Williamson v The Queen
[2019] VSCA 138
•20 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0092
| ADAM WILLIAMSON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 June 2019 |
| DATE OF JUDGMENT: | 20 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 138 |
| JUDGMENT APPEALED FROM: | [2018] VSC 172 (Jane Dixon J) |
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CRIMINAL LAW – Appeal – Sentence – Appellant sentenced to 25 years for charge of murder under s 3A of Crimes Act 1958, 8 years for charge of aggravated burglary and 2 years, 6 months for charge of theft – Total effective sentence of 27 years with non-parole period of 23 years – Co-offender who inflicted fatal stab wounds on victim sentenced to 22 years for charge of murder at common law, 8 years for charge of aggravated burglary and 2 years, 6 months for charge of theft – Co-offender’s total effective sentence 24 years with non-parole period of 20 years – Co-offender pleaded guilty, cooperated with authorities and gave evidence against appellant – Appellant then pleaded guilty – Whether parity principle infringed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M E Dempsey with Mr J Barreiro | Theo Magazis and Associates |
| For the Respondent | Mr J B B Lewis | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
I have read in draft the judgment of Kyrou JA. He has set out the respective sentences imposed upon the appellant, Williamson, and upon the co-offender, Cooper; the circumstances of the offending; the personal circumstances of Williamson and Cooper; the judge’s sentencing remarks; and the submissions made on this appeal. Unfortunately, I find that I cannot agree with the conclusion which he has reached in relation to the respective murder sentences. In my opinion the appellant has not established that it was not reasonably open to the sentencing judge to differentiate between Williamson and Cooper in the way in which she did.
As Kyrou JA has explained, there are two principal circumstances which suggest that the sentence for murder imposed upon Williamson (25 years’ imprisonment) should not have been greater than the sentence imposed upon Cooper (22 years’ imprisonment). These two circumstances are the fact that Cooper stabbed the victim with murderous intent, and the fact that Cooper had a prior conviction for aggravated burglary where he was carrying a knife. In addition, the respective psychological material revealed Cooper to be a higher risk of violent offending, with a consequent greater need for specific deterrence.[1]
[1]Kyrou JA has set out all the competing considerations fully and I will not repeat them.
There are, however, other factors which have led me to conclude that the differential in the sentences imposed was reasonably open to the sentencing judge.
First and foremost, Cooper cooperated with the authorities. His cooperation was significant both in relation to his own role and in relation to Williamson’s role.[2]
[2]DPP v Williamson [2018] VSC 172 [32], [66]–[67] (‘Reasons’); DPP v Cooper [2017] VSC 218 [74]–[75] (‘Cooper Reasons’); DPP v Cooper [2018] VSCA 21 [46] (‘Cooper COA Reasons’).
As to his own role, Cooper’s cooperation was in an important respect against his own interests. He gave an account of the circumstances, both in a statement and in oral evidence, in which he revealed that he was the one who stabbed the deceased. At the time he gave that information to the Crown, it could not discern which of the two offenders had inflicted the stab wounds.[3]
[3]Cooper Reasons [74]–[75].
As to Williamson’s role, Williamson advanced a number of false contentions in relation to his involvement.[4] It was not until Cooper gave evidence on a Basha hearing and was cross-examined by counsel for Williamson that Williamson resiled from certain critical false propositions he had advanced,[5] and pleaded guilty.[6] Cooper’s cooperation significantly advanced the course of justice. His evidence led to the resolution of the prosecution of Williamson by a guilty plea.
[4]Reasons [28] (knowledge of the knife), [32] (presence in the room), [33] (paedophilia allegation), [24]–[25] (concocted alibi).
[5]Reasons [12], [55], [63] (knowledge of the knife), [32] (presence in the room).
[6]Cooper COA Reasons [46].
Cooperation with authorities is a very important factor.[7] When offenders do cooperate, and especially when they give evidence against co-offenders, the benefit of doing so should be demonstrably reflected in the sentence imposed.
[7]Cottee v The Queen [2010] VSCA 285 [23] and [25]; R v Johnston (2008) 186 A Crim R 345 [20]–[21].
Secondly, Cooper pleaded guilty early and never resiled from that position.[8] Williamson pleaded guilty, then successfully applied to change his plea, before pleading guilty again after Cooper gave evidence.[9] Williamson maintained various false positions throughout the investigation and the legal proceedings. Prior to being interviewed by police he concocted a false alibi which he advanced in his police interview.[10] He falsely maintained both in Court and to a psychologist that he was not present in the room at the time of the stabbing.[11] When he applied to change his plea he disputed that he was aware Cooper had brought a knife onto the deceased’s premises.[12] After Cooper gave evidence and was cross-examined he resiled from those positions. Throughout the entire legal proceeding Williamson maintained that he had not told Cooper that the deceased was a paedophile. The sentencing judge found beyond reasonable doubt that he had told him that.[13]
[8]Reasons [66].
[9]Cooper COA Reasons [46].
[10]Reasons [24]–[25], Summary of Prosecution Opening (6 October 2017) [51]–[54].
[11]Reasons [28], [32], [47].
[12]Reasons [28].
[13]Reasons [33].
Thirdly, and related to the first two factors, whereas Cooper was found to be ‘deeply remorseful’,[14] the sentencing judge found in relation to Williamson that ‘true remorse’ was ‘not prominent’ and ‘certainly less advanced than in the case of Cooper’.[15] These findings are unchallenged.
[14]Cooper Reasons [88], a finding referred to without criticism or qualification by the Court of Appeal: Cooper COA Reasons [39]
[15]Reasons [69].
Fourthly, Williamson was the instigator of the criminal undertaking. He knew the deceased. He knew that he was old. He had a grudge against him. He believed he kept large amounts of cash.[16] One of the ways he persuaded Cooper to join him was by falsely telling Cooper that the deceased was a paedophile.[17] He did so in circumstances where Cooper had confided in him about his personal experience as a victim of sexual abuse and his violent dislike of paedophiles.[18] The sentencing judge found that the rage which Cooper felt towards the deceased because he believed him to be a paedophile was the circumstance which explained the stabbing, without mitigating the seriousness of Cooper’s offending.[19] The judge found it constituted the ‘context’ in which the stabbing occurred.[20] In these circumstances, and notwithstanding that Williamson did not stab the deceased himself, his moral culpability for the murder of which he is guilty by virtue of s 3A of the Crimes Act 1958 is, in my opinion, very high.
[16]Reasons [8]; Cooper Reasons [8]–[9].
[17]Reasons [73].
[18]Cooper Reasons [65].
[19]Reasons [18]; Cooper Reasons [32].
[20]Reasons [73].
Fifthly, whereas Cooper’s personal circumstances are mitigating, Williamson’s are not. Cooper had a very troubled childhood which included state care and sexual abuse.[21] Williamson grew up in a happy family.[22]
[21]Cooper Reasons [63]–[64].
[22]Reasons [40].
Finally, Cooper is 10 years younger than Williamson.
On an appeal of this kind it is not the function of the Court of Appeal to determine for itself what differential there ought to be between the two offenders. The relevant issue for this Court is whether it was open to the sentencing judge to differentiate between the two offenders in the way in which she did. In my opinion, it was. I would dismiss the appeal.
