A man sentenced to at least 30 years’ jail for the rape and murder of an international student should face more time behind bars because of the risk to the community upon his release, a Melbourne court has heard.
The Victorian office of public prosecutions is appealing the maximum 36-year prison term handed down to Codey Herrmann for the rape and murder of Aiia Maasarwe.
Maarsarwe, 21, was set upon by Herrmann while walking from a tram stop to student accommodation in Bundoora, in Melbourne’s north, in the early hours of 16 January, 2019.
Kerri Judd QC, the state’s director of public prosecutions, told the Victorian court of appeal on Thursday that the minimum 30-year sentence handed down by Justice Elizabeth Hollingworth was manifestly inadequate and Herrmann should have received a life sentence.
Judd argued that Hollingworth erred in sentencing by failing to weigh the risk Herrmann posed to the community upon his release given the limited prospects of rehabilitation expressed by two experts; a forensic psychiatrist and a consultant neuropsychologist.
Judd said that despite the fact Herrmann was 20 at the time of the attack, pleaded guilty, had no criminal record, and had not premeditated the offence, its sheer violence meant the safety of the community needed to be placed above the limited prospect of him being rehabilitated when he was released.
“In a case like this where there was no trigger, there was such brutality, there was no real explanation provided, it is such a serious course of offending,” Judd said.
“In determining the outcome of this appeal it is important to take a deep look at the evidence relating to the prospects of rehabilitation.”
Hollingworth, after consulting the reports of the experts, determined Herrmann had “fair prospects of rehabilitation if you are given appropriate treatment, support and supervision”.
The experts found that Herrmann had severe personality disorder and substance abuse disorder. Part of the difficulty in assessing whether treatment would assist his rehabilitation was that the cause of his personality disorder was a lengthy history of severe disadvantage.
Hollingworth found that the first three years of Herrmann’s life was marked by “extreme physical and emotional deprivation”.
His history was detailed in more than 2,000 pages of welfare records in his file kept by the Victorian Aboriginal Childcare Agency. Herrmann’s mother, an Indigenous woman, was 19 when he was born and already had an older daughter.
“The level of physical neglect was so profound that you and your sister had digestive problems, rotten teeth, and skin problems due to lack of cleanliness,” Hollingworth found.
By the time of the rape and murder, Herrmann was homeless, and had therefore found prison “better than on the streets” as it provided “a safe place to sleep, three meals a day, a hot shower, and the prospect of being able to undertake courses”.
“That is a rather bleak reflection of the circumstances in which you were previously living,” Hollingworth said during sentencing.
On Thursday, Judd said that because there was no certainty Herrmann would be able to receive the treatment in prison he needed to ensure his “fair” prospects of rehabilitation were met, the court should extend his sentence to better protect the community.
But Justice Terence Forrest said it would be “slightly strange” if concerns about whether the proper treatment could be provided to someone in prison resulted in them getting a longer sentence.
He said that it was clear the experts said Herrmann would need “Rolls Royce intervention” of a standard not currently offered in prison to be given the best chance of rehabilitation, though Hollingworth had given weight to this in sentencing by qualifying his prospects.
“I would have thought that the statement that you have ‘fair prospects’ is a very qualified conclusion that is below good and better than poor.
“It’s not fair in a positive way, it’s fair in a qualified sense.”
Forrest added that any exercise in weighing risk to the public, particularly when it related to the release of someone in several decades time, was “an exercise in clairvoyance, in a way”.
Tim Marsh, for Herrmann, went even further, saying: “It’s a meaningless exercise to assess an offender’s risk to the community 30 years in the future.
“It does not even reach the level of clairvoyance, to borrow Justice Forrest’s term.”
Marsh said Hollingworth had had cautiously weighed the rehabilitation evidence.
“I don’t want to labour the point too much, but it cannot be forgotten that the next three decades for a 20-year-old man is an enormous period of his life,” Marsh said.
He also cautioned against the court finding that too much mitigation had been placed by Hollingworth on Herrmann’s mental capacity and personal circumstances, saying that it was clear, if anything, that not enough weight was placed on an offender’s Aboriginal heritage, given Indigenous incarceration rates.
Court of appeal president Justice Chris Maxwell said it was clear the case raised significant issues about how sentencing and appeal courts dealt with childhood deprivation in offenders. A decision on the sentence appeal will be handed down at a later date.
