The Queen v Brown, A.C. [1987] FCA 768

JUDGMENT No.7 68/82.

CATCHWORDS CRIMINAL LAW - A.C.T. - murder - appeal against conviction - trial Judge not putting before jury hypothesis of fact not raised by defence - whether accused robbed of fair trial - proper direction to jury in relation to accused's belief that victim was already dead when fatal blows struck - whether trial Judge

misdirected jury on the meaning of "reckless indifference" in s.18(1)(a) Crimes Act 1900 (NSW) in its application to the A.C.T.

"CRIMINAL LAW - A.C.T. - murder - appeal against severity of sentence - cross-appeal against inadequacy of sentence ~- effect

of motive not being established.

Crimes Act 1900 (NSW) in its application to the A.C.T. ss.18, 19, R. v. Puddefoot, NSW C.C.A. 26.8.83, unreported Barca v. The Queen (1975) 133 C.L.R. 82

R. v. Crabbe (1985) 156 C.L.R. 464

Boughey v. R. (1986) 65 A.L.R. 609

Pemble v. The Queen (1971) 124 C.L.R. 107

La Fontaine v. The Queen (1976) 136 C.L.R. 62 Reg. v. Solomon (1980) 1 N.S.W.L.R. 321

Varley v. The Queen (1977) 51 A.L.J.R. 243

- Hopper (1915) 2 K.B. 431

. Wheeldon (1978) 18 A.L.R. 619, 19 A.C.T.R. 10 Burke (1983) 2 N.S.W.L.R. 93,

- Bell (1985) 2 N.S.W.L.R. 466

. Hagen (Full Federal Court, 17.9.87, unreported)

PEPER qdaaqde<

THE QUEEN v. ALFRED CHARLES BROWN ALFRED CHARLES BROWN v. THE QUEEN

No. ACT G12 of 1987 No. ACT G13 of 1987

CORAM: Fox, Pincus and Miles Jd.

A

RECEIVED 28 JAK 1988

FEDERAL COURT OF

y AUSTRALIA "> PRINCIPAL

>, REGISTRY NN X@ , ~~ NO

18 December 1987

Canberra

wi

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY No. ACT G12 of 1987

DISTRICT REGISTRY No. ACT G13 of 1987

~wy~wr~rvrvyvwrwvy

GENERAL DIVISION

QN APPEAL from the Supreme Court of the Australian Capital Territory

BETWEEN:

THE QUEEN Appellant

AND:

ALFRED CHARLES BROWN Respondent

BETWEEN:

ALFRED CHARLES BROWN

Appellant AND:

THE QUEEN Respondent

MINUTE OF ORDER JUDGES MAKING ORDER: Fox, Pincus and Miles Jd. DATE OF ORDER: 18 December 1987 WHERE MADE: Canberra. THE COURT ORDERS THAT: 1. The appeal of A.C. Brown aqainst conviction and sentence be dismissed.

2. The Crown's appeal against sentence be allowed, the

sentence imposed by Spender 7. on 11 February 1987 be set aside and in lieu thereof a sentence of 16 vears be imposed, with a non-parole period of 10 years, both to date from 11 Februarv 1987.

Note: Settlement and entry of orders is dealt with an Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

No. ACT G12 of 1987

) ) AUSTRALIAN CAPITAL TERRITORY ) ») No. ACT G13 of 1987 ) ) )

DISTRICT REGISTRY

GENERAL DIVISION ON APPEAL from the Supreme Court of the Australian Capital Territory BETWEEN:

THE QUEEN Appellant AND:

ALFRED CHARLES BROWN Respondent BETWEEN :

ALFRED CHARLES BROWN

Appellant

B

O

EE

:

Respondent

CORAM: FOX, PINCUS AND MILES JJ. DATE: 18 DECEMBER 1987

REASONS FOR JUDGMENT FOX J. In this case, substantially for the reasons they have given, I agree with Pincus J. and Miles J. that the appeal against conviction should be dismissed. [f should add a comment.

The case made by the Crown, and (among other matters) put to the

jury was whether the accused, knowing that the victim was alive, battered him to death. In my view the matter does not permit of

appreciably greater refinementor sophistry than that.

I proceed to consider the Crown's appeal against sentence. Section 19 of the Crimes Act 1900 (N.S.W.) in its application to the Territory provides that a person committing murder is liable to imprisonment for life. Section 442 savs that the Court may nevertheless pass a sentence of less duration. His Honour said:

"The blows that were delivered, it must be said,

manifest a savagery and a ferocity to suggest that what

was done was done in a kind of wild frenzy and with death the inevitable result of those blows. But, as I

have indicated, the apparent lack of motive is a matter that seriously troubles me.

It is for the reason that there is absent a demonstrated selfish motive which frequently is the case in murder trials, where the death is done for some sort of personal gain or for some sort of personal retribution or revenge, and because there is no demonstrated selfish motive of that kind, that I do not regard this as the worst case of murder that one could imagine, and I do not proceed to my sentencing function on the basis that it is of that kind."

Later he said:

"In this particular case however I have been troubled by the absence of anv explicable, demonstrable motive. The evidence does not establish that there was anv Material gain, nor was there any demonstrated motive of business rivalry, or personal vendetta. And it is for those reasons, consistent with the judgment of Sir Richard Blackburn, that I do not propose to treat this

as in the worst class of murders, nor do I intend to

impose imprisonment for life."

There is no doubt that "motive" is relevant when

sentencing (Archbold, Criminal Pleading Evidence and Practice

41st Ed para. 4-473; Smith and Hogan, Criminal Law 5th Ed p.68,

Ward & Kelly, Summary Justice para. 10103). The use of the term nevertheless requires care. What have been considered in the sentencing context are matters such as premeditation or lack of of it, lack of planning, impulsiveness, and selfish intention, or

lack of it (see Halsburv's Law of England 4th Ed para. 483; Potas

Sentencing Violent Offenders in New South Wales, pp.1008, 1009;

Fox & Freiberg, Sentencing: State & Federal Law in Victoria p.453; The Law Reform Commission Discussion Paper No. 29, August

1987 p.30). If there was an absence of premeditation this may be

a mitigating circumstance (see R. v. Puddefoot, N.S.W. Court of

Criminal Appeal 26.8.83, unreported).

