gate, she saw Tannous Semaan, her brother Youssef Khoury and the deceased, but not the applicant. She then went back to her house and called ‘000’, coming outside again around the time that police arrived.)
Further, it was not anticipated that Noelle Semaan would directly give evidence that Margaret Khoury told her that the applicant pointed a gun. In neither her statement to police, nor in her evidence on voir dire, did she say that she spoke with Margaret Khoury on the night of the shooting. In fact, on the voir dire she said that she could not recall speaking to Margaret Khoury at all on the night.
In assessing grounds 2 and 3, it is necessary to have regard to the basis upon which the impugned evidence was challenged at trial by the applicant’s counsel. Counsel had submitted that Noelle Semaan had made a statement making no reference to speaking to Margaret Khoury and being told that the applicant pointed a gun, and that Margaret Khoury has not ‘said for a moment that anything of that kind happened’. Shortly afterward, the following illuminating exchange occurred:[13]
[13]Emphasis added.
[COUNSEL]: Margaret Khoury was at the committal and nothing was asked by the prosecution at that stage.
HIS HONOUR: It doesn’t matter. It doesn’t matter if the maker of the representation denies the representation being made. There are plenty of cases where complaint evidence has been led under this uniform evidence law and the evidence is given by someone to whom the complaint was made so they perceived the representation being made and either the actual complainant herself makes no mention of having complained when giving their evidence or even denies having complained - - -
[COUNSEL]: It still goes in. Yes, your Honour, that’s true. The precondition, as your Honour says, is that Noelle Semaan says, ‘Yes, that’s my voice, yes, I did say that, that’s correctly recorded on the transcript; and furthermore, it was true, I wasn’t making it up’.
HIS HONOUR: No, she doesn’t have to say that.
[COUNSEL]: She has to give evidence there was in fact a representation to that effect which she heard. If she has invented that representation - - -
HIS HONOUR: If Noelle Semaan, under questioning from the prosecution, listened to this tape recording and agreed that she said that on the tape recording, that would be enough, wouldn’t it?
[COUNSEL]: I suppose arguably the truth of it is not essential. That would be enough to get it in, although if she now says it’s not true, it isn’t particularly weighty evidence but yes, I take your Honour’s point.
HIS HONOUR: All right. Are there any other points that you want to make as to why the Crown can’t rely on section 66?
[COUNSEL]: No. If your Honour is against me on the 66(3) point, clearly it’s fresh in the memory. It’s first hand hearsay if indeed Margaret witnessed what she said she witnessed so I can’t take issue with section 66 other than that.
It is plain from this exchange that, contrary to the position taken by the applicant’s counsel in this Court, the applicant’s counsel at trial conceded that the impugned evidence was first-hand hearsay.
During a Basha[14] hearing, Noelle Semaan was played the recording of the conversation that she had with Detective Cunha.[15] She then gave the following evidence:
[14]R v Basha (1989) 39 A Crim R 337.
[15]See [44] above.
So, Ms Semaan, that’s the conversation you had with Detective Cunha on the night of 1 December; correct?---Yep.
The person you refer to as ‘Margaret’, can you tell me Margaret’s surname please?---Margaret Khoury.
What you told Detective Cunha on that night about what Margaret had told you, is that in fact what Margaret told you?---I honestly can’t remember Margaret saying that. I can’t remember really speaking to Margaret on that night.
That’s what you told Detective Cunha on that night?---Yeah, that’s what I told him but I can’t remember speaking to Margaret specifically on that night.
...
[Prosecutor read from transcript of Cunha recording]: Then the next line is: ‘Margaret was telling me and Margaret’s trying to get her up and then my brother turned on everyone and started pointing the gun at everyone’?---(Noelle Semaan apparently nodded).
That’s information that you had and gave to Detective Cunha on the night, correct?---If that’s what it says here but I don’t remember saying that.
But you accept that’s your voice on the audio tape?---Yes.
As we have mentioned, counsel for the applicant at trial conceded that the challenged evidence was first-hand hearsay, and that if s 66(3) was not engaged, the evidence was admissible. Since it was not contended in this Court that s 66(3) was applicable, the principal basis upon which grounds 2 and 3 were agitated has not been made out.
