R v WAW[2013] QCA 22

SUPREME COURT OF QUEENSLAND

1. CHIEF JUSTICE: The applicant pleaded guilty to two offences, manslaughter and interfering with a corpse, and was sentenced to concurrent terms of nine years imprisonment and one year imprisonment respectively.  When she committed the offences on 25 May 2009, she was 30 years of age.  She had a reasonably substantial prior criminal history, but mostly for drug offences and street type offending – it did not assume significance in the sentencing process.  She had not previously been actually imprisoned.
2. She seeks leave to appeal against the nine year term imposed for the manslaughter, on the basis that is manifestly excessive. 

Circumstances of offences

3. The deceased man was the 33 year old father of two children.  The applicant’s co-offenders were W and N.  It was W and N who physically attacked the deceased, prior to his death.
4. W was upset because the deceased was in a sexual relationship with a woman with whom W had previously had a sexual relationship.  W had hoped to resuscitate the relationship.  W had uttered threats to find and kill the deceased, which he communicated to various persons, and by way of gesture towards the deceased.  A month before the killing, at W’s former girlfriend’s house, W hit the deceased in the head with a steel pole, causing injury.  The deceased then lodged a complaint with the police.  The deceased was seriously fearful for his own safety, terrified that W would come after him.
5. The applicant, W and N were drug users.  The applicant had met W a couple of months before the killing.  At the time of the killing, the applicant was in a sexual relationship with N.
6. The circumstances of the offences emerged from two interviews between the applicant and police officers, in August 2009, and later on 6 October 2009.  At the first interview, the applicant revealed some details of the offences but tended to minimize her own role.  She comprehensively disclosed that at the second interview.
7. Some time before 25 May 2009, W told the applicant that he wanted to do the deceased in because the deceased had “stolen (his) woman”, and asked whether she and N would help.  He spoke of knocking the deceased out with some spray.  Three days before the incident, W asked the applicant to lure the deceased to her house that night, so that W and N could get him, but the deceased did not go to Maryborough that night, and that annoyed W.  There was further discussion on 23 May, amongst W, N and the applicant, in which W again spoke of using a spray, and said it would contain 25 per cent ether.
8. On the day of the killing, 25 May 2009, W went to the applicant’s house and told her that he and N had ascertained that the deceased was in town (Maryborough).  W urged the applicant to telephone the deceased to find out where he actually was.  The applicant called the deceased’s mobile telephone number continually.  The deceased finally answered, and said that he was at the Centrelink office.
9. W had purchased the spray earlier that day and showed it to the applicant and N.  That morning, the applicant used speed and W and N used morphine.  They also consumed alcohol. 
10. W said that he would spray the deceased’s face and beat him to death.  W had asked for power leads, presumably to restrain the deceased, and strips of material, and he put a doona on the washing line outside in order to hide any view from the neighbours.
11. Aware of these things, the applicant went to meet the deceased at Centrelink.  She told the police that she then believed “they were just going to have a punch on”.  At the Centrelink office, the deceased told the applicant that he was in fear for his life because of W.  The deceased then nevertheless drove the applicant and her son back to her house, where she knew W and N were to be waiting to attack the deceased.  W had parked his own car elsewhere, so that the deceased would not be alerted to his presence when he arrived at the house. 
12. When the deceased walked into the lounge room at the house, N came out of the bedroom and hit him on the head with a baseball bat.  That was the first time the applicant had seen the involvement of a baseball bat.  The deceased pushed N away, and N then called for help from W.  W then came out of the bathroom and put something around the deceased’s neck, choking him.  N continued to deliver blows to the deceased’s head with the baseball bat.  A pillowslip impregnated with the spray was placed over the deceased’s face and he passed out.  He was tied up.  W then sprayed the spray directly into the deceased’s face.
13. W and N then drank some rum.  W checked the pulse of the deceased and reported that he was dead.  W retrieved his own vehicle.  The deceased was wrapped in a doona and placed in the boot of the deceased’s own car.  They waited until it was dark.  W took the deceased’s mobile telephone, and had the applicant answer a call from W’s former girlfriend, in which the applicant said to the effect that the deceased had gone away.
14. When it was dark, W and N drove the deceased’s vehicle, and the applicant drove W’s car, to a road off a highway.  W asked the applicant to cut off the deceased’s penis because he was a rapist or paedophile.  “Off her face pretty bad on morphine”, the applicant did so (with a Stanley knife). 
15. Then they returned to the applicant’s house.  N drove W’s vehicle away, and W drove the deceased’s vehicle (containing the body).  The body was never seen again.  Its location has not been revealed to the authorities.
16. The applicant subsequently made inculpatory statements to three other men.  On 6 June 2009, she commented (to one Loweke) on the severing of the penis, in terms of defiance rather than remorse.  It is nevertheless fair to conclude that her comprehensive disclosure in October 2009 was suggestive of remorse, as was claimed.
17. The basis of the applicant’s plea of guilty to manslaughter (s 8 Criminal Code) was that she, W and N had a common plan to prosecute an unlawful purpose, which was to assault the deceased in a serious way, and an unlawful killing was a probable consequence of the execution of that plan.  That was the agreed basis on which the applicant fell to be sentenced.
18. The learned sentencing Judge received victim impact statements from the deceased’s sister and mother, covering the devastating effect of the loss of the deceased on the family, including of course his two young children.

