Katsis v R

[2018] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Katsis v R [2018] NSWCCA 9
Hearing dates:	1 November 2017
Decision date:	14 February 2018
Before:	Hoeben CJ at CL at [1]; Schmidt J at [120]; Campbell J at [121]
Decision:	(1)   Leave to appeal against sentence is granted. (2)   The appeal is dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – offences of murder and sexual intercourse without consent – offending occurred in 1988 but not sentenced until December 2015 – victim an elderly woman living in circumstances of social isolation – whether victim should have been regarded as “vulnerable” in accordance with s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether judge properly applied the principles applying to sentencing for historical offences – whether judge should have found special circumstances having regard to the length of non-parole periods imposed during the 1980s – whether judge should have taken into account applicant’s upbringing as bearing upon his moral culpability – whether judge properly took into account by way of mitigation the applicant’s previous good character – grounds of appeal not made out – leave to appeal granted but appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 18, 19, 61D(1), 442 Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A, s 44 Probation and Parole Act 1983 (NSW) – s 20A
Cases Cited:	AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Bradley v The Queen [2017] VSCA 69 Bugmy v R [2013] HCA 37; 249 CLR 571 CT v R [2017] NSWCCA 15 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Ingrey v R [2016] NSWCCA 31 Longworth v R [2017] NSWCCA 119 MPB v R [2013] NSWCCA 213; 234 A Crim R 576 Munda v Western Australia [2013] HCA 38; 249 CLR 600 PH v R [2009] NSWCCA 161 R v Bossie (Supreme Court (NSW), Studdert J, 16 April 1992, unrep) R v Dargin [2000] NSWSC 710 R v Fleming [2007] NSWSC 673 R v GDP (1991) 53 A Crim R 112 R v Katsis [2015] NSWSC 1890 R v Kennedy [2000] NSWCCA 527 R v Magnuson [2013] NSWCCA 50 R v Matthews [2014] NSWSC 608 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Sharpe (Supreme Court (NSW) Wood J, 9 September 1992, unrep) R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 RL v R [2015] NSWCCA 106 SHR v R [2014] NSWCCA 94 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Alexis Katsis – Applicant Regina – Respondent Crown
Representation:	Counsel: G Bashir SC/J Brock – Applicant N Adams/S Johnson – Respondent Crown   Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/157715
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Katsis [2015] NSWSC 1890 Date of Decision: 11 December 2015 Before: Fagan J File Number(s): 2014/157715

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

The applicant was tried before Fagan J and a jury and on 21 October 2015 was found guilty of the following counts:

Count 1 – That on 3 September 1988 at Little Bay he did have sexual intercourse with Doris Fenbow (the deceased) without her consent and knowing that she was not consenting (s 61D(1) Crimes Act 1900 (NSW) for which the maximum penalty was imprisonment for 8 years (now repealed)).

Count 2 – That on 3 September 1988 at Little Bay he did murder the deceased, contrary to s 18 of the Crimes Act 1900 (NSW) for which the maximum penalty was life imprisonment.

2. The offences were committed against Doris Fenbow (the deceased) on 3 September 1988. Although the penalty for murder as at that date was penal servitude for life, the offence occurred one week before the applicant turned 18. Accordingly, s 442(1) of the Crimes Act (since repealed) applied, which allowed for the imposition of a lesser sentence.

3. On 11 December 2015 the applicant was sentenced for the offence of sexual intercourse without consent to a fixed term of imprisonment of 6 years, commencing 12 September 2014 and expiring 11 September 2020. For the offence of murder, the applicant was sentenced to imprisonment for 20 years, commencing 12 September 2014 and expiring 11 September 2034. The non-parole period was 15 years, to expire on 11 September 2029.

4. The applicant seeks leave to appeal against those sentences. The grounds of appeal are:

Ground One – The learned sentencing judge erred in taking into account on sentence as an aggravating factor pursuant to s 21A(2)(l) that ‘the victim was vulnerable’.

Ground Two – The learned sentencing judge erred in his application of the principles applying to sentencing for historical offences in the circumstances of this case.

Ground Three – The learned sentencing judge erred in holding that there were not any special circumstances which would justify the downward adjustment of the ratio set out in s 44 Crimes (Sentencing Procedure) Act 1999.

Ground Four – The learned sentencing judge erred in failing to assess the applicant’s moral culpability for the offences taking into account his deprived upbringing; cf Bugmy v R [2013] HCA 37; 249 CLR 571; Ingrey v R [2016] NSWCCA 31 at [31] – [36].

Ground Five – The learned sentencing judge erred in failing to hold and take into account as a matter of mitigation in his determination of sentence that the applicant was a person to be regarded as a person of good character (s 21A(3)(f).

FACTUAL BACKGROUND

5. The sentencing judge was required to find the facts consistent with the jury's verdicts. A document headed "Agreed facts on sentence" was tendered in the Crown sentencing bundle (Exhibit SA, tab 1). His Honour’s findings as to the facts are set out in the sentencing judgment (R v Katsis [2015] NSWSC 1890) at [3] - [28]).

