Wilson v The Queen
[2016] VSCA 62
•6 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0262
| DARREN WILSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG AP, PRIEST and BEACH JJA |
| WHERE HELD: | BALLARAT |
| DATE OF HEARING: | 5 April 2016 |
| DATE OF JUDGMENT: | 6 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 62 |
| JUDGMENT APPEALED FROM: | [2015] VSC 394 (King J) |
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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Murder – Crown case put on two bases – Whether jury required to be unanimous in respect of basis for conviction – Jury directions – Whether judge required to charge jury that they must be unanimous as to the basis for conviction before finding accused guilty – R v Clarke and Johnstone [1986] VR 643 applied – Application for leave to appeal refused.
CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Murder – Applicant sentenced to term of imprisonment of 27 years – Co-offender sentenced to term of imprisonment of 24 years – Parity – Justification for different sentences – Parity complaint not reasonably arguable – Application for leave to appeal refused’
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich QC with Mr P J Smallwood | Mr Greg Thomas |
| For the Respondent | Mr D A Trapnell QC with Ms K Argiropoulos | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG AP
PRIEST JA
BEACH JA:
Introduction
On 2 December 2014, the applicant was convicted of one charge of murder and two charges of incitement to murder.[1] On 17 July 2015, the applicant was sentenced as follows:
[1]The applicant was acquitted of two other charges of incitement to murder (charges 2 and 3 on the indictment).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Murder [common law] | Life | 27 years | Base |
| 4 | Incitement to murder [Crimes Act s 321G(1) and common law] | Life | 7 years | 2 years |
| 5 | Incitement to murder | Life | 7 years | 1 year 6 months |
| Total Effective Sentence: | 30 years 6 months | |||
| Non-parole period: | 26 years | |||
| Pre-sentence Detention Declared: | 955 days | |||
The victim in respect of charge 1, Timothy O’Brien (referred to at trial as ‘Timmy’), was a 14 year old boy with autism. On 7 August 2015, following a separate trial before a different judge and jury, the applicant’s co-accused, Joel Henderson, was also found guilty of the murder of Timmy. On 13 August 2015, Henderson was sentenced to a term of imprisonment of 24 years, with a non-parole period of 20 years, in respect of Timmy’s murder.
The applicant seeks leave to appeal against his conviction on the following ground:
There was a substantial miscarriage of justice caused by the failure of the learned trial judge to direct the jury that they had to be unanimous as to at least one of the alternative bases of guilt proposed by the Crown relating to the murder charge.
In addition, the applicant seeks leave to appeal against the sentence imposed on him on the following ground:
The sentence imposed on charge 1 gives rise to a justifiable sense of grievance in light of the sentence subsequently imposed on Henderson.
The Crown case at trial
The deceased was 14 years old at the time of his murder. He was autistic. He was living in Smythesdale, not far from Scarsdale, with his mother, Deborah O’Brien, and his mother’s partner, Peter Williams (‘Williams’). The deceased was by all accounts close to Williams. At trial, the relationship was referred to as one of step‑father and step-son.
Williams and the applicant are cousins. The applicant harboured considerable animosity towards Williams.
The Crown case was that the deceased was murdered in the front yard of a house in Scarsdale occupied by Rachel Curtis, Jessica Conry-Rasmini and her boyfriend Dylan Hamilton. Curtis knew Williams as he did ‘odd jobs’ at her house.
In the early hours of 5 January 2013, the applicant, Henderson, Lisa Trezise and Trezise’s two children travelled to Scarsdale after meeting in Ballarat. Henderson took with him an axe which was ultimately used in the deceased’s murder and a knife.
A plan was hatched that involved Curtis, Conry-Rasmini and Trezise luring Williams to the Scarsdale house from his home in Smythesdale by telling him that they were concerned about prowlers and in need of assistance. The applicant and Henderson would wait at the Scarsdale house. Upon Williams’ arrival, he was to be attacked.
The plan was put into action. Upon Williams agreeing to attend the Scarsdale property, the deceased insisted on accompanying him. The deceased took a baseball bat and a torch with him for protection.
