Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: AB v R [2014] NSWCCA 339
• Hearing dates: 14 November 2014
• Decision date: 24 December 2014
• Before: Meagher JA at [1]; Simpson J at [2]; Wilson J at [73]

Decision

1. Grant leave to appeal against sentence.

2. Appeal dismissed

• Catchwords: APPEAL - appeal against severity of sentence - powers of court on appeal - appellate court's authority to intervene - appellate court's jurisdiction to review findings of fact - Criminal Appeal Act 1912 (NSW), ss 5 and 6(3) - Skinner v The King [1913] HCA 32; 16 CLR 336 - R v O'Donoghue (1986) 34 A Crim R 397 - Kentwell v The Queen [2014] HCA 37; 313 ALR 451; APPEAL - sentencing - parity - whether legitimate sense of grievance when sentence considered in relation to co-offender's sentence - co-offender charged with additional offences - Children (Criminal Proceedings) Act 1987 (NSW), s 6; CRIMINAL LAW - whether error in finding applicant intended to torture victim - whether error in assessment of objective seriousness of murder - frenzied attack not incompatible with intent to torture; CRIMINAL LAW - whether error in allowing no discount for guilty plea - protection of public - Milat v R; Klein v R [2014] NSWCCA 29; CRIMINAL LAW - murder - aggravated break and enter and commit serious indictable offence - intimidation - aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
• Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 6, 15A; Crimes Act 1900 (NSW), s 18, s 113(2); Criminal Appeal Act 1912 (NSW), s 5, 6(3); Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1); Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A; Supreme Court Act 1970 (NSW), s 75A
• Cases Cited: Aoun v R [2011] NSWCCA 284; Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19; Fox v Percy [2003] HCA 22; 214 CLR 118; Jones v The Queen (1993) 67 ALJR 376; Kentwell v The Queen [2014] HCA 37; 313 ALR 451; Milat v R; Klein v R [2014] NSWCCA 29; Milat v The Queen [2014] HCA Trans 205; Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158; Peters v R [2013] NSWCCA 324; R v Geddes (1936) 36 SR (NSW) 554; R v Gosper (1928) 45 WN (NSW) 165; R v Khouzame [2000] NSWCCA 505; R v Kyriakou (1987) 29 A Crim R 50; R v O'Donoghue (1986) 34 A Crim R 397; R v Skinner (1913) 13 SR (NSW) 280; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; Skinner v The King [1913] HCA 32; 16 CLR 336; Warren v Coombes [1979] HCA 9; 142 CLR 531; Whittaker v The King [1928] HCA 28 ;(1928) 41 CLR 230
• Category: Principal judgment
• Parties: AB (Applicant); Regina (Respondent)
• Representation: Counsel: S Odgers SC (Applicant); J A Girdham SC (Respondent); Solicitors: Legal Aid of NSW (Applicant); Director of Public Prosecutions (Respondent)
• File Number(s): 2010/417893; 2010/427554
• Publication restriction: Non-publication of any information or material that may lead to the identification of the offender and victim (s 15A Children (Criminal Proceedings) Act 1987 (NSW))

Decision under appeal

• Citation: R v Loveridge; R v AB [2013] NSWSC 1591
• Date of Decision: 2013-11-01 00:00:00
• Before: Adams J
• File Number(s): 2011/268820

Judgment

1 MEAGHER JA: I agree with Simpson J.

2 SIMPSON J: On 20 September 2012, in the Children's Court at Parramatta, the applicant entered pleas of guilty to three charges. The charges were:

• murder (of AG) (Crimes Act 1900 (NSW), s 18);
• aggravated break and enter with intent to commit a serious indictable offence (Crimes Act, s 113(2));
• intimidation (Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)).

The applicant was committed for sentence to the Supreme Court of NSW, where he adhered to his pleas of guilty.

3 Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") the applicant asked that a further offence (of using a postal service to threaten or cause harm) identified on a Form 1 be taken into account for the purposes of sentencing.