6. The deceased lived alone in a one bedroom unit in a Housing Commission complex of eight blocks of units. The applicant lived in a unit nearby in the same complex. The deceased was aged 66 at the time of her murder. She did not appear to have visitors and was not seen in the company of others. She did not care for herself well, her flat was untidy and unclean and her personal hygiene was poor. The applicant knew her by sight and was heard to refer to her as "smelly". On post-mortem examination she weighed 54 kilograms and was 172 centimetres in height.

7. She was last seen alive by a neighbour at 6pm on Friday, 2 September 1988. At around 8am on Saturday 3 September, neighbours noticed smoke coming from her unit and called the Fire Brigade. Two neighbours forced their way into the unit to try to rescue her, but found her dead and retreated from the unit. When the Fire Brigade arrived and extinguished the fire, the deceased was found face down on the lounge room floor with smouldering cushions beside her and under her. She was wearing a bra, a light slip, a cardigan and a jacket. The slip was pulled up and she was exposed from the waist down.

8. There were three seats of fire in the lounge room, including in cushions pushed under and against the deceased, and one seat of fire in the bedroom. The unit had been ransacked and a purse was open on the counter top. Hot plates on the electric stove were on and were glowing with heat. A large pane of glass was missing from a window in the bedroom, having been broken two weeks earlier. The Fire Brigade investigator estimated that the fire had burned for about one to two hours, from which his Honour inferred that the fire had commenced at around 6am.

9. There was evidence of a struggle in the bedroom. On the bedroom floor were the deceased’s dentures, a watch with a broken strap and a small amount of blood. The autopsy report showed that the deceased had been severely assaulted. Her injuries included a bruised left eye and ear, broken fingernails on her right hand, scratch marks on her neck and under her chin, a round red bruise on her left breast and three fractured ribs on her left side, consistent with her having been punched or kicked or a knee being forced against her chest wall.

10. The autopsy showed that the cause of death was asphyxiation, partly mechanical i.e. by manual strangulation evidenced by heavy bruising to her neck muscles and damage to her voice box. This indicated severe force over many seconds or a few minutes which could have rendered the deceased unconscious but still breathing. The asphyxiation was also partly chemical as evidenced by heavy soot in her windpipe and lungs, indicating that she had inhaled smoke. A blood sample showing 30 per cent carbon monoxide saturation confirmed the chemical component of asphyxiation.

11. There was blood in the vicinity of the deceased's vagina and the internal vaginal wall was bruised in a manner consistent with penetration. Vaginal swabs revealed the presence of semen.

12. The collection of forensic evidence from the unit was frustrated by the sparsity of traces and the damage done by the fire. Police interviewed many of the occupants of the unit complex but did not gain any leads. The applicant was interviewed at the time and said that he had gone to the Maroubra Bay Hotel with friends, where he met his sister and two other women. He said he remained there drinking until 2.30am and returned in a taxi with his sister and others. He said that he went to bed shortly after arriving home and did not see or hear anything that could assist.

13. Although the police investigation had stalled in late 1988, the vaginal swabs were retained. By October 2003 the science in relation to DNA had advanced to the point that a DNA profile from the swabs could be obtained. A sperm fraction was identified from a retained swab of the deceased's vagina, and the DNA profile obtained from it was uploaded onto a database.

14. In March 2014 a buccal swab was taken from the applicant when he commenced a sentence of imprisonment. His profile was uploaded onto the database and was found to be a match with the profile from the sperm fraction. On May 2014 the applicant was arrested and charged with these offences on the basis of the forensic evidence. He declined to participate in an interview with police.

15. His Honour was satisfied beyond reasonable doubt that the applicant returned home from the hotel at about 2.30am and that at some time between 3am and 6am entered the deceased's unit, most likely through the broken window in her bedroom or through the sliding door in her lounge room. His Honour was satisfied beyond reasonable doubt that the applicant knew where the deceased lived and targeted her that night.

16. The tender of the applicant's criminal record in the sentence proceedings showed a conviction in the Children's Court in 1988 for stealing on 22 October 1987. The applicant's evidence in the proceedings on sentence for the instant offences was that in 1987 and 1988 he and his sister had to provide food for themselves. That evidence and the stealing offence, taken together with the ransacking of the deceased's unit, gave rise to the reasonable possibility that the applicant intruded for the initial purpose of stealing from the deceased, that the rape occurred opportunistically and that the murder followed from that. His Honour accepted the Crown's submission on that issue and was not satisfied beyond reasonable doubt that the applicant entered the unit with the premeditated intent to rape and murder the deceased.

17. The applicant gave evidence in the sentence hearing. He adhered to the evidence which he gave at trial and which was described by his Honour in the sentence judgment at [41] – [42] as follows:

“41   The offender said that once he was inside the unit Hayward fondled his penis, aroused him, performed oral sex on him and then pulled him into a prone position on top of [the deceased] and physically manipulated him to carry out the sexual act, all without volition on the offender's part. He said Hayward dragged his body backwards, one handed, to align him to penetrate [the deceased]. Then, again one handed, Hayward pushed his body forward to effect the penetration whilst holding the offender's penis in the other hand to ensure that this occurred.