In the present case, because there was a lack of proof of any "selfish motive", his Honour thought that the sentence should be less than it otherwise would have been. The term was here used in the sense of "reason". In short, there was no known reason whv the accused should have inflicted the brutal blows which he did. It does not follow that there was no reason. Indeed, his Honour said that he did not think he had heard the whole story. It was not a case in which there was insanity, or automatism, or even a mental state which. in an appropriate jurisdiction, could support a plea of diminished responsibility. The repeated blows could hardly in the circumstances be regarded

as impulsive, and his Honour did not so find. The accused was

not said to have any mental maladjustment and a psychiatrist's report was not presented. There was, simply, an absence of explanation. I have some difficulty with the idea that this should lead to any diminution of sentence. His Honour was undoubtedly right when he said that certain circumstances, if proved, would make the offence more serious. In the absence of proof, there cannot of course be assumption or speculation. It does seem to me, however, that his Honour went the further stage of using non-proof as matter of mitigation. At the least, he was overly concerned with this aspect. This conclusion I derive from his reasons combined with the fact that the sentence (particularly the non-parole period) appears unduly low fora deliberate and brutal murder (see cases discussed in Carter,

Australian Sentencing Digest (1985) pp. 237 et seq. and Supp.

(1985) pp. 50 et seq., and Australian Bureau of Statistics, Annual Statistics Higher Criminal Courts, New South Wales 1983). The accused in this case was the perpetrator of the crime, and not an accessory. In other language, he was a principal in the

first degree.

I am therefore of the view that there was error in the sentence imposed. At the same time, his Honour was much closer to the facts that I am, or can be, and in my view his decision should be respected by not varying unduly from it. I would varv the head sentence ta 16 vears, and the non~parole period to 10

years.

T certify that this and the three (3) preceding pages are a true copy of the Reasons for Judament herein of his Honour Mr. Justice Fox

Y Associate: »>/¢ off a! Date: 18 December 1987

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN

*

BETWEEN :

CORAM: DATE:

PINCUS J.:

The appellant Brown appeals against his conviction

against his sentence.

THE QUEEN

ALFRED CHARLES BROWN

ALFRED CHARLES BROWN

THE QUEEN

FOX, PINCUS & MILES Jd. DECEMBER 1987

ACT G12 of 1987 ACT G13 of 1987

ON_APPEAL FROM THE

SUPREME COURT OF THE

AUSTRALIAN CAPITAL

TERRITORY

Appellant

Respondent

Appellant

Respondent

REASONS FOR JUDGMENT

The Crown cross-appeals on sentence.

and

The

facts of the matter are set out in the judgment of Miles J., which

I had the advantage of reading,

to refer to two categories of evidence.

but for my purposes it is

enough

The first is the opinion of the forensic pathologist, Dr. Oettle. He observed two areas of injury to the skull, one above the left ear and the other to the rear of the skull. The former area was, although damaged, more cohesive than the latter. The doctor was of opinion that the two set of injuries occurred within minutes of each other, that the injuries to the side of the head were consistent with use of "something smooth and which weighed a lot, like a piece of timber or wood" and those at the back consistent with being caused by a hammer. Neither was, of

course, consistent with being caused by a fall froma height of

four feet.

The second category to which I would refer is that four accounts given, or supposedly given, by the appellant were before the Court. It was common ground that the death in question

occurred on 25 July 1986. On 31 July the appellant was interviewed by the police and, according to them, the conversation

included the following:

Appellant: "... it's because of Len that this started."

Detective: "What do you mean?"

Appellant: ""Len's been having hassles with Daryl Csic]."

Detective: "We've heard that Len asked you to give

Daryl Esic] a flogging."

Appellant: "Yeah, but it wasn't supposed to go this far. It was all the business with Len that made me loose [sic] me cool,"

It will be noted that this version of the cause of Darryll Burgess' death includes no suggestion that the appellant

thought he was administering blows to a corpse.

The second version sworn to by police witnesses was one allegedly given on the same day, recorded in handwriting and signed by the appellant. According to that account, the appellant said that "basically it started off as an accident". He said in effect that he was working with Burgess on scaffolding, that Burgess hurt the appellant's thumb (which had previously been injured) by shoving a batten against it, that the appellant pushed Burgess off the scaffolding and Burgess landed on his head and appeared to be dead, that "I just lost me cool and I hit him with something." The appellant then said, according to the police, that he panicked, went away for a couple of hours, that he "got him" (Burgess) "in the toilet at some stage", and that when the appellant returned after two hours, he cleaned the mess in the

toilet and left.

This account has the appellant striking the deceased when he "lost his cool" and does not suggest that he struck the

deceased substantially after the fall from the scaffolding.

The third version before the Court was allegedly given

at a further interview on the same day, was recorded in typewriting, and each page was signed by the appellant. That version was inmost respects similar to the second, with the

important difference that there was no reference to the deceased's

having been struck when the appellant "lost his cool". In the

third version, after being pushed off the plank, Burgess -

"fell lying still didn't move again I got down to him Listened to him he appeared to be dead."

In this account, the appellant was not said to have struck a blow just shortly after the fall from the plank; the appellant said that he left the scene for a couple of hours, returned and "bashed him in the toilet, I can't remember what

with."

The final version was that given in the appellant's unsworn statement to the jury. It was similar to the third one just analysed, with some differences which might be significant. In the statement to the Court, the appellant said, in effect, that

after the fall from the plank, Burgess

"... was unmoving, lying on his back, with his eyes open. His eyes open, I thought he was' messing about. So, I said, 'Come on, stop fucking about.' He did not move. And I knelt down and slapped his face. He still did not move."

The account went on to say that the appellant panicked and left for an hour or an hour-and-a-~quarter. He then moved the body into the toilet when the body fell on top of him and he "really freaked

out". The appellant told the Court:

"T was crying and screamed out, 'Why did you have to die on me, you bastard?', meaning, 'Why did you die on me?' not that 'You had to die.' I was swinging at the body with something; I think it was hammer,

but I cannot be sure ..."

In none of these four versions and alleged versions of the events in question is it suggested that the body was beaten on two quite separate occasions, once shortly after the fall, and once substantially later. One of the difficulties about the third and fourth versions is the apparent improbability of a fall from only four feet killing a young active man or rendering him unconscious for hours, as must have occurred if those accounts are

true.

I now turn to mention the three criticisms made by counsel for the appellant of the learned trial judge's conduct of the case; I consider them in an order different from that in which

they were advanced.