KYROU JA:
Introduction and summary
Kenneth Handford was an 89 year old World War II veteran who lived alone in a house on a farm in Springbank. In the early hours of 14 September 2015, the appellant and his co-offender, Jonothan Cooper, entered Mr Handford’s home intending to steal from him. They encountered Mr Handford in his bedroom and tied him up. Cooper struck Mr Handford with a torch and stabbed him 13 times in the back in the appellant’s presence. Mr Handford was left tied up and died as a result of his injuries 4 hours and 38 minutes later.
On 12 September 2017, the appellant pleaded guilty to the charges set out in the table below and on 17 April 2018 he was sentenced as set out in that table.[23]
[23]DPP v Williamson [2018] VSC 172 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Murder [Crimes Act s 3A] Life 25 years Base 2 Aggravated Burglary [Crimes Act s 77] 25 years 8 years 2 years 3 Theft [Crimes Act s 74(1)] 10 years 2 years, 6 months – Total Effective Sentence: 27 years’ imprisonment Non-Parole Period: 23 years Section 6AAA Statement: 33 years’ imprisonment, non-parole period of 28 years
For his role in the offending, on 12 February 2018 Cooper was sentenced by this Court — following a successful Crown appeal — as set out in the table below.[24]
[24]DPP v Cooper [2018] VSCA 21 (‘Cooper’). The sentencing judge had imposed a total effective sentence of 16 years’ imprisonment with a non-parole period of 13 years: see DPP v Cooper [2017] VSC 218.
Charge Offence Maximum Sentence Cumulation 1 Murder [Common law] Life 22 years Base 2 Aggravated Burglary 25 years 8 years 2 years 3 Theft 10 years 2 years – Total Effective Sentence: 24 years’ imprisonment Non-Parole Period: 20 years Section 6AAA Statement: Life imprisonment, non-parole period of 30 years
The difference between murder at common law, to which Cooper pleaded guilty, and statutory murder under s 3A of the Crimes Act, to which the appellant pleaded guilty, is that murderous intent is not an element of the latter offence. Section 3A(1) provides as follows:
3A Unintentional killing in the course or furtherance of a crime of violence
(1)A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.
The summary of prosecution opening at para 33 explained the basis of the statutory murder charge against the appellant as follows:
The attack on [Mr Handford] for the purpose of stealing his property constituted an armed robbery. Whilst [the appellant] is not charged with armed robbery, it is this behaviour which supports the charge under section 3A of the Crimes Act 1958.
In her sentencing remarks, the judge further clarified the matter as follows:
The Crown have said that the s 3A murder charge is composed of [the appellant’s] presence and involvement in the uncharged armed robbery with the act(s) of violence comprised by Cooper stabbing Mr Handford whilst he was tied up and restrained.
… [The appellant] participated in the violent armed robbery that led to the stabbing of Mr Handford by Cooper. … [the appellant’s] presence assisted and encouraged Cooper in carrying out this violent armed robbery, after helping to place restraints on [Mr Handford’s] hands and legs. …[25]
[25]Sentencing remarks [31]–[32] (citations omitted).
The charge of aggravated burglary on the indictment was in the following terms:
The Director of Public Prosecutions charges that [the appellant] at Springbank in Victoria on the 14th day of September 2015 entered as a trespasser a building at 1028 Barkstead Road with intent to steal therein and at the time knew his co-accused [Cooper] had with him an offensive weapon namely a knife and at the time of entering a person was then present in the building and [the appellant] knew that a person was then so present or was reckless as to whether or not a person was then so present.
On 7 August 2018, Whelan JA granted the appellant leave to appeal against his sentence on the sole ground of parity.[26] That ground is in the following terms:
[26]Williamson v The Queen [2018] VSCA 193.
The learned sentencing Judge erred in her application of the parity principle in that she imposed sentences and an overall non-parole period so disparate from the sentence imposed upon the co-offender Cooper as to give rise to a justifiable sense of grievance in the [appellant].
PARTICULARS
(a) The learned Judge placed insufficient weight upon Cooper’s leading role, accompanied by murderous intent, in causing the death of the deceased — leading to sentences disproportionate to the differences in the roles of Cooper and the [appellant].
(b) The learned Judge placed too much weight on Cooper’s cooperation and assistance in assessing his prospects of rehabilitation — leading to sentences disproportionate to the differences between Cooper and the [appellant].
(c) The learned Judge placed insufficient weight upon Cooper’s prior conviction for a not dissimilar aggravated burglary, and the fact that it was he who was armed with a knife — leading to sentences disproportionate to the differences between Cooper and the [appellant].
(d) Too little weight was placed upon the disparity in the criminal histories and antecedents of Cooper and the [appellant] in assessing the relative prospects of rehabilitation of each.
(e) Too little weight was given to the [appellant’s] plea of guilty.
At the hearing of the appeal, senior counsel for the appellant clarified that the ground of appeal relates only to the sentence for the charge of murder.
For the reasons that follow, I would allow the appeal and resentence the appellant as set out at [89] below.
Circumstances of the offending and guilty plea
Mr Handford served in the Royal Australian Air Force during World War II. Upon his retirement in 1980, he worked as a potato harvester on the Maher family farm. He lived alone in a house on the farm. The Mahers regarded him as a member of their family.
The appellant lived in Ballarat East and was a user of methylamphetamine. In 2014, he worked on the Maher family potato farm with Mr Handford. The appellant’s employment was terminated when he was suspected of stealing from Mr Handford. As a result, the appellant did not like Mr Handford.
Cooper lived in Wendouree with his partner, Tracy Shepherd. Cooper had regularly associated with the appellant for some months prior to the offending. Cooper was the victim of sexual assault as a child and was a user of methylamphetamine.
On 13 September 2015, the appellant and Cooper planned an aggravated burglary of Mr Handford’s home. The appellant told Cooper that he believed that Mr Handford was in possession of around $20,000 in cash. At some stage prior to carrying out the plan, the appellant told Cooper, falsely, that Mr Handford was a paedophile.
Later that evening, Cooper attended the appellant’s home in Ballarat East. He brought with him a double edged knife. The appellant and Cooper used methylamphetamine together and discussed the plan to break into Mr Handford’s home.
At around 12:47 am on 14 September 2015, the appellant and Cooper broke into Mr Handford’s home through the back door. The appellant wore a balaclava in order to conceal his appearance. At the time of entering Mr Handford’s home, the appellant was aware that Cooper was in possession of the knife.
The appellant and Cooper used a torch to search Mr Handford’s home for money and valuables. In the course of doing so, they encountered Mr Handford in his bedroom. Cooper shone his torch in Mr Handford’s face and hit him with it. Cooper then grabbed Mr Handford’s hands and held them down behind his back. As Mr Handford struggled and protested, Cooper accused him of being a paedophile, which he denied. Cooper hit Mr Handford’s hand with his torch as he tried to reach for his wallet beside the bed. The appellant and Cooper then tied Mr Handford’s hands behind his back using a dressing gown cord. They tied his ankles together using a nylon cord and used it to anchor him to the leg of the bed.
Cooper stabbed Mr Handford 13 times to the back while Mr Handford was restrained and unable to defend himself. During the attack, including when the stabbing was taking place, the appellant remained in the bedroom. In a detailed written statement to police dated 31 January 2017, Cooper said that he stabbed Mr Handford mistakenly believing that he was a perpetrator of child sexual abuse.