42   In order to explain to the jury how this could possibly have taken place the offender asserted that Hayward had “something like a control over” him which caused him to remain passive throughout, in the fear of harm that might otherwise be inflicted. This “control” was attributed to the alleged experience of sexual abuse at Hayward's hands six years earlier. The offender told the jury that he fled [the deceased’s] unit after having penetrated her against his will. He said he knew nothing of how the fires were started.”

18. The reference to ‘Hayward’ in the preceding passage came from the applicant’s evidence that he was sexually abused by a man named Kevin Hayward, who lived in one of the units. This was said to have occurred in about 1982 or 1983. His Honour accepted that there was a man named Kevin Hayward living there at the time. His Honour found that the applicant’s description of his sexual abuse by Hayward was an introductory aspect of the false narrative which he gave to the jury to try to explain the presence of his semen in the vagina of the deceased. The balance of this narrative was that, in the early evening of Friday, 2 September 1988, as the applicant walked past the deceased’s unit on an innocent errand, Hayward was loitering outside her bedroom window. The applicant said that Hayward pulled him into the unit where the deceased lay already unconscious on the lounge room floor.

19. His Honour found that it was inherent in the jury’s verdict that they did not accept that this narrative was a reasonable possibility. His Honour further found:

“As the offender’s claim of having been sexually abused by Kevin Hayward in about 1982 or 1983 was an integral part of the exculpatory tale which the jury have rejected, I am left in great doubt as to whether he was ever abused by this man at all. I am not satisfied on the balance of probabilities that he was.” (Sentence judgment [44]).

Sentence judgment

20. His Honour characterised the nature of the attack on the deceased as follows:

“27   The offender’s attack on [the deceased] was savage, inhuman and despicable. A vulnerable, inoffensive, lonely old lady was taken from her bed in the small hours of the morning and violently subdued. When her frail body had been used to satisfy the offender’s short lived impulse it was discarded to the fire. Her clothing was left pulled above her waist in the state in which [the applicant] had finished with her. [The deceased] died in pain, in terror and in degradation.”

21. His Honour accepted that the applicant might still have been affected by the consumption of alcohol when he perpetrated these offences but his Honour was not able to say to what extent. It was the applicant’s sister’s evidence that he smoked a quantity of cannabis during the first 30 to 40 minutes after returning from the hotel to the family unit. His Honour was not able to make a finding as to the extent (if any) of his cannabis intoxication at the time when he committed these crimes.

22. In relation to the applicant’s subjective case, both his father and mother were of Greek birth. The family came to Australia in 1977-1978 when the applicant was aged seven. The applicant struggled with his schooling and left school in 1986 aged 16. In his teen years, up to the date when the offences occurred, the applicant was athletic, active and played cricket and rugby league. He engaged in surfboard riding all year around, spending on average half a day in the surf every weekend. Not long after his arrival in Australia, the applicant’s father remarried. The applicant and his sister testified that their stepmother was loving, warm and caring.

23. In contrast, the applicant and his sister gave evidence that their father was harsh and capricious. The applicant’s sister, who was three years older, described the father as “barbaric”. He inflicted corporal punishment on the applicant frequently, for little or no cause. He hit both the applicant and his sister. The applicant gave evidence that his father kept the household fridge locked and denied his children free access to it. The father was described as uncaring. On one occasion when the applicant injured his leg during play in the neighbourhood, his father force-marched him to a doctor in a manner which ran the risk of aggravating the leg injury, possibly to the point of doing irremediable harm.

24. The applicant and his sister gave evidence that at times they visited a paternal uncle who lived in Sydney. While in the uncle’s care, he too inflicted corporal punishment. According to the applicant, the uncle on two occasions sexually abused him. His Honour was prepared to accept, on the balance of probabilities, that these events did occur as part of the family life of the applicant before September 1988.

25. The reasons why his Honour rejected the applicant’s evidence of sexual abuse by Kevin Hayward have already been set out. The applicant’s sister gave evidence, which supported the applicant’s history of sexual abuse at the hands of Kevin Hayward. His Honour did not accept that evidence because she contradicted herself on a number of occasions.

26. The applicant gave evidence that over a period of three years before September 1988, he had also been sexually abused by Ronald Jolley. Jolley was said to live in a unit next to Kevin Haywood. His Honour noted that Ronald Jolley was another person whom the applicant sought to weave into the rejected narrative of how he came to have intercourse with the deceased shortly before her murder. The applicant told the jury that there was a third male in the unit into which he was forced by Kevin Haywood. The applicant attempted to convey to the jury that he thought this person might have been Jolley and that Jolley was another person whom he feared from earlier experience. This narrative was intended to further explain his passivity at the hands of Haywood. His Honour was not satisfied, on the balance of probabilities, that Ronald Jolley ever abused the applicant. His Honour reached that conclusion because the evidence concerning Ronald Jolley was integrally connected with the applicant’s exculpatory evidence to the jury involving Kevin Haywood. It was a narrative which the jury had rejected.

