Cramp v The Queen

[2016] NSWCCA 305

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cramp v R [2016] NSWCCA 305

Hearing dates:

12 October 2016

Date of orders:

16 December 2016

Decision date:

16 December 2016

Before:

Gleeson JA
Fagan J
N Adams J

Decision:

The orders of the Court are:

 

1. Leave to appeal is granted.

 

2. The sentence imposed on the applicant by M Adams J on 19 March 2015 is set aside.

 

3. In lieu thereof, for the murder of Lance Hargreaves on 21 February 2013 at St Marys, Gordon Reginald Cramp is sentenced to imprisonment for a non-parole period of 25 years and 6 months commencing on 2 March 2013 and expiring on 1 September 2038 and a balance of term of 8 years and 6 months commencing on 2 September 2038 and expiring on 1 March 2047.

 4. The applicant will be eligible for release on parole on the expiry of the non-parole period fixed under order (3).

Catchwords:

CRIMINAL LAW – appeal against sentence – murder – motive – dangerousness – whether sentencing judge erred by considering applicant’s dangerousness increased by inability to identify motive – whether inability to identify motive aggravated sentence imposed – purposes of sentencing

  CRIMINAL LAW – appeal against sentence – murder – whether manifest excess – not in worst category – aggravating factors – comparative cases

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
Louizos v R; R v Louizos [2009] NSWCCA 71; (2009) 194 A Crim R 223
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v Regina [2006] NSWCCA 282
Purtill v R [2016] NSWCCA 80
Regina v Cramp [2004] NSWCCA 264
R v Gordon Reginald Cramp [2015] NSWSC 271
R v Kelsall [2015] NSWSC 480
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Gordon Reginald Cramp (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Gartelmann SC (Applicant)
B Baker (Respondent)

  Solicitors:
S Joyner (Applicant)
C Hyland (Respondent)

File Number(s):

2013/56223

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 271

Date of Decision:

19 March 2014

Before:

M Adams J

File Number(s):

2013/56223

Judgment

1. THE COURT: On 29 October 2014 the applicant, Gordon Reginald Cramp, was found guilty by a jury of the murder of Lance Hargeaves at St Marys on 21 February 2013. He was sentenced by M Adams J on 19 March 2015 to a term of 40 years’ imprisonment with a non-parole period of 30 years, commencing on the date of his arrest, 2 March 2013: R v Gordon Reginald Cramp [2015] NSWSC 271.

2. The applicant now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the severity of the sentence on two grounds:

“1. The judge erred in considering the applicant’s dangerousness to be increased because his motive for the offence could not be determined.

2. The sentence is unreasonable or plainly unjust.”

3. The maximum penalty for murder is life imprisonment which may pursuant to s 21(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) be reduced to a specific term of years, subject to the limitations and criteria prescribed in s 61(1). The standard non-parole period for the offence is 20 years under Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act.

Circumstances of the homicide

4. The applicant was employed at Solveco, an industrial waste management business operating from a yard in North St Marys, from about November 2010. His employment was terminated in mid-November 2012. He had been in an intimate relationship with Ms Rachel Sydenham during the period of his employment. This relationship had ended on 9 November 2012 when Ms Sydenham discovered that he had been having an affair with another woman for some months. The separation was acrimonious and in its aftermath the applicant did not attend work for some days. His employment was terminated because he was deemed to have abandoned it.

5. By late November 2012 the applicant and Ms Sydenham had resumed living together. In the early hours of 21 February 2013 they had an argument at their home on Lindsay Street, Richmond. Ms Sydenham told the applicant to leave the house. The applicant left around 2:45 am. He was picked up by a friend, Seth Roberts. Mr Roberts drove the applicant to Mr Roberts’ home in Werrington. There the applicant injected ice into his arm and smoked marijuana.

6. After an hour, the applicant asked Mr Roberts to drive him to the Solveco yard. Adams J found that the applicant’s purpose was to obtain drugs. He took with him two knives which he had removed from their sheaths and placed in a shoulder bag. His Honour concluded that on leaving Mr Roberts’ house the applicant “had some idea that he might use one or both of” the knives but was not satisfied that he set out for the Solveco yard with a premeditated intention to kill anyone.

7. Upon arrival outside the Solveco yard the applicant left Mr Roberts and went into the premises carrying his shoulder bag with the two knives. He made insulting remarks to a truck driver concerning other employees and requested the driver to call the plant manager, Mr Peterson. Shortly afterwards he was observed to stab the lid of an Otto bin with a large bladed hunting knife, climb onto the back of a tipper truck where he cut the wires of a video security camera and climb onto a steel post to disable a separate security camera.