Following the attack, Mr Handford was left tied up on the floor with the grievous injuries that had been inflicted upon him. The appellant and Cooper searched the premises for items of value and stole Mr Handford’s wallets containing cash totalling $3,900, a gold chain, a mobile phone, war service medals and other memorabilia. Mr Handford most likely died at 5:31 am.[27] It took him 4 hours and 38 minutes to succumb to his injuries.
[27]This was ascertained from the post mortem analysis of Mr Handford’s cardiac pacemaker.
Upon returning to the appellant’s home, the appellant and Cooper showed the stolen items to a mutual friend, Jessica Tippet. They told her that they entered Mr Handford’s house through the back door and went straight into his bedroom where they tied him up. Cooper told Ms Tippet that he had stabbed Mr Handford.
On 15 September 2015 — what would have been Mr Handford’s 90th birthday — his body was discovered by Anita Maher.
Several days after the murder, the appellant confessed to a friend that he and Cooper had bashed and tied up Mr Handford and that Cooper had stabbed him. The appellant said that he and Cooper searched the place and stole cash and war medals. He said that they split the cash between them and that he kept the medals. The appellant also told another acquaintance that he and another person entered Mr Handford’s house through the back door, tied up Mr Handford and started to assault him, and that they were there to take his life savings.
On 27 October 2015, following monitoring by police, the appellant and Cooper were arrested.
On 31 October 2016, Cooper offered to plead guilty to murder at common law and aggravated burglary. He later offered to plead guilty to theft. These offers were accepted. Cooper also offered to assist police by making a statement and giving evidence against the appellant if required.
On 10 November 2016, the appellant pleaded guilty to statutory murder under s 3A of the Crimes Act, aggravated burglary and theft.
As I have already stated, on 31 January 2017, Cooper provided a detailed written statement to police. He also gave a sworn undertaking to testify against the appellant in accordance with that statement if required.
On 10 April 2017, the appellant applied for leave to withdraw the plea of guilty on the ground that he had misunderstood the basis of the plea. Leave was granted on 21 April 2017.
On 7 September 2017, Cooper gave evidence against the appellant at a Basha hearing.[28]
[28]R v Basha (1989) 39 A Crim R 337.
As I have already stated, on 12 September 2017 the appellant again pleaded guilty to statutory murder, aggravated burglary and theft. His sentencing was deferred pending the outcome of the Crown appeal against the sentence imposed on Cooper.
Appellant’s personal circumstances
The appellant was aged 38 at the time of the offending and 41 at the time of sentencing. He grew up in a loving family environment and had a happy childhood. His mother suffers from Parkinson’s disease and has been unable to visit him in prison. He has three siblings, an older brother, a younger brother and a younger sister. He has a good relationship with his sister.
The appellant completed Year 11 at Ballarat North Technical College and completed an apprenticeship as a foundry moulder. Throughout his twenties he was able to obtain some work. However, he became unreliable and lost or left jobs due to substance abuse.
The appellant has smoked cannabis since his early teenage years and has used intravenous amphetamine since around the age of 20. He has also used methylamphetamine since his early thirties. He has a history of alcohol abuse but claims to have ceased this in the last 10 years. He has suffered from depression for a number of years. In 2012, he attempted to deal with his depression through prescribed medication, but he ultimately reverted back to methylamphetamine use.
The appellant has a limited criminal history, comprising: possession, use and cultivation of cannabis; motor vehicle offences; weapons offences; criminal damage; recklessly dealing with proceeds of crime; theft of a trailer; and failure to answer bail. All the offences were dealt with in the Magistrates’ Court and none involved violence or resulted in a custodial sentence.
A consultant psychologist, Simon Candlish, expressed the opinion that the appellant appears to meet the criteria for a major depressive disorder. He also assessed him as falling into the low risk category for violent re-offending. However, this assessment was made in the context of the appellant informing Mr Candlish that he was not present with Cooper at the time of the stabbing. The appellant expressed remorse to Mr Candlish and another psychologist, Ian Mackinnon.
Cooper’s personal circumstances
Cooper was aged 28 at the time of the offending. He had a dysfunctional upbringing. His father was a violent and abusive alcoholic. Cooper’s mother and father separated due to his father’s violence when he was 6.
Between the ages of 7 and 9, Cooper and his older brother were raped and sexually assaulted by a respite carer. When he was 12 years old, Cooper seriously assaulted his brother, which resulted in Cooper being placed into foster care. His schooling was disrupted and he suffered from a speech impediment. Later in life, he obtained some employment in various trades. He has two children who are both in state care.
At Cooper’s plea hearing, his counsel stated that Cooper has suffered from problems with drug addiction since his teenage years. It was submitted that he started using cannabis from age 11, amphetamine and ecstasy from age 16, and methylamphetamine from age 18.
Cooper has prior convictions for possession and use of cannabis, theft (11 charges), burglary (eight charges), failure to answer bail (three charges), motor vehicle offences, obtain property by deception (five charges), one charge of handling stolen goods and one charge of aggravated burglary. The circumstances of the aggravated burglary were that Cooper and a co-accused entered the home of an acquaintance Chris Brown, against whom Cooper held a grievance, in the early hours of the morning armed with a knife. Cooper told an occupant that he was looking for Mr Brown — who was not in the house — to stab him. For that offence, on 13 October 2010 Cooper was sentenced by a County Court judge to 20 months’ imprisonment.[29] At the time of the aggravated burglary, Cooper was subject to a 2 month suspended custodial sentence.
[29]See DPP v Morgan [2010] VCC 1410UR.
A clinical psychologist, Gina Cidoni, assessed Cooper as presenting with high psychopathology with signs of disorganisation and indications of acute psychotic stress.[30] Ms Cidoni was of the opinion that Cooper presented a high risk of violent reoffending.[31] She stated that persons with Cooper’s ‘code-type may engage in violent/assault behaviour motivated by delusions’.
[30]Cooper [2018] VSCA 21 [29].
[31]Cooper [2018] VSCA 21 [29].
Sentencing remarks
In relation to the charge of statutory murder under s 3A of the Crimes Act, the judge stated that the appellant’s criminal responsibility was based on his complicity in the armed robbery, in the course of which Cooper fatally stabbed Mr Handford.[32] The judge also noted that the appellant was sentenced on the basis that murderous intent was not established. She accepted the concession made by counsel for the appellant that the offending was a grave example of statutory murder.[33] After referring to this Court’s decisions in Director of Public Prosecutions v Cooper[34] and Director of Public Prosecutions v Arthur,[35] the judge said that she regarded the appellant’s offending as at the high end of the spectrum of cases of statutory murder where murderous intent is not established.[36]
[32]The judge referred to ss 323 and 324 of the Crimes Act.
[33]Sentencing remarks [58].
[34][2018] VSCA 21.
[35][2018] VSCA 37.
[36]Sentencing remarks [73].
The judge stated that the fact that Cooper impulsively inflicted the stab wounds made his role significantly greater than that of the appellant.[37] However, the judge also noted that the appellant had assisted tying up Mr Handford, was present during the stabbing, stole from Mr Hanford and left him to die. She accepted the concession made on behalf of the appellant that leaving Mr Handford tied up and helpless was an aggravating feature of the offending.[38]
[37]Sentencing remarks [59].
