Smith v The Queen
[2020] VSCA 159
•17 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0022
| ANTHONY JOHN SMITH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, KYROU and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 May 2020 |
| DATE OF JUDGMENT: | 17 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 159 |
| JUDGMENT APPEALED FROM: | [2018] VSC 684 (Bell J) |
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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Guilty plea – Applicant non-consensually choked and strangled victim during consensual sexual activity – 13 years’ imprisonment with non-parole period of 10 years – Whether judge erred in characterising offending as ‘very serious example’ of manslaughter – Whether judge allowed applicant’s misogynistic views to overwhelm sentencing discretion – Whether sentence manifestly excessive – Application for leave to appeal refused – R v Boroviak [2018] VSC 793, Wan v The Queen [2019] VSCA 81, Director of Public Prosecutions v Ristevski [2019] VSCA 287, Vu v The Queen [2020] VSCA 59 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Galbally & O’Bryan |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KYROU JA
WEINBERG JA:
Introduction and summary
On 15 April 2015, the applicant killed Karen Rae (‘KR’) — whom he had met two days earlier — by strangling her with his hands during the course of consensual sexual activity. On 6 June 2018, he pleaded guilty to manslaughter, constituted by an unlawful and dangerous act.[1]
[1]The applicant pleaded guilty on the basis that the unlawful and dangerous act was strangling or choking KR during consensual sexual activity. We will generally refer to the applicant’s conduct as choking, but the cause of death as strangulation, that being the product of choking.
The maximum penalty for manslaughter is 20 years’ imprisonment. On 16 November 2018, the applicant was sentenced to 13 years’ imprisonment with a non-parole period of 10 years.[2]
[2]DPP v Smith [2018] VSC 684 (‘Sentencing remarks’).
The applicant seeks leave to appeal against sentence on three grounds. He contends, first, that the judge erred in characterising the offending as a ‘very serious example’ of the crime of manslaughter; second, that the judge erred in allowing the applicant’s ‘disrespectful, contemptuous and misogynistic views and opinions about women’ to overwhelm the proper exercise of the sentencing discretion; and, third, that the sentence and non-parole period are manifestly excessive.
For reasons which follow, we would refuse leave to appeal. There was no specific error and the sentence of 13 years’ imprisonment, although stern, was within the range reasonably open to the sentencing judge in the circumstances of the case.
This was very grave offending indeed. As appears from proposed ground 2, there was uncontested evidence before the judge that the applicant had expressed ‘disrespectful, contemptuous and misogynistic views and opinions’ about women. In his Honour’s view, the circumstances of KR’s death demonstrated what language of that kind can lead to:
It dehumanises women, blames them for male violence, normalises the abuse of male power and contributes to the creation of circumstances in which a woman may be violently harmed or killed by a man, as occurred in this case.[3]
[3]Sentencing remarks [28].
Of central importance to the sentencing task was his Honour’s uncontested finding that the applicant acted upon those views and opinions in killing KR in the particular way that he did:
It is not a crime to have views and opinions and [the applicant is] not here being sentenced for having or even expressing these views and opinions, totally repugnant that they are. But the circumstances of the offending and the evidence before the court establish that [the applicant] acted upon these views and opinions when killing [KR], albeit unintentionally, in the particular way that [he] did. By unlawfully assaulting her and dangerously strangling or choking her without her consent until she was dead, [the applicant] treated her as the impersonal object of [his] own male power and sexual pleasure during otherwise mutual and consensual sexual activity. In other words, [the applicant] used her as a woman for [his] own ends as a man, and in a manner that resulted in her death. The punishment must be condign when the crime of manslaughter is committed by a man who dangerously uses a woman as a means to his own ends and the appreciable risk of her death actually eventuates.[4]
[4]Sentencing remarks [29].
We respectfully agree. Male violence against women is a scourge of our society. The rate of death and serious injury suffered by women at the hands of their partners or former partners is deeply shocking. Those who engage, or contemplate engaging, in such violence — in whatever context — should be in no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.
Before setting out our reasons for refusing leave to appeal, it is necessary to say something about the form of the grounds of appeal.
Specific error or manifest excess?
As noted above, the application for leave to appeal advanced three grounds. The first two were expressed in the language of specific error, whereas the third was the familiar manifest excess ground. The first ground was directed at the judge’s assessment of the seriousness of the applicant’s offence. The second was, in substance, a complaint that the judge had given too much weight to the applicant’s ‘contemptuous and misogynistic views’.
In response to questions from the Court, counsel for the applicant explained that these matters had been made the subject of separate grounds out of a concern that, if the manifest excess ground alone had been advanced, complaint about those specific aspects of the judge’s reasoning might have been foreclosed. It is important, therefore, to make clear that arguments of that kind can properly be made in support of a manifest excess ground. It is, moreover, preferable that that course be taken.
Specific error grounds should properly be confined to errors of the kind which, if made out, would vitiate the exercise of the sentencing discretion. Complaints of specific error typically involve a contention that the judge:
(a) took into account an irrelevant consideration;
(b) failed to take into account a relevant consideration;
(c) misdirected himself/herself as to the applicable principles; or
(d) made a finding of fact which was not reasonably open on the evidence.
Axiomatically, a complaint that too much, or too little, weight was given to a particular matter is not a ground of specific error. Such a complaint can only be considered under the manifest excess ground, for the reasons given in Director of Public Prosecutions v Terrick.[5] Because sentencing reasons do not assign quantitative significance to individual sentencing considerations, the question of whether (in)appropriate weight was given to a particular factor can only be approached as a matter of inference from the sentence imposed.
[5](2009) 24 VR 457, 459–60 [5]; [2009] VSCA 220.
For similar reasons, a complaint that the sentencing judge erred in the assessment of the (relative) seriousness of the offence before the court will ordinarily not be a ground of specific error. A possible exception would be a case where the judge’s assessment of offence seriousness revealed such a significant misapprehension of the nature and circumstances of the offending as to constitute a finding not reasonably open on the evidence.
As is now well established, the question for this Court when the manifest excess ground is advanced is whether it was reasonably open to the sentencing judge to impose the sentence which he/she did, if proper weight was given to all of the relevant factors.[6] One of the critical questions in that process of appellate scrutiny is whether the sentence imposed was reasonably proportionate to the seriousness of the offending, as properly assessed.