8. The applicant then went into the lunchroom where the deceased, also a Solveco employee, was watching television. The two chatted in a friendly manner. The applicant asked a nearby worker, Mr Woodyat, to call the plant manager. He declined to do so which prompted the applicant to ask the deceased, Mr Hargreaves, to call the manager. He similarly refused. The applicant repeated his requests however the deceased, unpersuaded, picked up a magazine, left the lunchroom and walked towards his car. The applicant followed him and spoke to him in an agitated voice. Eventually Mr Hargreaves said “enough” in a loud, firm voice. He placed the magazine inside his car, locked it and moved back through the Solveco yard The applicant continued to trail him.

9. Mr Roberts, who was watching the two men, lost sight of them as they moved through the yard where wooden pallets had been stacked to form a narrow, winding path. He overheard a scuffle. Although not directly observed by any witnesses, evidence of the aftermath of this scuffle satisfied the jury that the applicant had stabbed the deceased on the left side of his neck with sufficient force for the knife to exit through the right side of the deceased’s neck and completely sever the spinal cord between the second and third cervical vertebrae.

10. The applicant shouted to Mr Roberts to go to his car. The applicant joined him carrying the bloodstained knife which he had used to stab Mr Hargreaves. Mr Roberts drove some distance from the yard before the applicant required him to stop for the applicant to alight, which he did. A warrant for his arrest was issued but on 22 February 2013 he surrendered himself at Windsor Police Station.

11. Having regard to the nature of the fatal wound inflicted on the deceased his Honour was satisfied that the applicant had intended to kill and not merely to inflict grievous bodily harm. Although the applicant was affected by drugs at the time of the offence he agreed in evidence given during his trial that he knew what he was doing and had no problems with his memory about what he had done.

Proceedings on sentence

12. The applicant was 37 years old at the date of the offence and 39 years old at the time of the proceedings on sentence. The Crown tendered a bundle of documents on sentence comprising the applicant’s criminal history, his custodial history, a Crown case statement and three victim impact statements. Significantly, the Crown also tendered material pertaining to the applicant’s history of violence. That material comprised the remarks on sentence of Knight DCJ at the District Court at Penrith on 3 October 2003 and the decision of this court in Regina v Cramp [2004] NSWCCA 264 as well as Facts Sheets and statements for recent convictions on the applicant’s criminal history. The applicant’s criminal history disclosed a long record of drug offences going back to his late teens and there were offences of violence from June 2002.

13. The decision of this court in Regina v Cramp [2004] NSWCCA 264 concerned an appeal against the sentence imposed on the applicant by Knight DCJ on 3 October 2013. When he was just under 27 years of age, the applicant was sentenced by his Honour to imprisonment for 8 years in relation to an offence of maliciously wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act committed on 14 June 2002. The victim was a distant cousin of a woman with whom the applicant had been in a relationship. The victim had provided emotional support to the woman during difficulties in that relationship. As a result of this, tension developed between the applicant and the victim. When the applicant by chance saw the victim walking along a street, he stopped his car, alighted and chased the victim with a knife. The applicant stabbed the victim repeatedly in the back as he attempted to escape over a suburban fence. The victim was left with serious permanent injuries. His lung and diaphragm had been perforated. His ability to breathe was permanently impaired.

14. This Court allowed the appeal against the severity of the sentence and in lieu thereof sentenced the applicant to 7 years’ imprisonment including a non-parole period of 5 years. In doing so, the Court observed (at [66] and [68]) that the applicant was unlikely to re-offend and that his prospects of rehabilitation were good.

15. The applicant was released from custody on 20 June 2007. On 20 July 2008, he was arrested for an offence of assault occasioning actual bodily harm and placed on a s 9 bond for 3 years. As a result of this, his parole was revoked and he served part of the balance of his parole, from 7 August 2008 until 5 November 2008.

16. On 11 January 2010, the applicant was arrested for one count of common assault and one count of contravening an apprehended domestic violence order On 28 May 2010, he was sentenced to imprisonment for 9 months with a non-parole period of 6 months for those offences. That sentence was reduced slightly on appeal to the District Court. He was released from custody on 21 November 2010. On 8 January 2012, he was fined for possessing a prohibited weapon without a permit, possessing a knife in a public place and possessing ammunition without a licence. On 9 November 2012, he was placed on s 9 bond for 18 months for a charge of assault occasioning actual bodily harm on his then partner. He was on that bond at the time of the commission of the murder.