[38]Sentencing remarks [59].
The judge also took into account this Court’s indication in Cooper that had Cooper not pleaded guilty and assisted the Crown, the appropriate sentence would have been life imprisonment.[39]
[39]Sentencing remarks [60].
In relation to the aggravated burglary charge, the judge stated that the offending was very serious.[40] She noted that this Court in Cooper[41] described the offending as falling towards the upper end of the scale of seriousness. She emphasised that the appellant had exploited his knowledge of Mr Handford in selecting his home as the target and involved Cooper for the purpose of breaking in late at night, when it was likely that Mr Handford would be in bed and with the knowledge that Cooper was armed with a knife. She stated that firm denunciation was warranted and that a stern sentence was required to deter others from offences of that nature.[42]
[40]Sentencing remarks [55].
[41][2018] VSCA 21 [52].
[42]Sentencing remarks [56].
The judge stated that the moral culpability of the appellant for his role in the aggravated burglary was high and that he would be sentenced on the basis that he was the driving force behind that offence because of his past association with Mr Handford and knowledge of his habits.[43]
[43]Sentencing remarks [57].
The judge stated that the appellant’s long term drug addiction and failure to pursue sustained treatment meant that his prospects for rehabilitation were not as good as they otherwise would have been.[44] She gave consideration to the appellant’s absence of prior violent offending and that he had some capacity for skilled employment. She said that although the appellant cannot rely on the same factors of cooperation and assistance as Cooper, these were matters in his favour, if he is able to overcome his drug abuse when released from prison.[45] The judge also stated that the report of Mr Mackinnon favoured the appellant’s prospects to some degree.[46]
[44]Sentencing remarks [61].
[45]Sentencing remarks [69].
[46]Sentencing remarks [69].
At the plea hearing, the prosecution submitted that the finding that Cooper’s prospects of rehabilitation were reasonable should not lead to a finding that the appellant’s prospects of rehabilitation are better than reasonable, even taking into account his less significant criminal history and more favourable psychological assessments. In response to this submission, in her sentencing remarks the judge stated that her assessment of Cooper’s prospects of rehabilitation was ‘greatly influenced by his fulsome cooperation with the authorities, [her] finding as to his contrition and his willingness to testify for the prosecution against [the appellant]’.[47] The judge observed that Cooper’s continued willingness to give evidence against the appellant assisted the prosecution in its case against him.
[47]Sentencing remarks [67].
The judge considered it relevant that Cooper was 10 years younger than the appellant and that Cooper pleaded guilty at a relatively early stage compared to the appellant. She acknowledged that Cooper had a more pronounced disposition for violence compared to the appellant and that this may be partly due to Cooper’s highly dysfunctional childhood and his experience of childhood rape.
The judge ultimately assessed the appellant’s prospects of rehabilitation as reasonable.[48]
[48]Sentencing remarks [69].
In relation to remorse, the judge stated that the presence of true remorse was not prominent in the appellant’s case and was less advanced as compared to Cooper.[49]
[49]Sentencing remarks [69].
The judge gave ‘some limited weight’ to specific deterrence due to the appellant’s history of drug abuse and criminal history.[50]
[50]Sentencing remarks [78].
The judge stated the following in relation to the differences between the circumstances of the appellant and those of Cooper for the purposes of sentencing the appellant for the three charges:
[I]n [the appellant’s] case, the Crown chose not to press for a finding of murderous intent and elected quite purposefully to proceed under s 3A of the Crimes Act 1958, distinguishing [his] position from that of Cooper. This matter, along with the fact that [the appellant was] not the person who stabbed [Mr Handford], together with [his] plea of guilty is relevant to consideration of a just sentence. These factors also impact on my assessment of the sentence I would have imposed for statutory murder had [the appellant] not pleaded guilty. However, in considering [the appellant’s] sentence alongside the sentence of 22 years imposed by the Court of Appeal on Cooper for common law murder I take into account that the Court of Appeal must still have given weight to Cooper’s assistance to the authorities, remorse and relatively early plea of guilty. It is also relevant to [the appellant’s] sentencing under s 3A Crimes Act 1958 that Cooper’s violent attack on [Mr Handford] came about in the context of [the appellant’s] previous assertion to him that [Mr Handford] was a paedophile. However, I accept that [the appellant] did not intend or foresee the extent to which Cooper would lose control of himself during the armed robbery.
As to the charge of aggravated burglary, a distinguishing feature favourable to [the appellant] as against Cooper is that [the appellant has] a less significant criminal history. Also, [the appellant] offered to plead guilty to aggravated burglary after the committal only disputing the particularisation of the offence. These factors have to be balanced against the fact that [the appellant was] the driving force behind the aggravated burglary and knew Mr Handford personally. Cooper entered an earlier plea to the charge, was found to be remorseful and cooperated with the authorities in the prosecution of [the appellant].
There is little to distinguish the sentence that should be imposed for the theft between [the appellant] and Cooper other than Cooper’s cooperation and assistance.[51]
[51]Sentencing remarks [73]–[75] (citations omitted).
Parties’ submissions
The appellant submitted that the mitigatory effect of Cooper’s assistance did not support the disparity in the sentences. This was said to be so in the light of the differences between the appellant and Cooper in terms of the offences they were charged with, their respective roles and personal circumstances. The appellant emphasised the fact that, unlike Cooper, he did not physically cause Mr Handford’s death, did not have murderous intent and had more favourable prospects of rehabilitation. The appellant contended that, despite being effective, Cooper’s assistance was late and was borne from self-interest rather than contrition. It was argued that on this basis, the judge overvalued Cooper’s assistance.
The appellant argued that, although the judge found that his prospects of rehabilitation were ‘reasonable’ and that a similar finding had been made in relation to Cooper’s prospects of rehabilitation, the fact that the same adjective was used to describe both offenders’ prospects of rehabilitation does not mean that his prospects were the same as those of Cooper. According to the appellant, his prospects of rehabilitation are significantly better than Cooper’s for the following reasons: Cooper has a ‘concerning history of gross violence’; Cooper’s role in the murder; Cooper’s criminal history as compared to the appellant; the psychological assessment that Cooper had a high risk of violent reoffending; the psychological assessment that the appellant had a low risk of violent reoffending; and that the offending was out of character for the appellant.
The appellant submitted that the plea in relation to the charge of statutory murder was significant given that it was open to him to contest a trial on the basis of the complicity in the act of violence. The appellant argued that there was a degree of remorse and acceptance of responsibility inherent in the plea.
The Director submitted that the judge had correctly applied the parity principle and had given proper consideration to the differences in the circumstances of the appellant and Cooper, including the fact that the appellant did not stab Mr Handford and did not have murderous intent.
The Director contended that whilst the judge accepted that Cooper took a leading role and had murderous intent, there were other features of the offending that warranted the disparity in the sentences for the offence of murder. The circumstances of the appellant’s offending which were said to warrant the judge’s conclusion that it was a grave example of statutory murder included: assisting in the tying up of Mr Handford; being present during the stabbing; stealing from Mr Handford; and leaving him to die. Other features which were said to justify the disparity included: the appellant knew Mr Handford whereas Cooper did not; the appellant disliked Mr Handford; the appellant knew that Mr Handford was likely to be in possession of a large sum of money; the appellant was the driving force behind the planned aggravated burglary and encouraged Cooper’s participation by falsely telling him that Mr Handford was a paedophile; and the appellant knew that Cooper was armed with a knife.