4 The maximum sentences applicable to the offences on the indictment are as follows:

• murder: imprisonment for life;
• aggravated break and enter with intent: imprisonment for 14 years;
• intimidation: imprisonment for 5 years.

5 In March 2013 Corrie Loveridge was tried on indictment in the Supreme Court for the murder of AG. On 12 April 2013 the jury returned a verdict of guilty. Subsequently, Loveridge entered pleas of guilty to:

• a charge of specially aggravated break and enter with intent to commit a serious indictable offence;
• an associated charge of robbery with the infliction of grievous bodily harm;
• a separate charge of recruiting a 15 year old child to procure a third person to inflict actual bodily harm on BB; and
• a charge of attempting to dissuade two witnesses from giving evidence.

The offence of murder, and the offence of specially aggravated break and enter with intent, were committed jointly with the applicant. The offence of robbery was committed in the course of the break and enter although the applicant was not charged with that offence. The other offences were not associated with the applicant.

6 The specially aggravated form of the break and enter offence to which Loveridge pleaded guilty carries a maximum term of imprisonment for 25 years, and, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, a standard non-parole period of 7 years. The robbery offence also carries a maximum term of imprisonment for 25 years.

7 On 1 November 2013 Adams J imposed sentence on each offender. Pursuant to s 53A of the Sentencing Procedure Act, he imposed on each an aggregate sentence of imprisonment for 45 years, with a non-parole period of 30 years. In accordance with s 53A(2)(b) he specified the "indicative" sentences that he would have imposed had separate sentences (instead of aggregate sentences) been imposed in respect of the individual offences.

8 In respect of the applicant, the indicative sentences were:

• murder: imprisonment for 45 years, with a non-parole period of 30 years;
• aggravated break, enter and steal: imprisonment for 7 years and 6 months, with a non-parole period of 5 years and 6 months;
• intimidation (taking into account the Form 1 offence): imprisonment for a fixed term of 2 years.

9 In respect of Loveridge, the indicative sentences were:

• murder: imprisonment for 45 years, with a non-parole period of 30 years;
• specially aggravated break and enter with intent to commit a serious indictable offence: imprisonment for 10 years, with a non-parole period of 7 years and 6 months;
• robbery in company with the infliction of grievous bodily harm: imprisonment for 1 year and 8 months, with a non-parole period of 1 year and 3 months;
• recruiting a child to commit crime: imprisonment for a fixed term of 3 years;
• influencing witnesses: imprisonment for a fixed term of 3 years.

10 The applicant seeks leave to appeal against the severity of the aggregate sentence imposed upon him. The grounds on which he seeks to rely are relatively confined. However, it is necessary to set out the nature of the offences to which he pleaded guilty.

Facts

11 The facts of the offences were put before Adams J in a Statement of Agreed Facts. It is convenient to recount them in chronological order.

(i) aggravated break and enter with intent

12 During the evening of Tuesday 30 November 2010, the applicant and Loveridge were together, with others, in a house in Tobruk Street, North St Marys. They consumed alcohol, crystal amphetamine (commonly known as Ice) and marijuana. The applicant became agitated and stated his intention to "fucken kill cunts".

13 At 1.25am on Wednesday, 1 December, the applicant and Loveridge agreed to break into a house at North St Marys. The house was occupied by Ms Elena Parrelli who was then aged 87 years, and was the grandmother of a friend of Loveridge. Loveridge was armed with a knife. The two offenders jumped over the back fence, opened the (closed but unlocked) rear door and entered the house. They began to search for items to steal. Ms Parrelli, who had been asleep but was disturbed by the noise, awoke and encountered the offenders. She was using a walking stick. Loveridge used the walking stick to hit her, more than once, over her head and body. Sufficient force was used to break the walking stick. Ms Parrelli was knocked to the floor.

14 The offenders continued to search the house. They screamed abuse at Ms Parrelli, threatening to do her serious injury. They stole a wrist watch and a television set, property to the value of about $1500.