Upon Williams’ arrival at the Scarsdale property, he began checking the rooms of the house. He was then ambushed by the applicant and Henderson. The applicant, who was wearing a pillow cover over his head, punched Williams. The deceased saw this and responded by striking the applicant, which caused the applicant to fall to the floor. The deceased then struck Henderson with his baseball bat. Henderson had appeared in the hallway of the house following either the applicant having punched Williams or the deceased having hit the applicant with his baseball bat.
Williams and the deceased ran from the house. Henderson pursued the deceased whilst carrying an axe. Henderson eventually caught the deceased in the front yard of the house. He shouted ‘die cunt die’. He then repeatedly struck the deceased to the head with the blunt side of the axe as well as with his fist. Trezise and Conry‑Rasmini tried to intervene and stop the attack. At this stage, the applicant joined Henderson in attacking the deceased. The applicant punched the deceased, picked up the axe and struck the deceased to the head with the blade of the axe. Henderson watched and did not attempt to stop the applicant. The applicant, Henderson and Trezise left the scene shortly thereafter and returned to Ballarat.
The deceased passed away at the scene due to the head injuries he sustained during the attack. These events formed the basis of charge 1.
While remanded in custody, the applicant approached Matthew Bunnings, a former police officer who was also on remand, and offered $80,000 to Bunnings to have Trezise and Williams murdered. In respect of Trezise, this was said to be because Trezise had made a statement which implicated the applicant in the murder of the deceased. The applicant’s offer to Bunnings formed the basis of the incitement to murder charges (charge 4 in relation to the incitement of Bunnings to murder Trezise, and charge 5 in relation to the incitement of Bunnings to murder Williams).
The Crown case against the applicant was put on two alternative bases: first, on the basis that the applicant’s own actions in striking the deceased to the head with the axe meant he was responsible for the murder of the deceased in his own right; and secondly, on the basis that the applicant and Henderson had murdered the deceased in the course of, and pursuant to, a joint criminal enterprise.[2] As to the second basis, the Crown contended that an unspoken agreement arose between the applicant and Henderson to engage in an assault with the intention of killing or inflicting really serious injury upon the deceased following the deceased having struck the pair with the baseball bat. Additionally, the Crown contended that both the applicant and Henderson, by their actions, had participated in this agreement.
[2]In fact, when opened, the Crown case was put on a third basis — extended common purpose. However, in final address this third basis was not pursued by the Crown.
The applicant’s case at trial
The applicant’s case at trial in respect of the murder charge was that the death of the deceased was caused by the actions of Henderson alone, that is, without the applicant’s knowledge or participation.
The judge’s charge
In the course of her charge, the trial judge summarised in some detail the bases upon which the Crown put its case against the applicant, and the applicant’s response. As to unanimity, the judge said:
Now your verdict must be unanimous. You must all agree upon the verdict. It does not mean you all have to agree as to how the verdict is obtained, you may, for example, rely upon different parts of the evidence or place a different emphasis on parts of the evidence. You may use entirely different reasoning processes. Some of you may think a particular piece of evidence is really important. Others may think it is absolutely of no relevance. Your reasoning process, whilst important to you, is not the vital issue here. What is important is that before you can convict or acquit the accused man, you must all be agreed. Your verdict, whether it be guilty or not guilty, must be one that you all agree to be the proper verdict.
No exception was taken to this passage in the judge’s charge; nor was any submission made at trial that the jury had to be unanimous as to at least one of the bases upon which the Crown put its case on the murder charge.
The applicant’s submissions on conviction
The applicant submitted that the present case involved alternative factual bases of liability; alternatively involved different legal formulations of liability that were not based on the same or substantially the same facts. It was then submitted that, because of this characterisation, clear directions on unanimity for the basis of any conviction on charge 1 were required to be given by the trial judge.
In support of this submission, the applicant contended that the differences between the two alternative bases put by the Crown were ‘stark’: the first alternative required satisfaction beyond reasonable doubt that the applicant wielded the axe and killed the deceased; on the other hand, the second alternative required proof of an unspoken agreement to kill the deceased or inflict really serious injury upon him (the second alternative did not require proof that the applicant played any role in the violence actually inflicted upon the deceased).