Prosecution contention at sentencing

19. Before His Honour, the Prosecutor described the attack as brutal and savage, and pointed out:  that the applicant was involved in the planning, which took place over some time; that the applicant knew that W and N had possession of the spray and power leads, for use in the attack; and that when the applicant lured the deceased back to her house, she knew that the deceased feared for his life because of W.
20. The prosecution relied substantially on R v Welham & Martin [2012] QCA 103, submitting that the applicant’s conduct was comparable with Welham’s, who was sentenced to 11 years imprisonment.  The Prosecutor submitted for a “global” range of 10 to 12 years (after allowance for the plea of guilty and cooperation other than the s 13A undertaking) of which the applicant would have to serve 80 percent, to be reduced then to nine years imprisonment (without a serious violent offence declaration) because of the undertaking pursuant to s 13A of the Penalties and Sentences Act 1992.
21. It may be accepted that the substantial evidence implicating the applicant came from her own lips during the second police interview.  Further, without the evidence provided by the applicant and her undertaking, the prosecution would have been unable to proceed against N.  The applicant is to give evidence at a trial commencing in Maryborough on 4 March 2013.  The other co-offender is awaiting sentence. 

Defence contention at sentencing

22. Before the sentencing Judge, Defence Counsel emphasized the applicant’s cooperation with the police, her pleas of guilty said to be indicative of remorse, and her unsatisfactory upbringing.  Defence Counsel submitted that after allowing for those matters and in addition, the s 13A undertaking, a sentence of eight years imprisonment (without a serious violent offence declaration) would be appropriate.

Formulation of the sentence

23. His Honour sentenced the applicant to nine years imprisonment for the manslaughter, and one year to be served (concurrently) for interference with the corpse.  But for the reduction allowed under s 13A, the Judge would have sentenced the applicant to 12 years imprisonment.
24. A term of 12 years imprisonment would have entailed the applicant’s serving at least 9.6 years.  Under a nine year term, she would be entitled to apply for parole after serving 4.5 years.  The Judge has therefore effectively made a substantial, I would say generous, reduction because of the undertaking, and that was the appropriate course (cf. R v Webber [2000] QCA 316, 384).
25. The Judge thereby accepted the Prosecutor’s submission as to sentence, and imposed a sentence one year longer than the eight years for which Defence Counsel had contended.
26. In his sentencing remarks, the Judge said that he had “moderated significantly” the head sentence, to allow for the plea of guilty.  He must therefore have worked from a starting point some years in advance of 12 years.  It would have been helpful had the Judge disclosed, in his sentencing remarks, what that starting point was, so that the applicant, in particular, was fully apprised of the process.  Nevertheless he sufficiently stated the “reasons for the sentence” (s 10 Penalties and Sentences Act), so that the absence of that further detail did not give rise to an error of law.  The point of descending to that level of detail is to ensure a person sentenced to imprisonment for a term can be fully satisfied as to the basis of selection of the particular term imposed, and as to the carefulness of the sentencing Judge’s approach.