27. His Honour took into account the applicant’s personal history since the commission of the crimes. About a year after the deceased’s murder, the applicant moved out of his father’s unit and lived with his sister and her young son at Matraville. He worked as a machine operator at that time. In 1990 he went to Greece and lived with a second uncle for a year. He returned to Australia in 1991 and found work in the construction industry. This lasted about four years.

28. From 1994 or 1995 the applicant lived in Sydney with a female partner who became his fiancée. From 1995 to 1997 the applicant and his fiancée took care of the young son of his sister because she was unable to cope with the boy herself. In 1997 the applicant’s fiancée accidentally died and the applicant’s nephew was taken into care by the Department of Community Services. The applicant said that it was at this point that he became unable to manage the stresses in his life, attempted to commit suicide and became addicted to heroin. He said that these setbacks caused him to engage in criminal activity from 1997 to 2000. In 2000 the applicant undertook drug and alcohol rehabilitation with the assistance of the Salvation Army. In about 2001 he was able to resume work as a bartender.

29. The applicant continued in regular employment until November 2007. During this period he commenced another relationship and his partner gave birth to his first son in 2005. A second boy was born in late 2007. In November 2007, while he was working as a bar manager, he was the victim of an armed robbery. Following this he developed post traumatic stress disorder and depression which led to the abuse of alcohol and other substances and to the separation from the mother of his two sons.

21. His Honour reviewed the applicant’s criminal record. Since the date of the subject crimes, the applicant had committed numerous petty offences, mostly involving dishonesty but including two common assaults. The first period of offending was from August 1997 (aged 26) to early 2000 (aged 29). During that period, he was convicted of a few larcenies, possession of suspected stolen goods on a number of occasions, assault and minor drug possession. The penalties were fines, community service orders and suspended prison sentences.

22. There were two shoplifting convictions in July and November 2004 which were dealt with by the imposition of supervised bonds. In July 2005 he was convicted on five counts of using a false instrument with intent to obtain more than $15,000. These offences were dealt with on 30 March 2007 when he received a suspended sentence of imprisonment for 12 months.

23. In December 2011 the applicant committed the offences of larceny, damaging property, possession of suspected stolen goods and possession of housebreaking implements. Sentences of imprisonment were imposed by Burwood Local Court but on appeal, the District Court at Parramatta quashed the terms of fulltime custody and replaced them with suspended sentences of 12 months. On 13 March 2014 all of these suspended sentences were called up and the applicant commenced fulltime custody with the earliest date for release to parole fixed at 11 September 2014. It was when the applicant was taken into custody on these call ups, that the first buccal swab was taken which resulted in a match to the profile of the swab sample taken from the deceased’s body.

24. His Honour concluded that the applicant’s record, which commenced nearly nine years after the crime for which he was being sentenced, was not a material factor in determining an appropriate sentence. His Honour noted that on the one hand the record did not include any significant offences of violence, nor any sexual offences. It could not be said against the applicant that his conduct subsequent to September 1988 demonstrated any heightened requirement for specific deterrence with respect to crimes of this nature, or that the future protection of the community was a pressing consideration. On the other hand his Honour noted that it could not be said that the applicant had since September 1988 lived an exemplary or blameless life which might be regarded as having redeemed to any degree his grave crimes of September 1988. His Honour regarded the applicant’s criminal record after this offending as not attracting lenience but as being essentially neutral.

25. His Honour accepted that being in prison for a substantial term, commencing 27 years after he committed these crimes, would give rise to hardship for the applicant. Not only did it bring to an end the life which he had been leading but he would not be able to participate in the raising of his two sons. His partner and the mother of his sons had ceased contact with him since the verdicts were delivered. His Honour rejected the applicant’s submission that the long delay between the offending and sentence should be taken into account so as to reduce the term. His Honour found that the time lapse was due to the lack of detection of the offending. It arose directly from the applicant’s concealment of his crime. His Honour concluded that it was not a delay which could be attributed in any way to the police, the prosecution or the court.

26. His Honour also rejected a submission that the fear of detection and the long period of uncertainty between the crimes and when he was sentenced should be taken into account in mitigation of penalty. His Honour found that not only was the long period between offending and apprehension brought about by the applicant’s own actions, there was no satisfactory evidence that during that time the applicant suffered any “severe distress and anxiety as a consequence of the events” of 3 September 1988. The only evidence which the applicant gave concerning his thoughts about the victim and the offending was that he had often wished that he had “spoken out” so that “people that are responsible” might have been dealt with. His Honour did not regard that as a genuine expression of any haunting thoughts upon the deceased’s fate. His Honour characterised it as a reiteration of the applicant’s attribution of these crimes to others, which was the narrative rejected by the jury.