While the applicant noted that the trial was governed by the Jury Directions Act 2013, it was submitted that the direction as to unanimity ought to have been sought by both defence and prosecution counsel pursuant to s 11 of that Act. Further, it was contended that as both prosecution and defence counsel had failed to take exception, the trial judge had a residual obligation to give the direction necessary so as to avoid a substantial miscarriage of justice.[3]
[3]Jury Directions Act 2013, s 15. See further, Xypolitos v The Queen [2014] VSCA 339 (‘Xypolitos’).
The respondent’s submissions on conviction
The respondent submitted that the alternative bases relied upon by the prosecution at trial were closely related and relied upon substantially the same facts. In these circumstances, it was submitted, there was no need for the jury to be unanimous about the basis of liability in respect of the murder charge (charge 1). It followed that it was not necessary for the judge to give the direction that the applicant now says should have been given.
Further, the respondent submitted that the failure by trial counsel to take exception to the judge’s directions about unanimity (or to request a direction that the jury had to be unanimous as to the basis upon which they found the applicant guilty) presented an ‘insurmountable obstacle’ to the application for leave to appeal against conviction. Additionally, the respondent submitted that the applicant had not discharged the onus of establishing that the trial judge must have been satisfied that the giving of the direction now sought was necessary to avoid a substantial miscarriage of justice.[4]
[4]See Jury Directions Act 2013, ss 11 and 15; Xypolitos [2014] VSCA 339 [33] and [40]–[45].
Analysis of conviction application
There is no substance in the applicant’s proposed ground of appeal against conviction. In R v Clarke & Johnstone,[5] the Full Court of the Supreme Court said:
The prosecution case of murder or manslaughter is often put in several ways involving different elements. It has never been the law that, before convicting, the jury must be satisfied of guilt in the one way. The ordinary approach is consistent with the approach of this court in R v Power [1960] VR 373, at p 374.[6]
[5][1986] VR 643 (Crockett, McGarvie and Southwell JJ) (‘Clarke & Johnstone’).
[6]Ibid 661.
R v Power[7] was a case where the accused Power was jointly presented with one Bedson that, together with Bedson, he robbed a Mr Devine. The jury found Power guilty of robbing Mr Devine in company with another man, but they were unable to agree whether Bedson was that other man. The Full Court said:
It cannot be denied that the Crown in this case, might have laid an alternative charge against Power in terms that he, ‘together with some other person’ robbed Aloysius Devine, at the time and place named in the presentment … . The Crown might have given, by way of particulars of that other person, that it was either Bedson or a person to the Crown unknown. On such a presentment, if some of the jury were satisfied that the other person was Bedson and some of them were not so satisfied, but were satisfied that Power was guilty of the robbery charge in company with some other person, a proper verdict would have been one of guilty on that count.[8]
[7][1960] VR 373 (‘Power’).
[8]Ibid 374.
The line of authority, in which Clarke & Johnstone sits, commences with the decision in R v Swindall & Osborne.[9] In Swindall & Osborne, the drivers of two different carts[10] were charged with manslaughter. The Crown case was that each driver had incited the other to drive at a dangerous and furious rate along a turnpike road. The deceased was killed by being run over by at least one of the carts. The Crown could not establish which cart ran over the deceased. The Court held that it did not matter that the Crown could not prove which cart ran over the deceased. The two defendants incited each other to do an unlawful act and one of them ran over the deceased. Each defendant was either liable as a principal or as an accessory. As Pollock CB put it:
If two persons are in this way inciting each other to do an unlawful act, and one of them runs over a man, whether he be the first or last, he is equally liable; the person who runs over the man would be a principal in the first degree and the other a principal in the second degree.[11]
[9](1846) 2 Car & Kir 230; 175 ER 95 (‘Swindall & Osborne’).
[10]Referred to in different parts of the judgment as ‘carriages’.
[11]Ibid 96.
In charging the jury, Pollock CB said:
But when two persons are driving together, encouraging each other to drive at a dangerous pace, then, whether the injury is done by the one driving the first or the second carriage, I am of opinion that in point of law the other shares the guilt.[12]
[12]Ibid 97.