17. The applicant did not give evidence on sentence and there was little evidence placed before the sentencing judge on his behalf from other sources. On 21 November 2014, the proceedings on sentence were adjourned part-heard in order for the applicant to apply to Legal Aid NSW for a grant of aid to obtain a “further psychiatric report”. When those proceedings resumed on 6 February 2015, the sentencing judge was informed that such a further report could not be funded. The applicant’s then counsel submitted that he had no psychiatric material to tender on behalf of the applicant on sentence. The only material tendered on behalf of the applicant on sentence was a letter from TAFE Western Sydney Institute attaching a certificate confirming that the applicant was as at 5 February 2015 enrolled in a Certificate II in engineering production systems and that he had completed courses in welding and work readiness.

18. Findings of the sentencing judge

19. His Honour observed that there was no agreed statement of facts in this matter and that it was thus necessary for him to determine the facts. His Honour found the facts as set out above at [4]-[11].

20. There was no evidence of any motive before his Honour. His Honour made a number of findings in that regard. At [17] he observed:

“The circumstances of this crime demonstrate that Mr Cramp is a dangerous individual and it is necessary that his sentence reflect the need for the protection of the community whilst not, of course, exceeding the punishment called for by the circumstances of the offence itself or amounting to preventative detention. The very inability to identify a motive, to my mind, increases rather than reduces his dangerousness.”

21. In the course of his remarks on sentence, his Honour made the following additional observations concerning the absence of evidence to establish what had been the applicant’s motive for the homicide:

At [2]: “Aside from it being self-evident that Mr Cramp had been angered in some way, perhaps by an earlier exchange with Mr Hargreaves, his motive for killing him is ultimately a matter of speculation.”

At [16]: “I am not able to conclude beyond reasonable doubt that Mr Cramp took the knives to Solveco for the purpose of killing someone, let alone Mr Hargreaves.”

At [16]: “I cannot say what Mr Cramp’s motive was but I am satisfied that he fully intended to do what he did.”

At [16]: “The mere fact that it is not possible to identify a motive does not mean that the killing was unreasoned or the result of some confusion of mind or understanding.”

22. His Honour noted that the applicant did not proffer any evidence as to his subjective features and that what material his Honour had before him was apparent from the earlier decision of this court in Regina v Cramp [2004] NSWCCA 264. His Honour noted at [19] that the applicant was the elder of two children. His father died when he was 15. This led to the applicant starting to use illicit drugs and leaving school. He was engaged in employment of various kinds. He commenced using amphetamines in 1990. His Honour accepted that the applicant may have been affected by that drug when he committed the wounding offence. He was unemployed at the time of the murder, although he had previously been employed. His previous relationship had ended the day before he killed the deceased.

23. His Honour was not satisfied that there was any evidence which might amount to special circumstances justifying a variation of the statutory ratio stipulated in s 44 of the Crimes (Sentencing Procedure) Act.

Ground 1 – Absence of evidence of motive

24. The applicant’s first ground of appeal primarily arises from his Honour’s remarks at [17] of his remarks on sentence extracted above at [19]. Counsel for the applicant recognised that it was open to his Honour to conclude that no motive was capable of being discerned from the evidence. However, he submitted that this should not have been treated as a factor aggravating the seriousness of the offence or warranting a higher sentence. As explained below, we do not read his Honour’s remarks as treating the absence of a discernible motive as in itself an aggravating factor.

25. In support of his submission the applicant’s counsel relied on the following statement of Howie J (McClellan CJ at CL and Grove J agreeing) in Louizos v R; R v Louizos (2009) 194 A Crim R 223; [2009] NSWCCA 71 at [102]:

“An offence is not mitigated by the fact that no comprehensible motive can be shown. Motive is like any other aspect of the circumstances surrounding the commission of an offence. The Crown is only required to prove the elements of the crime charged. If the Crown wishes to rely upon motive as an aggravating feature, the Crown must prove it beyond reasonable doubt. If the accused contends that the motive is a mitigating factor, the accused is required to prove it on the balance of probabilities. If the court cannot determine what motivated the offender, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing.” [Emphasis added.]