27. His Honour did not accept that the applicant had demonstrated any remorse for the crimes for which he was being sentenced. He had not even acknowledged those crimes. His Honour noted that even though the police had confronted him with irrefutable scientific evidence linking him to the scene of the crime, he had run this matter to completion and had put forward a story to explain how his semen could have been found in the vagina of the deceased and yet he could not have intentionally had intercourse with her and been her killer. The closest the applicant came to expressing any remorse was when he said:

“A. Well I feel sorry for what happened to Doris, yes. I regret not speaking out and the main person that’s the victim is Doris before me or anyone and she’s the one that paid the ultimate price here and I regret that I hadn’t spoken out earlier to get the perpetrators did what they did here.” [64]

37. His Honour characterised that as a “post verdict reiteration” by him of his claim that he was not responsible for the offending because he was physically manipulated to perform the act and did so without volition on his part.

38. His Honour noted that when determining the length of the sentence to be imposed, he had to have regard to general sentencing principles and patterns of sentencing for the offences in question as they were applied at the time when the offending occurred. His Honour had specific regard to the decisions in MPB v R [2013] NSWCCA 213; 234 A Crim R 576 at [12]; SHR v R [2014] NSWCCA 94 at [54]; RL v R [2015] NSWCCA 106 at [7] – [8].

39. On this issue his Honour said:

“72   The requirement that the sentence now to be passed should conform to patterns of sentencing applicable at the time of his offending (see [67] above) is a particular application of the Court’s general endeavour to achieve consistency between sentences imposed for similar crimes committed by offenders with similar subjective attributes: Wong v R (2001) 207 CLR 584; Green v R; Quinn v R (2011) 244 CLR 462.

73   Both counsel have referred me to statistical studies which suggest trends in the severity of sentences imposed for murder in New South Wales over the decades from the 1980s to the present. I have not relied upon the statistical information because it does not provide any detail of the manner of commission of the murders for which individual sentences were imposed nor any description of the subjective attributes of the individual offenders. I have instead reviewed unreported sentencing remarks in a number of cases of murder and murder/rape committed in the 1980s and 1990s, with a view to gauging the measure of punishment imposed by other judges of this court in comparable circumstances.”

40. His Honour took into account, in favour of the applicant, his youth at the time of the offending, although he was very close to the age of 18 at that time. His Honour took into account that the relevance of his youth was that the offending may have been the product of immaturity and that prospects of rehabilitation with increasing years might appear favourable. Accordingly, his Honour found:

“69   … In sentencing Alexis Katsis after the lapse of so many years the adoption of this approach is confirmed by subsequent events. I have mentioned that his conduct since 1988 has been entirely free of sexual offences and free of any significant violence. After the lapse of 27 years I see no risk of him reoffending in the manner of the crimes for which he is now to be dealt with.”

41. His Honour took into account that although he allowed for youth, his good prospects of rehabilitation and the absence of significant offending, it was still necessary for the sentence ultimately imposed to show the Court’s denunciation of the brutal crimes against the deceased and to provide general deterrence to others. His Honour observed that the difficulties associated with that task were appropriately summarised in RL v R at [46]:

“… there is a high level of tension in relation to sentencing offenders years after the events which constitute the criminal conduct, in providing adequate punishment, giving some effect to general deterrence, denouncing the conduct of the offender and recognising the harm done to the victim, in circumstances where there is no palpable risk of reoffending, no need to deter the offender, no need to protect the community from the offender nor to promote the rehabilitation of the offender. …”

42. His Honour took into account as an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the offences were committed in the deceased’s home and that the deceased was vulnerable.

43. As foreshadowed by his Honour, in order to impose a sentence which was consistent with general sentencing principles and patterns, as they were applied at the time of the offending, his Honour reviewed the sentencing remarks in a number of cases of murder and murder/rape committed in the 1980s and 1990s.

44. The cases reviewed by his Honour and their relevant features were as follows: R v Bossie (Supreme Court (NSW), Studdert J, 16 April 1992, unrep). The offender was sentenced for the rape and murder of a 24 year old victim in February 1991. The offender was aged 21 at the date of the offence, had followed the victim after she left a discotheque and pulled her off the road along which she was walking into scrub where he clubbed, strangled and raped her. He pleaded guilty on the fourth day of trial. Subjective features were that he had a borderline intellectual disability, was extremely immature and was of previous good character. He was sentenced to a fixed term of 6 years for the rape, concurrent with the sentence for murder, which was 20 years with a non-parole period of 14 years. The sentence reflected a degree of leniency because of the plea.

45. R v Sharpe (Supreme Court (NSW) Wood J, 9 September 1992, unrep). The offender was sentenced for a murder committed in August 1990 when he was 19. The victim was 43 years old. The offender had gone to her home for the purpose of having sexual intercourse with her in circumstances where he believed that this was appropriate retribution for what he falsely perceived to be her interference in the marriage of his own parents. The offender beat the victim about the head and strangled her. The offender had attempted unsuccessfully to have sexual intercourse with the victim.