[6]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157.
Counsel should always be able, in making submissions in support of a manifest excess ground, to draw attention to any aspect of the sentencing judge’s reasoning which is said to account for the putatively excessive sentence. In the present case, for example, if the Court had been persuaded that the judge had materially overstated the seriousness of the offence, then the applicant would have been in a strong position to make good the manifest excess ground. As we have indicated, however, we were not so persuaded.
We deal first with the circumstances of the offending.
Circumstances of the offending
KR was a petite woman with a long history of drug abuse, mainly involving methylamphetamine and cannabis. At the time of her death — at 48 years of age — she had been drifting between casual relationships and addresses. She had four sons aged 24, 23, 18 and 9. She had lost custody of her youngest son on account of her lifestyle.
The applicant was aged 47 when he met KR on the evening of Monday 13 April 2015. He was with a friend (T). The three of them spent that night at T’s house taking drugs.
In the evening of Tuesday 14 April 2015, the applicant and KR went to the home of a couple (A and B), who were friends of KR’s. The four of them smoked cannabis and used methylampethamine. While they were alone, the applicant told the husband (A) how he could control someone ‘by their habits’. He said that if he gave them ‘the good stuff’ he could control them and that when they pass out he could ‘perve on their tits’. A described KR as being ‘off her face’. The couple tried to convince her to stay the night but she left with the applicant sometime after 4:00 am.
Later in the morning of Wednesday 15 April 2015, KR returned to her home. At some point during the day, the applicant joined her there. They left the house sometime after 5:30 pm in the applicant’s car.
Sometime between 5:30 pm and 9:09 pm, the applicant killed KR by strangling her with his hands during consensual sexual activity in his car.
Later that evening, the applicant dumped KR’s body on the side of the Frankston Freeway, under some bushes and concealed it by placing branches next to it.
Shortly after 11:00 pm, the applicant’s car, which he was driving, collided front on with a tree on Heatherhill Road, Frankston. The car was later towed to a towing yard where the applicant used to work.
On Thursday 16 April 2015, the applicant went to the towing yard and collected various items from his car, including personal property of KR.
Sometime between 16 and 17 April 2015, the applicant returned to KR’s body. He dug a five foot deep hole between the sound barriers and the bushes on the west side of the Frankston Freeway and buried KR in the hole.
On Friday 18 April 2015, KR was reported missing by the father of her three eldest sons.
On Tuesday 21 April 2015, the applicant’s car was taken to a wrecker’s yard where it was subsequently crushed.
Witness accounts, statements to police and guilty plea
Several witnesses gave accounts of statements that the applicant had made about KR and recounted acts of aggression by him, particularly during sexual activity. Witness accounts relied on by the prosecution included the following:
(a)The applicant had an 11 year relationship with his former wife (R), who is the mother of their two sons. The applicant was aggressive towards R during sex. He would pull her hair really hard and on many occasions choked her around the throat. Sometimes she would have trouble breathing and would have to punch him to make him stop. During a conversation on 21 September 2015, he told R ‘I did [kill “a girl from the Pines”], but they’ll never find her where I buried her’. He added, ‘Any other slut who said anything would be buried on top of her and never be found’.
(b)The applicant was a regular visitor to the home of another woman (S). On one occasion in 2015, the applicant picked S up in his car. He wanted her to have sex with him but she refused. The applicant grabbed S by the throat with one hand and placed the other hand around the back of her neck, forcing her head towards his exposed penis. The applicant told her that he would kill her and that he had ‘done it before’. He spoke about using women as a ‘piece of meat’ and said that he had a sex slave that he strangled.
(c)The applicant had a sexual relationship with another woman (W). She described an incident on 24 August 2015 during which the applicant assaulted her by dragging her down the hallway by her hair, smashing her into walls and punching her. During the assault he stated ‘You’re going in the boot of my car’ and ‘I am going to do to you what I did to [KR]’.
(d)J was a female acquaintance of the applicant. While at a social gathering in August/September 2016, the applicant said to J ‘[t]hey’ll never find her’ and that he had ‘buried her that far down that he had to dig grooves into the side of the hole to get back out’. The applicant then giggled and said ‘I didn’t really’.
(e)E was another female acquaintance of the applicant. In 2016, she told him that she had heard rumours that he had killed KR. He said ‘Yeah I killed her’, while laughing.
On 1 May 2015, the applicant signed a police statement. Its contents may be summarised as follows. On the evening of 16 April 2015, he and KR were driving around when KR asked him to stop in Seaford. She got out of the car and he parked his car and had a nap for an hour. When he woke up and KR had not returned, he drove to a fish and chip shop in Frankston where he bought some food. On the way home, he collided with a tree when a container rolled under the brake pedal. The next day, he attended the towing yard to collect his and KR’s belongings from his car. He left the towing yard on foot. As he was walking, a vehicle in which KR was a passenger pulled up next to him. He gave KR her belongings and never saw her again.
On 8 May 2015, the applicant was interviewed by police. His account of his interactions with KR was similar to that in his police statement.
More than a year later, on 6 July 2016, the applicant was again interviewed by police. He made statements broadly consistent with his police statement and previous interview. The police put a number of matters to him, including the following:
(a)He was informed that he was not present on the CCTV footage at the Frankston fish and chip shop on 16 April 2015. He said that maybe an acquaintance he had run into went in and bought his food.
(b)He was asked why it seemed from phone records that his phone and KR’s phone never left the Frankston area on the night of 16 April 2015. He said that perhaps KR did not bring her phone with her.
(c)He was informed that KR’s phone was emitting a signal from the vicinity of where he lived a few days after she was last seen. He said that he did not know how, as he had returned the phone on 17 April 2015.
Between October and December 2016, the applicant gave to covert operatives different versions of how KR had died, and made admissions about his involvement in her death and burial. His statements included the following:
(a)He liked smaller framed females, and putting them in the boot of his car.
(b)He had told police there was enough room for them in the hole where KR was buried, if they kept at him. He then said that he was joking and he had not said that to police. After stating that he did not kill KR, he said ‘[i]f I did, fucking good cos I got away with it, well as far as I know’. He then laughed and said ‘Nah can’t be a cunt like that’.
(c)KR had hit up in his car. He shook her and checked her pulse but she was dead.
(d)He had been joking with other people about KR dying during a sex act.