26. Counsel contended that as his Honour was unable to make a finding about the applicant’s motive for the offence it followed from the above passage in Louizos v R that “motive” should not have been taken into account “in any other way relevant to sentencing”. It was submitted that his Honour infringed this restriction by having regard to the absence of proof of motive in assessing the degree to which the applicant should be regarded as dangerous.

27. The final sentence of the passage from Louizos v R quoted at [15] was not intended by the Court to be a general statement, for all cases, that where no specific motive can be proved the subject of motive cannot be relevant to any factor which may bear upon the exercise of the sentencing discretion. If such a meaning had been intended by their Honours it would have been wider than necessary for the determination of the appeal then before the Court.

28. In Louizos v R, the Crown contended that the offender’s motive for soliciting her former husband’s murder had been to “derail or pervert” pending Family Court proceedings. The sentencing judge was not satisfied of that motive and went on to say that “the absence of comprehensible motivation causes me to impose a lesser non-parole period than the standard non-parole period”. At [91] Howie J said “[i]n considering this issue his Honour appears to have fallen into the error of converting the absence of a finding of an aggravating factor into a mitigating factor”. It was against this background that Howie J made the statement quoted at [24] above.

29. Here, Adams J was not able to determine whether the objective gravity of the murder was aggravated or mitigated by the motive for which it was committed. Where no motive, either aggravating or mitigating, could be positively established this void in the evidence nevertheless had an indirect relevance to the sentencing decision. His Honour’s “inability to identify a motive” caused him (at [17]) to give attention to the “dangerousness” of the applicant and the risk he posed. Immediately preceding his now impugned remarks at [17], Adams J referred to “the need for the protection of the community”, a reference to par (c) of the purposes of sentencing prescribed in s 3A of the Crimes (Sentencing Procedure) Act.

30. The Crown in submissions on this appeal treated his Honour’s reasons as including a positive finding that the applicant had “no motive”. That is incorrect having regard to the whole of his Honour’s remarks on the subject at [2], [16] and [17] (cited above at [20]). The true position is that, in the absence of sufficient evidence to establish what the applicant’s motive had been, his Honour viewed the crime – a savage homicide of an innocent and unsuspecting former workmate – as unexplained and lacking any context.

31. What his Honour appears to have meant by the part of his remarks that is challenged under this ground is no more than that the need for the Court to sentence the applicant on the basis that he posed a danger to the community was confirmed and the degree of risk against which the community was to be protected was heightened by the circumstance that no motive for the murder was apparent. Absent proof of a motive, there was no causal explanation of the crime such as might be taken into account in calculating whether repetition of the circumstances which led to it was likely or whether the applicant’s prospects of rehabilitation were greater or less. We consider that no error is shown in this respect.

32. The course of Adams J’s reasoning in the present case is quite different from that of the sentencing judge in Louizos v R, which was disapproved in this Court. His Honour did not convert the absence of “an aggravating factor into a mitigating factor” or vice versa. In Louizos v R there had been no suggestion the offender was a danger to the community. The inability of the Crown to prove an alleged aggravating motive in that case meant that the entire subject of motive had no consequence, direct or indirect, for penalty. There was no occasion in that case for reasoning such as that which Adams J applied here. This Court cannot be taken to have disapproved his Honour’s approach. It is, with respect, valid. Ground 1 is rejected.

Ground 2 – the sentence is unreasonable or plainly unjust

33. The applicant’s central contention was that a term of imprisonment for 40 years is manifestly excessive bearing in mind that the maximum penalty of imprisonment for life is intended for cases in the worst category and the judge correctly recognised the applicant’s offence was not in that category: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 451 – 452.

34. It was submitted that the sentencing judge’s assessment of the objective seriousness of the offence as “very great” was not a characterisation reasonably open having regard to the breadth of the range of conduct covered by the offence. It was further contended that the assessment of objective seriousness appears inconsistent with the factual findings taken as a whole.

35. It was further submitted that the applicant’s previous offending and his commission of the present offence in breach of conditional liberty were no doubt relevant, but the boundaries of a proportionate sentence remained set by the objective circumstances of the offence.

36. The applicant filed supplementary submissions summarising ten cases for assistance in assessing the sentence imposed in the applicant’s case in accordance with the principles stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53] – [54] and Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40] – [41. Those decisions have been considered by the Court but are not sufficiently comparable to the facts of the present case to warrant citation or discussion in these reasons.