15 Ms Parrelli was taken to hospital, where she remained an inpatient for 22 days. She suffered injuries to her right forehead, the back of the head, the chest, the right eye and the left elbow.

16 The circumstance of aggravation alleged against the applicant was that actual bodily harm was inflicted upon Ms Parrelli. The offence to which Loveridge pleaded guilty was the specially aggravated form of the offence. The circumstance of special aggravation was that he intentionally inflicted grievous bodily harm on Ms Parrelli.

(ii) murder of AG

17 After the offence concerning Ms Parrelli, the offenders returned to the Tobruk Street address with the stolen property. At about 2.50am they left that house. Each was then armed with a kitchen knife.

18 At about 3.15am they encountered AG, aged 17, who was walking with his brother DG and step-brother CM in Maple Road, St Marys. The offenders followed the three boys, shouting at them. They asked the time. CM said that he did not know the time. The applicant produced the knife he was carrying, which he swung towards the throat of CM. CM shouted to his brothers to get out of the way. Before AG could escape, Loveridge punched him and knocked him to the ground. Both offenders stabbed AG repeatedly, in the chest, back, head, neck, arms and groin. One of them cut his right Achilles tendon. Both also kicked him. The two offenders then walked away, but very shortly after returned. AG was still lying in the gutter. One of the offenders said "Let's finish the dog". They kicked AG, and again left.

19 Ambulance and police attended, but AG died en route to the hospital. Post mortem examination showed at least 40 separate stab wounds, and cuts and bruising, as well as the cut to the Achilles tendon.

20 The two offenders returned to the Tobruk Street premises. Both told the occupants of the premises that they had stabbed AG. Loveridge told of cutting his Achilles tendon. Later on the same day, both again spoke, to family members, of what they had done. The applicant said that he observed that AG was still moving:

"So I stabbed him in the neck and the back of the head and his dick."

21 The applicant was arrested on 16 November, and was conveyed to Green Valley Police Station, where he was interviewed. The interview was electronically recorded. He made admissions, and stated that he had no remorse for his conduct, and would do it again. He declined to elaborate on the details of the offences, and declined to identify his co-offender.

22 In January 2011 the applicant told an officer of Corrective Services that he had been angry with his former partner (to whom I will refer as "TM"), but did not wish to hurt her. He said that he had contemplated robbing a service station, but instead took out his aggression on AG, whom he had encountered by chance.

23 From time to time the applicant has made other statements that signify his attitude to the murder. He has repeated that he does not regret "killing the cunt", and that he did so because he wanted to kill his former partner. In this context, he has said:

"'Cause I wanted to kill [TM] ... I just snapped and ... I thought they were white fellas, I wanted to hurt some cunt."

24 In letters written from prison he has given some small indication of remorse, saying, for example:

"I did kill an innocent person and I got to live with it for the rest of my life."

He has also minimised the role he played.

(iii) intimidation

25 The applicant was arrested on 16 December 2010 and refused bail. On 4 January 2011 the applicant telephoned his former girlfriend, TM. TM is the mother of the applicant's child. The relationship came to an end in 2010. In the telephone call of 4 January, the applicant accused TM of having sexual relations with other people. He said:

"I should have killed you, you cunt, T[-] I should have killed you ... I blame you for what I'm in here for, cunt, cause I was going to kill you, you motherfucker, I was going to kill you cunt ... I'll kill you, T[-] I promise I'll kill you."

The applicant repeated this threat a number of times and told TM that, despite being in custody, he could still "get her".

The applicant's personal circumstances

26 The applicant was born in May 1993. He was 17 years of age at the time of the offences. He was 20 at sentencing.

27 A great deal of material was placed before Adams J with respect to the applicant's personal history and circumstances. This included a confidential background report prepared on behalf of the Office of Juvenile Justice for the purposes of sentencing; a Pre-Sentence Report prepared on behalf of the Probation and Parole Service earlier in 2013; and extracts from the file held in the Department of Community Services with respect to the applicant and his family. This included, for example, psychologists' reports dating back as far as 2001.