(e)It was a friend of his (T) who had killed KR by clipping her across the side of the neck, cracking her neck, while she was in the applicant’s car.
(f)He had buried KR but had not killed her.
(g)He pulled over on the side of the Frankston Freeway and dragged KR over a fence and threw her into some bushes.
(h)He came back the next day and dug a hole five and a half feet deep, in which he had buried KR.
(i)He had planned to set up a person (G), who was not involved.
(j)He spat on KR after he buried her, because ‘she was a cunt of a creature’ and had cost him grief.
(k)He threw KR’s two mobile phones in a creek and dumped her belongings in a dumpster.
The applicant spoke at length to the covert operatives about his sexual encounters with various females. He spoke in a degrading manner, saying that he would make them do shocking things. Among the things he said to the covert operatives were:
(a)He ‘would like to choke [a female covert operative] out and run a train on her’.
(b)He made a comment about doing the ‘Darth Vader’. He said this meant grabbing a person by the throat, and made a choking motion with his right hand in a grip-like action, with his right thumb and index finger.
On 9 December 2016, the applicant was arrested. On 10 December 2016, he directed police to the site where he had buried KR.
On 11 December 2016, the applicant was interviewed by police. Initially, he stated that on the evening of 15 April 2015 he had been in his car with KR and his friend, T. KR had been arguing with T when she suddenly went quiet. He said that he pulled over and T got out of the car and left. He said that he knew that KR was dead so he lifted her over a railing and left her body in the bushes. He said that, on the following day, he returned with a shovel to bury the body. Later in the interview, he stated that KR had died as a result of trying to get out of his car while it was moving and that T had left the car by this time. He stated that he hit something on the nature strip or kerb which caused the door to snap back and hit KR in the head, shattering the passenger seat window. He denied having had sex with KR.
On 17 January 2017, during a phone call to his mother from prison, the applicant said ‘I didn’t kill her, they can’t prove it even if I fucken did … I buried her … I tried to fucken save her, someone else chocked [sic] her in my car and I panicked’.
In a letter dated 19 January 2017 to an acquaintance (V) the applicant stated that the police would never be able to convict him of murder or manslaughter and that he had told the police a hundred different stories when they interviewed him. He said that what had really happened was that he was driving KR around when another driver asked him to pull over. That driver then walked over to KR’s door, punched the window and grabbed her by the throat, killing her.
The applicant was initially charged with murder. A contested committal took place over five days during which 19 prosecution witnesses were cross-examined. The applicant was committed for trial on the charge of murder.
On 21 May 2018, before the trial scheduled to commence in June 2018, the applicant offered to plead guilty to manslaughter. On 31 May 2018, the prosecution accepted the offer on the basis set at out [1] above. On 6 June 2018, the applicant was arraigned, and pleaded guilty to manslaughter on that basis.
Applicant’s personal circumstances
The applicant was born in the United Kingdom and came to Australia when he was four years old. He is not an Australian citizen.
The applicant grew up in the Frankston area and had a normal, loving childhood. He completed Year 11 at Frankston High School. He was a good student and excelled at sport. After leaving school, he commenced employment with the railways. He later began working with his father, installing windows and sliding doors. In 1999, his family purchased a golf driving range. He worked there with other family members seven days a week.
The applicant’s father developed prostate and then bone cancer. The family business was sold to assist in his efforts to fight the disease. The applicant played a vital role in caring for his father in the final two years of his illness, and experienced considerable grief when he died in 2009. The applicant then commenced employment as a truck driver and later as a tow truck driver. He was working sporadically at the time of the offending.
The applicant’s two sons are aged 21 and 18 and live with their mother. The younger son suffers from autism-spectrum disorder and requires extensive care. The applicant is on good terms with his sons and their mother.
In August 2013, the applicant was diagnosed with a heart condition after suffering from a heart attack. He was admitted to the ICU at Frankston Hospital and had a stent inserted. He experienced another heart attack while in custody. He has had five heart attacks in total. He has been prescribed medication for his condition and remains on medication while in custody.
The applicant has been a long time user of cannabis, and more recently methylamphetamine. His usage was particularly high in the two years prior to the offending. He has been drug free since his arrest. There was no evidence to suggest that he was suffering from any form of mental disorder at the time of the offending.
The applicant has a number of prior convictions, including for assault, recklessly causing injury, dishonesty offences, drug offences and weapons offences. In 2012, he received a suspended prison sentence of 12 months for the offences of indecent assault, and committing an indecent act with a child under 16 years of age.
While on remand, the applicant completed courses in traffic management and drug and alcohol rehabilitation, among others. He has been employed in a ‘trust’ position which involves emptying bags from airline flights that contain headphones and other discarded items. He is said to be a voracious reader of books provided by his mother and donates them, when finished, to the prison library. He also assists inmates for whom English is a second language.
Prior to the plea hearing, the applicant wrote a letter of apology to KR’s family. He stated that it was important to him that the family could bury KR and put her to rest.
As the applicant is not an Australian citizen, he faces the risk of deportation following his release from prison.[7]
[7]See n 23 below.
Plea hearing
At the plea hearing, counsel for the applicant made the following concessions:
[I]t’s quite clear that this offending is very, very serious. It’s [of] a serious nature and that’s reflected in the opening by my learned friend.
…
[A] concession has been made by the defence that [the applicant’s] post-offence conduct is certainly an aggravating feature to this offence.
…
[I]t must be conceded and there was a large portion of the opening devoted to it, that [the applicant’s] evasion of detection, his misleading lies, his constant obfuscation, multiple versions, are certainly very, very aggravating features. It’s led [KR] to remain undetected for some 20 months when it was clear that he was the last person seen with her and ultimately led [her family] to the trauma of not knowing where she was and we do concede that they are certainly very, very relevant considerations for Your Honour to take into account.[8]
[8]Transcript of Proceedings (25 September 2018) 51.9–51.13, 53.25–53.28, 54.15–54.25.
Sentencing remarks
The judge described the offending as ‘a very serious example of the crime of manslaughter’.[9] He said that it was ‘committed in circumstances of great aggravation’.[10] He stated that the applicant had abused his physical power to strangle a petite and extremely vulnerable woman to death during consensual sexual activity in a confined space that rendered her virtually defenceless. He added that the applicant had then buried KR in secret, concealed the whereabouts of her body for 20 months and took sustained steps to evade responsibility for his crime.