1. Omitted Hypothesis

An argument was put forward that his Honour should have included in his charge to the jury discussion of a hypothesis not consistent with any of the four versions just mentioned. This was that perhaps Burgess was beaten on two occasions, separated by a substantial period of time. His Honour, so the argument ran, should have told the jury to give consideration to the possibility that the appellant initially struck Burgess when he "lost his cool" (or, as counsel put it, ina "blind rage") and then substantially later, with an entirely different state of mind, struck the body a number of other times, not with the purpose of doing him harm, but as part of a scheme to attribute the damage to Burgess to a road accident. Counsel pointed to the evidence of

the pathologist who, as I have mentioned, appeared to think that

blows to the head had been struck with instruments of two different kinds, as lending some support to this hypothesis. He argued that the jury should have been invited to consider as a hypothesis consistent, at least, with guilt of manslaughter only, rather than murder, that the appellant had a different state of mind when he struck an initial blow or initial blows from the

state of mind he possessed when he struck later blows.

The pathologist's evidence that the blows to both areas of the head appeared to have been struck within minutes of each other (which evidence was not contradicted) could be reconciled with the suggested hypothesis only by postulating that a gap no more than a few minutes elapsed between the blows struck in anger and those struck deliberately. That consideration, to my mind, makes the suggested hypothesis rather fanciful, but there is a deeper objection to this criticism. Ingenuity might devise any number of hypotheses of varying degrees of plausibility, from an assumption that all the blows were struck in a blind rage to an assumption that they were all struck coolly and deliberately with intention to harm, and numbers of other variants. The "two distinct sets of blows" theory is, as I have mentioned, inconsistent with all four versions given hy, or attributed to, the appellant. It appears to me that only in unusual circumstances should it be held to be erroneous for a trial judge to fail to place before the jury hypotheses derived from his own imagination, inconsistent with the Crown case and with the defence

case.

In Barca v. The Queen (1975) 133 C.L.R. 82 at p.104, three members of the majority of the High Court reaffirmed the rule that in circumstantial evidence cases a verdict of guilty is not open unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused". In my opinion, this case was not one in which the Crown

sought a conviction on the basis of circumstantial evidence. It

was clear, and not in the end really in issue, that the appellant killed Burgess. What was uncertain was why he killed him. I do not accept that acharge of murder "rests substantially upon circumstantial evidence" within the meaning of the rule just referred to where the real issue is the state of mind of the killer at relevant times. It is true that here no-one saw the killing, so that in the absence of confessional and other evidence the case against the appellant might have been a circumstantial

one, but in the result it was not.

The complaint that the learned trial judge erred in not directing the jury with respect to the hypothesis mentioned

therefore fails for two reasons. The case against the accused did not rest substantially upon circumstantial evidence and, if 1t had, there was no obligation to put the hypothesis in question,

which was merely a speculative one.

2. State of Mind: Belief as to whether Burgess was Dead.

Secondly, it was argued that the learned trial judge should have directed but did not direct the jury that the Crown

had to prove that when the appellant struck the fatal blows, he

knew Burgess was alive. The way the judge put it was that the Crown had to show beyond reasonable doubt that the appellant "did honestly believe at the time of infliction of the blows that Burgess was dead". His Honour went on to emphasise that the reasonableness of the belief should be considered only as relevant

to whether it was genuinely held.

There is a difference in form between speaking of proof that the appellant did not believe Burgess was dead, and proof that he believed Burgess was alive, but there is no difference in

substance between the two tests and this ground must also be

rejected.

3. Recklessness

The third, and in my opinion most weighty, of the three objections related to the expression "reckless indifference" in s.18(1)(a) of the Crimes Act 1900 (N.S.W.), as amended by Ordinances. The paragraph defines murder in such a way as to require one of three mental states to accompany the act or omission causing death, the first of which is that it be done or

omitted "with reckless indifference to human life".

The learned judge explained "reckless indifference" in

this fashion:

".,.. on a charge of murder a person may be taken to have acted with reckless indifference to human life if actually foreseeing the likelihood or probability that death may result from the action which he contemplates, he nevertheless proceeds with that action and death results."

The complaint was simply as to the use of the word "may"; counsel for the appellant said it should have been "will". He referred to R. v. Crabbe (1985) 156 C.L.R. 464, where the accused had an altercation in a bar, was thrown out, and later the same night drove his prime mover through the wall of the building and into the bar, killing a number of people. The case was decided under the common law, and the Court adopted the definition from

Stephen's Digest, set out at p.467 of the report, reading in part

as follows:

.-- Murder is unlawful homicide with malice aforethought. Malice aforethought means

(b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm 1s caused or not, or by a wish that it may not be caused ..."

The Court held that a person is not guilty of murder under the common law "if he knew only that his act might possibly

cause death or grievous bodily harm ..." (p.469). Their Honours

went on to say that:

"It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it 1s probable that death or grievous bodily harm will result, is guilty of murder if death in fact results." (p.469)

10.

The mental state designated (b) in the passage approved as representing the common law has no precise counterpart in the Crimes Act 1900. Its analogue is not the mental state of reckless indifference to human life, but the second mental state in s.18(1)(a) of the Crimes Act, namely "intent to kill or inflict grievous bodily harm". The indifferent state, if I may use that expression, is mentioned in description (b) in Stephen's Digest, but not as a state sufficient in itself. The reference to indifference there is by way of qualification of the principal Part of the definition, which requires knowledge that the act in guestion will probably cause death or grievous bodily harm. This

point is emphasised by the Court in Crabbe's Case at p.470:

"A person who does an act causing death knowing that

it is probable that the act will cause death or grievous bodily harm is, as Stephen's Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element."

The contrast is a clear one: under s.18(1)(a) reckless indifference to human life is not only an but the element necessary to constitute the crime, 1f the Crown relies upon the first mental state mentioned. A problem therefore arises as to the application to the Australian Capital Territory of the law as stated in Crabbe's Case; it is enough to prove reckless

indifference to human life in order to satisfy the statute, and of

ll.

course, necessary to do so if that state of mind is the one relied

on.