28 The material disclosed a tragic history of abuse and neglect. The applicant is one of two siblings born to his parents, who are of Aboriginal heritage. His mother was 12 years of age when she gave birth to the applicant's older sister, 15 when the applicant was born. All members of the family have had extensive contact with the criminal justice system. From an early age he was exposed to neglect, physical abuse, exposure to parental heroin abuse and domestic violence. At about the age of 18 months he was first removed from his mother's care and placed in foster care. Since then he has had about 12 different placements, sometimes with extended family members and foster carers.

29 He has had virtually no education, having been enrolled in several different schools. He was twice referred to special schools catering for students with challenging behaviour. At all schools, his attendance was low. He truanted frequently.

30 He himself has become involved, from an early age, in drug and alcohol abuse. By the age of 11 he had accumulated a significant criminal record. His criminal record commenced in 2006 when he was found guilty in the Children's Court of robbery in company and various other offences. Since then he has been found guilty of various offences, including break, enter and steal and assault and affray. His past criminal history, however, bears no comparison to the present set of offences (including the aggravated break and enter).

The Remarks on Sentence

31 Adams J recorded the agreed facts of the offences. He described the injuries to AG as "horrific". He said:

"13 ... There were 12 wounds including nine stab wounds to his back, of which six were potentially fatal; nine wounds to his right arm or hand, including two stab wounds; an incised wound to the left forearm; four stab wounds to the left upper leg near the groin area, including the scrotum; two wounds to the left upper leg posterior aspect; four wounds to the right leg including deep incised wounds severing the Achilles tendon, involving more than one stroke, being more like 'a sawing action'; and two wounds to the anterior chest wall including one through the heart which was fatal and one puncture wound possibly from medical intervention. There were four wounds to the head, including one stab wound which, although it was superficial because it was stopped by the skull, had been applied with substantial force resulting in a fracture. At the site of one incised wound a zigzag pattern was seen, such as might have come from the sole of a shoe. There were other small abrasions and scratches. The deceased suffered six wounds to the neck, of which one was a stab wound and two parallel horizontal superficial incised wounds with the appearance of having been inflicted in an attempt to cut the throat, made in quick succession while the head and neck were stationary."

32 As a result of the distribution of wounds, Adams J concluded that the two offenders were more or less equally involved. His Honour went on to say:

"14 ... One of the most troubling inferences that must be drawn from the large number of peripheral wounds is that, whilst it was their intention to kill the deceased, they wished also to torture him by the infliction of a maximum degree of pain. It is for this reason that I described the attack as sadistic. It was not a frenzied attack: the cutting of the Achilles tendon, the attempts to cut the throat and the position of the wounds, demonstrate this. It must have caused excruciating pain."

33 Adams J found the murder to be "in the category of most serious cases", and the break and enter to be "a very serious example of this offence". He noted that Ms Parrelli's physical injuries ultimately healed although the emotional trauma would remain with her for the rest of her life.

34 He was of the opinion that the applicant did not feel any remorse in respect of any of the offences. He considered that his pleas of guilty, far from being an expression of remorse, were a recognition of the inevitability of conviction.

35 He declined to allow any reduction in sentence attributable to the plea of guilty to the murder offence. He took that course because he considered that the protection of the public so required. In respect of the other offences he allowed a reduction of 25 per cent in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.

36 His Honour proceeded to impose the sentences outlined above.

The grounds of appeal

37 The proposed grounds of appeal are pleaded as follows:

"1. The Sentencing Judge erred in finding that the applicant intended to torture the deceased.

2. The Sentencing Judge erred in the assessment of the seriousness of the offence of murder.

3. The Sentencing Judge erred in giving no discount for the utilitarian plea of guilty in respect of the offence of murder.

4. The applicant has a legitimate grievance arising from the fact that the same aggregate sentence was imposed on his co-offender."