[9]Sentencing remarks [5], [26].
[10]Sentencing remarks [26].
The judge stated that, due to the applicant’s experience in choking a former sexual partner around her throat, he must have known of — and was prepared to run — the dangerous risks involved in undertaking that activity. The judge said that this greatly increased the gravity of the applicant’s offending and his moral responsibility for KR’s death.[11]
[11]Sentencing remarks [8].
The judge did not accept the applicant’s submission that the offending was of a short duration. He said that he did not think that the time taken to kill a person by strangulation, using one’s bare hands, could fairly be described as short. He did, however, state that he would not describe the offence as ‘sustained’. He noted that there was no mutilation of KR’s body, and that the offence was not premeditated or planned.[12]
[12]Sentencing remarks [6].
The judge took into account the applicant’s plea of guilty, which he regarded as the most important mitigating consideration.[13] He stated that the plea was not early, but that the applicant should be given due credit for it as it had significant utilitarian value. It had saved the community, and those involved, the expense, inconvenience, and emotional trauma of a contested proceeding. He also considered the applicant’s plea to be some indication of remorse.
[13]Sentencing remarks [22].
The judge considered that the degree of the applicant’s actual remorse was limited, and very hard to assess. He gave the applicant ‘due credit’ for leading police to where he had buried KR’s body, which ended the ‘terrible period of uncertainty that was being experienced by her family’.[14] However, he said that statements made by the applicant to the covert operatives betrayed a ‘callous disregard’ for what he had done to KR.[15] The judge also had regard to the fact that even after revealing the location of KR’s body, the applicant continued to give false accounts of his involvement in her death and, as late as January 2017, he blamed others. The judge also took into account the applicant’s letter of apology to KR’s family, which the judge said appeared to be sincere. Ultimately, the judge considered that the applicant had demonstrated some remorse. However, he was unable to find that the applicant was completely remorseful.[16]
[14]Sentencing remarks [19].
[15]Sentencing remarks [19].
[16]Sentencing remarks [19].
As to the applicant’s prospects of rehabilitation, the judge accepted that he was not beyond redemption. He took into account the drug rehabilitation, occupational training and other educational programs that the applicant had undertaken while on remand, as well as his employment in a trusted position within the prison.
The judge did not accept the applicant’s submission that specific deterrence was not a significant sentencing consideration. He said that it was relevant to sentencing the applicant that his interest in choking women during sexual activity was ‘directly related to disrespectful, contemptuous and misogynistic views and opinions that [he] expressed about women generally and [KR] personally after, and by reference to, her death’.[17] This finding was not challenged.
[17]Sentencing remarks [27].
As noted earlier, his Honour went on to say:
It is not a crime to have views and opinions and [the applicant is] not here being sentenced for having or even expressing these views and opinions, totally repugnant that they are. But the circumstances of the offending and the evidence before the court establish that [the applicant] acted upon these views and opinions when killing [KR], albeit unintentionally, in the particular way that [he] did. By unlawfully assaulting her and dangerously strangling or choking her without her consent until she was dead, [the applicant] treated her as the impersonal object of [his] own male power and sexual pleasure during otherwise mutual and consensual sexual activity. In other words, [the applicant] used her as a woman for [his] own ends as a man, and in a manner that resulted in her death. The punishment must be condign when the crime of manslaughter is committed by a male who dangerously uses a woman as a means to his own ends and the appreciable risk of her death actually eventuates. [The applicant] also treated [KR’s] body as a thing to be discarded and concealed, thus depriving her (and her family the comfort) of a decent burial, a point eloquently made by her mother.
No woman and certainly not [KR] is a piece of meat, a sex slave to be strangled or choked, someone to be put in a car or run a train on, or a thing or a creature to be non-consensually strangled or choked by a man using his power to obtain sexual pleasure at the appreciable risk of the women’s death. As I have said on other occasions, all women (and [KR] in particular) have an inviolable human right to life, to equality — not just the appearance of equality but to real equality — to physical and emotional integrity, to respect for the dignity of their humanity and to personal autonomy, and to freedom from fear of physical or mental harm at the hands of men. Women, supported by their family and friends and the community generally, look as of right to the law for protection from men who would act on disrespectful, contemptuous and misogynistic views and opinions about women in the manner that [the applicant has]. The views and opinions on which [the applicant] acted in killing [KR] are utterly inconsistent with these rights of women and the standards of equality, respect and decency that are observed in contemporary society which the courts must uphold. [The applicant] as an individual and others who might likewise offend must be deterred from acting on disrespectful, contemptuous and misogynistic views and opinions about women in that or any other like manner. The crime that [the applicant] committed must be unequivocally denounced by the court not just because it was an aggravated manslaughter but because it is directly associated with those views and opinions.[18]
[18]Sentencing remarks [29]–[30] (citations omitted).
The judge took into account that the risk of deportation to the United Kingdom — where the applicant had no family or friends and would be separated from his children — ‘will hang over [his] head whilst in custody and after release’.[19]
[19]Sentencing remarks [10].
Grounds of appeal
As noted at the outset, the applicant seeks leave to appeal on three proposed grounds, as follows:
Ground 1:The learned sentencing judge erred in characterising the offending as being a ‘very serious example of the crime of manslaughter’.
Ground 2:The learned sentencing judge erred in allowing the applicant’s ‘disrespectful, contemptuous and misogynistic views and opinions about women’ to overwhelm the proper exercise of the sentencing discretion.
Ground 3: When regard is had to the following circumstances:
· the applicant’s plea of guilty and the stage at which it was entered;
· the nature and circumstances of the offending;
· the applicant’s assistance in the recovery of [KR’s] remains;
· the applicant’s health;
· the prospect of deportation and the additional burden of imprisonment;
the head sentence imposed, and the non-parole period fixed, are manifestly excessive.
Ground 1: Characterisation of the offending
The applicant submitted that the circumstances of the offending were ‘not so unusual’ as to be regarded as a ‘very serious example’ of manslaughter. He accepted that his post-offence conduct aggravated the offending. However, he argued that other aggravating features, such as the use of a weapon, post-mortem mutilation or protracted and sustained violence before the offending, were absent.