In response to the appellant’s contention that his prospects of rehabilitation are significantly better than those of Cooper, the Director submitted that the judge had a sound basis for concluding that both the appellant and Cooper have reasonable prospects of rehabilitation. In support of this submission, the Director emphasised the following factors which were considered by the judge: although Cooper had a more extensive list of prior offences, including for aggravated burglary, Cooper had pleaded guilty at an earlier stage; Cooper had given evidence at a Basha hearing which was of such a standard that the appellant changed his plea shortly afterwards; Cooper had family support; Cooper made efforts towards drug abuse rehabilitation; the appellant had some capacity for skilled employment; the appellant entered a late guilty plea, which was subsequently changed; the appellant lacked true remorse; and the appellant was 10 years older than Cooper.
The Director submitted that ‘Cooper’s co-operation and evidence were matters of real significance and, as a result, there exists a clear rationale for the difference in the respective sentences of Cooper and the [appellant]’.
Having regard to the appellant’s submission that insufficient weight was given to the antecedents and criminal histories of the appellant and Cooper, the Director argued that: neither of the offenders had an extensive criminal history and the appellant’s description of Cooper as having a ‘concerning history of gross violence’ overstated the position.
In relation to the weight placed on the appellant’s guilty plea, the Director submitted that the judge specifically took the plea into account and that there is no reason to conclude that too little weight was given to it.
Decision
The principles governing the issue of parity are well established. They were summarised recently by this Court in Wood v The Queen as follows:
As a general proposition, when sentencing co-offenders, a judge should strive to avoid unjustifiable disparity. Self-evidently, any significant disparity should be capable of a rational explanation. For a disparity to be unjustifiable, it must be such as not to be explicable by differences between co-offenders, or the nature of their offending.
This Court may intervene on the ground of undue disparity, in circumstances where the challenged sentence, standing alone, may ordinarily be regarded as within range. The test is whether the disproportion between the sentences is manifestly excessive, and gives rise to a legitimate or justifiable sense of grievance. The disparity must be marked, or clearly unjustifiable.[52]
[52][2019] VSCA 39 [77]–[78] (citations omitted).
In order for the parity ground to succeed, ‘it must be shown that the conclusion as to sentence differentials was not reasonably open’.[53]
[53]Hilder v The Queen [2011] VSCA 192 [38]; Collins v The Queen [2015] VSCA 106 [23].
In my opinion, the parity ground has been made out.
The fact that the statutory offence of murder under s 3A of the Crimes Act is subject to the same maximum penalty as the common law offence of murder, namely life imprisonment, indicates that the former offence will not necessarily be less serious and attract a lower sentence than the latter offence.[54] However, in the circumstances of the present case, the offence committed by the appellant is less serious than the offence committed by Cooper. That is because Cooper was the one who stabbed Mr Handford with the intention of killing him or causing him really serious injury whereas the appellant did not have such an intention. His role was that of complicity in the armed robbery in the course of which Cooper fatally stabbed Mr Handford.[55]
[54]DPP v Perry [2016] VSCA 152 [47]–[48], [81]–[83], [122]–[123].
[55]Sentencing remarks [58].
If they were the only relevant facts, it would not have been open to the judge to sentence the appellant to a period of imprisonment for the charge of statutory murder that exceeded the period of imprisonment to which Cooper was sentenced for the offence of murder at common law. That is because the gravity of the offending and the moral culpability of a person who physically carries out a murder with murderous intent would ordinarily exceed that of the person who does not have that intent and does not physically contribute to the murder. In the present case, the judge found that Cooper’s role in the murder of Mr Handford was ‘significantly greater’ than that of the appellant.[56]
[56]Sentencing remarks [59].
Of course, the relevant facts in the present case are not confined to those set out at [77] above. The question for the Court is whether, for the charge of murder, the additional facts that bear upon the exercise of the sentencing discretion warranted the appellant being sentenced to a longer term of imprisonment than that imposed on Cooper.
The key mitigatory circumstance which Cooper, but not the appellant, was able to call in aid was cooperation with the authorities. Cooper’s evidence against the appellant at the Basha hearing was of significant value because it resulted in the appellant changing his plea from not guilty to guilty shortly after that hearing. In accordance with well established authority, Cooper was entitled to a substantial moderation of his sentence as a result of his cooperation.[57] Contrary to the appellant’s submission, the fact that Cooper’s motivation for his cooperation was self-interest does not diminish his entitlement to moderation of his sentence.[58]
[57]The principles were recently summarised by this Court in Haamid v The Queen [2018] VSCA 330 [24]–[27] (‘Haamid’).
[58]Haamid [2018] VSCA 330 [24(c)].
Other factors that support Cooper being sentenced more leniently than the appellant for the charge of murder are his earlier plea of guilty, greater remorse, disadvantaged background and younger age. However, although these factors are clearly relevant, they do not warrant significant sentencing disparity in the present case. In relation to the plea of guilty, although the appellant changed his plea from guilty to not guilty and reverted to the guilty plea only after Cooper gave evidence at the Basha hearing, his plea nevertheless facilitated the course of justice and entitled him to moderation of his sentence. In relation to the 10 year age differential between Cooper and the appellant, both of them were of a sufficiently mature age to appreciate the wrongfulness of their actions and to take responsibility for those actions. In addition, there was no suggestion that, as the older offender, the appellant had any psychological power over Cooper.
On first impression, there is some force in the Director’s submission that the appellant’s culpability is increased because he instigated the offending. However, on further reflection, while the submission is correct in relation to the aggravated burglary and theft offences, it has no application to the offence of murder. That is because it was never part of the appellant’s plan that Mr Handford be killed or really seriously injured. I accept that the appellant was aware that Cooper was armed with a knife and that the knife might be used to ensure Mr Handford complied with their requests should this become necessary.[59] However, the appellant had no prior knowledge that Cooper would embark on a frenzied stabbing attack on Mr Handford in circumstances where he was tied up and did not pose a threat.
[59]The judge stated that ‘the knife was brought along in case [the appellant and Cooper] needed to gain compliance’: sentencing remarks [6].
Similar considerations apply to the appellant’s false statement to Cooper that Mr Handford was a paedophile. Whilst the statement may have been intended to encourage Cooper to join the appellant in breaking into Mr Handford’s home and stealing from him, it cannot be said that it was intended to encourage Cooper to kill Mr Handford.[60] Although Cooper’s erroneous belief that Mr Handford was a paedophile may explain why he ferociously attacked Mr Handford, the fact that the appellant engendered that erroneous belief does not mean that he bears equal responsibility for Cooper’s intentional murderous conduct.
[60]The judge stated that the appellant’s false statement encouraged Cooper’s participation in the planned aggravated burglary: sentencing remarks [33]. The judge did not say that it encouraged Cooper to stab Mr Handford.
As against the factors I have discussed that support the proposition that Cooper should be sentenced more leniently than the appellant, there are a number of factors that militate against that proposition. I have already mentioned the most significant of these considerations, namely the different roles of Cooper and the appellant in the murder of Mr Handford. As the person who stabbed Mr Handford with murderous intent, Cooper’s conduct was more culpable than that of the appellant who observed the attack without such an intent. It is true that both offenders tied up Mr Handford and left him to die. However, it is incontrovertible that Cooper was more directly responsible for Mr Handford’s death.