46. The genuineness of the offender’s contrition and remorse made a strong impression on the sentencing judge. The offender had attempted to take his own life while in custody. He had abused alcohol and cannabis before the offence but had shown no previous propensity for violence. His plea of guilty was supported with favourable references from associates and an employer. A total sentence of 18 years with a non-parole period of 10 years was imposed. This reflected the sentencing judge’s favourable findings with respect to contrition, remorse and other subjective features. His Honour noted that no considerations of that kind applied to the applicant and that no character evidence had been called on his behalf.

47. In R v Dargin [2000] NSWSC 710 (Ireland AJ) the offender was aged 22 and the offending comprised murder and aggravated sexual assault which occurred in September 1998. The victim was aged 72 and the offender had followed her home with a view to stealing from her. The victim died as a result of blows to her face and head from the offender’s fists. The intent found was to cause grievous bodily harm rather than to kill.

48. The offender was on bail at the time, he had a long criminal history including violence and he was intoxicated. The offender pleaded guilty when the trial was about to commence. Other than the plea of guilty, the offender demonstrated no remorse or contrition. He received a head sentence of imprisonment for 19 years with a non-parole period of 14 years.

49. When comparing the offender in R v Dargin with the applicant, his Honour identified two factors significantly more favourable to Dargin, i.e. his plea of guilty and that his intention was to inflict grievous bodily harm, whereas his Honour found that the applicant’s intention was to kill. On the other hand, Dargin’s criminal history before the offence was significant, whereas the applicant had no material convictions before the offending.

50. R v Fleming [2007] NSWSC 673 concerned a rape and murder committed in February 1984. The offender was aged 30 when he murdered a young woman in a small park at Neutral Bay. The victim was strangled with a ligature. The offender had intercourse with the victim after her death. An arrest could only be made many years later in 2005 when DNA profiles taken from the victim’s body could be matched to the offender. The offender maintained his plea of not guilty and expressed no contrition. He had a previous conviction for rape in Queensland for which he had been convicted in 1976. In written submissions in the sentence proceedings the applicant gave considerable emphasis to this case.

51. The offender was aged 54 when he was sentenced by Studdert J. He had a personality disorder and suffered other significant medical problems. His Honour took into account the added hardship of custody for the offender because of his psychological and physical health conditions. Studdert J imposed a term of imprisonment of 21 years with a non-parole period of 16 years. By way of comparison with this case, his Honour noted that Fleming was sentenced as an offender with a serious previous conviction for a sexual offence and that he was a mature adult when the murder was committed in 1984.

52. In R v Matthews [2014] NSWSC 608 Bellew J sentenced an offender for murder which had been committed in February 1992. The victim was a prostitute aged 39 whom the offender with two others had taken to an isolated bush location where sexual intercourse occurred multiple times and the victim had been killed by blows to the head with a rock. The offender was aged 21. He had left school at the end of year 10 and had used drugs from the age of 12, moving on to heroin at age 16. He pleaded guilty on the first day of trial for which a discount of 10 per cent on sentence was allowed.

53. Bellew J accepted that the offender was genuinely remorseful. His criminal history both before and after this murder did not involve violence and his Honour found that it contained nothing to disentitle him to leniency. His prospects of rehabilitation were found to be generally encouraging. The offender was sentenced to imprisonment for 21½ years with a non-parole period of 16 years and 3 months.

54. When considering the offence of sexual intercourse without consent contrary to s 61D(1) Fagan J concluded that the way in which the applicant perpetrated the crime placed it well into the upper range of seriousness for an offence of this type although not in the worst category of case. He made the 6 year fixed term for the sexual intercourse offence fully concurrent with the sentence he imposed for the murder. This was consistent with how the sexual offending had been treated in the cases reviewed by his Honour.

55. His Honour declined to make a finding of special circumstances which would justify the non-parole period being anything less than three-quarters of the term of the sentence. His Honour considered that the remainder of the term of the sentence after the non-parole period had been served would be ample for the applicant’s rehabilitation under the supervision of the Community Corrections Service.

56. The commencement date of the sentences was backdated to 12 September 2014. This took into account the period of time which the applicant had spent in custody, bail refused.

Ground 1 – The learned sentencing judge erred in taking into account on sentence as an aggravating factor pursuant to s 21A(2)(l) that “the victim was vulnerable”.

57. The applicant submitted that in terms of the section, the age of the victim alone was insufficient to trigger its application. The deceased was 66 years of age at the time of the offence and was not “very old”, nor was she an “elderly victim” and there was no evidence that she suffered from a “disability”. While accepting that the deceased lived on her own in Housing Commission accommodation, was a slight woman, had few visitors, had poor hygiene and did not care for herself well, the applicant submitted that this was not sufficient to bring the offence within the section which is directed at a particular “class of victim” (R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740).

58. The Crown submitted that the applicant’s submissions on this ground of appeal unduly confined the class of persons contemplated by s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). The Crown submitted that the words “because the victim was very young or very old or had a disability” were not to be interpreted as strictly requiring those characteristics to be present before a victim could be said to be vulnerable but were no more than illustrative of characteristics in a victim that might amount to vulnerability. The Crown submitted that the examples referred to in s 21A(2)(l) were not exhaustive.