37. The Crown submitted that the characterisation of the objective seriousness of an offence is classically within the role of the sentencing judge and, as such, is a matter in which this Court would be slow to intervene: Mulato v Regina [2006] NSWCCA 282 at [46]. It was the Crown’s submission that his Honour’s finding was one well open to him having regard to the facts.

38. The Crown relied upon two decisions in comparable cases in support of his argument that the sentence impose was not manifestly excessive. Those decisions are R v Kelsall [2015] NSWSC 480 and Purtill v R [2016] NSWCCA 80. Both of these cases are considered further below. In addition, the Crown filed a supplementary schedule submitting why the ten cases relied upon by the applicant do not assist in establishing this ground.

39. Consideration

40. To succeed on this ground the applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. This is the last kind of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.

41. This Court’s task is not to decide whether it would have exercised its discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen at [57]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. As the High Court has repeatedly observed, consideration of such a ground is undertaken in the context of there being no single correct sentence and that sentencing is not a mathematical exercise. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle.

42. Turning to the first of the two complaints under this ground, the question is whether it was open to the sentencing judge to make the following finding at [22]:

“[22] …Generally speaking, the intention to kill will make the crime more serious than an intention to cause grievous bodily harm. Although I would not, as is clear, describe the attack as pre-meditated, it was decided upon significantly, albeit only a short time, before it was undertaken, and required the removal of the knife from the bag Mr Cramp was holding. This is not a case in the worst category, but its objective seriousness is very great. Furthermore, the fact that Mr Cramp is a dangerous man who has already committed an attack of a similar though less serious kind must give rise to an emphasis on the need for personal deterrence to protect the community.”

43. In determining whether the above finding was open to his Honour this Court is guided by what Simpson J (as her Honour then was) observed in Mulato v Regina at [46] (Spigelman CJ and Adams J agreeing):

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

44. The sentencing judge found that the applicant engaged in a violent and unprovoked attack on an unarmed and unsuspecting man (at [23]). The attack was made from behind, severing the deceased’s spinal cord with a single blow that went completely through the deceased’s neck (at [2]). The applicant left the deceased alone and bleeding on the ground and fled the scene (at [7] – [8]).

45. There was insufficient evidence to establish that the applicant was affected by illicit drugs such as to warrant any amelioration of the seriousness of the crime (at [16]). The applicant displayed no contrition or dismay at his own actions as he directed his friend to drive him away from the scene (at [16]).

46. At the time of the murder the applicant was on conditional liberty for an offence of assault occasioning actual bodily harm committed on 9 November 2012. This is an aggravating factor pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

47. On the other hand, the offence was not aggravated by premeditation, by having been committed in furtherance of or to conceal another crime, by having been undertaken for financial gain or in company, by special cruelty in the manner of inflicting death or by the victim being particularly vulnerable (for example a young child). Nor did the crime involve any of the other aggravating factors that are commonly present in cases of murder for which very high sentences of the order imposed by his Honour on this occasion are usually reserved.

48. A sentence of 40 years including a non-parole period of 30 years is towards the upper limit of terms of imprisonment that are specified in years by the Supreme Court for murders which do not attract mandatory life under s 61(1) Crimes (Sentencing Procedure) Act. The non-parole period of 30 years ordered by Adams J is obviously significantly greater than the standard prescribed by the Crimes (Sentencing Procedure) Act of 20 years.

49. Having regard to all of these factors, the Court is not satisfied that any error has been shown in the sentencing judge’s finding that the objective seriousness in this matter was “very high”. Although there is some lack of precision in this characterisation, his Honour clearly found that the offence was above mid-range of seriousness but not in the worst category of cases.

50. The question for determination is then whether, having made a finding that the objective seriousness was very high, the sentence was nonetheless manifestly excessive. In Hili v The Queen at [59], the High Court rejected the proposition that manifest error is fundamentally intuitive; rather, manifest error arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is incapable of being identified. The High Court said that, “what reveals manifest excess, or inadequacy, of a sentence is consideration of all of the matters that are relevant to fixing the sentence.”

51. The two comparable sentencing decisions relied upon by the Crown are of assistance. R v Kelsall was a case in which motive remained obscure and where protection of the community was an important consideration in determining the appropriate sentence. That offender was sentenced to 40 years’ imprisonment including a non-parole period of 30 years for the stabbing murder of a complete stranger to him, in that person’s home. The circumstances raised a significantly more pressing concern for the protection of the community than the present case. The offender in that case had reported to a doctor 16 months before the homicide that he experienced intrusive and persistent thoughts of killing people with a knife. He told a psychiatrist at about the same time that he had thoughts of stabbing a person to death “for the thrill of it” ([5], [33], [34]). Psychiatric opinion included that the offender exhibited “significant callous-unemotional traits” and “a reduced capacity for empathy” ([38], [42]).