It therefore is not easy to determine whether the explanation of "reckless indifference to human life" given by the learned trial judge was correct. In Boughey v. R. 65 A.L.R. 609 Mason J. (as his Honour then was) and Wilson and Deane JJ. said at

p-617:

"A basic objective of any general codification of

the criminal law should be, where practicable, the expression of the elements of an offence in terms which can he comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. ... The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecesarily submerging the ordinary meaning of a commonly used word ina circumfluence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty."

This might suggest that no explanation of the expression in the

statute was necessary or desirable.

To return to s.18(1)(a), it will be noted that the paragraph sets out three mental states; it reads, in full, as

follows:

"Murder shall be taken to have been committed where

the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of an act obviously dangerous to life, or of a crime punishable by imprisonment for life."

12.

In brief, the three states are:

Reckless indifference to human life; Intent to kill or inflict grievous bodily harm;

Attempt to commit act obviously dangerous to life or crime punishable by imprisonment for life.

It is the interrelation between the first two formulae which creates the problem here. One question is whether a judge's duty in the Australian Capital Territory is to introduce some such explanation of the notion of reckless indifference to human life as his Honour attempted here, or simply to use the words of the statute, thus avoiding the submergence of the ordinary meaning in

such a fashion as was criticised in Boughey's Case.

The answer is, I think, to be found in the two earlier High Court decisions of Pemble v. The Queen (1971) 124 C.L.R. 107, and La Fontaine v. The Queen (1976) 136 C.L.R.

62.

In Pemble's Case, where the common law had to be applied, it was held in effect that the mental state which must accompany the killing in order to prove murder could be established by proving that the accused foresaw death or grievous bodily harm as a consequence of his act. There was a difference of view as to whether it had to be a probable ora possible consequence, but that difference was resolved in Crabbe's Case in favour of probability rather than possibility. Pemble's Case is important for present purposes in that Barwick C.J. (at p.119),

McTiernan J. (at p.127) and Menzies J. (at p.135) all treated the

13.

question as being one of explaining the nature of that reckless indifference necessary to satisfy the common law test - i.e. of

defining "reckless indifference".

In La Fontaine v. The Queen (above), Gibbs J. pointed out at p.76 that:

"It has become common to describe the mental state of an accused person who acts knowing that his act will probably cause death or bodily injury as one of recklessness or reckless indifference. Judges

and textwriters alike have used those expressions wee Indeed the legislature itself has in some places adopted them."

His Honour went on to declare himself in favour of the abandonment of explanation to the jury in terms of recklessness or reckless indifference, where legislation does not require it, on the ground

that it is:

",.. enough to tell them that it is only if the accused actually knows that his act will probably cause death or grievous bodily harm that he can be convicted of murder." (p.77)

Jacobs J., at p.94, said that:

"Recklessness in relation to malice aforethought is used as a compendious word to describe actual knowledge of the consequences of an act... and

positive indifference whether that consequence follows or not."

The allocation of a subsidiary role to the notion of

reckless indifference, advocated by Gibbs J. in La Fontaine,

14.

harmonizes with the view later expressed in Crabbe. On the other

hand, the views I have referred to in Pemble and that of Jacobs J. in La Fontaine give support to the notion that at common law it is reckless indifference which is the relevant mental element and that state of mind is to be described as equivalent to knowledge of the probable consequence. But this second view obviously cannot be applied directly to the construction of s.18(1)(a), if for no other reason than that the knowledge of the consequences which the common law requires refers to death or grievous bodily harm. The statutory expression is "reckless indifference to human life" which, especially as it is immediately followed by the expression "or with intent to kill or inflict grievous bodily harm

»-", can hardly have been intended to encompass reckless

indifference to the causing of grievous bodily harm.

One has to be conscious of the use of the qualifying expression in Crabbe, quoted above, "if no statutory provision affects the position", as also of the necessity of rigorously applying the law laid down by the High Court. If that Court's explanation of reckless indifference is to be adapted to the requirements of this statute, then the result is that the first element is equivalent to knowledge that it is probable that the act in question will cause death. I cannot refrain from expressing some scepticism about the equivalence of these two ideas - i.e. that in a proper use of language reckless indifference to human life is equivalent to knowledge that it is

probable that the act in question will cause death.

15.

It should be added, however, that in Req. v. Solomon (1980) 1 N.S.W.L.R. 321, Street C.J. and Begg J. in the Court of Criminal Appeal, dealing with s.18(1)(a) of the Crimes Act 1900 (N.S.W.), appear to have leant towards the view just mentioned: see paras.54, 60 and 61 of the judgment of Begg J. and para.1l in

the reasons of the Chief Justice.

It appears to me, on the whole, that the better view is that the jury should be told that "reckless indifference to human life" requires that the accused know that it is probable that the

act in question will cause death.

If the matter were left there, there might have been something to be said for the view that the learned judge's direction in this case was erroneous, in creating the impression that foresight of a probability that death "may" result is enough. But Boughey's Case, to which reference is made above, suggests that one should not read the Crabbe formula too literally. The case concerned the construction of a definition of "culpable homicide" in the Tasmanian Criminal Code, and in particular of the expression "likely to cause death or bodily harm" there occurring. The Court approved an explanation of the expression "likely to

cause death" which included the following (p.617):

"However, if something is likely to happen, there is a good chance that it will happen. It is something that may well happen. You might say about it 'It may not happen, but there is a good chance that it will'. It's likely to happen."

16.

The language used by the Court at pp.615 and 616 is such as to suggest that it did not intend any distinction between the notion of probability in the Crabbe formula and that of likelihood

in the Tasmanian statute.

It appears to me to follow that the learned judge's test, "actually foreseeing the likelihood or probability that death may result", of which complaint is made, must be sufficient; it is about as favourable to the accused as that which was

described as "correct and helpful guidance" in Boughey.

In my opinion, then, all three attacks upon the learned trial judge's directions to the jury fail, and the appeal against

conviction must be dismissed.

Appeal Against Sentence

The learned trial judge referred to the "savage and ferocious attacks" to which the victim was subjected. His Honour pointed out that only the direct account of the occurrence came from the accused. He said that the jury must have been satisfied beyond reasonable doubt that at the time Brown struck the blows he

did not believe Burgess was dead.

His Honour went on to say that the apparent lack of motive troubled him, but because of the absence of a "demonstrated selfish motive" it was not the worst imaginable case. He referred

to the age of the accused (46), the fact that he is a "good family

17.

man who has been generally hardworking" and to his criminal

history.