Grounds 1 and 2: the objective seriousness of the offence of murder

38 In written submissions filed on behalf of the applicant, it was acknowledged that the second ground depended upon the first: that is, it was necessary for the applicant to show that the inference explicitly drawn by Adams J that the offenders wished to "torture [AG] by the infliction of the maximum degree of pain" (para [14]) was not open to him on the evidence.

39 The focus of the argument was on the use of the word "torture". In oral argument, senior counsel who appeared for the applicant accepted that "torture" may be taken to be the intentional infliction of pain. The focus on the word "torture" is apt to deflect attention away from what Adams J meant, and what he said. It is clear in the context of para [14] that Adams J used the word in the sense mentioned above - the intentional infliction of pain.

40 In the circumstances of this offence, as recounted above, I find it impossible to conceive how such an observation could be said to be other than open upon the evidence. The sheer number of stab wounds, inflicted by two individuals acting together, and the severing of the Achilles tendon, make such a finding inevitable. The inference is strengthened by the circumstance that the two offenders briefly left the scene, before returning with the expressed intention of "finish[ing] the dog". This would suggest that initially they were indifferent to whether or not they had killed AG. Other than killing, the only possible intention that could accompany the sustained attack on AG was an intention to inflict very severe injury, and pain, upon him.

41 It appears from para [14] that Adams J considered that an attack carried out with an intention to torture, and cause a maximum degree of pain, was distinguishable, in level of culpability, from an attack carried out in a "frenzy".

42 In written submissions, senior counsel for the applicant posed, as an alternative to the conclusion of Adams J, the possibility that one or both of the offenders "inflicted multiple stab wounds in a frenzy". This was specifically rejected by Adams J, who considered that the cutting of the Achilles tendon, and attempts to cut AG's throat, and the position of the wounds, demonstrated otherwise. I do not see that the two are mutually exclusive. Indeed, it seems to me that a frenzied attack would carry with it the intention of inflicting maximum pain.

43 In any event, I see no advantage to the applicant in the argument. Apart from the two being not inconsistent, I find it difficult to see how a killing carried out in a "frenzy" is less objectively serious than a killing carried out with the intention of inflicting maximum pain. Whether the killing was carried out as a result of an intention to inflict maximum pain, or in a "frenzy", makes no difference to the assessment of objective seriousness. The challenged finding was open to his Honour, as was the categorisation of the objective seriousness of the offence. Even if the finding that the applicant wished to torture AG was not open, the alternative that the killing was carried out in a "frenzied attack" yields the same result in terms of objective gravity.

44 However, the argument then took a somewhat different turn. In response to the applicant's written submissions, the Crown referred to a long line of authority (indeed, going back to 1913) that consistently holds that, in criminal proceedings, findings of fact made by a judge at first instance are binding on the appellate court unless they come within certain well established parameters: see, for example R v Kyriakou (1987) 29 A Crim R 50; R v O'Donoghue (1988) 34 A Crim R 397. These decisions are based on s 5 and s 6(3) of the Criminal Appeal Act 1912 (NSW), which confers appellate jurisdiction on this Court (see below). The Crown's submissions prompted senior counsel for the applicant to issue a broadly expressed challenge to those longstanding decisions. He challenged the proposition that this Court is properly a "court of error", citing the capacity of this Court (in limited circumstances) to admit fresh evidence, and the capacity to interfere in a sentence (otherwise unassailable) where disparity in the subsequent sentence of a co-offender is demonstrated: Jones v The Queen (1993) 67 ALJR 376. In oral argument the bold and novel proposition was put that this Court should review the findings of fact of Adams J by taking the approach stated in Warren v Coombes [1979] HCA 9; 142 CLR 531 and Fox v Percy [2003] HCA 22; 214 CLR 118. He accepted that there was no authority for this rather startling proposition. Put succinctly, those decisions (both in the context of appeals in civil cases) establish that an appellate court may (or even must) make its own assessment of the facts of a case.