52. In R v Kelsall at [62] – [64], it was found that the offender had followed the deceased to the latter’s home with the thought that he might kill the deceased should the opportunity arise, albeit without a firm intention to kill from the outset. The learned judge accepted that once the offender had entered the deceased’s home he did so for the sole purpose of killing him if he could. The victim was incapacitated by sleep, intoxication or both. At [68], the learned sentencing judge said that, “despite the psychiatrists being unable to fathom a reason for it, [the homicide] must have been the doing of a very disturbed individual”. Thus in R v Kelsall there were specific circumstances justifying a very long prison sentence in the interests of protecting the community, which are not present in the case now before this Court.

53. Purtill v R [2016] NSWCCA 80 was a case in which motive for a murder (by cutting the victim’s throat from behind) was not established. A sentence of 28 years’ imprisonment including a non-parole period of 21 years was imposed. That case is more closely comparable with the facts now before this Court than the case of R v Kelsall, although there were considerations mitigating sentence in Purtill v R that are not present here. It was found that the murder in Purtill v R had “occurred spontaneously and reactively to circumstances that remain unexplained”. The deceased had attended the offender’s home to effect a drug-related transaction and in circumstances that were not clarified by the evidence “a violent disagreement erupted between the two men”. The offender was wholly unremorseful but the offence was unplanned and “decidedly out of character”.

54. The learned sentencing judge found that the offender did not “present any assessable or identifiable risk to the community of reoffending upon his release”, despite his “lack of insight with respect to the strength of the evidence against him”. He had no relevant criminal record, the need for specific deterrence was low and his prospects for rehabilitation were high. In this Court it was noted that, “his Honour found that the gratuitous and unexplained nature of the offence warranted general denunciation.”

55. The applicant’s case on sentence is less favourable than that in Purtill v R with respect to his adverse criminal record and Adams J’s findings regarding his dangerousness, the risk that he would commit violent crimes again and his poor prospects of rehabilitation. Adams J observed at [23]:

“This is Mr Cramp’s second extremely violent unprovoked knife [attack] which strongly suggests, at least, that his prospects for rehabilitation are not good. I do not say that it is not possible that he might be rehabilitated. It may be that, like many offenders, aging itself will bring about some change of mind and attitude.”

56. The applicant’s antecedent criminal history was a relevant matter for consideration by his Honour. It cannot be given such weight as to lead to the imposition of a sentence disproportionate to the gravity of this offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242. Despite this, as the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) observed in Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 at 473:

"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

57. As the High Court went on to observe in Veen v The Queen [No 2] (at 477), the applicant’s prior record is relevant:

“… to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

58. At trial the applicant gave evidence denying that he struck the blow that killed the deceased. He did not give evidence at sentence and there was no psychiatric or psychological material tendered on his behalf. His Honour was thus unable to make any finding as to remorse.

59. Having regard to all of the above matters, and notwithstanding the absence of demonstrated error in ground 1 the Court is persuaded that the sentence imposed was manifestly excessive. Although the circumstances of this unprovoked knife attack were of great objective seriousness, we agree with his Honour’s evaluation that it was not a murder “in the worst category”. Nor did the circumstances involve such a degree of aggravation or such adverse subjective circumstances as would reasonably justify the severity of the sentence that his Honour imposed.

60. Taking into account all of the objective and subjective features of the case identified in these reasons, a significantly lower sentence should have been imposed. Namely, a sentence of 34 years’ imprisonment including a non-parole period of 25 years and 6 months.

Orders

61. The orders of the Court are:

1. Leave to appeal is granted.

2. The sentence imposed on the applicant by M Adams J on 19 March 2015 is set aside.

3. In lieu thereof, for the murder of Lance Hargreaves on 21 February 2013 at St Marys, Gordon Reginald Cramp is sentenced to imprisonment for a non-parole period of 25 years and 6 months commencing on 2 March 2013 and expiring on 1 September 2038 and a balance of term of 8 years and 6 months commencing on 2 September 2038 and expiring on 1 March 2047.

4. The applicant will be eligible for release on parole on the expiry of the non-parole period fixed under order (3).

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Decision last updated: 16 December 2016