Although not given prominence in the oral submissions with respect to these grounds, in the written case the applicant also relied on s 137 and the Haddara discretion. We agree with the trial judge, however, that the applicant’s submissions ‘do not identify a risk of unfair prejudice, that is, a risk of misuse of the evidence or overvaluing of the evidence’. In our view, there was no unacceptable risk that the jury would misuse the evidence or give it more weight than it deserved.
At the risk of repetition, trial counsel put his objection to the evidence of the representation of Margaret Khoury to Noelle Semaan on a narrow basis. We should say, however, that even if grounds 2 and 3 had been made out on some other basis, we would nonetheless have refused leave to appeal with respect to them. In our opinion, conviction was inevitable. The explanation of a robber killing Bekhazi was preposterous. And the attempts to mock-up the scene to look like a robbery gone wrong were risible.
Grounds 2 and 3 cannot be upheld.
Conviction ground 4 — The unreliable witness warning
Although it was acknowledged that the judge gave an unreliable witness warning, it was submitted that by directing the jury that ‘every jury must take this potential unreliability into account’, a ‘risk arose the jury would minimise the importance of the direction in the case before them’. Counsel argued that the directions failed to include a specific reference to Youssef Khoury in the direction addressing the warning. It was submitted that the ‘need for caution’ applied when considering the evidence of Sergeant Seddon, Constable Kerr, Noelle Semaan and Detective Cunha ‘as the case may be’, but that ‘the omission to include the witness [Youssef] Khoury necessarily increased the risk that the warning did not apply to Khoury but only those witnesses named in the warning’.
In our view, the applicant’s submissions are misconceived. So much becomes clear when regard is had to the whole of the judge’s directions in proper context. The judge told the jury:[16]
[16]Emphasis added.
Now, I need to give you some more detailed directions in regard to the evidence of certain prior statements which the prosecution relies on for the facts asserted in those statements. In this case you have heard evidence that on the night of the shooting the two relatives of [the applicant], Youssef Khoury and Margaret Khoury said, in effect, that [the applicant] pointed a gun at them and/or others. The prosecution says this evidence supports Tony Kanaan's evidence that [the applicant] shot Michael [Bekhazi].
Youssef Khoury and Margaret Khoury, as you know, dispute that they even saw [the applicant] on the night. In relation to Youssef Khoury’s statements, the evidence was given by Police Officers Julie Seddon, who was the first police officer to arrive on the scene and Amy Kerr, who arrived soon after. In brief, it is alleged that Youssef Khoury told those officers that [the applicant] was in possession of a gun and that he pointed it — that is Julie Seddon — at Youssef Khoury. That evidence comes from Amy Kerr.
In relation to Margaret Khoury’s statement, the account of what she said was given by Noelle Semaan to Detective Cunha on the night, who recorded what Noelle Semaan told him. That recording was played to you. It is an exhibit. Noelle Semaan confirmed in her testimony here that she had spoken with Detective Cunha on the night and that it was her voice on the recording but she told you in her testimony that she could not even recall seeing Margaret Khoury on the night, let alone Margaret Khoury telling her that [the applicant] had pointed a gun at everyone when Margaret Khoury was trying to get [the applicant’s] mother … to leave the bungalow. Margaret Khoury, of course, testified that she did not see [the applicant] on the night and did not go in the bungalow.
It is for you to determine whether the relevant individual, Youssef Khoury or Margaret Khoury, made the alleged statements attributed to them and you have to bear in mind that they both denied in their testimony even seeing [the applicant] on the night.
As regards Youssef Khoury supposedly saying that [the applicant] pointed the gun at him, Police Officer Amy Kerr failed to make any note of that on the night or in the weeks following. The first time she set it down in writing is when she made her formal police statement on 19 January 2015. You need to take that into consideration.