45 Although this was, as I have characterised it, a bold, novel and startling proposition, proposing a major departure from established authority and practice, the argument put in support was pithy. It relied essentially upon observations made (in each case obiter) in two cases in this Court by Basten JA: Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19 and Aoun v R [2011] NSWCCA 284. I will come to these observations in due course.

46 In the meantime, notwithstanding the absence of comprehensive argument to support the contention that this Court ought to abandon a statutory construction that has stood for just over a century, it is necessary to deal with the argument.

The jurisdiction of this Court

47 Jurisdiction to intervene in a sentence imposed on an offender derives from s 5 of the Criminal Appeal Act. Section 5 relevantly provides:

"(1) A person convicted on indictment may appeal under this Act to the court:

(a) ...

(b) ...

(c) with the leave of the court against the sentence passed on the person's conviction."

48 The scope of the appeal is to be found in s 6(3) of the same Act. Section 6(3) provides:

"(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

49 The Criminal Appeal Act came into effect on the date of assent, 16 April 1912. It established the Court of Criminal Appeal ("the Court"). Section 6(3) was then in the same terms as it now is (with one minor, irrelevant, variation). In 1913, the court dealt with an application for leave to appeal against a sentence: R v Skinner (1913) 13 SR (NSW) 280. The Chief Justice considered that, although the sentence imposed was a very severe one, it was unlikely that the sentencing judge had overlooked any relevant circumstance favourable to the applicant, and the Court would not be justified in interfering. Sly J was more expansive. His Honour said:

"The question of the sentence has given me a great deal of trouble, and I have given a great deal of thought and consideration to it. It appears to me a severe sentence, but before this Court can interfere they have to be satisfied that the learned Judge at the trial proceeded on some wrong principle or did not take into consideration some fact which he ought to have taken into consideration. The Judge at the trial was by far the best person to deal with the matter; he saw the accused in the witness box and how he gave his evidence; whether he glorified or not in his past misdeeds with regard to this girl, and, generally, his manner in the witness box, and it seems to me, on the principles his Honour the Chief Justice has mentioned, it would be impossible in this case for the Court to interfere. Considering the principles which have been pointed out, although I think it is a very severe sentence, and I do not think it is a sentence I would have passed myself, I do not think we would be justified in interfering with it." (italics added)

Gordon J agreed.

On one view, this was an unequivocal statement that, absent demonstrated error, the Court would not exercise its powers under s 6(3).

50 On application for special leave to appeal to the High Court, the proposition, somewhat obliquely expressed by the Court, that before the Court would interfere in a sentencing decision, error must be established, was reinforced: Skinner v The King [1913] HCA 32; 16 CLR 336. Barton ACJ said:

"As to the second of those two points, of course the sentence is arrived at by the Judge at the trial under circumstances, many of which cannot be reproduced before the tribunal of appeal. He hears the witnesses giving their evidence, and also observes them while it is being given, and tested by cross-examination. He sees every change in their demeanour and conduct, and there are often circumstances of that kind that cannot very well appear in any mere report of the evidence. It follows that a Court of Criminal Appeal is not prone to interfere with the Judge's exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not." (pp 339-340, italics added)

Isaacs J said:

"With regard to the sentence it was complained that the language of Sly J and Gordon J was not justified. The considerations stated by my brother Barton would appeal to one apart from any precedent. But the same view was taken in England before the New South Wales Parliament adopted the English Act, and was expressed almost in the words of those learned Judges ..."

His Honour quoted from English authority:

"Of course if there was evidence that the Judge in passing sentence had proceeded on a wrong principle or given undue weight to some of the facts proved in evidence the Court would interfere; but it was not possible to allow appeals because members of this Court might have inflicted a different sentence more or less severe." (R v Sidlow 24 TLR 572)

Isaacs J went on to say:

"That entirely bears out the language which is now pressed upon us as a misdirection." (p 342)

51 The proposition was not universally accepted. See, for example R v Gosper (1928) 45 WN (NSW) 165 where it was held that s 6(3) conferred on the Court "unfettered judicial discretion" as to the course it should take. That followed a similar view with respect to s 5D of the Criminal Appeal Act (inserted in 1924) in Whittaker v The King [1928] HCA 428; (1928) 41 CLR 230 (but it is worth reading the lengthy and contrary view of Isaacs J), and the views of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554.