In R v Giannetto,[13] the English Court of Appeal was faced with a case where the appellant had been charged with the murder of his wife. The Crown case was that the appellant had either murdered his wife himself, or he had got someone else to do so. The appellant was convicted, and appealed against his conviction on the ground that the trial judge erred in failing to direct the jury that they had to be unanimous as to which of the two competing versions of events put forward by the Crown they accepted. The appeal was dismissed. The Court stated:
[E]ven if the appellant did no more than encourage someone else to kill his wife he was liable to be tried, indicted and punished as a principal offender and where, as here, the prosecution for good reason, is unable to say whether the defendant did more than encourage, it must be open to the prosecution to invite the jury as a whole to find that at least the defendant encouraged. If the jury does convict it may do so with some jurors satisfied that the defendant was actually the killer, but all will be satisfied that if not himself the killer at least he encouraged and by reason of the statutory provision in the 1861 Act[14] … no more is necessary to prove the offence. If that approach is correct, then this ground of appeal must fail, so we turn now to consider whether, in the light of the more significant authorities cited before us, the approach which we have outlined can be sustained.[15]
[13][1997] 1 Cr App R 1 (‘Giannetto’).
[14]See s 8 of the Accessories & Abettors Act 1861 which relevantly provided:
Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.
[15]Giannetto [1997] 1 Cr App R 1, 5.
The Court then reviewed a number of authorities, including Swindall & Osborne,[16] before concluding:
Having considered the authorities with some care, we are satisfied that in the circumstances of this case, the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.
There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet.[17]
[16]Wrongly referred to in the report and some subsequent authorities as ‘Swindall v Osborne (1864) 2 Car & K’.
[17]Giannetto, 8–9.
The same approach has been taken in numerous cases. For example, in R v Cramp,[18] the New South Wales Court of Criminal Appeal upheld a manslaughter conviction which might have been reached by alternative reasoning processes, in circumstances where the jury had not been instructed that they must all agree about one or the other of those reasoning processes. In that case, the two bases upon which the Crown put the manslaughter charge were unlawful and dangerous act manslaughter and manslaughter from gross negligence. Barr J[19] said:
The jury were obliged to consider the whole of the conduct of the appellant for the purpose of considering whether he caused the death of the deceased by his unlawful and dangerous act or by his gross negligence. Each process of reasoning invited by the Crown rested on substantially the same factual basis.[20]
[18](1999) 110 A Crim R 198 (‘Cramp’).
[19]With whom Sully and Ireland JJ agreed.
[20]Cramp (1999) 110 A Crim R 198, 212 [66].
In Cramp, as was noted by the Court, there were differences between the way the Crown put the case factually on each of the bases contended for by the Crown. For the purposes of the gross negligence basis (but not for the purpose of the unlawful and dangerous act basis), the Crown contended that the appellant permitted the deceased, a 16 year old girl, to drive his car while she was not wearing a seat belt. That fact was held not to be relevant to the jury’s consideration of the unlawful and dangerous act basis which involved proof that the accused encouraged the deceased to drive at a faster and faster rate while the deceased was under the influence of alcohol.[21]
[21]See also R v Isaacs (1997) 41 NSWLR 374, 377. Further examples supportive of the reasoning process in Giannetto and what was said by the Full Court in Clarke & Johnstone can be found in decisions such as R v Dally (2000) 115 A Crim R 582 and R v Levidis [1991] 2 VR 179. For the sake of completeness, we should say that all of these cases are distinguishable from cases like R v Trotter (1982) 7 A Crim R 8 where a conviction for indecent assault was set aside for uncertainty in circumstances where evidence had been given of two different events that were each capable of being regarded as establishing the single count of indecent assault charged in that case. See further, Rixon v Thompson (2009) 22 VR 323.
In R v Walsh,[22] Phillips and Buchanan JJA, having conducted an extensive analysis of authority, distinguished between two classes of case:
The cases give rise to two situations at least … The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on unanimity about one or other or more of those bases, at least if they do not ‘involve materially different issues or consequences’. (How far in cases of murder or manslaughter this qualification extends — having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales — is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence’.[23]
[22](2002) 131 A Crim R 299 (‘Walsh’).
[23]Walsh (2002) 131 A Crim R 299, 316-7 [57] (emphasis added) (citations omitted). Cf R v McCarthy (2015) 124 SASR 190, [2]-[10] (Kourakis CJ), [114]-[124] (Gray J) and [225]-[299] (Peek J).