Contentions before this court

27. Before us, Counsel for the applicant submitted that a sentence of 12 years imprisonment, the sentence which would have been imposed but for the s 13A cooperation, failed to make proper allowance for past cooperation and the plea of guilty.  Counsel submitted that the sentence should have been in a range eight to 10 years, to be reduced then to seven to eight years in respect of the s 13A feature.  He sought a seven year term coupled with eligibility for parole at three years.  He relied particularly on R v Welham & Martin, R v Schuurs [2000] QCA 278 and R v Smith [2005] QCA 1.
28. I observe at once that in Schuurs, the applicant was only 18 years old, and questions of parity apparently arose.  The case of Smith was markedly distinguishable from the present.

29. Counsel for the respondent urged a range of 11 to 14 years (cf R v Jervis [1993] 1 Qd R 643, and Welham & Martin), prior to reduction for mitigating circumstances, and supported the penalty imposed.

The gravity of the offending

30. It is important, in approaching the penalty imposed, to recognize the high level of the applicant’s criminality.

31. The applicant was party to a plan to inflict serious physical harm on the deceased, with his death a probable consequence of its implementation. She had heard W speak of killing the deceased, and generally in the most vitriolic and threatening terms.  She was involved in the planning for the attack, over some days.  She knew that W intended to incapacitate the deceased by using the ether-based spray.  She knew that W also intended using power leads, inferentially to restrain the deceased.  On the day of the attack, she heard W say they would hurt the deceased “really bad”; and just “beat him to death”.  She went to a lot of trouble to contact the deceased.  When she made contact with him, and brought him back to her house, she knew that the deceased was terrified that W might kill him.  Yet she lured the deceased back to the house where she knew W and N, “armed” with the spray and the leads, were lying in wait for him.  She was present throughout the protracted attack, not dissociating herself from the violence in any way.  Then after the attack, she took part in the movement of the body from the house, by accompanying W and N in the vehicles.  At the remote location, she carried out the degrading act of severing the penis.  Significantly, while there apparently was pressure from W, the applicant made no claim of having been coerced into doing what she did.  Her comprehensive admissions came five months after the incident.

Observations

32. The court has repeatedly emphasized the wide “range” applicable to sentencing for manslaughter, because of the infinitely varying circumstances in which that offence is committed. The sentencing Judge in Welham & Martin, where the circumstances were broadly similar to those of the present, referred to a “typical” range of 10 to 12 years.  I do not consider any range to be so confined.  We were referred, for example, to R v Jervis, where a 24 year old with no prior criminal convictions had lured an innocent victim to a place where she knew he would be violently attacked, as happened, causing his death.  She had handed a knife to one of the co-offenders which he used in the attack (after another referred to killing the victim).  She was effectively sentenced to 14 years eight months imprisonment, following conviction at a trial, and that was not disturbed on appeal.

33. I turn to Welham & Martin, to which the primary Judge was referred.  Counsel for the applicant sought to compare the present applicant’s situation with that of Martin, who was sentenced to eight years imprisonment (a declaration being deleted on appeal). 

34. What Martin did was in some respects roughly comparable with what the applicant did. But there are some important points of distinction: the present applicant knew that W intended to use the ether-based spray, and the power leads, whereas Martin had no knowledge of the intended use of any implements; and the victim in Martin’s case had made threats against her and her family, whereas this deceased was entirely innocent of any such thing. Further, the feature of the interference with the corpse did not feature in Martin’s case. On the other hand, the eight year term imposed on Martin followed a trial. But as Counsel for the respondent correctly points out, the Court of Appeal did not pass upon the appropriateness of that eight year term, its concern resting solely with the sustainability of the serious violent offence declaration.

35. Counsel for the respondent submitted that the present applicant’s position is more comparable with that of Welham, who was sentenced to 11 years imprisonment. Welham was not the actual perpetrator of the deadly assault. He lay in wait with L and it was only shortly before the attack that he realized that L intended using a baseball bat.  The victim had made serious threats against Welham’s de facto wife Martin and her family.  Martin had encouraged Welham to commit the offence.  Welham interfered with the corpse, to which he pleaded guilty during the murder trial.  Prior to the trial, Welham had offered to plead guilty to manslaughter, which must be seen to have moderated to some extent the sentence which was imposed for the manslaughter of which he was in the end convicted.  The Court of Appeal upheld the 11 year term.  I accept that allowing for the gravity of the present applicant’s criminality, there is broad comparability between her position and that of Welham.  Yet as I have said, I doubt that an applicable “range” is as confined as suggested by the Judge who sentenced Welham.