52 I pass over the next half century and come to O'Donoghue. In a frequently cited passage, Hunt J (with whom Carruthers and Wood JJ agreed), said:

"It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below ... Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the Court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice ..." (p 401, internal citations omitted, italics added)

53 It was the insistence that "error" must be shown before this Court will interfere in a sentence that attracted the applicant's challenge. However, as will appear below, the authorities he claims in support do not go to that point.

54 Since O'Donoghue, the same principle has been re-stated on many occasions: for example, R v Khouzame [2000] NSWCCA 505; R v Aoun [2011] NSWCCA 284; Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19; Peters v R [2013] NSWCCA 324. In the interests of brevity, I have forborne to mention the other decisions identified by Johnson J in Aoun (at [35]) and Latham J in Peters (at [42]).

55 The final nail in the coffin of any argument to the contrary is to be found in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 (a decision referred to in the applicant's argument in a different context) at [35]:

"The history of the provision [s 6(3)] is touched on in Lacey v A-G (Qld) [[2011] HCA 10; 242 CLR 573]. Notwithstanding the breadth of its language, it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error." (italics added)

The High Court cited its earlier decision in Skinner as authority.

56 The two obiter passages in judgments of Basten JA on which the applicant founded his argument are in Aoun and JG. In Aoun, his Honour said:

"4 The statement by Hunt J in R v O'Donoghue ... was concerned with fact-finding by a trial judge in determining, on a voir dire, a dispute as to the admission of evidence. His Honour's succinct description of the nature of an error in respect of fact-finding is not to be treated as a comprehensive statement of the circumstances in which such error can arise. The scope of the appeal against conviction, provided by the Criminal Appeal Act 1912 (NSW), s 6(1), is not limited to an error of law: any ground demonstrating that there has been a miscarriage of justice may suffice. The circumstances which can constitute such a ground are not to be constrained by the identification of common circumstances. Nor does it assist greatly to describe such grounds as forming 'the very narrow basis' upon which the court can intervene in relation to a finding of fact. Further, although it is undoubtedly helpful to be reminded that this court can only intervene in a case of 'error' and not in order to 'substitute its own findings for those of the trial judge', such timely reminders do not, in close cases, provide any useful criteria for locating the boundary between errors and differences of opinion." (bold added, italics in original)

57 Aoun was an application for leave to appeal against sentence. The bulk of para [4] and the substance of the argument contained therein, was directed to the scope of appeals against conviction. O'Donoghue involved a review of findings of fact following a voir dire with respect to the admissibility of evidence. Even a superficial reading of para [4] discloses that Basten JA does not question the proposition that demonstrated error is the foundation for the Court's jurisdiction to intervene in a sentence decision. As Latham J observed in Peters, what his Honour questioned was whether the list of circumstances identified by Hunt J in O'Donoghue as available to found the jurisdiction there under consideration was, or was intended to be, exhaustive. Although it is unnecessary in this case to decide, I would be of the view that it was not, and was not intended to be, exhaustive. For myself, I do not read Hunt J as suggesting that the circumstances he identifies as available to found the jurisdiction close the categories in which error in fact finding may be shown. It may be that error may be shown in other ways. What is essential is that error, properly so called, be demonstrated before this Court will interfere in a finding of fact. And it is not be overlooked that Hunt J's list of circumstances is to a large extent parallel with lists of circumstances that have in other cases been held to be available as a basis for interference in discretionary decisions: House v The King [1936] HCA 40; 55 CLR 499. Generally, the language is similar to that used in the very early authorities on the proper role of this Court under the Criminal Appeal Act: see [49] - [50] above.