As for Margaret Khoury, who testified that she did not go into bungalow on 1 December 2014, you have to bear in mind that the only person the police saw emerging from the bungalow was [the applicant’s mother]. Remember, she is seen on a phone? You bear in mind that Noelle Semaan testified she did not recall seeing Margaret Khoury on the night, let alone speaking to her.
In the second part of the charge I will return to the evidence in relation to those two alleged representations by Youssef and Margaret Khoury. If you find that Youssef or Margaret Khoury made the statements relied on by the prosecution, you may use the relevant statement or statements as evidence of the facts asserted, that [the applicant] was in possession of a gun and pointing it at others not long after Tony Kanaan says that he shot Michael Bekhazi.
However, before you use the statements as evidence of the facts asserted in them I must warn you about the need for caution when considering the evidence about those relevant statements given by the witnesses, Seddon, Kerr, Semaan, Cunha, as the case may be. I must give you this warning because the evidence of those witnesses was about a statement that was made out of court. It is the experience of the law that evidence of out of court statements may be unreliable because the witness may not have accurately recalled or repeated what was alleged, what the alleged maker of the statement actually said and may have changed its meaning. People sometimes cannot remember things they hear as well as they can remember things that they see.
Next, the process of repeating a statement compounds any weaknesses of the people involved, such as imperfect perception, memory or sincerity. Errors can occur when the original statement is made, when it is heard or when it is repeated in court.
This means that even if you accept the witness’ evidence as truthful, it might not be an accurate representation of what happened either because of problems in what the witness heard or remembered, or because the maker’s statement itself was not accurate or truthful. The maker of the statement may have been subject to pressures that caused him or her to make an inaccurate statement.
The statement was not made in a court environment so the alleged maker of the statement was not under the same obligation to tell the truth as he or she would have been if he or she gave evidence in court.
The law says that every jury must take this potential unreliability into account when considering evidence of an out of court statement. You must take it into account in determining whether you accept the evidence at all and if you do accept it, deciding what weight to give that evidence. Further, one must bear in mind the following considerations: the alleged makers of the statements, Youssef Khoury and Margaret Khoury testified that they did not make the statements attributed to them and further, the supposed witness to the statement allegedly made by Margaret Khoury, namely Noelle Semaan, testified she could not recall seeing Margaret Khoury on the night, let alone speaking to her.
Rather than the directions appearing to be ‘routine’ or a ‘formality’, the judge instructed the jury that they ‘must’ take the potential unreliability of the statements into account in determining whether they accepted the evidence, making it clear that the statements which were the subject of the direction included those of Youssef Khoury. Grounds 4(a) and (b) are without merit.
As to ground 4(c), as far as we can see no allegation was ever made that any witness had been ‘got at’. In those circumstances, a direction along the lines suggested by this part of the ground, ran the risk of proposing a motive to the jury that had not occurred to them. The risk of creating a notion of that kind plainly would not have been in the applicant’s interests. Indeed, one can well imagine that, had a direction of the sort suggested by ground 4(c) been given, complaint would have been made that the trial judge had introduced into the jury’s deliberations irrelevant and prejudicial material.
Finally, ground 4(d) is without substance. The jury would have been well aware that the adduction of the tape recording involving Detective Cunha and Noelle Semaan was simply to get Margaret Khoury’s representation before them.
Conclusions on the application for leave to appeal against conviction
None of the grounds with respect to conviction can be upheld. The application for leave to appeal against conviction must be refused.
The Director’s appeal
The sentencing remarks
In his sentencing remarks the judge categorised the applicant’s[17] offence ‘as a mid‑range example of the offence of murder’.
[17]See footnote 3 above.
The sentencing judge rejected the applicant’s contention that the murder was at the lower end of the spectrum by reason of a lack of premeditation and by reason of the applicant being affected by illicit drugs. His Honour accepted the distinction drawn between premeditated murder and murder committed in a momentary act of passion,[18] but rejected the notion that the applicant’s crime fell into the latter category. He described the applicant’s premeditation as ‘limited’:
As you moved around the courtyard pointing the gun, first at the back of Bekhazi’s head, then at the neighbour putting out the bins, then at Bekhazi’s forehead, there was a degree of premeditation and an opportunity for you to desist, especially with Tony Kanaan imploring you to stop. But I acknowledge that the premeditation was limited.