It does not appear that the criminal history is of great relevance here, as it includes no comparable offences. Nor, in my respectful opinion, is much to be gained by consideration of the (relatively few) cases in which it has been necessary to consider appropriate sentences for murder, life imprisonment not being mandatory. In none of those cases were the facts close enough to

be of assistance.

In essence, the question here is what is the proper sentence, in the circumstances of the case, for a brutal and apparently motiveless killing. His Honour sentenced the appellant to imprisonment for 14 years and directed that there he a non-parole period of 8 years. I cannot be persuaded that the sentence is sufficient for beating a man to death in sucha way. It might have been, if there were reason to think that there was some shadow of excuse for the murder. I think that no lesser period of imprisonment than 16 years, and a non-parole period of 10 years, should be fixed by way of sentence, and I would allow

the cross-appeal accordingly.

IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) ACT G12 of 1987 DISTRICT REGISTRY ) ACT G13 of 1987 GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: ALFRED CHARLES BROWN

Respondent

BETWEEN: ALFRED CHARLES BROWN

Appellant

AND: THE QUEEN

Respondent

CORAM: FOX, PINCUS & MILES JJ.

DATE: 18 November 1987

REASONS FOR JUDGMENT

MILES J.:

The respondent was convicted of murder in the Supreme Court of the Australian Capital Territory on 11 February 1987. He was sentenced to a term of imprisonment for fourteen years with a non-parole period of eight years. The Crown appeals against inadequacy of # sentence. The respondent cross~appeals aqainst conviction and against

severity of sentence.

-2-

It is convenient to deal initially with the cross-appeal against conviction.

The respondent was charged with murdering a workmate, a man called Darryll Burgess, on 25 July 1986. They worked for another man called Len Joyce, who was carrying out some building renovations at the Kingston Table-Tennis Centre. The respondent was married to a sister of Mr. Joyce. The deceased had recently become engaged to a daughter of Mr. Joyce, a niece of the respondent. There was some antagonism between Mr. Joyce and the deceased but its exact nature is unclear.

On the morning of the day in question, a Friday, the respondent started work at the Table-Tennis Centre at about 7.30 a.m. He was joined by the deceased who was delivered to the work site by Mr. Joyce at about 8 a.m. The deceased and respondent were the only persons on the site. Mr. Joyce returned to have a conversation with the deceased at about 8.30 a.m., and that was the last anyone (apart from the respondent) saw of him. Mr. Joyce passed by the Centre at about 10.30 a.m. and saw the respondent but not' the deceased. The respondent was seen again later that day at the Centre at about lunchtime, at Narrabundah in the early afternoon (when he borrowed his employer's van) and on another of the employer's work sites at Gowrie in the late afternoon. He left his home at Reid in the van at about 7.35 p.m. and returned at about 11 p.m.

The body of the deceased was found by a member of the

New South Wales Police Force at 8.40 a.m. on the following

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day, Saturday, 26 July 1986 on the side of an embankment on the Hume Highway a few kilometres south of Marulan.

The uncontradicted medical evidence was that the deceased was struck a number of blows on the skull, one on the left side above the left ear and others at the back of the skull. The blows to the back of the skull had a more shattering effect. The injuries in each area were sufficient to cause death. The unjury above the left ear was consistent with a blow from something smooth and heavy like a piece of timber. Those at the back of the skull were likely to have been caused by a more concentrated application of force, as from a hammer. The injuries in both areas were sustained before death and within minutes of each other.

Mr. Geoffrey Bellamy, a table-tennis official, called at the Centre on the morning of Saturday, 26 July and found Signs of an apparent disturbance and attempt to clean up. Police officers found traces of blood in various places in the toilet of the Centre and in the van. Bone tissue was found on the floor of the toilet area. Shoe prints on the floor were similar to those near the body where it was found on the roadside and both were similar to the soles on a pair of shoes belonging to the respondent, which he claimed to be wearing on the particular day.

On 31 July 1986 members of the Australian Federal Police spoke to the respondent. A relevant part of his initial response was, "..... it wasn't supposed to go that far. It was all the business with Len that made me lose me

cool."

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Later the same day in an interview that was recorded in hand-writing in an official police field book, the respondent gave a more detailed account. He said that he and the deceased had been working on a scaffold attempting to put a beam into position, that the deceased had unexpectedly moved the beam, jamming the respondent's previously injured thumb, that he pushed the deceased off the scaffolding and that the deceased landed on his head and appeared to be dead. The respondent said that what happened then was that "I just lost me cool and hit him with something". He added that he just panicked and went away for a couple of hours, returned and got the deceased into the to1llet "at some stage" and later cleaned up the mess in the toilet. He explained the whole incident by saying, "Basically it started off as an accident". In a longer and more formal interview recorded on a typewriter again on 31 July 1986 the respondent gave an account similar to the one he had given earlier in the day, except that he made no reference to a blow struck immediately or soon after the fall. He said that the deceased fell from the plank and appeared to be dead, that he, the respondent, panicked and went away for a few hours. On his return he said that he got the body into the toilet and hit it with a hammer "to make it look like a road accident". When asked about whether he had lost his "cool", he replied that that was incorrect and that he knew what he was doing at the time.

In his statement to the jury, the respondent qave an

account similar in many respects to what he had said in the

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interview recorded on the typewriter. He added that when the deceased fell from the plank, he lay on his back, eyes open, unmoving. The respondent told the jury he then slapped the deceased on the face and told him to "stop fucking about". There was no heart beat, and he panicked and went away for an hour or so. He also added that on his return when he moved the body into the toilet it fell on him, causing him to "freak out" and he struck it with a hammer calling out, "Why did you have to die on me, you bastard?"

It was common ground that the plank on the scaffolding from which the deceased fell was about four feet from the floor and that the fall itself was not sufficient to cause the injuries to the skull of the deceased. Accordingly, when the jury retired to consider its verdict, there was no issue that one or more of the blows delivered by the respondent to the skull of the deceased had caused the death. The central issue was the state of mind of the respondent at the time of the delivery of the fatal blow or blows. An ancillary issue was which blow or blows were responsible for the fatal injury.