36. If the indicative 12 year term is sustainable, then the reduction to nine years was plainly supportable, bearing in mind that 80 percent of 12 years would have to be served, whereas parole eligibility would arise after one-half of the nine year term had been served. The 12 year term has been determined from a starting point of 14 or 15 years, before allowing for the plea of guilty and the earlier cooperation (which bears on both the reduction leading to the indicative term, and the further s 13A discount, which was in this case, as I have said, generous).  For reasons emerging from the previous discussions I am not satisfied such a starting point would be manifestly excessive.  Hence I am not persuaded that His Honour erred. 

37. The difficulty, indeed inadvisability, of seeking absolute precision and supposed conformity in cases like this and others is illustrated by the positions taken by the respective parties in this court and at first instance. Before the sentencing Judge, while the Prosecutor sought the sentence, nine years imprisonment, which was imposed, Defence Counsel sought a sentence only one year shorter in duration. Before us, Counsel for the applicant (who was Defence Counsel before the sentencing Judge) urged the imposition of a seven year term (with early parole), from a seven to eight year span. The variation in the defence contention illustrates the inherent lack of exactitude which characterizes sentencing in this area. It would be very difficult properly to contend that while an eight year sentence would have been available, a nine year sentence would not.

38. I am therefore not satisfied that the nine year term which was imposed here was manifestly excessive. While the applicant did not deliver the fatal blows, her criminality was of a high order as previously explained. Her cooperation, in all its aspects, led to a sentence in which she is spared the requirement that she serve 80 percent of a term of imprisonment.  We were pressed with the contention the starting point presumably adopted by His Honour was manifestly too high.  While I have rejected that submission, I should add that had it fallen to this court to re-sentence the applicant, I would have imposed the same sentence as was imposed below.

39. In assessing the sustainability of the indicative 12 year term, it is helpful to have regard to what was said by the majority in Markarian v The Queen (2005) 228 CLR 357, 371:

“Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is.  The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached.  As has now been pointed out more than once, there is no single correct sentence (Pearce v The Queen (1998) 194 CLR 610 at 624 [46]).  And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies (Johnson v The Queen (2004) 78 ALRJ 616 at 618 [5]); 205 ALR 346 at 348 per Gleeson CJ; at 624, 356 [26] per Gummow, Callinan and Heydon JJ.)”

Conclusion

40. I would refuse the application.

41. MUIR JA: I agree that the application should be refused for the reasons given by the Chief Justice.  As the matter was not without its difficulties, I propose to give some brief additional reasons.  Unfortunately, as the Chief Justice mentions in his reasons, the sentencing judge did not identify the starting point for the 12 year indicative term of imprisonment arrived at after allowance for the applicant’s plea of guilty and cooperation with authorities.  Counsel for the applicant submitted that, when allowance was made for the applicant’s guilty plea and cooperation, the 12 year term must have been in excess of that permissible on the proper exercise of the sentencing discretion.

42. At first instance and on appeal, the applicant’s submissions on the appropriate level of sentence proceeded on the assumption that an aider, abettor or other offender who did not do the act which caused death (for convenience “aider or abettor”) will invariably be less culpable and thus warrant a lower sentence than that imposed on the principal offender. Although it will often be the case that the culpability of an aider or abettor will be less than that of the principal offender, it is not invariably the case. An aider or abettor may be more culpable than the principal offender. As was observed in GAS v The Queen:^[2]

“A manipulative or dominant aider and abettor may be more culpable than a principal.  And even when aiders and abettors are less culpable, the degree of difference will depend upon the circumstances of the particular case.”

43. The sentences to be imposed on co-offenders, whether they have been convicted, by application of s 7(1)(b), s 7(1)(c), s 7(1)(d) or s 8 of the Criminal Code (Qld) must be determined by reference to their individual circumstances and different degrees of criminality.^[3]  As the Chief Justice’s reasons demonstrate, the gravity of the applicant’s offending was of a high order.  Of particular significance in that regard are: her knowledge of W’s stated intention to kill the deceased; the deceased’s fear of being killed; her knowledge of the preparations made for the attack on the deceased; her knowing facilitation of the carefully planned ambush of the deceased; and, especially, the “common intention to … seriously assault [the deceased such that] an unlawful killing was a probable consequence of the execution of [the] plan”.

44. The applicant’s gruesome interference with the deceased’s body was a further indication of the depth of her involvement in the planning and execution of the plot against the deceased and was also demonstrative of a lack of remorse. Indeed, the evidence is suggestive of a ghoulish appreciation of her macabre conduct.