[18]The judge referred to R v Iddon & Crocker (1987) 32 A Crim R 315, 328.
Moreover, although the judge thought the applicant to be affected by ‘ice’, the judge rejected the submission that the applicant was psychotic when he shot Bekhazi:
Whilst I am satisfied on the balance of probabilities that you were affected by ice at the time of the shooting and that it was a senseless killing, I am not satisfied that you were psychotic. The fact that in the past you have experienced psychoses in the context of drug abuse does not mean that you were psychotic on this occasion. Further, there is no psychiatric report asserting that you were psychotic or likely to have been psychotic on 1 December 2014. There is no evidence that you said anything delusional. …
Ultimately, the judge rejected the submission of the applicant’s counsel that his drug use was a mitigating factor.
In his sentencing reasons, the judge regarded the applicant’s prospects of rehabilitation as ‘poor’. The applicant had significant prior convictions; was on parole at the time of the killing; showed no remorse; and had long-standing mental health issues. The judge observed:
Your prior convictions date back to the mid-90s. Your priors include convictions for assaults, weapons offences, reckless conduct endangering persons and dishonesty offences. Most significant are your priors for drug related matters. In particular at Melbourne County Court on 22 November 2002, Judge Cullity sentenced you to a total effective sentence of 12 years imprisonment with a non-parole period of nine years imprisonment for two counts of trafficking a commercial quantity of a drug of dependence (ecstasy and speed) and one count of trafficking a drug of dependence (ketamine).
I regard your prospects of rehabilitation as poor for several reasons.
First, you have a significant criminal history. It also appears from your custody record, which was tendered by your counsel on the plea, that you were granted parole in relation to Judge Cullity’s sentence but it was cancelled several times. You were on parole when you committed the murder.
The second reason I regard your prospects of rehabilitation as poor is the fact that you have shown no remorse.
The third reason is the content of the psychological report that was tendered on your behalf. On page 5 of the report of clinical psychologist Robert Leardi, he writes:
‘It is my opinion that [the applicant’s] longevity of mental health and substance use issues, combined with his lack of current motivation to address these issues, means that his prognosis for recovery is very poor.’
The judge distinguished a number of cases put forward by the applicant as ‘comparable’. He said:
As regards the cases that your counsel put forward as comparable, there were some similarities, but also many dissimilarities. The sentences imposed in those cases varied considerably. At the bottom end of the range was the sentence of 12 years’ imprisonment with a non-parole period of nine years imposed on Sebalj.[[19]] There are significant differences between your case and the case of Sebalj, including the fact that Sebalj had no prior criminal history and was found to be remorseful.
At the top end of the range of sentences imposed in the cases relied on by your counsel was the sentence of 23 years’ imprisonment with a non-parole period of 18 years imposed on Pyke.[[20]] Pyke’s offending was certainly more premeditated than yours but, then, Pyke pleaded guilty and his drug and mental problems were at least in part due to injuries he suffered when he was seriously assaulted.
[19][R v Sebalj [2006] VSCA 106.]
[20][R v Pyke [2006] VSCA 265.]
Ground 1 — Manifest inadequacy
Under cover of the first ground of appeal, the Director submitted that the sentence imposed ‘is manifestly inadequate in all the circumstances of this offending and is outside the range of sentences available for this offending’. The offending was ‘properly characterised by the prosecution as serious’, in that it ‘involved a cold blooded shooting in circumstances that could correctly be described as a thrill kill’.
The Director submitted that there were few mitigating factors. There was no plea of guilty. There was no remorse. There were poor prospects of rehabilitation. And there were a number of relevant prior convictions — including for violence — and the offence had been committed on parole.
The judge described the applicant’s offence as a ‘mid-range example’ of murder. Although, so the Director submitted, that ‘is no doubt useful as a descriptor … it should not be overlooked that mid-range can describe a range of murders that result in a wide range of sentences depending on the individual features of the case’. It was submitted that ‘there are few cases where the offending relates to a senseless murder where the offender has significant prior history’. Even accepting that this was a mid-range example of murder, ‘the sentence should have been significantly higher and the sentence imposed is manifestly inadequate’.