Another important factor that militates against Cooper being sentenced more leniently is his more extensive criminal history. In particular, Cooper had a prior conviction for an aggravated burglary which also involved breaking into a person’s home in the early hours of the morning while armed with a knife. Whilst he did not use the knife on the earlier occasion, this was due to the absence of the intended victim. In addition, unlike the appellant, Cooper had serious mental health issues and he was assessed at a high risk of violent reoffending. These factors meant that specific deterrence was more relevant to Cooper than the appellant.[61]
[61]In Cooper [2018] VSCA 21 [47], the Court of Appeal stated that ‘specific deterrence should have featured prominently in the exercise of the sentencing discretion’ whereas in the present case the judge stated that she gave ‘some limited weight’ to specific deterrence: see [63] above.
As for the appellant’s prospects of rehabilitation, the judge’s assessment that they are reasonable favoured equal treatment with Cooper, as his prospects were also assessed as being reasonable. Whilst there may be some merit in the appellant’s submission that his prospects of rehabilitation are better than those of Cooper, as no specific error is alleged in relation to the judge’s assessment, the appellant’s submission does not materially advance the parity ground.
The judge also took into account that some of the delay in sentencing the appellant was not attributable to him.[62] Delay was not a sentencing consideration in relation to Cooper.
[62]Sentencing remarks [30].
The judge’s observations set out at [64] above indicate that, in comparing the circumstances of the appellant and Cooper in relation to the murder charge, the judge understated the weight to be given to the appellant’s significantly lesser role in the offending relative to the weight that was given to Cooper’s cooperation in Cooper. In my opinion, the factors indicating that the appellant should be sentenced more severely than Cooper for the murder of Mr Handford and those indicating the opposite result are evenly balanced. Accordingly, the parity principle required that the offenders be sentenced to a similar term of imprisonment in respect of the charge
of murder. In these circumstances, a three year disparity in the sentences for that charge is clearly unjustified. Objectively, that disparity gives rise to a legitimate sense of grievance on the part of the appellant.
Resentence
Having regard to the above discussion, I would resentence the appellant to 22 years’ imprisonment for the charge of murder. I would confirm the sentences and orders for cumulation for the other charges, resulting in a total effective sentence of 24 years’ imprisonment. I would fix a non-parole period of 20 years.
Pursuant to s 6AAA of the Sentencing Act 1991, I would declare that, but for the appellant’s pleas of guilty, I would have sentenced him to a total effective sentence of 30 years with a non-parole period of 26 years.
KAYE JA:
I have read in draft the judgments of Kyrou JA and Whelan JA. I agree, with Whelan JA, that the appeal should be dismissed. For the following reasons, I am not persuaded that because the sentence imposed on the appellant, in respect of the charge of murder, was longer than the sentence imposed on the co-offender Cooper for that offence, it failed to comply with the principle of parity.
The principle of parity of sentencing is based on the proposition that co-offenders should be treated equally. However, that proposition is subject to the qualification that relevant differences between the culpability of the offenders, and that matters personal to them, be properly accommodated in the exercise of the sentencing discretion.[63] Sentencing error on the basis of disparity may occur where, taking into account the differences between the roles of the co-offenders in the offence, their respective levels of culpability, and their personal circumstances, there
is nevertheless such a marked discrepancy between the sentences imposed on them as to produce a justifiable sense of grievance in an objective bystander. The discretionary nature of sentencing, involving the balancing and synthesis of a number of relevant considerations, is such that it may only be concluded that sentencing error has occurred, on the basis of disparity, where the appellate court considers that it was not open to the sentencing judge to differentiate in the sentences imposed on the co-offenders in the way in which the judge did.[64]
[63]Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ), 613–14 (Mason J), 623–4 (Dawson J); Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J).
[64]See, eg, Anthony v The Queen [2016] VSCA 22 [12]; Hilder v The Queen [2011] VSCA 192 [38]–[39] (Maxwell ACJ); Rougnikov v The Queen [2015] VSCA 97 [25]; Ryan v The Queen [2016] VSCA 255 [42].
In R v Mercieca,[65] Winneke P (with whom Charles JA agreed) stated:
… Before an appellate court can intervene on the basis of disparity, or lack of it, the authorities recognise that that disparity, or lack of it, must be ‘marked’ or ‘manifest’ and such as to produce a legitimate and justifiable sense of grievance in the objective observer.[66]
[65][2004] VSCA 170.
[66]Ibid [17].
In the present case, taking into account the objective gravity of the offending by the appellant and Cooper, the subjective culpability of each of them for that offending, and their respective mitigating circumstances, I am not persuaded that it was not open to the sentencing judge to differentiate in the sentences between the appellant and Cooper in the manner in which her Honour did.
The starting point of an evaluation of the objective gravity of the offending by the appellant and of the offending by Cooper, and of the subjective culpability of each of them for that offending, is that their roles in the murder of Mr Handford, and the basis upon which each of them pleaded guilty to it, were relevantly different. Plainly, without more, the objective gravity of the offence committed by Cooper was substantially greater than that to which the appellant pleaded guilty. Cooper inflicted multiple stab wounds to Mr Handford intending to kill him, or, at the least, to cause him really serious injury. By contrast, the appellant’s guilt did not involve any such murderous intent.
Nevertheless, that consideration does not diminish, and should not obscure, the seriousness of the offending to which the appellant pleaded guilty, and his moral culpability for it. The statutory offence of murder, defined by section 3A of the Crimes Act, has its historic origins in the common law offence of felony murder. That offence was committed where an offender caused the death of a victim by an act of violence in the course, or in furtherance, of a crime, the necessary elements of which involved the intentional infliction of violence. In such circumstances, the law imputed to the offender the requisite malice that was sufficient to constitute the crime of murder.[67] As was the case with the common law offence, the statutory offence under section 3A provides that where death has been inflicted in that way, the offender, by being guilty of murder, is subject to the same penalties that apply to the common law offence of murder. As this Court has recognised in Director of Public Prosecutions v Perry,[68] the offence of murder under section 3A of the Crimes Act is not inherently less serious than the offence of common law murder. Nor does the law recognise any inherent difference between the moral culpability of a person convicted of statutory murder and that of a person convicted of common law murder.[69]
[67]R v Ryan & Walker [1966] VR 553, 563; DPP v Beard [1920] AC 479, 493, 504.
[68](2016) 50 VR 686.
[69]Ibid 708–709 [81].
By pleading guilty to the statutory offence of murder, prescribed by section 3A of the Crimes Act, the appellant admitted to each of the essential elements of that offence, namely:
(1)Mr Handford was killed by an act of violence.
(2)That act of violence was done ‘in the course or furtherance of a crime’.
(3)A necessary element of that crime included an act of violence for which a person might be sentenced to either life imprisonment or imprisonment of a term of ten years or more.
In the present case, the appellant pleaded guilty to statutory murder, and the prosecution case was opened to the sentencing judge, on the basis that the violent stabbing by Cooper of Mr Handford occurred ‘in the course or furtherance’ of the armed robbery of Mr Handford, which, at the time, was being committed jointly by the appellant and Cooper.