59. The Crown relied upon Longworth v R [2017] NSWCCA 119. This was a case where the sentencing judge found that security guards working late at night at licensed premises were a class of persons who were vulnerable. The sentencing judge’s findings were upheld by this Court on appeal (Macfarlan JA, with whom Harrison and Schmidt JJ agreed).

60. In the course of his judgment, Macfarlan JA said:

“17   The examples given in (l) are not exhaustive. They are concerned with classes of persons into which the victim may have fallen. That which is of present relevance is vulnerability of the victim arising as a result of his or her occupation. The examples of occupations in that category (“taxi driver, bus driver or other public transport worker, bank teller or service station attendant”) are occupations where the worker is often isolated from other people and sometimes in possession of significant amounts of money.

18   Whilst not one of the occupations specifically referred to in the section, Mr Taiba’s occupation as a security guard was also one where the worker is often isolated from others who may be able to come to his or her assistance. Or the security guard and his or her assistants may simply be outnumbered. In addition, where he or she acts as a security guard for a licensed hotel or club, the person is often liable to encounter and to have to control the conduct of individuals who are intoxicated and/or disorderly. The risk of such a security guard being subjected to aggression from such individuals is significant in light of the duties of the guard’s employer to eject intoxicated and disorderly persons from, and prevent the admission or re-admission to, the licensed hotel or club.”

Consideration

61. As was made clear in Longworth v R the examples given in s 21A(2)(l) of the Act are not exhaustive but illustrative. What is required is that a particular class of person with a particular vulnerability deriving from the person’s membership of that class is identified rather than focusing upon the particular circumstances of the particular victim.

62. Regrettably, in our urban society there is a class of persons into which category the deceased came. That class of person has the following characteristics – she is elderly, lives alone, does not associate with other persons, has no community support and does not look after herself. Because of that social isolation, such persons are often frail and undernourished and can properly be regarded as members of a class who are vulnerable.

61. It is also not without significance that no submissions to the contrary were made by counsel for the applicant in the sentence proceedings.

62. This ground of appeal has not been made out.

Ground 2 – The learned sentencing judge erred in his application of the principles applying to sentencing for historical offences in the circumstances of this case.

Ground 3 – The learned sentencing judge erred in holding that there were not any special circumstances which would justify the downward adjustment of the ratio set out in s 44 Crimes (Sentencing Procedure) Act 1999.

65. The applicant dealt with these matters together. He submitted that a sentencing judge when dealing with historic offences, must take into account the sentencing patterns and principles that existed at the time of the offence. He relied upon cases such as R v MJR [2002] NSWCCA 129; 54 NSWLR 368 and R v Magnuson [2013] NSWCCA 50 at [84] as authority for that proposition. The applicant submitted that although his Honour said that he had regard to this principle, he did not apply it.

66. The applicant submitted that in relation to offences that occurred during the 1970s and 1980s, in the absence of any statutory provision setting out the length of a non-parole period, a sentencing practice which can be identified was that the courts would set the non-parole periods somewhere between one-third and one-half of the term of the sentence (AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [36]-[39]). The applicant submitted that this practice existed even in relation to offences described as “worst case”. The applicant specifically referred to PH v R [2009] NSWCCA 161 at [39]-[40] where it was held that the minimum period in custody should have been no more than 45 per cent of the overall sentence. The applicant submitted that this was an aspect of sentencing practice that had moved adversely to him by the time he stood to be sentenced for these offences. He submitted that it was a practice that should have been taken into account by his Honour when determining an appropriate sentence.

67. The applicant noted that at the time of the offences, although s 19 of the Crimes Act carried a maximum penalty of life imprisonment, s 442 of the Crimes Act permitted a lesser penalty to be imposed on young persons. He noted that at the time of the offences, there was no requirement for special circumstances to be established in order for there to be a reduction in the non-parole period. The applicant further noted that while s 20A of the Probation and Parole Act 1983 (NSW), which commenced on 1 January 1988, applied a statutory ratio whereby the non-parole period was to be “at least three-quarters” of the length of the sentence for a serious offence, s 21(3) which was enacted at the same time, left a discretion to the court to impose a different non-parole period for a serious offence if “it determines that the circumstances justify that course”. The applicant submitted that this sentencing practice and patterns in relation to setting non-parole periods could be readily discerned and ought to have been considered by his Honour and taken into account when determining his sentence.

68. The applicant submitted that his Honour made no reference to that practice or that legislation when he refused at [84] of the sentence judgment to make a finding of special circumstances. The applicant submitted that his Honour erred in holding that there were no special circumstances justifying the reduction in the non-parole period from three-quarters of the term of the sentence. This was because he made no reference to that sentencing practice at the time when he declined to make a finding of special circumstances.

69. The applicant submitted that his Honour failed to give adequate weight to his youth when determining sentence. He submitted that at the time of the offending, the sentencing practice which applied to young persons was correctly summarised in R v GDP (1991) 53 A Crim R 112 where Mathews J (Gleeson CJ and Samuels JA agreeing) approved the remarks of Yeldham J where his Honour “remarked” during the course of sentencing a young offender that “in the case of a youthful offender … considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender directed to his rehabilitation”.