Analysis — Manifest inadequacy
Although attempts to provide descriptive labels for the nature of particular offending may be fraught,[21] there were several features of this case which made the applicant’s offending a serious example of murder. The killing was unprovoked, and was carried out in a callous, almost detached, manner. Whether, as counsel for the Director submitted, the killing properly can be described as a ‘thrill kill’ is, perhaps, open to argument. It was, however, plainly cold-blooded, given that the hapless Bekhazi had apparently done nothing to inflame the applicant’s ire.
[21]See, for example, R v Kilic (2016) 339 ALR 229, 234–5 [17]–[20] (Bell, Gageler, Keane, Nettle and Gordon JJ).
Where particular offending represents a grave instance of an offence, but 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 offending and of the offender lie on the spectrum that extends from the least serious instances of the offence to the worst category (properly so called).[22] Striving to categorise particular offending as being at a fixed point on the spectrum, however, and seeking to attach labels such as ‘mid-range’ (or ‘low range’ or ‘high range’), may sometimes obscure, rather than enlighten, the essential nature of the sentencing discretion. In the present case, counsel at both ends of the Bar table drew the judge’s attention to other cases involving sentences for murder, and by comparing the facts of the instant murder, made submissions as to their common, and their distinguishing, features. Axiomatically, however, every case must depend on its own particular facts, including the individual mitigating and aggravating features. That is not to say, of course, that a sentencing judge is free to ignore current sentencing practices,[23] or that ‘comparable’ sentencing cases will not be of some assistance in delineating the appropriate range. But as was said in Zhuang:[24]
Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[25] Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis,[26] particularly insofar such an overview may provide a general guide to current sentencing practices.
[22]Ibid 235 [19].
[23]Sentencing Act 1991, s 5(2)(b).
[24]DPP v Zhuang (2015) 250 A Crim R 282, 292 [30] (Redlich, Priest and Beach JJA) (‘Zhuang’). See also 294–5 [36].
[25]Director of Public Prosecutions (Vic) v Adajian [1999] VSCA 105 at [28] (Callaway JA).
[26]R v Giordano [1998] 1 VR 544 at 549 (Winneke P); cf Director of Public Prosecutions (Cth) v Edge [2012] VSCA 289 at [60] (Priest JA).
Although one might readily conceive of worse cases, the applicant’s offence was far from being at the lower end of the scale of seriousness of murder. And insofar as the resort to labels is in any way fruitful in the current discourse, in our view the applicant’s crime was a serious example of the crime of murder. If it might properly be categorised as ‘mid-range’, in our opinion it must be seen as falling into the upper boundary of that range.
As we have said, the killing was cold-blooded. It was perpetrated on a man who had offered no provocation, and was perpetrated by a man on parole who possessed an appalling criminal history. As far as we are able to discern, there is little or no mitigation, and scant prospects of rehabilitation. Certainly, the applicant has demonstrated not one shred of remorse, and could not call in aid the ameliorating influence of a plea of guilty.
The sentence passed on the applicant might have been barely adequate had the applicant pleaded guilty and shown remorse. Following a trial, and in the absence of mitigating features, however, we are of the opinion that the sentence is manifestly inadequate.
Manifest inadequacy is a conclusion, not an expression of the reasons for that conclusion. As Gleeson CJ and Hayne J observed in Dinsdale:[27]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion …
[27]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (emphasis added). See also Zhuang, 295–6 [40]–[41].
Intuitively synthesising all relevant considerations — including the particular features of aggravation and mitigation, and the individual circumstances of the offender and the offence — we are of the view that the sentence imposed by the sentencing judge is outside the permissible range for this offender for his offending. Indeed, we have concluded that the sentence imposed was of such manifest inadequacy as to constitute error in point of principle.
For these reasons, the appeal must be allowed, and the sentence imposed set aside. In lieu of the sentence first imposed, we would resentence the applicant to a term of imprisonment of 28 years, with a non-parole period of 24 years.