It is useful, first, to focus on the nature of the violent crime of armed robbery, in the course of which the killing took place. It was the appellant, not Cooper, who selected the target of the armed robbery. He did so on the basis that Mr Handford was a ‘soft’ target, whose vulnerability and frailty could be easily exploited in order to effect the purposes of the robbery. In addition, it was the appellant who incited Cooper to participate in, and commit, the crime of armed robbery. The offence committed by the appellant was an armed robbery, due to the production by Cooper of the knife. It was the production by Cooper of the knife that also comprised the necessary element of violence involved in the commission of that offence for the purposes of statutory murder (the third element listed above). Although, initially, the appellant denied knowing that Cooper attended the premises with the knife, the case before the sentencing judge proceeded on the basis, and by his plea of guilty the appellant admitted, that he knew that the crime in which he was engaged was an armed robbery. Thus, the appellant pleaded guilty to statutory murder on the basis that the armed robbery, in which he participated, included the production by Cooper of the knife for the purpose of carrying out the robbery.
As part of, and in the course of, the armed robbery, both the appellant and Cooper forcefully overcame, subdued and tied up their elderly victim. The appellant participated in that offence knowing that he had deliberately incited Cooper against Mr Handford, by falsely alleging to Cooper that he had abused children (which was entirely untrue). It was in the course of the commission of the armed robbery — which involved the violent subjugation of Mr Handford by Cooper and the appellant — that Cooper, in a fit of rage against the victim, stabbed him to death. While the killing was not a part of, or in furtherance of, the armed robbery, it is relevant and significant that it occurred in the context in which it did. In other words, at the risk of repetition, it occurred while both Cooper and the appellant were forcefully overcoming their frail and vulnerable victim, in circumstances in which the appellant knew that Cooper, who he had incited against the victim, was carrying and had produced a knife for the purposes of the armed robbery.
That recitation of the circumstances of the killing necessarily involves the conclusion that the objective gravity of the appellant’s offending, constituted by the statutory murder to which he pleaded guilty, and his moral culpability for it, were high. Indeed, in the written outline of plea submissions, counsel then acting for the appellant realistically made that concession. He described his client’s offending as ‘extremely serious’, because, first, it occurred in the context of an aggravated burglary which involved entry of a dwelling at night while the co-offender was armed with a knife, secondly, the deceased was a vulnerable elderly man who was bound and gagged with the assistance of the appellant, and, thirdly, the appellant ‘assisted’ the stabbing of the deceased by his presence. Thus, counsel for the appellant, on the plea, properly accepted that this was ‘a very serious example of 3A murder’.
Notwithstanding those considerations, the objective gravity of the offending of Cooper was more substantial than that of the appellant, in light of the fact that the appellant did not intend that Cooper engage in that act, or that he cause death or really serious injury to Mr Handford. However, for the reasons I have set out, the difference was not as substantial as that contended for by the appellant.
On the other hand, there were a number of relevant factors, relating to Cooper, that were important in determining his level of moral culpability for the offending.
As the sentencing judge noted, his childhood and life history were ‘very troubled’.[70] His father was a violent and abusive alcoholic. His mother frequently moved home, and she ultimately fled to Queensland with Cooper and his siblings, to escape him. Between the ages of seven and nine years, Cooper and his older brother were sent away on weekends for respite care. The man, who was responsible for that care, forced Cooper to endure penetrative sex, and solicited the performance of sexual acts between Cooper and his brother. Ultimately, Cooper came under the child protection regime at the age of twelve years. As the sentencing judge noted:
Disturbing memories of this childhood sexual abuse continued to plague you (Cooper) at the time you reignited your friendship with Williamson and you continued to be traumatised by those memories. … You confided in Williamson about your personal experiences as a victim of sexual abuse and your violent dislike of paedophiles.[71]
[70]Cooper Reasons [63].
[71]Cooper Reasons [65].
For the purposes of his plea, Cooper was assessed by Ms Gina Cidoni, a consultant psychologist. She noted that on testing there was evidence of profound psychopathology that presented as a schizophrenic disorder of a paranoid type. There was a high level of situational distress and a legacy of maladaptive coping with trauma in the form of a post-traumatic stress disorder. She expressed the view that Cooper’s disturbance probably originated from his traumatic and unstable childhood and adolescent years with maladaptive coping through drug use and acting out behaviours. She considered that his mental illness had profoundly affected him in terms of impairing his ability to think clearly.
On the plea, counsel acting for Cooper did not rely on any of the principles, outlined by this Court in R v Verdins,[72] in support of the proposition that Cooper’s culpability, and his sentence, should be mitigated by reason of any mental or psychological disorder. However, it is clear from her Honour’s sentence of Cooper, and the decision of the Court of Appeal,[73] that Cooper’s background bore relevantly on an assessment of his subjective culpability for the murder of Mr Handford. As the High Court recognised in Bugmy v The Queen,[74] the fact that an offender has been raised in circumstances of abuse and violence may be a mitigating factor on sentence, because the offender’s culpability is likely to be lower than that of an offender whose formative years have not been marred in that way. The Court recognised that, because the effects of profound childhood suffering or deprivation do not diminish with the passage of time, or with repeated offending, they should be given appropriate weight in evaluating the offender’s moral culpability, particularly where it is demonstrated that there is a causal connection between the effects of the childhood trauma and the offending.
[72](2007) 16 VR 269.
[73]Cooper, COA Reasons [29].
[74](2013) 249 CLR 571, 594–5 [40]–[44].
Plainly, in this case, those circumstances were relevant to an assessment of the moral culpability of Cooper for the murder of Mr Handford. By contrast, the appellant had the advantage of a stable and happy childhood and upbringing. He had received a good education, and he had successfully completed an apprenticeship. In sharp contradistinction to Cooper, there was nothing in the background circumstances of the appellant which materially mitigated the high level of his subjective culpability for the statutory murder to which he pleaded guilty.
Pausing there, and notwithstanding the matters that I have just discussed, the objective gravity of the offending by Cooper, and his subjective culpability for that offending, were each greater than in the case of the appellant. Nevertheless, as acknowledged on the plea, the statutory murder, to which the appellant pleaded guilty, was a particularly serious instance of that offence. Unlike in the case of Cooper, there were no relevant circumstances which mitigated the appellant’s subjective culpability for engaging in that offence.
It must also be acknowledged that Cooper had a more substantial previous criminal history than the appellant. In particular, Cooper had four previous convictions for burglary. The last such conviction was in 2011, when he was sentenced to a term of imprisonment of eighteen months. In October 2010, he was convicted on one charge of aggravated burglary, for which he was sentenced to twenty months’ imprisonment. That offence was committed by Cooper while in possession of a knife, but the circumstances of that offence were by no means analogous to the circumstances in the present case. On the other hand, as already discussed, Cooper’s involvement in a life of drugs and his past offending were very much the product of his dysfunctional and abusive upbringing. While those circumstances do not negate the difference in the respective criminal histories of Cooper and the appellant, nevertheless they do materially reduce the strength of that factor as a matter by which to differentiate the sentence passed on Cooper to that imposed on the appellant.
On the other hand, as Whelan JA has discussed, outside of the offending itself, the mitigating factors upon which Cooper was able to rely were significantly more substantial than those which were available to the appellant.