45. It was thus arguable that, in terms of culpability and gravity, the applicant’s offending was at least as serious as that of the offender in R v West,^[4] in which it was said that a sentence in the range of 12 to 14 years would have been appropriate for an attack which, although brutal and relentless, was essentially unpremeditated and unplanned.  There is in fact no great gulf between a manslaughter of this nature and murder.

46. The Chief Justice referred to R v Jervis,^[5] in which the sentence equated to about 14 years and eight months.  There are other manslaughter sentences of that order or higher.^[6]

47. Counsel for the applicant, of whose submissions I make no criticism, quite the contrary, engaged, at first instance and on appeal, in a close comparison of the respective facts of this matter and of R v Welham & Martin.^[7]  Counsel identified a range of 8–10 years by reference to Welham and Martin and the section 8 cases discussed in it.  A process such as this is likely to result in error if insufficient consideration is given to the assessment of the gravity of the offending by reference to the circumstances of the offender and of the offending conduct.  In R v Dwyer,^[8] Keane JA made the following relevant observations:

“An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.”

48. Although concerned about: the likely starting point for the indicative sentence; an arguably low reduction in sentence for the plea of guilty and cooperation; and an arguably overgenerous reduction for future cooperation, I am satisfied that the nine year term imposed was not excessive. 

49. As a general proposition, where a sentence is held not to be manifestly excessive, an appellate court is not required to quash the sentence and resentence if it finds error on the part of the sentencing judge unless the sentence is more severe than that which the appellate court would have imposed.^[9]  Ultimately, I am not persuaded that an appellable error in any respect has been demonstrated.  There is no calculation or yardstick which can be applied to determine a precise discount for cooperation.  It must be discernable and worthwhile, but “nevertheless reflect the seriousness of the offence which is being punished”.^[10]  A judgment must be made which takes into account all relevant circumstances; to borrow from Markarian v The Queen^[11] “there is no single correct” solution.

50. DALTON J:  This case involved a brutal killing.  The applicant’s plea of manslaughter was based on liability pursuant to s 8 of the Criminal Code.  It is necessary to keep firmly in mind what she (as distinct from her co-offenders) did and did not do, and what was accepted on the sentence hearing as her state of knowledge as to the plans and intentions of her co-offenders.

51. Having said that, there is no doubt that the applicant’s offending in this matter was serious. To begin with, her involvement was over several days. The killing took place on 25 May 2009.  W, the instigator, spoke to her some time prior to this saying that “he wanted to do Noel in” and asking if she and N would help.  On 22 May 2009, W asked her to lure the deceased to her house that night so that W and N could “get him”.  This plan came to nothing as the deceased did not travel to the town where the applicant lived as had been anticipated by W.  On 23 May 2009, the applicant, W and N further discussed matters.  On 25 May 2009, W came to the applicant’s home and at his urging she called the deceased continuously until he took her call.  She arranged to collect him and bring him to her home, and she did this.  She knew that W and N were waiting at her home and she concealed this from the deceased.

52. The statement of agreed facts tendered on sentence showed the following as to what the applicant knew of the intentions of W and N toward the deceased. Initially W had stated to the applicant that he wanted to do the deceased in.  On 22 May 2009, W said that he and N were planning to “get him”, speaking of the deceased.  When events of 22 May 2009 prevented this, the applicant knew that W was angry and upset as a result.  The applicant knew that W was speaking of hurting the deceased “really bad” and she knew that W said “they would just beat him to death”.  Apart from these express statements of intent by W, W had spoken on two occasions of using a can of spray containing ether which would knock the deceased out; had asked for power leads to tie the deceased up, and had torn up a pillow slip into strips.  She knew that W put a doona on the clothesline to prevent neighbours seeing into her house, in preparation for the deceased’s arrival there.  She knew N had said initially that he was a fighter, but that he had never hurt anybody “really bad”, and that he wanted to see what it was like to do so.  She knew, because the deceased told her, when she went to collect him to bring him back to the house, that he feared W was going to kill him. 