As was said in El-Waly v The Queen,[24] the question of which of the two categories outlined above applies to any case is not always an easy one. This issue was considered by this Court in an earlier decision of Bui v The Queen.[25] The appellant in that case had pleaded guilty to one count of kidnapping and one count of unlawful imprisonment. He was found guilty, after a trial, of murder. The appellant sought leave to argue that the trial judge had ‘erred in failing to direct the jury that they must be unanimous as to the essential facts relied upon in proof of each element constituting the murder count.’ It was said that some members of the jury might have been satisfied beyond reasonable doubt that the appellant (together with his co-offender) ‘had agreed to inflict really serious injury on the victim and other members of the jury might have been satisfied beyond reasonable doubt that [the appellant] had aided and abetted [a co-offender] to kill the victim’.[26] It was said that the factual basis for the conviction was therefore uncertain.
[24][2012] VSCA 184 (‘El-Waly’).
[25](2011) 215 A Crim R 93 (‘Bui’).
[26]Ibid 126 [139].
Neave JA, with whom Redlich and Hansen JJA agreed, in rejecting the appellant’s application for leave to appeal against conviction, said:
In my opinion, this case involves ‘alternative legal formulations of liability which rests on the same or a substantially similar factual foundation.’[27] Here the Crown relied on the evidence of Johnston and other circumstantial evidence to prove that [the appellant] was guilty of murder, either because he had agreed with Adam Hargrave to inflict really serious injury on Daou or because he had aided and abetted Adam Hargrave to kill the victim. The alternative bases of criminal liability did not involve materially different issues or consequences.[28]
[27] Michaels v State of Western Australia [2009] WASCA 174 citing Mouritz v State of Western Australia [2006] WASCA 165, [9]–[17], [28].
[28]Bui, 132 [168]; and El-Waly, [56]–[57] (citation in original).
The reasoning in Giannetto, and what was said by the Full Court in Clarke & Johnstone, and what was said by this Court in Walsh, Bui and El-Waly, applies in the present case and is determinative against the applicant’s proposed ground of appeal against conviction. The essential facts that underpinned each of the bases upon which the Crown put its case on the murder charge were of sufficient similarity not to require any unanimity direction of the kind which the applicant now seeks. Each basis upon which the Crown relied involved either the applicant’s use of the axe or Henderson’s use of the axe pursuant to an unstated agreement between the applicant and Henderson, in circumstances where both men attacked their victim, each using the axe within a very short space of time at the location at which the fatal blow was (or fatal blows were) struck. In convicting the applicant, the jury must have been satisfied that the applicant at least participated in a joint criminal enterprise to kill or cause Timmy really serious injury or that the applicant in fact wielded a fatal blow.
The applicant’s proposed ground of appeal against conviction is not reasonably arguable. That said, the way in which the trial judge charged the jury demonstrates that there was no realistic prospect in this case that the jury convicted the applicant on a basis about which they were not unanimous.
During the course of her charge, the judge gave the jury two handout documents (‘Handout 1’ and ‘Handout 2’). Handout 1, headed ‘Murder’ dealt with the first basis upon which the Crown put the murder charge; and Handout 2, headed ‘Murder by joint criminal enterprise’, dealt with the second basis. The judge charged the jury that they should commence their consideration of the murder charge with Handout 1. Handout 1 contained a series of questions, the first of which asked whether the prosecution had proved that the applicant caused Timmy’s death. Handout 1 then directed the jury that if this question was answered yes the subsequent questions on Handout 1 relating to the Crown’s first basis were then to be considered. However, if the first question was answered no then the jury was directed to proceed to Handout 2 to consider the Crown’s second basis (joint criminal enterprise). Following the judge’s directions to the jury, they would either have all proceeded to convict the applicant of murder by following the question trail on Handout 1 or, if not agreed that the prosecution had proved that the applicant caused Timmy’s death, by following (and answering in the affirmative) the question trail on Handout 2. In following the judge’s directions, the jury must, in any event, have been unanimous as to the basis for the applicant’s conviction for murder. Thus again, the applicant’s proposed ground of appeal against conviction is without substance.