For the purpose of sentence the learned trial Judge made certain findings of fact in the light of the jury's verdict. I will refer to his Honour's findings of fact for the purposes of sentencinq when I come to consider the appeal and cross-appeal against sentence. For the purpose of considering the cross-appeal against conviction, 1t 1S

necessary to consider the issues that arose in the case as

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it progressed and the way in which those issues were left to the jury before they retired to consider their verdict,

The prosecution case, as his Honour accurately put it, was that the deceased died from massive head injuries caused by blows delivered by the accused and that those blows were of such a character that they indicated that at the time of the delivery they were accompanied by an intent to kill or to inflict grievous bodily harm or by reckless indifference to human life.

The matters raised by the respondent in his unsworn statement and on his behalf by counsel were referred to on several occasions during the summing-up but the essential case positively put at the trial by and on behalf of the respondent was summarised by his Honour in the following terms:

"To that serles of propositions, the defence case

1s: while 1t as true that those injuries were

caused by Brown striking Burgess, at the time

they were delivered, he - the accused, Brown -

honestly believed Burgess was dead. That he did

not deliver those blows intending to harm him

seriously, or to kill him because he thought the

man was dead. And the reason that the blows were

given were as the result of panic, or an attempt

to deceive people into thinking it was a hit and

run accident with the various other reasons, and

the Crown says, "Well, that is just incredible".

The defence case 1s, "I accept that I caused

those injuries, but at the time that they were

delivered, I believed he was dead". And the

Crown says, "That that 1S the reason that those

blows were given"."

Counsel for the respondent challenged the conviction on three grounds only. Although there were several qrounds

of appeal set out in the notice of appeal, the first ground

was the alleged farlure of the trial Judge to direct the

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jury on the mental state on the part of the accused required to be proved by the prosecution in the event that the jury found that the act causing death was an initial single blow delivered immediately or almost immediately after the deceased fell from the scaffold, and that the series of blows which followed, within munutes (and presumably in the to1let area), were delivered to the dead body of the deceased. The direction required on that hypothesis, so it was submitted, was that the accused was entitled to be acquitted of murder unless the prosecution proved beyond reasonable doubt that at the time of the delivery of the initial and fatal blow, the accused acted with the requisite intent or with reckless indifference to human life. To that I might add that the further direction would need to be given that if the jury was not so satisfied as to the state of the mind of the accused at the time of the delivery of the initial and single fatal blow then, whilst he was entitled to be acquitted of murder, he was liable to be convicted of manslaughter, provided of course that the jury was also satisfied that the act causing death was unlawful and dangerous. No issue arose either at the trial or on the hearing of the appeal that the conduct of the respondent, in striking at and smashing the skull of the deceased, was both unlawful and dangerous. In any event, according to the submission, in the absence of the direction now sought, the accused lost a chance of being acquitted of murder.

This first ground of appeal against conviction clearly

raises an hypothesis of fact that was never part of the

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defence case. Accordingly, the question arises as to whether the respondent was robbed of a fair trial because of the failure of the trial Judge to expressly leave to the jury an issue which was not raised by the accused or on his behalf. The principle is now well established that a trial judge is bound to put all matters in defence which arise on the evidence regardless of whether they are raised on behalf

of the accused: Pemble v. The Queen (1971) 124 C.L.R. 107

and possibly even where the accused or counsel has expressly asked that such matters not be put to the jury: see Varley v. The Queen (1977) 51 A.L.J.R.

243.

However, what is raised in the instant case is not essentially a matter of defence not put to the jury, but simply an alternative version of the facts to which the jury would have been directed to apply the same test which it had already been told to apply to the mental state accompanying the multitude of blows which, according to the prosecution case, were inflicted upon the deceased by the accused and caused the death. The jury was told on several occasions that before the accused could be convicted of murder the act or acts causing death had to be proved to be accompanied by the requisite state of mind on the part of the accused, that state of mind being either an intent to kill or to inflict grievous bodily harm or reckless indifference to human life.

Moreover, there was nothing in the evidence, including the accounts given by the respondent prior to trial, or in his statement to the jury, to indicate that 1f the death

were caused by an initial single blow, that that act was

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accompanied by a state of mind different from the state of mind accompanying the subsequent blows which on _ the hypothesis were inflicted after death had occured. The hypothesis of a single, initial, fatal blow to the living person followed by a number of blows to the dead body, is one which did not emerge in any one of the four accounts Given by the accused, nor did it follow as more than one of several competing hypotheses from the rest of the evidence. The trial Judge in summing-up fairly was not bound to pick and choose from the material before the jury in order to explain every possible inference of fact which might have arisen from the evidence and the accused's statement. In Particular, he was not bound to isolate the particular inferences which the respondent now seeks to rely upon. The duty of the trial judge is to "Secure for the accused a fair trial according to law", Pemble p.117 per Barwick C.J., and this involves directions as to the relevant law as well as an explanation of the defences that may be Seen to arise from the evidence. However, it 1s another matter altogether to put to the jury alternative inferences of fact upon which neither the defence nor the prosecution have sought to rely and which neither raise a matter which 1S in positive defence nor materially weaken the prosecution case. In the atmosphere of the trial, the presiding judge 1S usually ina better position than an appellate court to decide whether fairness demands putting such alternatives to the jury. In

Rv. Hopper (1915) 2 KB 431 at ».435 Lord Reading C.J. said:

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"Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise from the evidence even although counsel may not have raised some question himself."

Although it was understandable and proper that counsel for the respondent at the trial might have wished to rely upon the hypothesis now raised without mentioning it to the jury, the fact that counsel sought no relevant directions from the trial Judge in that regard 1s eloquent testimony that that hypothesis played no real part in the trial and that the trial Judge's silence on the point in no way affects the essential fairness of the summing-up.

The second ground of appeal argued on behalf of the respondent is based upon the proposition that the trial Judge did not adequately instruct the jury that it was necessary for the prosecution to prove beyond reasonable doubt that at the time of inflicting the fatal blow or blows (whenever 1t or they were) the accused lacked a belief that the victim was dead. It was submitted that in the light of the evidence, the jury should have been told that there were three possible relevant states of mind relating to belief, namely a positive belief that the victim was dead, a positive belief that the victim was alive, and an absence of belief either way in the sense that the mind of the accused at the relevant time was never seized of the question whether the victim was alive or dead. It was further submitted that the jury should have been given instructions as to how each of these states of mind related to the

eclrcumstances and to the onus of proof.