53. All these matters were known to the Crown because the applicant told them to police on 6 October 2009 when she made a detailed confession. During the course of that confession she also said to police that she did not know W and N were going to kill the deceased, but that she thought they were just going to have a “punch on”. There is difficulty reconciling that statement with what the applicant admitted she had been told by W and N. Had the murder count gone to the jury, that task would have fallen to it. Here the Crown accepted a plea to manslaughter in discharge of the murder count and agreed to sentencing on a particular basis. That basis was not that all three offenders had a common intention to kill the deceased, but that all three had a common intention to prosecute an unlawful purpose, namely serious assault upon the deceased, and that an unlawful killing was a probable consequence of the execution of that plan. There is some conceptual untidiness as between the basis for the plea and the applicant’s statements as to what she knew before the killing, but the sentence was to be imposed on the agreed basis.

54. The killing took place at the applicant’s house, which she made available to W and N for their purposes. The applicant took no part in physically assaulting the deceased, but she was present during the attack and was able to describe the violent details of it to police. She did nothing to attempt to moderate it. At some point W and N stopped attacking the deceased and drank some rum.  The applicant did not attempt to assist the deceased during this time.  After that, W examined the deceased and said that he was dead.

55. The applicant assisted W after the killing. She answered a telephone call on the deceased’s mobile phone and told his girlfriend that the deceased had “moved on and didn't want anything to do with her any more”. She drove in a separate car from W and N after the killing, knowing that the deceased’s body was in the car driven by W and N. At some point in this journey both cars stopped and at W’s suggestion she cut off the deceased’s penis. Shocking though this conduct was, it must be remembered that she was separately sentenced for it, and its relevance to the manslaughter sentence can only be to her state of mind at the time – as indicating a callousness and lack of remorse.

Welham & Martin

56. The sentence in this matter was imposed on 10 September 2012. Not long before this, in April 2012, the Court of Appeal had reviewed many of the s 8 manslaughter cases in R v Welham and R v Martin.^[12]  Unusually, the sentencing judge here was taken to only one case on the sentence hearing – Welham & Martin.  Both the Crown and the defence relied upon the case.  The Crown contended that the factual circumstances of the applicant’s offending were comparable to Welham’s offending, and the defence contended that the applicant’s offending was comparable to Martin’s offending.

57. The factual circumstances in Welham & Martin were unusually comparable to the factual circumstances here.  Welham and Martin were a de facto couple who were in dispute with the deceased in that case over a drug debt.  It came to their attention that the deceased had made statements that he was going to get a gun and shoot them.  On the same day, after Welham and Martin were informed of this, Welham and several other men, including one Larkham, went out looking for the deceased.  Welham had armed himself with a tyre lever and had told one of the other men that he was going to give the deceased a flogging.  The men did not locate the deceased that evening. 

58. The next day both Welham and Martin spoke to the deceased on the telephone and arranged to meet him at a shopping centre car park. Welham and Larkham attended at the car park. Welham said he attended there to give the deceased “a touch up”. Welham and Larkham saw the deceased at the car park but there was no contact because Larkham told Welham there were too many CCTV cameras there and advised that they ought to have the deceased go back to Welham’s house.

59. Later that day Martin telephoned the deceased and arranged for him to attend their house. She invited him in while Welham and Larkham waited in a bedroom to which Martin ushered the deceased. Inside the bedroom, shortly prior to the deceased’s entering, Welham saw Larkham pick up a baseball bat. When the deceased entered, Larkham struck him about the head with the bat and then fled the scene. Welham dragged the victim, who was still breathing, out to a tree in the backyard where he left him, obviously suffering dire consequences from the beating. Welham checked him later and he was dead. He put the body into the boot of his car and drove to a remote bush location where he threw the body into a gully. Some three months later he took the police to the location.

60. Welham received a head sentence of 11 years which was not disturbed on appeal. Martin received a sentence of eight years; this was not disturbed on appeal, but a Serious Violent Offender declaration was.  The Court of Appeal judgments do not consider the eight year term imposed on Martin, but only the Serious Violent Offender declaration.

61. The judgment of Daubney J in the Court of Appeal, with which Chesterman JA agreed, does not expressly purport to establish a range for manslaughter sentences where liability is established pursuant to s 8 of the Criminal Code.  Nonetheless it does undertake a review of several of those sentences and treats them as a distinct class of manslaughter sentences – [40]-[44], and [58].  Daubney J concluded that the 11 year sentence imposed on Welham was not manifestly excessive.  In separate remarks the President gave her view: “The sentencing range in Welham’s case was between nine and 11 years imprisonment.  Although at the high end of that range, the sentence was not manifestly excessive.”