We turn now to the application for leave to appeal against sentence.
The applicant’s submissions on sentence
The applicant submitted that his sentence of 27 years’ imprisonment for murdering Timmy gave rise to a justifiable sense of grievance from his perspective when his sentence was compared to Henderson’s sentence of 24 years for the same murder.
The applicant contended that Henderson’s contribution to the death of the deceased was no less significant than the applicant’s. Specifically, the applicant submitted that the relative contributions of each of the co-accused was indistinguishable. The applicant then went on to submit that Henderson’s subjective circumstances were not so different from the applicant’s as to warrant a lesser sentence — let alone a sentence that was three years less than that imposed upon the applicant. In support of that submission, the applicant noted that while Henderson’s psychological status was relevant to the sentence imposed upon him,[29] the applicant’s own intellectual impairment (an IQ of 65) was a relevant consideration so far as the applicant’s sentence was concerned.
[29]The Queen v Henderson [2015] VSC 653 [19]–[27] (‘Henderson’).
The respondent’s submissions on sentence
The respondent submitted that it was open to the trial judge to impose a sentence that was three years longer than that subsequently imposed by the trial judge in Henderson’s case. Specifically, the respondent contended that the different sentences imposed were justified when one compared Henderson’s acquired brain injury to the ‘slight’ moderation of the sentence imposed on the applicant by reason of his cognitive impairment, and Henderson’s violent and turbulent childhood when compared with the applicant’s background.
Analysis of sentence application
The principles governing parity of sentencing between co-offenders are not in dispute. They were recently restated in Anthony v The Queen[30] as follows:
The principles governing parity are well established. As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[31]
[30][2016] VSCA 22.
[31]Ibid [12]. See also Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192 [38]–[39]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97 [24]–[25]; Collins v The Queen [2015] VSCA 106 [23].
The respective background circumstances of the applicant and Henderson are distinguishable. In sentencing Henderson, Henderson’s sentencing judge (Bongiorno JA) described Henderson’s background in the following terms:
Your early life was spent in Warrnambool in a family in which violence was common. That violence was directed by your father towards your mother and sometimes also towards you. When you were nine your parents separated and your mother moved to Ballarat with you and a new partner, where it appears your home life was little changed; your mother’s new partner was also violent.
When you were 13 you returned to Warrnambool to live with your father who continued his violence towards you until you left at the age of 16 to return to Ballarat, where you lived on the streets. Somehow you acquired some education, perhaps to the end of Year 10.[32]
[32]Henderson [2015] VSC 653 [14]–[15].
Whereas, in contrast with Henderson’s background, in the applicant’s case, as was noted by the sentencing judge (King J), the applicant’s background was one where his parents had been protective and supportive of him over the years.[33]
[33]R v Wilson [2015] VSC 394 (‘Reasons’) [30].
Similarly, Henderson’s acquired brain injury (an injury acquired in 2003) distinguished Henderson’s case from the applicant’s case.[34] Henderson suffered an acquired brain injury from carbon monoxide poisoning after a suicide attempt in May 2003. This injury resulted in bilateral necrosis (cell death) of Henderson’s globus pallidus (internal central brain structures). While the applicant has a relatively low IQ, his intellectual impairment may reasonably be seen to be of considerably lesser significance and consequence than that associated with Henderson’s low IQ.
[34]See Henderson [2015] VSC 653 [19]–[27].
Further, when considering the two different sentences imposed by the trial judges, it is to be noted that there was evidence that was taken into account in Henderson’s case that his psychological deficits would result in serving a term of imprisonment weighing more heavily upon him than it might on someone not so psychologically impaired.[35] No such proposition was established in the applicant’s case.
[35]Ibid [27].
When one has regard to the differences in personal circumstances between the applicant and Henderson, the different sentences imposed by the two trial judges simply cannot be seen to be of such a disparity so as to engender any justifiable sense of grievance on the part of the applicant. The lower sentence imposed on Henderson by Bongiorno JA is well explained in his Honour’s reasons for sentence in Henderson’s case by reference to the differences in subjective circumstances between the applicant and Henderson. The applicant’s parity ground is not reasonably arguable.
Conclusion
The applications for leave to appeal against conviction and sentence must be refused.
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