58 In JG, Basten JA repeated his questioning of the completeness of Hunt J's list of factors that may give rise to "error". What Basten JA there said was specifically referable to conviction appeals. JG is even more remote from the present case than Aoun. It was concerned with an (interlocutory) appeal by the Crown under s 5(3A) of the Criminal Appeal Act (with respect to the admissibility of evidence). Such an appeal had already been held (by Basten JA himself, with whom Grove and Howie JJ agreed) to be an appeal by way of rehearing: Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158.

59 Neither Aoun nor JG provides any support to the applicant's argument that it is open to this Court to review the finding of fact made by Adams J other than on established principles. Fundamental to those principles is that an error can be identified, either in the approach to the fact finding exercise, or in the principles applied. No such error has here been identified.

60 The authorities that state the principles on which, it was submitted, this Court should review findings of fact by a sentencing judge are Warren v Coombes and Fox v Percy. As mentioned above, both are civil cases. Both are cases in which the operative legislation (relevant for present purposes) was s 75A of the Supreme Court Act 1970 (NSW), pursuant to which appeals are by way of rehearing. An issue, in particular in Fox v Percy, was the "dichotomy" between the appellate obligation to correct error, and appellate restraint in the interference with decisions properly committed to first instance judges. There is nothing, in either Warren v Coombes, or in Fox v Percy that could reasonably be extrapolated to decisions under s 5 or s 6(3) of the Criminal Appeal Act.

61 These conclusions have been drawn in the absence of full argument. No proper basis has been advanced for the proposed major departure from established authority and practice.

62 I reject the proposition that this Court ought to review Adams J's finding of fact (made by inference from agreed facts) that the applicant wished to torture AG by the infliction of a maximum degree of pain. No error has been shown in that finding. I have already held that the finding was, on the evidence, open.

63 It follows that I would reject Grounds 1 and 2.

Ground 3: plea of guilty

64 Ground 3 alleges error in Adams J's decision to decline to give the applicant the benefit of a reduction in sentence attributable to his plea of guilty to the murder charge. Adams J gave reasons for that decision. He considered that the pleas were attributable to the recognition of the overwhelming strength of the Crown case, and inevitable conviction, rather than any remorse. Notwithstanding that, a reduction is ordinarily available in recognition of the utilitarian value of a guilty plea: R v Thomson; R v Houlton. It is not, however, in every case that such a reduction is to be allowed: Milat v R; Klein v R [2014] NSWCCA 29; special leave to appeal to the High Court refused: Milat v The Queen [2014] HCA Trans 205 (12 September 2014).

65 A similar argument, in similar circumstances, was put in Milat, and rejected.

66 During the hearing of the appeal, senior counsel who appeared for the applicant accepted that, on the authority of Milat, Ground 3 must fail. I would accordingly reject Ground 3.

Ground 4: parity with the sentence imposed on Loveridge

67 The applicant and Loveridge were sentenced identically. It was pointed out that there were some distinguishing features. One of these was the applicant's plea of guilty. That cannot survive the outcome of Ground 3. Other differentiating features were the ages of the two offenders: Loveridge was 18 years of age, the applicant a little under that age. This had some technical implications, for example that a standard non-parole period (25 years) applied to Loveridge in respect of the murder conviction, but not to the applicant. Further, s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) applied to the applicant, and not to Loveridge. That is not to be entirely disregarded, but, when it is taken into account that the applicant was just five months short of attaining the age of 18, and when that is added to the grossness of his conduct, the difference in the ages of the two offenders is of no moment.

68 The other matter advanced was that Loveridge was the first to use lethal violence.

69 To those points may be added the fact that Loveridge was sentenced in respect of more offences than the applicant. However, the overriding matter was the murder of AG. In that respect, the two offenders were indistinguishable.

70 In the circumstances of this case, there can be no legitimate sense of grievance in the applicant.

71 I would reject Ground 4 of the application.

72 It follows that I would grant leave to appeal but dismiss the appeal.

73 WILSON J: I agree with Simpson J.

**********

Decision last updated: 24 December 2014