In oral submissions, counsel for the applicant, who did not appear on the plea, did not seek to resile from his predecessor’s concession that the applicant’s offending was ‘very very serious’.[20] He submitted, however, that what his predecessor was seeking to convey by this description was that — as with all cases of manslaughter, involving as they do the taking of another life — the present offending was serious. It was also aggravated by the post-offence conduct. He contended that the judge’s characterisation of the offending as a ‘very serious example of the crime of manslaughter’ conveyed more than this, namely, that the offending was at the ‘upper end’ of seriousness.
[20]See [50] above.
The Crown submitted that the judge’s description of the offending as a ‘very serious example of the crime of manslaughter’ was appropriate in the circumstances, as too was the concession of defence counsel on the plea.
Ground 1 must be rejected. For the reasons discussed in detail under ground 3, the judge was justified in characterising the applicant’s offending as a ‘very serious example of the crime of manslaughter’. That is in substance what defence counsel correctly conceded on the plea.
We do not accept the applicant’s contention that the judge’s characterisation indicated that he treated the offending as falling into the ‘upper end’. The judge did not use terms such as ‘lower end’, ‘mid-range’ and ‘upper end’ which this Court has said on a number of occasions are not helpful.[21] All that the judge meant by his characterisation was that the applicant’s offending was at the very serious end of the spectrum of objective gravity. That characterisation was entirely apposite, and does not disclose any error.
[21]See, eg, DPP v Weybury (2018) 84 MVR 153, 165 [33]–[34], 170–1 [54]; [2018] VSCA 120; Lee v The Queen [2018] VSCA 343, [31].
Ground 2: Applicant’s views about women
The applicant submitted that when considered as a whole, the judge’s sentencing remarks indicated that he had allowed the applicant’s views about women, and specifically KR, impermissibly to overwhelm his sentencing discretion. He relied on the statement of Nettle JA in Director for Public Prosecutions v OJA that ‘[disgust] and revulsion for the offender and sympathy for the victims cannot be allowed to cloud the sentencer’s vision’.[22]
[22](2007) 172 A Crim R 181, 192 [17]; [2007] VSCA 129.
In oral submissions, counsel for the applicant clarified that he was not contending that the judge’s observations on the applicant’s views about women were not relevant to the exercise of the sentencing discretion. Rather, his complaint was that the judge gave excessive weight to those views. As with the issue raised in ground 1, counsel accepted that this complaint could also be considered under the ground of manifest excess.
The Crown pointed out that the judge had identified a direct link between the applicant’s misogynistic and dehumanising views of women, on the one hand, and his offending and post-offence conduct, on the other. His Honour was therefore correct to make the findings that he had.
In our opinion, ground 2 is without merit. The judge’s observations regarding the applicant’s views about women were highly relevant to the circumstances of the offending, his post-offence conduct, and the level of his moral culpability. They were also highly relevant to the sentencing considerations of denunciation, protection of the community, general deterrence, specific deterrence, prospects of rehabilitation, and remorse.
Ground 3: Manifest excess
The applicant submitted that when regard was had to certain circumstances, it was apparent that the sentence imposed by the judge fell outside the range of sentences available in the proper exercise of the sentencing discretion. Those circumstances were the applicant’s plea of guilty, the nature and circumstances of the offending, his assistance in recovering KR’s remains and the burden of imprisonment on him.
The applicant contended that, whilst his guilty plea was made after a contested committal, it still had considerable utilitarian value. He argued that other common features of manslaughter by unlawful and dangerous act — such as pre-planning, the use of a weapon and sustained or protracted violence — were absent in his case. According to the applicant, he made partial admissions to undercover operatives about the location of KR’s body and, on 10 December 2018, pointed out the burial site to police. He also relied on his letter of apology to KR’s family.
The applicant submitted that imprisonment would be additionally burdensome for him due to the real prospect of deportation to the United Kingdom following the expiration of his sentence. In addition, he relied upon his poor physical health.[23] He argued that he has no family, friends or supports in the United Kingdom and that the separation from his two sons will be additionally punitive.
[23]We were informed by counsel for the applicant that, since he was sentenced, he has received notice that he will be deported at the expiration of his sentence.
The Crown submitted that the offending in the present case was indeed very serious. It involved a deliberate and purposeful act of choking for the applicant’s own sexual gratification. The Crown further submitted that it would have been a slow death and a terrifying way for KR to die. The Crown contended that after KR’s death, the applicant denigrated her, told lies and blamed others for his own actions.
According to the submission, weighing the aggravating and mitigating features of the case, the sentence imposed by the judge was within the range of sentences reasonably open to him.
The Crown argued that the applicant’s plea of guilty was not an early one, and did not evidence true remorse. Whilst the Crown accepted that the applicant took police to where he had buried KR, this was done only after the applicant became aware that he had made admissions to covert officers. The Crown contended that even after he had taken police to the burial site, the applicant continued to lie in his record of interview.
Comparable cases
In oral submissions, counsel for the applicant referred the Court to a number of cases involving manslaughter by unlawful and dangerous act where, it was noted, the offender was sentenced to a lower sentence than that imposed on the applicant. That was said to be so, even though the offending in those cases was at least as serious, if not more so, than the applicant’s offending. The cases were: R vSchembri,[24] Papadopoulos v The Queen,[25] R v Balla,[26] R v Floyd,[27] Director of Public Prosecutions v Turner,[28] Mitchell v The Queen,[29] R v Boroviak,[30] R v Allan,[31] R v Mahoney,[32] Wan v The Queen[33] and Vu v The Queen.[34]Counsel also referred to the cases of R v AB [No 2][35] and Sherna v The Queen[36] in which higher sentences than that which the applicant received were imposed for offending that was described in those cases as falling ‘just short of murder’.[37] Counsel submitted that a comparison of the sentences imposed in all of the above cases, and the sentence imposed on the applicant indicated that the latter was wholly outside the range of sentences reasonably open to the judge.
[24][2010] VSC 402 (9 years’ imprisonment with a non-parole period of 7 years and 7 years’ imprisonment with a non-parole period of 5 years for the co-offender).
[25][2014] VSCA 63 (‘Papadopoulos’) (11 years and 6 months’ imprisonment with a non-parole period of 9 years).
[26][2017] VSC 392 (10 years’ imprisonment for manslaughter; another offence was involved).
[27][2017] VSC 546 (10 years’ imprisonment with a non-parole period of 6 years and 6 months).