Ground 2 — Post-offence conduct as an aggravating feature
Given our conclusions on the first ground, ground 2 becomes somewhat academic. Out of deference for the submissions advanced in support of the ground, however, it is appropriate to say something about the issues that the ground raises.
Ground 2 claims that the sentencing judge erred in failing to find that the applicant’s post-offence conduct — inventing an account, taking steps to falsify the crime scene, and so on — amounted to an aggravating feature that had an impact on moral culpability.
There was discussion in the plea as to whether the applicant’s post-offence conduct in actively engaging his sister Hanna Semaan and Beljulji to support his false crime story (and to bring pressure on the main witness to change his account) amounted to aggravating circumstances. Relying on Scholes,[28] the prosecution submitted that these actions increased the seriousness of the offending and was thus an aggravating feature of the offending. Defence counsel, however, adopted a suggestion by the judge that the conduct could have been the subject of a separate charge. In his sentencing remarks, however, the judge did not articulate whether he thought the post-offence conduct to be an aggravating feature of the offence.
[28]R v Scholes [1999] 1 VR 337. See also R v Medcraft (1992) 60 A Crim R 181.
In this Court, the Director submitted that the post-offence conduct should have been treated as an aggravating feature. It was ‘bound up’ in the defence to the extent that it was claimed that an unknown intruder must have killed the deceased. Therefore, the present was not a case where another offence relating to the post-offence conduct should have been charged.
Responding to the Director’s submissions, counsel for the applicant relied on what was said by Gibbs CJ in De Simoni:[29]
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. …
[29]R v De Simoni (1981) 147 CLR 383, 389 (‘De Simoni’). See also Nguyen v The Queen (2016) 256 CLR 656.
De Simoni was a case in which an offender had been sentenced for an aggravated form of offence when the offence charged was the simple, rather than aggravated, form of the offence. The respondent had pleaded guilty to a charge of robbery. In the course of the robbery, he had struck a heavy blow to the back of the victim’s head, inflicting a wound. The Criminal Code (WA) provided two penalties for the crime of robbery, with the greater applying to robbery accompanied by circumstances of aggravation. Wounding was defined as one such circumstance. By s 582 of the Code, ‘if any circumstance of aggravation is intended to be relied on, it must be charged in the indictment’, but the charge on the indictment made no mention of the wounding. In sentencing, the trial judge referred to the attack, and noted that the Crown had not added the wounding as an aggravating feature to the indictment. The respondent was sentenced to seven years’ imprisonment. He appealed to the Court of Criminal Appeal which held that, as the personal violence used was a circumstance of aggravation not charged in the indictment, the sentence should not have taken account of it.
In the High Court, the majority (Gibbs CJ, Mason and Murphy JJ; Wilson and Brennan JJ dissenting on this aspect) held that to use a ‘circumstance of aggravation’ as a factor in determining sentence, is to ‘rely’ on it. In imposing sentence, a judge may not have regard to such a circumstance if it had not been specified in the indictment. To use, or threaten to use, personal violence is an element of the offence of robbery. In some cases, however, such violence will also be capable of being a circumstance of aggravation. Such violence may properly be considered in imposing sentence, even if not specified in the indictment. The majority held that, although the trial judge was entitled to consider the blow to the head when fixing sentence, he was not entitled to take into account the consequential wounding.
Of course, in the present case, unlike in De Simoni, the prosecution did not ask the judge to take into account an aggravated form of the offence of murder. Rather, the prosecution wanted the judge to take into account separate — but connected — criminal conduct, taking place in the days and weeks after the killing, aimed at manufacturing a bogus defence, and thereby attempting to pervert the course of justice. That is an important distinction.