62. In my view the circumstances of the applicant’s offending are more comparable to that of Welham, than to that of Martin. Like the applicant here, Welham had persisted with a plan to assault the victim, making two aborted attempts before that plan came to fruition. Like the applicant here, Welham treated his dying victim with disregard and callously disposed of the corpse. It might be thought Welham’s conduct in disregarding his dying victim was somewhat more culpable than the applicant here, who may well have feared physical retribution from W and N had she attempted to intervene. Nonetheless, the applicant’s conduct in severing the deceased’s penis in this case has a shocking element not present in Welham’s conduct in disposing of the body of the deceased in that case.

63. Neither Welham nor the applicant inflicted any physical violence themselves. However, I do think there is a significant distinction between Welham and the applicant in that Welham was the instigator of the violence against the deceased in that case. It was he who had the motivation to harm the deceased, and he deliberately recruited Larkham, “specifically because of that person’s tendencies” to perform the attack upon the deceased. In that respect, Welham is to be regarded as a more dominant aider and abettor,^[13] whereas the applicant here went along with W’s plans – it was W who had the motivation for, and who instigated, the attack on the deceased in this case.

64. Welham was sentenced on the same basis as the applicant in this case – that he participated in bringing about an assault of such a nature that serious injury was going to be visited on the deceased and that death was a probable consequence of the assault – [23].

65. Both Welham and the applicant were of similar age at the time of offending – Welham was 28 and this applicant was 30. Both this applicant and Welham co‑operated fully with police, but belatedly in each case.  This applicant was dealt with on a sentence day because the Crown accepted a plea of guilty to manslaughter in full discharge of the murder count on the indictment.  Welham offered to plead to manslaughter but the Crown in that case would not accept the plea and, rather than plead guilty to manslaughter at the commencement of his trial, Welham pleaded not guilty and was sentenced at the end of a trial.  It is difficult to discern what the primary judge, or indeed the Court of Appeal, made of this offer to plead to manslaughter in Welham.  It is not mentioned by any judge of appeal except the President.  It does not seem to have been specifically mentioned by the primary judge amongst the factors in mitigation – see [27], [30] – although the co-operation with police was.  It appears from paragraphs [37](a) and [43] of the judgment of Daubney J in the Court of Appeal that Welham was not treated by him as someone entitled to the benefit of an early plea.  In my view this is a second significant distinction between this case and Welham.

66. I wholeheartedly agree with the dicta of Keane JA in R v Dwyer^[14] that it is a wrong approach to become overly concerned with the minutiae of factual matters when comparing one sentencing case to the other.  That being said, the facts in this case and those in Welham & Martin are very similar and in my view, in two significant respects – instigation and plea of guilty to manslaughter – the present applicant compares favourably to Welham.  While it is true that the judgment of Daubney J in Welham does not purport to establish a range, it reviews many of the s 8 manslaughter cases, and in all of them the sentences imposed were less than the sentence imposed on Welham.  The President, separately, expressed the view that 11 years was at the high end of the range.

Other s 8 Manslaughter Cases

67. Of the s 8 manslaughter cases reviewed in Welham & Martin, only R v Schuurs^[15] and R v Hicks & Taylor^[16] were sufficiently serious to be comparable to this matter.  Both of those cases involved firearms.  Both offenders were significantly younger than the applicant in this case, and younger than Welham.  But significantly, the offenders in Schuurs and Hicks & Taylor ran to trial, so that they were not entitled to leniency in respect of a plea of guilty.  In Schuurs the sentence was 10 years and in Hicks, nine years.  The factual circumstances of both are set out in R v Welham & Martin.

68. There were two significant s 8 manslaughter cases not referred to in Welham & Martin.  The first was R v Jervis.^[17]  In that case the offender was 24 years of age with no previous convictions; a good work record, and other testimonials to her character.  She was sentenced to 18 years.  On appeal that was reduced to an effective sentence of 14 years and some months – p 657.  She had accompanied the principal offender who was engaged in a bizarre plan to drink the blood of a victim and, after the principal offender had announced an intention of killing the victim, handed a knife to a third person who in turn handed it to the principal offender.