[28][2017] VSC 358 (11 years’ imprisonment for manslaughter; another offence was involved).
[29][2018] VSCA 158 (10 years’ imprisonment with a non-parole period of 7 years and 6 months).
[30][2018] VSC 793 (‘Boroviak’) (9 years’ imprisonment with a non-parole period of 6 years).
[31][2019] VSC 18 (10 years’ imprisonment with a non-parole period of 7 years).
[32][2019] VSC 740 (‘Mahoney’) (11 years’ imprisonment with a non-parole period of 8 years).
[33][2019] VSCA 81 (‘Wan’) (11 years’ imprisonment with a non-parole period of 7 years and 6 months).
[34][2020] VSCA 59 (‘Vu’) (12 years’ imprisonment for manslaughter; another offence was involved).
[35](2008) 18 VR 319, 402 [35]; [2008] VSCA 39 (15 years’ imprisonment with a non-parole period of 11 years).
[36](2011) 32 VR 668, 674–5 [37]–[38], 685 [111]; [2011] VSCA 242 (14 years’ imprisonment with a non-parole period of 10 years).
[37]As appears from [88] below, in Vu, this Court stated that the manslaughter in that case ‘can legitimately be characterised as “just short of murder”.’: Vu [2020] VSCA 59, [33].
Counsel for the applicant particularly relied on Boroviak, Wan and Vu. The Crown, on the other hand, relied on this Court’s decision in Director of Public Prosecutions v Ristevski.[38]
[38][2019] VSCA 287 (‘Ristevski’).
In Boroviak, both the victim and Boroviak were female and lived with others in the same house. Boroviak was aged 40 years and was larger and more powerful than the 43 year old victim. Boroviak had an extensive criminal history, including convictions for armed robbery. She killed the victim by strangling or suffocating her in what the sentencing judge said was more than likely an uncontrollable, spontaneous burst of anger during an argument. They were both affected by drugs. Boroviak threatened to kill those who were in the house at the time if they spoke about the offending. She enlisted her son to assist with disposing of the victim’s body, which remained undiscovered in bushland for almost two years. Boroviak pleaded guilty to manslaughter at the time of pre-trial proceedings. The sentencing judge described the offending as a ‘mid-range example of manslaughter’.[39] He said that Boroviak had expressed remorse and he accepted that she was capable of rehabilitation. He relied on the facts referred to by the Crown at [80] below in sentencing Boroviak to 9 years’ imprisonment with a non-parole period of 6 years.
[39]Boroviak [2018] VSC 793, [61].
Counsel for the applicant submitted that there were similarities between Boroviak and the present case in relation to the circumstances and objective seriousness of the offending and the post-offence conduct. Accordingly, so it was said, the instant case should have been assessed as falling within the ‘mid-range’ of seriousness.
The Crown sought to distinguish Boroviak. The Crown relied on the fact that, unlike the present case, the offending in Boroviak resulted from a spontaneous burst of anger. The Crown also relied on the fact that, unlike the applicant, Boroviak suffered from a long term borderline personality disorder, and post-traumatic stress disorder, which lessened her moral culpability to a moderate extent. Additionally, the Crown relied on the fact that Boroviak had been the victim of a serious violent assault and had a troubled personal history, characterised by physical and sexual abuse, suicide attempts and drug addiction.
Wan involved a ‘love triangle’ between three students — the 19 year old victim, his girlfriend and an 18 year old friend of Wan. A fight was organised between the victim and Wan’s friend to resolve their differences. Wan — who was 23 years of age — intervened during the fight. He threw the victim forcefully to the ground and repeatedly stomped on his head, causing brain damage which resulted in the victim’s death after his life support was discontinued eight days later. Wan had tried to persuade the victim to attend hospital when he saw that the victim was severely injured, but the victim refused. The following morning, when the victim’s condition deteriorated, Wan pleaded with the victim’s friends to take him to hospital, which they eventually did.
Wan pleaded guilty to manslaughter at an early stage. He did not have any prior convictions. The sentencing judge found that Wan’s offending fell within the ‘higher end of the range of offences of manslaughter’,[40] that he was genuinely remorseful, that his prospects of rehabilitation were good, and that he would experience isolation in prison for a number of reasons, including his limited English language skills. As Wan was not an Australian citizen, he was liable to be deported at the expiration of his sentence. He was sentenced to 11 years’ imprisonment with a non-parole period of 7 years and 6 months.
[40]Wan [2019] VSCA 81, [14]. This Court agreed with that characterisation: Wan [2019] VSCA 81, [38].
Wan sought leave to appeal against his sentence on the basis that it was manifestly excessive. This Court refused leave to appeal. The Court stated:
The cases to which senior counsel for the applicant referred us show the wide range of circumstances in which the offence of manslaughter can notoriously be committed. It is true that sentences of around 11 years for manslaughter have been imposed in cases where the offender cannot point to the same mitigating features as the present applicant and where the offending is at least as violent as this case. But that is only one factor in the fixing of a just sentence. Another important factor, in the nature of a yardstick, is the maximum sentence of 20 years’ imprisonment.[41]
[41]Wan [2019] VSCA 81, [37] (citations omitted).
Counsel for the applicant submitted that Wan had received a lower sentence than that of the applicant even though the sentencing judge in that case found — and this Court agreed — that Wan’s offending fell within the ‘higher end of the range of offences of manslaughter’.[42]
[42]See [82] above.
Vu also involved a ‘love triangle’ between Vu, his domestic partner, Laura Chan, and the victim, who was having an intimate relationship with Chan and had secretly married her while Vu was in prison in New South Wales. After Vu returned to Victoria following his release from prison on parole, he found out about Chan’s relationship with the victim and invited him to his house. He concealed a large hunting knife under a cushion in the living/dining area of the house. He questioned Chan and the victim about their relationship and refused to accept their statements that they were just friends. He retrieved the knife and stabbed both Chan and the victim in the chest. He immediately attended to the victim and told his daughter to call 000. He applied pressure to the victim’s wound and provided CPR. The victim died at the scene. Chan sustained serious injuries. When the police arrived, the applicant falsely stated that the victim and Chan had stabbed themselves.