Cooper and the appellant were each arrested on 27 October 2015. In due course, the trial was listed to commence on 21 November 2016 at Ballarat. On 31 October 2016, Cooper made an offer to the prosecution to plead guilty to the charges brought against him, and he also offered to cooperate with the prosecution in its case against the appellant.
In the meantime, several days after the murder of Mr Handford, the appellant confessed to a friend, Jessica Brereton, that he and Cooper had killed ‘the old man’. About one week later, he arranged to meet the Homicide Squad detectives to provide a false alibi. Jessica Brereton was to be the appellant’s alibi for the weekend on which Mr Handford was murdered. In fact, at no time during that weekend had Brereton spent any time with the appellant. On 25 September 2015, the appellant attended at Ballarat Police Station where he made a written statement to the police. That statement contained a number of falsehoods, including a false alibi which relied on Jessica Brereton.
Subsequently, after the matter had been set down for trial, the appellant pleaded guilty, on 10 November 2016, to a charge of statutory murder. In order to prepare for the plea, his solicitors arranged for him to be examined by a psychologist, Mr Candlish. When the appellant was interviewed by Mr Candlish on 6 December 2016, he described tying up the victim, but he denied stabbing the victim, and he denied being present at the time at which the victim was stabbed.
In the course of the subsequent plea hearing, in December 2016, a dispute arose between the appellant and the prosecution as to the factual and legal basis for his plea. In particular, the appellant disputed being aware that the knife was being brought onto the deceased’s premises, and he disputed being present in the room when Cooper produced the knife and stabbed the deceased. The matter was then adjourned, and the appellant, in April 2017, brought an application for leave to withdraw the plea. In support of that application, he gave evidence, in which he denied knowing that Cooper had with him a knife, and in which he also denied being present in the room when Cooper stabbed Mr Handford to death. Based on that evidence the appellant was granted leave to withdraw his plea. The matter was fixed for trial for 2 October 2017. In the course of a ‘Basha’ inquiry in September 2017, after Cooper was cross-examined by the appellant’s counsel, the appellant again changed course, and pleaded guilty to the revised indictment.
Plainly, in those circumstances, it was appropriate that the plea made by Cooper be given substantially more weight as a mitigating factor than the plea, ultimately made by the appellant. Further, and relevantly, in pleading guilty, and providing a statement to the prosecution, Cooper confessed to inflicting all the stab wounds to Mr Handford, despite the fact that at the time the prosecution could not discern whether the appellant or Cooper had in fact been responsible for the infliction of those wounds. It is well settled, as a matter of sentencing principle, that a judge should take into account, as a relevant and significant mitigating circumstance, any admission made by an offender of a relevant fact or matter relating to the offending, which might not otherwise have been known to, or be able to be proved by, the prosecuting authorities. That principle extends to the revelation by an offender which enables the prosecution to establish that the offence that was committed was more serious than could otherwise have been ascertained or proven.[75]
[75]Latina v The Queen [2015] VSCA 102 [12]; Kennedy v The Queen [2019] VSCA 127 [26]–[30].
Of particular importance, as a mitigating circumstance, was Cooper’s cooperation with the prosecution in its case against the appellant. Having offered an undertaking to give that cooperation, Cooper made a detailed statement to the police, and he gave evidence on the ‘Basha’ hearing in September 2017. As a matter of policy, the law recognises that cooperation by an offender with the prosecuting authorities is a relevant and significant mitigating factor, which should be recognised by a substantial and identifiable reduction of the sentence otherwise to be imposed on that offender.[76] The value of such cooperation is often recognised by describing its function, as a mitigating factor, as resulting in a ‘discount’ on sentence. That terminology reflects the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders.[77]
[76]R v Su [1997] 1 VR 1, 78–79; R v Crossley [2008] VSCA 134 [30] (Ashley JA); Cottee v The Queen [2010] VSCA 285 [25] (Weinberg JA).
[77]R v Cartwright (1989) 17 NSWLR 243, 252–3 (Hunt and Badgery-Parker JJ).
In the present case, as discussed, the offence, in respect of which Cooper gave assistance to the prosecution, was a particularly serious offence. It was very much in the public interest that those responsible for the offending — Cooper and the appellant — be brought to justice and properly dealt with. That was particularly so given the heinous nature of the circumstances of the offending, and the high importance that the persons, who were responsible for it, be brought to account by the law. In those circumstances, the cooperation provided by Cooper was important, notwithstanding the conclusion by this Court that the judge, in sentencing Cooper, had overvalued the benefit of it.[78]
[78]Cooper COA Reasons [46].
In evaluating the weight to be attributed to the plea of guilty made by both Cooper and the appellant, a relevant consideration was the degree of remorse manifested by each of them. In the case of Cooper, the judge was satisfied, in the circumstances, that he was ‘deeply remorseful’ for what he had done.[79] The judge noted that his remorse was evident from the report of the psychologist, Ms Cidoni, who stated that Cooper ‘… presented as a troubled man, very distressed by his actions that resulted in the death’. By contrast, the judge considered that in the case of the appellant ‘the presence of true remorse is not prominent’, and that it was ‘certainly less advanced than in the case of Cooper’.[80]
[79]Cooper Reasons [88].
[80]Reasons [69].
The different conclusions, by the sentencing judge, as to the respective levels of remorse experienced by the appellant and Cooper, are relevant, not only because remorse, by its nature, is a salient mitigating circumstance. In addition, the existence of true remorse adds a level of confidence in respect of an offender’s prospects of rehabilitation. In the present case, the sentencing judge, having regard to Cooper’s improved attitude, and his level of remorse, considered that his prospects for rehabilitation, after a lengthy sentence of imprisonment, were ‘reasonable’.[81] On the other hand, the judge considered that due to the appellant’s long term drug addiction, and his failure to pursue sustained treatment for it, his prospects for rehabilitation were ‘less good than otherwise’.[82]
[81]Cooper Reasons [91], Reasons [67].
[82]Reasons [61].
On this application, counsel submitted that the Court should construe those relevant evaluations as meaning that the appellant had better prospects for rehabilitation than Cooper, because the appellant had not suffered the dysfunctional trauma to which Cooper had been subjected during his formative years, and because the appellant has a less substantial criminal history than Cooper. Notwithstanding the force of that submission, this Court, in determining the ground of appeal under consideration, should not ‘second guess’ the views expressed by the sentencing judge in respect of the respective prospects for rehabilitation of the appellant and Cooper. In a general sense, it would seem that, as a mitigating circumstance, it could not be accepted that the appellant had better prospects for rehabilitation than Cooper.
In summary, then, it is clear that Cooper had available to him more substantial mitigating factors relevant to his sentence than in the case of the appellant. While minds might respectably differ as to whether there should have been any difference between the sentences imposed on each of them for the offence of murder, the critical issue for this Court is whether it was open to the sentencing judge to differentiate between the sentences imposed on the appellant and Cooper, for the offence of murder to which they each had pleaded guilty, in the way in which her Honour did. For the reasons that I have set out, I consider that it was open to her Honour to impose a sentence of imprisonment on the appellant, in respect of that charge, which was three years longer than the sentence imposed on Cooper for that offence.
For those reasons, the proposed ground of appeal should fail, and the appeal should be dismissed.
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