69. The second s 8 manslaughter case not referred to in Welham & Martin was R v Smith.^[18]  The facts of that case are not comparable to the present matter, involving peculiar features and substantially less criminality.  Nonetheless, the case is important for the comments made by Davies JA, with whom Mullins J agreed, concerning R v Jervis, R v Schuurs, and the range for this type of offending.  At paragraphs [40]-[41] Davies JA rejected the submission that Jervis and Schuurs establish a range for offences of this kind between 10 and 14 years imprisonment.  He described Jervis as “a most unusual case” because it was associated with “circumstances of peculiar horror and cruelty”.  Jervis thus seems to be a high point in sentencing for this type of case, and a most unusual case, which might explain why it is not referred to in Welham & Martin.  It was not referred to the primary judge in this matter.

Sentence Here

70. The primary judge introduced his sentencing remarks by saying that because the applicant had indicated an early intention to plead guilty he was significantly moderating the sentences imposed upon her. The indicative sentence which his Honour said he would have imposed, but for s 13A matters, was 12 years. That is, it appears that 12 years was the sentence which reflected the significant moderation to take into account the plea of guilty. There is no statement of what the sentence would have been but for that moderation. The applicant in this case had not only pled guilty early, but had on 6 October 2009 (belatedly), offered a full confession to police. It was accepted by the Crown on appeal that, but for this, there was scant evidence admissible against her. The admissions she made on that date also provided the police with detailed information about the activities of W and N. There can be no doubt that the applicant was entitled to significant leniency in respect of these matters.

71. Particularly in sentencing for a serious offence it should not be thought that there is any automatic or formulaic discount to be applied. Still, if the sentence after moderation was 12 years, having regard to the judge’s comments that there had been significant moderation, it is difficult to escape the conclusion that the primary judge’s starting point, before any mitigation, was considerably above even the 14 years in Jervis.  Having regard to the positioning of Jervis in respect to the other s 8 manslaughter cases; to my view that the offending in the applicant’s case was less than that in Welham, and to the sentences imposed in the other s 8 manslaughter cases discussed in Welham, my view is that the indicative sentence of 12 years was manifestly excessive and indicates a starting point which was also manifestly excessive.  For that reason I would allow the application for leave to appeal against sentence.

72. Having regard to the authorities discussed above, and to all the features of the applicant’s offending discussed above, I consider the starting point for the indicative sentence in this case ought to have been a 12 year head sentence,^[19] reduced by reason of the early plea and her extensive co-operation on 6 October 2009, to a head sentence of nine years.  That reduction, from 12 to nine years head sentence, involves a substantial reduction in time served before becoming eligible for parole by reason of the fact that at 12 years, under the legislation, 80 per cent of the sentence must be served, whereas at nine years, the defendant would become eligible for parole at the halfway point in the sentence.  In my view, having regard to this, and having regard to the serious nature of the offending in this case, no further reduction by setting a parole eligibility date before the halfway point was warranted.

73. In this case, the sentence should be reduced further because of s 13A co‑operation.  In R v Webber^[20] the Court of Appeal said:

“[4]We agree with Pincus JA that a prisoner who provides tangible cooperation in the prosecution of others implicated in the prisoner’s or some other criminal offence should receive a significant reduction in sentence sufficient to afford an inducement to others to provide such cooperation.

[5]Although the discount for cooperation must be discernible, and worthwhile, the adjusted sentence must nevertheless reflect the seriousness of the offence which is being punished. The balance between these competing demands will not always be easy to strike, as this application demonstrates.”

74. Pincus JA at paragraph [16] in the same case spoke of the need to make it clear that s 13A co-operation would, “be likely to produce a significant discount in sentencing, quite apart from the discount obtained by persons who plead guilty.” It is right to bear in mind the distinction between past and future co-operation made by s 13A.^[21]

75. I think the sentencing structure and outcome in this matter acutely illustrate the difficulty in balancing the competing demands spoken of by the Court of Appeal in Webber at paragraph [5] above.  On the one hand, the applicant has significantly assisted in bringing about a brutal killing.  On the other hand, she is entitled to a real discount in her sentence because of s 13A matters, separately to the discount which reflects her past co-operation and early plea.  There is no doubt that her s 13A co‑operation is valuable.  I would further discount the indicative sentence of nine years by 18 months, giving a head sentence of seven and one-half years.  Because of the seriousness of the offending, I would not make any recommendation for parole eligibility – the applicant would become eligible for parole at the halfway point by operation of law.