Vu was charged with murder in respect of the victim’s death and recklessly causing serious injury — as one of two alternatives to attempted murder — in respect of Chan’s injuries. He made written offers to plead guilty to manslaughter both before and shortly after the committal hearing, and again in verbal discussions before the trial. The prosecution rejected the offer. Vu had prior convictions that were of no particular significance.
In respect of the victim’s death, a jury found Vu not guilty of murder but guilty of manslaughter. In respect of Chan’ injuries, he was found not guilty of attempted murder but guilty of recklessly causing serious injury.[43] He was sentenced to 12 years’ imprisonment and 6 years’ imprisonment, respectively, for those offences. Three years of the latter sentence were cumulated on the former sentence, resulting in a total effective sentence of 15 years’ imprisonment. A non-parole period of 11 years was fixed. Vu was 47 years of age when he was sentenced. The sentencing judge found that Vu had not exhibited genuine remorse but nevertheless had reasonably good prospects of rehabilitation.
[43]Vu was also found not guilty of the other alternative to attempted murder, namely, intentionally causing serious injury.
Vu applied to this Court for leave to appeal against his sentence on various grounds, including manifest excess. The Court held that the individual sentences were not manifestly excessive, but that the total effective sentence met that description. That was because the order for cumulation was, itself, excessive. He was re-sentenced to a total effective sentence of 13 years and 6 months’ imprisonment with a non-parole period of 10 years. The Court stated that the manslaughter ‘can legitimately be characterised as “just short of murder”.’[44] It stated that Vu had ‘acted out of uncontrolled anger’ and was motivated by ‘jealousy in a domestic context’.[45]
[44]Vu [2020] VSCA 59, [33].
[45]Vu [2020] VSCA 59, [34].
The Court said the following in relation to the sentence of 12 years’ imprisonment for manslaughter:
Whilst we are of the view that sentencing practices for [manslaughter] are of limited assistance, it seems clear that sentences at the top of the available range for manslaughter, following a plea of guilty or an offer of same, congregate at around 11 years’ imprisonment, or a little higher.[46]
[46]Vu [2020] VSCA 59, [50] (citations omitted).
The cases that the Court in Vu cited in support of the proposition that sentences for certain cases of manslaughter ‘congregate at around 11 years’ imprisonment’ included Mahoney and the sentencing remarks of the trial judge in Wan. The cases that the Court cited in support of its ‘or a little higher’ observation were this Court’s decisions in Ristevski and Papadopoulos. In Ristevski, which is discussed below, this Court resentenced Ristevski to 13 years’ imprisonment with a non-parole period of 10 years. In Papadopoulos, this Court refused leave to appeal against a sentence of 11 years and 6 months’ imprisonment with a non-parole period of 9 years.
The applicant submitted that Vu’s offending was more serious than his because it was a planned confrontation which involved isolating the victim and using a hidden knife to stab him in uncontrolled anger that was motivated by jealousy. The applicant contended that, despite this, and this Court’s observation that the offending ‘can legitimately be characterised as “just short of murder”,’[47] Vu’s sentence was lower than his, indicating that the sentence he received was excessive in all the circumstances.
[47]See [88] above.
Ristevski is an unusual case because, although Ristevski pleaded guilty to the manslaughter of his wife of 27 years, he remained silent as to how, and why, the offence was committed. Ristevski was 52 years of age and the victim was 47 at the time of the offence. He had no prior convictions and there was no history of violence against the victim. After killing the victim, Ristevski placed her body in the boot of her car and concealed it in the Macedon Regional Park. He and their daughter made a missing person report to police. In various interviews with police that followed, Ristevski told numerous lies in an effort to avoid responsibility for killing the victim. The victim’s body was discovered eight months later by two contractors working in the park. Ristevski was a pallbearer at her funeral. He continued to maintain his innocence, including after he was charged with murder. He offered to plead guilty to manslaughter following a contested committal hearing but the prosecution did not accept that offer. After the trial judge made an evidentiary ruling that was adverse to the prosecution, it filed an amended indictment charging Ristevski with manslaughter, to which he immediately pleaded guilty.
The sentencing judge in Ristevski found that the offender had not demonstrated true remorse, but accepted that his prospects of rehabilitation were good. As we have already stated, he sentenced Ristevski to 9 years’ imprisonment with a non-parole period of 6 years and, following a successful appeal by the Director of Public Prosecutions, this Court resentenced Ristevski to 13 years’ imprisonment with a non-parole period of 10 years.
Counsel for the applicant submitted that the sentence imposed by this Court in Ristevski should be regarded as ‘an outlier’ and did not assist in identifying the relevant sentencing range for the purposes of this case. He contended that the gravity of Ristevski’s offending, and post-offence conduct, was greater than in the present case. He argued that, whereas the applicant had revealed how the offending occurred, and had disclosed the location of KR’s body to enable her family to put her to rest, Ristevski had remained silent about the circumstances of his wife’s death, and had never disclosed the location of her body. According to counsel, another important difference between the applicant’s case and that of Ristevski was that, unlike Ristevski who never showed any remorse, the applicant demonstrated genuine remorse, including by writing to KR’s family.
Counsel emphasised the statement by the plurality in Ristevski that no case was ‘truly comparable’ to the facts of that case.[48] He cited that statement in support of his proposition that Ristevski could not be considered a relevant comparator for the purpose of providing guidance in the exercise of the sentencing discretion.
[48]Ristevski [2019] VSCA 287, [2].
The Crown submitted that it was hard to find a case that was more appropriately comparable to the present case than Ristevski. It contended that, in some respects, the applicant’s offending was more serious than that of Ristevski in that the killing of KR was the manifestation of the applicant’s misogynistic and degrading beliefs in relation to women generally. According to the Crown, rather than Ristevski being an ‘outlier’ case that did not assist in identifying the relevant sentencing range, it was highly relevant to identifying that range.
Consideration
Ground 3 is not made out. Although the sentence imposed on the applicant may be regarded as stern, it was one that was reasonably open to the judge, rather than being wholly outside the relevant sentencing range.
The objective gravity of the offending and the applicant’s moral culpability were great, having regard to the following features of the offending and post-offence aggravating circumstances:
(a)The offending occurred during consensual sexual activity in the confined space of the applicant’s car. KR was trapped and rendered virtually defenceless. Her inability to defend herself was compounded by the fact that she was a small woman and the applicant was physically much larger and stronger than her.