It is relatively easy to state the common law principle, the difficulty being in its application. The common law principle is that circumstances of aggravation not alleged in an indictment cannot be relied upon for purposes of sentence if those circumstances could have been the subject of a distinct charge. Bright[30] provides an early example of the principle. In Bright the applicant pleaded guilty to a charge of attempting to elicit information concerning the manufacture of war material, in breach of the Defence of the Realm (Consolidation) Regulations 1914 (UK). The trial judge took the view that the applicant’s intention in doing the acts charged was to assist the enemy. If such an intention had been charged and proved, the applicant was liable to the death penalty. He was imprisoned for life. The Court of Criminal Appeal held that it was wrong of the trial judge to take this circumstance of aggravation into account when it had not been charged in the indictment. Darling J, delivering the judgment of the court, said that the judge:[31]
must not attribute to the prisoner that he is guilty of an offence with which he has not been charged — nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation.
[30]R v Bright [1916] 2 KB 441.
[31]Ibid, 444–5.
In Teremoana,[32] the prisoner was originally charged with three counts of attempted murder and a charge of doing an act that was likely to endanger the life of another. The prosecution did not proceed with those charges but presented an information that charged only attempted arson. It seems that the prisoner, in possession of several containers of petrol, splashed petrol through the window of his de facto wife’s house one morning at about 3.00 am. There were several occupants of the house. The prisoner’s wife awoke and screamed, and the prisoner fled. Police located a box of matches that the prisoner had left on the window sill. The judge found that the prisoner must have realised that his ex de facto wife was likely to be asleep in the house at the time and that starting a fire might well involve a risk of physical injury to her. The judge reserved a question of law for the Full Court:
In passing sentence upon the prisoner [for attempted arson], am I entitled to take into account as a matter of aggravation the fact that the prisoner must have realised that starting a fire at the victim’s house was likely in the circumstances to create a risk of physical danger to the victim?
[32]R v Teremoana (1990) 54 SASR 30.
The majority in the Full Court (Cox and Jacobs JJ; Matheson J dissenting) answered the reserved question ‘yes’. Cox J described the relevant principle:[33]
I turn to the matter of sentencing principles. As a general rule, the judge who is sentencing a person who has been convicted of an offence will have regard to all of the circumstances surrounding the offence and this may include its impact upon other people. Care must be taken, however, not to take into account actions of the defendant, however reprehensible they may have been, that were really irrelevant to the crime charged, and special caution is needed if the result of taking something into account will be to punish the defendant for an offence of which he was not been convicted. …
Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.
[33]Ibid 36–7 (emphasis added).
Teremoana was considered in Newman,[34] a case in which the applicants sought leave to appeal against the sentences imposed on each of them on one count of aggravated burglary and one count of intentional and unlawful damage to property. The principal ground of appeal was that the sentencing judge had imposed sentences for the aggravated burglary which included components referable to a serious assault which occurred during the course of the burglary but with which the applicants had not been charged. Winneke P observed:[35]
[34]R v Newman and Turnbull [1997] 1 VR 146 (Winneke P, Hayne JA and Crockett AJA) (‘Newman’).
[35]Ibid 150.
The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted …
And also:[36]
Although it has been said that the application of the principle sometimes requires a sentencing judge to adopt an artificial and, at times, quite unrealistic view of the facts (cf. R v Wyllie [1989] VR 21 at 32), it seems to me that, in a case like the present, the matter is very much in the hands of the Crown. If it desires the judge to have the flexibility, in imposing sentence, of dealing with the offender for aggravating circumstances which in themselves amount to a discrete and serious offence, then it is within the Crown’s capacity to shape its presentment accordingly. In this case it chose not to do so. Whether or not it was relying upon the ‘Crown practice’ … in framing its presentment I do not know, but this court cannot be restrained from applying basic principle by such a practice, which, in any event, appears not to be universal in its application.
[36]Ibid 151 (emphasis added).