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It is true that it would have been a misdirection for the trial Judge to have indicated to the jury that the onus lay upon the accused to prove that he believed the victim to be dead at the time of the act causing death. It is also true that there are passages in the summing-up which, 1f isolated, could possibly be construed as such a misdirection, But when those passages are taken in context and when the relevant parts of the summing-up are viewed as a whole, the jury could, in my view, have been left in no doubt as to where the onus lay.

Moreover, to have directed the jury in the precise terms suggested relating to the three alternative mental states, would have been to indulge in over-sophistication likely to confuse and not assist the jury. In any event, to assign to the mind of the accused at the relevant time an absence of belief one way or the other as to whether the victim was alive or dead, is to border upon the fanciful. Whilst a person may lack belief as to presence or absence of certain characteristics of another with whom the person deals, 1t 18 stretching credulity too far to assert that a sane man can deliberately deal a fatal blow or blows to the body of a workmate (in the absence of accident, automatism or mistake of a type which does not arise in the present case) without a belief one way or the other as to whether the body 1s alive or dead. Of course, 1f such a question does arise during the course of a jury trial, 1t 185 a question of fact for the jury to decide, but the question

was not raised in the present case until this appeal, which

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again, in my view, is indicative that the point lacks substance. The third ground of appeal argued was that his Honour

misdirected the jury on the meaning of reckless indifference

to human life. The misdirection 1s said to have occurred in

the following directions which were given by his Honour:

" ...e. On a charge of murder a person may be taken

to have acted with reckless indifference to human life if actually foreseeing the likelihood or probability that death may result from the action which he contemplates, he nevertheless proceeds with that action and death results."

It should be noted that on the question of reckless indifference to human life, his Honour also explained it in these terms:

"..-..to act with a foreseeable probability of

injury and yet electing to go ahead in those

circumstances and death resulting."

And again:

"If, notwithstanding the nature of the blows, you

do entertain a reasonable doubt that there was no

such intention either to kill or to inflict

serious bodily injury or foreseeing that this

would probably cause death, nonetheless, he assisted (sic.) in that conduct and death did in

fact happen then 1t would be manslaughter."

The criticism of the first passage 1S that his Honour used the term "may" alongside the term "probability" and that this was contrary to the decision of the High Court in The Queen v. Crabbe (1985) 156 C.L.R. 464 in which it was laid down by the High Court that the mental state necessary

to constitute murder in a case of this kind 1s knowledge by

the accused that his acts will probably cause death or

grievous bodily harm (my emphasis).

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It might be noted in this connection that in Crabbe the High Court was considering the law of murder in the Northern Territory, where the common law governed the question of the mental element necessary to constitute the crime. For the Australian Capital Territory the crime of murder 1s defined by s.18 of the Crimes Act 1900 New South Wales in its application to this Territory. Where that section defines murder as including an act done with reckless indifference to human life, 1t excludes reckless indifference to grievous bodily harm, and an accused person may not be convicted of murder on the basis of reckless

indifference to serious or grievous bodily harm: R v.

Solomon (1980) 1 N.S.W.L.R.

321. Crabbe and other cases

dealing with murder by reckless indifference should be read in that light.

In this respect 1t might also be noted that in the second of the passages from his Honour's summing-up relating to reckless indifference to human life quoted above, there is reference to "probability of injury" which may be taken to be a mistaken reference to probability of death. No complaint about this was made either at the trial or on the appeal. The term "reckless indifference to human life" was itself used by His Honour on several occasions. Taking the summing-up as a whole the single erroneous reference to probability of injury cannot be seen to have misled or confused the jury.

It is clear from Crabbe and other cases that for the

mental state of an accused person to amount to reckless

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indifference, the accused must have adverted to or had foresight of a probability and not a possibility of the consequences. A summing-up should not permit of a construction that something short of a probability is sufficient. It was submitted that in juxtaposing the word "may" with the word "probability" in the directions quoted above, the trial Judge did not sufficiently distinguish between foresight of probability of death and foresight of possibility of death, and that that juxtaposition conflicted not only with the decision in Crabbe but also with the ordinary use of the words in the English language.

In Boughey v. The Queen (1986) 60 A.L.J.R. 422 the High Court considered the phrase "likely to cause death" as it was used in the Tasmanian Criminal Code. In the judqment of Mason, Wilson and Deane JJ. their Honours stated that there was nothing in the judgment in Crabbe or other judgments of the Court which was intended to suggest a requirement that a person accused of murder should have stayed to consider or attempt any mathematical calculation as to probabilities or that a jury should be required to translate or transform the knowledge which an accused actually had into terms of mathematical probability. At page 425 their Honours said:

"In the context of the content of the element

necessary to constitute common law murder, the

gravity of the charge requires that the content

of the requirement that an accused knew of the

probability or likelihood that his acts would

cause death be not discounted. Even in that

context, however, 1t will ordinarily suffice to

convey what is involved in the requirement if the

direction to the jury 1s framed in the words of the joint judqment in Crabbe, namely, that the

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accused knew that death or grievous bodily harm was the probable or likely consequence of his act and if reference is made to the distinction which was there stressed, namely, the distinction between what is probable or likely on the one hand and what is only possible on the other."

In the light of Crabbe and Boughey it would seem

desirable that in explaining the concept of reckless indifference to human life, a trial judge would be well advised to follow as closely as practicable the formulation

in Crabbe. However, with respect, I do not think that in

either case the High Court intended to lay down an immutable and necessary formula, rather that it was said that what has to be done in any qiven case is that the trial judge should let the jury know that reckless indifference involves foresight of a consequence which 1s more than a mere possibility or chance and something less than a certainty. To talk of a probability that something may happen in

contrast to a probability that something will happen is, in

my view, not to contravene what was laid down in Crabbe and Boughey. Nor does the ordinary meaning of the words have the effect of removing the contingency from the area of likelihood or probability and placing it in the area of chance or possibility. Once again, the silence of experienced counsel skilled not only in criminal trials but in the use of the English lanquage is indicative that in the total context of the summing-up there was no error.

I pass now to the appeal and cross-appeal on sentence. In fact the prosecution was the first to appeal

against sentence, alleging inadequacy and that was followed

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by the cross-appeal by the respondent against' both conviction and sentence, alleqing excessive severity. The sentence imposed was fourteen years imprisonment with a non-parole period of eight years.