(b)Although the physical strangulation which caused KR’s death was not prolonged, KR did not suffer an immediate and painless death. In the time that it took her to lose consciousness and die, she must have been terrified, and would undoubtedly have experienced significant pain.
(c)The offending represented the physical expression of the applicant’s misogynistic, disrespectful and contemptuous views about KR and women generally. As found by the judge, the applicant treated KR as the impersonal object of his male power and sexual pleasure.[49]
(d)By reason of his prior experience with other sexual partners, the applicant was aware that choking during consensual sexual activity was dangerous. Despite knowing of the danger, he engaged in this conduct with KR for his own selfish sexual gratification.
(e)The applicant coldheartedly discarded KR’s body by the side of the road as if it were an object. He subsequently buried her to ensure that the body would not be found. His prolonged silence about the location of KR’s body amplified her family’s suffering.
(f) Over a period exceeding 19 months, the applicant repeatedly made false statements to numerous people denying that he killed KR. Worse still, he blamed others for her death. He callously told others that he had killed KR, threatened them with a similar fate, and then laughed off his comments as if they were a joke. He continued to deny having killed KR to his own mother, even after he was remanded in custody following his arrest.
[49]See [58] above.
The above factors, together with the applicant’s prior convictions for crimes of violence, called for a lengthy custodial sentence. This was necessary to give effect to the sentencing considerations of denunciation, protection of the community, general deterrence, and specific deterrence. As indicated earlier, general deterrence was particularly important due to the tragic fact that violence against intimate partners (particularly women) is prevalent in our community. Significant custodial sentences are required in cases such as the present in order to deter would-be perpetrators from giving violent expression to their misogynistic and dehumanising views of women.
We accept that the applicant was able to rely on a number of mitigating factors including, in particular, his plea of guilty, his poor health, and the very real prospect that he would be deported to the United Kingdom after he served his sentence. His guilty plea undoubtedly had utilitarian benefit. However, it was not an early plea, coming as it did after a contested committal at which 19 prosecution witnesses were cross-examined. Although there was an element of genuine remorse, the judge found it difficult to quantify. The applicant was entitled to some credit for disclosing the location of KR’s body so that her family could put her to rest. However, he only did so after his admissions to the undercover operatives about his involvement in the burial of KR made his position untenable.
We also accept that this case lacked a number of the aggravating factors that are sometimes present in cases of manslaughter by unlawful and dangerous act. Those factors include a history of violence towards the victim, breach of an intervention order in favour of the victim, premeditation, mutilation of the victim’s body, and enlisting the assistance of others in the commission of the offence or the disposal of the victim’s body.
The factors set out at [100] and [101] above are clearly relevant in an assessment of where, on the spectrum of objective gravity, the present case lies. However, they have to be considered in the context of the factors informing the seriousness of the offending, the applicant’s high degree of moral culpability, and the aggravating features of the offending set out at [98] above. In our opinion, having regard to all of these matters, it was open to the judge to characterise the applicant’s offending as a ‘very serious example of the crime of manslaughter’ and to impose the sentence that he did.
We now turn to current sentencing practice. It is trite that whilst this is a factor to be taken into account and that comparable cases can be treated as yardsticks which can assist in identifying the relevant sentencing range, such cases are not to be treated as precedents to be applied or distinguished.[50]
[50]Ristevski [2019] VSCA 287, [2].
We have considered all the cases listed at [76] above. Those cases demonstrate that the sentence in the present case is at the upper end of the relevant sentencing range, rather than falling wholly outside it.
It is not necessary for us to discuss all of the cases. It is sufficient to refer to those on which the applicant placed most emphasis, namely, Boroviak, Vu and Wan, and that of Ristevski on which the Crown relied.
The offending in Boroviak may be regarded as less serious than that of the present case. That is because Boroviak strangled the victim in a spontaneous burst of anger, whereas the applicant killed KR by engaging in an act which he knew to be dangerous, and did so for his own selfish sexual gratification. Also, whilst Boroviak’s post-offence conduct had some disturbing features, it lacked the ferocity and callousness of the applicant’s denigration of KR. It also lacked the applicant’s attempts to blame others for his offending. Further, Boroviak was more remorseful and had better prospects of rehabilitation. Finally, as the Crown pointed out, Boroviak was able to call in aid significant mitigating factors which were not available to the applicant.[51]
[51]See [80] above.
The offending in Wan and Vu was undoubtedly very serious. However, in both cases, unlike the present, there was no aggravating post-offence conduct. On the contrary, the offenders sought to assist the victims. Wan’s guilty plea was an early one. Also, he was much younger than the applicant, had no prior convictions, and was genuinely remorseful. He also had good prospects of rehabilitation. Vu had reasonably good prospects of rehabilitation and had acted out of uncontrolled anger, having been motivated by jealousy.
Although in both Wan and Vu, this Court stated that sentences for certain types of manslaughter tend to be around 11 years’ imprisonment, it did not say that sentences higher than this would be outside the range. Unsurprisingly, the Court acknowledged that the facts of any particular case might warrant higher sentences. In Wan, the Court referred to the maximum penalty of 20 years’ imprisonment as an important yardstick. In Vu, the Court recognised that the sentence of 13 years’ imprisonment imposed by this Court on the Director’s appeal in Ristevski was within range for offending of that kind.
It follows that we do not accept the applicant’s submission that the sentence of 13 years’ imprisonment in Ristevski is an ‘outlier’. That sentence forms part of current sentencing practice for manslaughter by unlawful and dangerous act. It also, to some degree, informs the relevant sentencing range in the present case.
It cannot be said that the circumstances of the offending in Ristevski were more serious than those in the present case. That is because nothing is known about how and why Ristevski killed his wife. It also cannot be said that, in all respects, Ristevski’s post-offence conduct was worse than that of the applicant. Although both offenders acted deceitfully in denying their involvement, and Ristevski conducted himself appallingly in that regard, the applicant went much further. He falsely accused others of having killed KR. He made repeated disparaging comments about her, callously joked about whether he had killed her, and threatened others with the same fate. Although Ristevski did not disclose the location of his wife’s body, whereas the applicant did disclose the location of KR’s body, the applicant did so only after his admissions to the undercover operatives rendered his position untenable.
In summary, then, the sentences imposed in the other cases cited do not support the applicant’s contention that his sentence is manifestly excessive.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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