Finally, we should mention England,[37] upon which the Director placed a deal of reliance. In that case, the offender had broken into the elderly female victim’s flat so as to steal. He strangled the victim with a belt, and, after killing her, had sexual intercourse with her corpse. The offender then stole a watch and some money and set fire to the premises. On an appeal by the Director against sentence, one of the grounds — the other being asserted manifest inadequacy — claimed that the judge had erred in determining that events after the death could not be considered as possible aggravating circumstances. Brooking JA discussed aggravating circumstances for the purposes of sentencing:[38]
Aggravating circumstances point towards greater severity of sentence. What are the circumstances of the offence for this purpose? May one look only to circumstances which, judged from the standpoint of strict contemporaneity, accompany the criminal act and at nothing which precedes or follows it? It is absurdly artificial to draw a line and limit the circumstances of the offence to those which existed in the period of time (which may be a single second) between the coming into existence of the first and last elements of the offence. Take the crime with which we are concerned — murder. Where someone is beaten or hacked to death and mutilated, must the sentencer pause to determine the precise moment at which death supervened lest the cutting off of some other part of the anatomy be mistakenly treated as a circumstance of a crime which was complete once the head was hacked off? If the criminal torments the victim with promises of what is about to come, are those threats to be left out of account because they precede by minutes the fatal assault? But the insistence of common sense that the circumstances of a crime be regarded even though technically its commission has yet to begin or has already ended is not confined to cases of what might be called substantial as opposed to strict contemporaneity.
Long before the Sentencing Act rose above the horizon judges drew on their common sense and their moral sense, as representing that of the community, in deciding what things about a crime could be said to make it more or less serious. They still do; nothing in the Act stops them doing this. Common sense and moral sense, which are and must ever be the essential foundation of sentencing principles and practices, unite in rejecting the notion that ‘the circumstances of the offence’, for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime. What is premeditation, if not a circumstance of the offence? Yet by definition it precedes the crime. …
[37]DPP v England [1999] 2 VR 258 (Brooking, Batt and Chernov JJA).
[38]Ibid 263 [17]–[18].
Brooking JA also observed:[39]
What should be regarded as the circumstances of an offence is best left to the good sense of sentencing judges, without any attempt to lay down principles or rules, which are all too common in the criminal law nowadays and which are particularly to be avoided in a matter of this kind. I have no doubt that in this case the judge was wrong in failing to characterise as a circumstance of the crime the facts that the murderer had capped the homicide with a sexual assault upon the body from which life had just departed and then burnt what he had just defiled. Cases may arise in which, for example, the murderer, who has allowed the victim’s body to lie concealed for a long time, then dismembers it with a view to disposing of it by some different means; and it may be argued that, having regard to all relevant matters, the dismemberment should not be regarded as so connected with the crime as to be viewed as one of its surrounding circumstances. When such a case arises, it can be left to the good sense of the sentencing judge. As was said in the South Australian decisions mentioned earlier,[[40]] what is a surrounding circumstance may be a question of degree.
[39]Ibid 267–8 [35] (emphasis added).
[40][R v Teremoana (1990) 54 SASR 30; R v Austin (1985) 121 LSJS 181.]
From a review of authority, it seems plain that if a statute creating an offence provides for circumstances of aggravation, a sentencing judge cannot sentence for the aggravated form of the offence unless the circumstances of aggravation are alleged in the indictment. In other cases, however, determining the surrounding circumstances to determine whether they are aggravating is a matter of fact and degree. When an act is closely temporally related to the charged offence — as opposed to a case where there is a separation in time or other circumstances — it may be easier to determine that it is a circumstance of the offence.
There seems little doubt that there was ample evidence justifying (at the very least) a charge of attempting to pervert the course of justice against the applicant. The prosecution chose, however, not to charge him. In light of the authorities above — in particular, Newman — we incline to the view that the judge would have been wrong to take into account the applicant’s post-offence conduct as a circumstance aggravating the murder. Given that we have found the sentence to be manifestly inadequate, however, we do not have to finally determine that issue.
Conclusion on the Director’s appeal
The appeal will be allowed, and the sentence originally imposed will be set aside.
In lieu of the sentence first imposed, the applicant is sentenced to a term of imprisonment of 28 years, with a non-parole period of 24 years.[41]
[41]It was not suggested that the sentence of two months’ imprisonment for the summary charge of breach of parole was inappropriate. We will leave that sentence undisturbed, and order that it be served cumulatively upon the sentence imposed on the charge of murder.
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