The respondent is aged forty-slx years, married with five children. He was described by his Honour as a hard and reliable worker, conscious of his obligations. He has a number of criminal convictions which are not of particular relevance. There is, however, a conviction for an assault on his wife in the Canberra Court of Petty Sessions in 1984 for which he was fined.

No error was shown in the findings or reasons of the sentencing Judge and what 1s relied upon by the Crown and by the offender is manifest inadequacy on the one hand and manifest excess on the other. This ain itself is a remarkable feature of the case, not simply that there are cross-appeals on sentence, but that neither appellant nor respondent is able to identify error in the findings or reasons of the learned sentencing Judge.

I should state at the outset that, in my view, the head sentence and the non-parole period are each slightly

below what I would regard as the proper range having regard

to the seriousness of the offence and the subjective factors. However, there have been relatively few decisions in the Supreme Court and fewer still in this Court dealing with the problem of a proper sentence for murder since 1t

was recognized in 1978 in R v. Wheeldon (1978) 18 A.L.R.

of

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619, 19 A.C.T.R. 10 that the Death Penalty Abolition Act 1973 confers upon the Supreme Court the same discretion in passing sentence following a conviction for murder as it has following convictions for other offences. Accordingly, one hesitates to speak with any confidence about the permissible range of finite terms for murder. In this respect it should be observed that comparisons with sentences for murder handed down elsewhere in Australia are of very little assistance or relevance, as the statutory provisions vary in each State and Territory. Further, it should be observed that in New South Wales there have been amendments to the Crimes Act 1900 (which have not been followed in the Territory) whereby life imprisonment is regarded as prima facie the proper punishment for murder, but the offender may receive a lesser sentence by proving that there are mitigating circumstances which significantly reduce the

culpability of the act constituting the offence, see R v.

Burke (1983) 2 N.S.W.L.R. 93, Rv. Bell (1985) 2 N.S.W.L.R.

466. For the respondent it was arqued that the facts in the

present case were not as serious as those proved in Rv.

Hagen (unreported, Full Federal Court, 17 September 1987) where the Court upheld a sentence of fifteen years imprisonment with a non-parole period of nine years for murder. That was an appeal by the Crown against inadequacy (there being no appeal by the offender against severity). There the facts were more clearly established: the accused admitting to killing the deceased by putting a cord for an

electrical appliance round the neck of the deceased and

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pulling it tight until she _ died. The judgment of Forster J., with whom the other members of the Court agreed, held this to be an unpremeditated murder committed in heat when, to some extent at least, the offender was provoked by boasting and abuse on the part of the deceased. Forster J. stated that opinions may well differ as to what the appropriate sentence and non-parole period should have been and that he might well have imposed a somewhat longer term of imprisonment and set a somewhat longer non=parole period, but overall he was unable to conclude that the sentence imposed was manifestly inadequate either with respect to the head sentence or the non-parole period. The Court did not consider whether the sentence was too severe.

It was submitted in the present appeal that the facts

were so different from Hagen that the respondent deserved a

sentence substantially less severe than that in that case. In the present case it was not so easy for his Honour the sentencing Judge to determine the facts. The respondent had given a number of conflicting statements and the medical evidence suggested a blow with an instrument on the left side of the skull and a separate series of blows on the back of the skull, the one not being simultaneous with the others and probably being inflicted with a different implement. His Honour's findings for the purpose of sentence were not challenged on the appeal, and in my view should not be disturbed. His Honour concluded that it was clear beyond argument that the deceased met his death as the result of

savage and ferocious attacks to his head delivered by the

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accused, some but not necessarily all of them in the toilet area. His Honour stated that the blows were delivered with manifest savagery and ferocity. However, 1t was because of the lack of any apparent selfish motive that he did not Proceed to sentence on the basis that the offence was in the worst category of murder. In this respect [I think his Honour's approach was undoubtedly correct and there was no error.

I qo on to consider whether that approach led to a manifestly unjust result. For the purpose of the cross appeal against severity, I am by no means convinced that a

comparison with Hagen shows the sentence to be excessively

heavy or that the sentence is excessively heavy for any reason at all. On the other hand, for the purposes of the Crown appeal against inadequacy, facts must not be assumed or found against an offender in the absence of proof beyond reasonable doubt, even at the sentencing stage. The appellant has not been able to point to any aggravating circumstances which were ignored by the sentencing Judge and this Court must, I think, act on the facts found by his Honour. The most that can be said is that this was a senseless and savage murder committed for no explicable purpose, against a backqround of some but not strong animosity between the accused and the deceased, and in clrcumstances where the accused had become enraged when the deceased mishandled the beam causing immediate pain to the thumb of the accused. The callous method of disposal of the

dead body 1s not to be disregarded insofar as it might

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reflect upon the attitude of mind of the accused at the time of the death-dealing blow, but otherwise I do not think that it can be taken to constitute an agqravating factor.

An appellate court should always bear in mind that appeals by a prosecuting authority against inadequacy involve an exception to the rule against double jeopardy. It is for that reason, that 1f a sentence is to be increased on appeal, it should not be increased beyond the lower part of the normal range. In the present case to interfere with the sentence would not permit, in my view, an increase of more than two years or so (with a corresponding increase in the non parole period), an increase so proportionately small that no useful purpose would be served by ordering it to occur. I do not see that the future deterrence of the appellant or anyone else will be more effectively secured by such an increase. The denunciatory effect of the sentence may be reflected adequately in the expression of opinion that fourteen years for murder, with a non-parole period of eight years was, in the circumstances, a very lenient sentence. As I have already said, the concept of the ordinary range of punishment for murder is still in its infancy and is a developing one. Although I would regard the sentence as slightly below the bottom of what I would regard as the permissible range in the circumstances, I do not think that the discretion of the Court ought be exercised so as to increase the sentence, I would dismiss both appeal and cross-appeal on sentence, I would also

dismiss the cross-appeal against conviction.

21,

I certify that this and the 20 preceding pages are a true copy of the Reasons for Juagment herein of his Honour

Mr. Justice MILES

Associate

wS.) be

Counsel for the Crown: Mr. R.R.C. Webster and Mr. I.W. Robinson

m Solicitor for the Crown: Director of Public Prosecutions Counsel for the Respondent Mr. T.J. Higgins QC and and Cross-Appellant: Mr. J.D. Burns

Solicitor for the Respondent Gallens and Cross-Appellant:

Date of Hearing: 29 October 1987

Date of Judgment: 18 December 1987