70. The applicant submitted that it was no answer to the statement of principle in GDP that at the time of the offending he was very close to the age of 18 and that the offending was of such seriousness as to be characterised as “adult behaviour”. The applicant submitted that while the nature and circumstances of his offences were extremely serious, they were not the end of the inquiry insofar as determining whether the crimes were of an adult nature.

71. The applicant submitted that his Honour erred in putting to one side statistical aids provided by both the Crown and defence counsel which related to sentencing in the 1980s and instead relying upon his own review of unreported sentencing remarks in other cases involving murder/rape committed in the 1980s. The applicant submitted that the five cases analysed by his Honour did not sufficiently inform him of a comparable range of sentences for young offenders for the period 1980 – 1998.

72. The applicant submitted that a review of the five cases referred to by his Honour “with a view to gauging the measure of punishment imposed by the judges of this Court in comparable circumstances” supported his contention that his youth at the time of the offending and sentencing practices as at 1988 for offences such as these, were not properly reflected in this sentence. The applicant submitted that of the five cases reviewed by his Honour, none had involved an offender under 18 years of age with the youngest offender being 19 and the oldest 30.

73. In summary, the applicant submitted that his Honour’s sentencing discretion had miscarried and that a lesser head sentence and non-parole period, including a finding of special circumstances, were warranted having regard to the sentencing patterns at the time.

Consideration

74. His Honour acknowledged in his reasons that the sentencing practices at the date of the commission of the offences had to be applied (at [39] hereof). His Honour, however, was unable to determine a clear sentencing pattern. This is not surprising when one has regard to the general nature of the statistics with which his Honour was provided and their lack of specificity in relation to the circumstances of the murders for which individual sentences were imposed and the absence of the subjective attributes of the individual offenders. It was for that reason that his Honour looked at five generally similar cases involving young but not juvenile offenders who were sentenced for crimes of murder associated with sexual offences.

75. It is not correct to say, as the applicant implicitly does, that a clear sentencing practice could be discerned in respect of crimes of murder associated with sexual offences, for the 1980s. In that regard, crimes of murder associated with sexual offences, were in a different category to sexual offences per se and in particular, sexual offences committed against children. In relation to such latter offences, as was set out in Magnuson v R, a sentencing pattern could be established (Button J at [90] with whom McClellan CJ at CL and Bellew J agreed). Moreover Magnuson v R also confirmed the traditional approach of imposing sentences for historical offences where a sentencing pattern was unable to be discerned. There Button J said:

“85   If such a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71] per Howie J (with whom Fitzgerald JA agreed).”

76. It is also significant that in Magnuson v R where a sentencing practice for sexual offences committed against children was identified, the court restated the fundamental principle that “even when giving effect to that principle, sentences imposed now must adequately reflect the criminality of any offender whenever the offences were committed” (Button J at [133]).

77. As was acknowledged by this Court (Basten JA Simpson and Adamson JJ) in RL v R, sentencing for historical sexual offences is not a simple process but involves real difficulties and an application of sometimes conflicting principles:

“6   Sentencing in a case of this kind is fraught with difficulties, both in terms of principle and technicality. So far as principle is concerned, there is an anxious tension between the need for public condemnation of the conduct involved and the vindication of the dignity of the victims, on the one hand, and on the other, the imposition some 30 years after the events, of penal consequences on an offender who has led a subsequently blameless life and has readily acknowledged his own wrongdoing, when confronted with the complaints.

7 Further, principle requires that the Court take into account the law as it applied at the time of the offending. Not only is the offender to be charged with offences as they were identified in the Crimes Act 1900 (NSW) at the time of the offending, but he is subject only to the range of penalties available under the law at that time, and to general sentencing principles as then applied.

8   The technical difficulties are also relevant. The last principle requires, in effect, that an offender not be sentenced more harshly than would have occurred had the sentencing and the offending been roughly contemporaneous. One result of that principle is that the court must have regard to the relationship accepted at that time between the minimum term (or non-parole period) and the full term of the sentence. On the other hand, the Court does not sentence in accordance with the law as then in place, but imposes a sentence under the current law, namely the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”).”

78. In MPB v R Basten JA identified further difficulties with the concepts of “sentencing practice” and “sentencing pattern”. There, his Honour said:

“9   The language of "sentencing practice" and "sentencing pattern" has acquired a currency of its own: see AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32 at [31] (Howie J distinguishing "sentencing practices" from "executive practices" with respect to remission); and at [39] (referring to fixing of non-parole periods); Rosenstrauss v R [2012] NSWCCA 25 at [7]-[9] (in my judgment) and Magnuson v R [2013] NSWCCA 50 at [84]-[88] (Button J, McClellan CJ at CL and Bellew J agreeing). This language is, however, imprecise and covers a range of considerations and a range of sources. Thus, with respect to sources, the statements would appear to cover:

(a)    statutory provisions;

(b)    general law principles and underlying policies, and

(c)    practices (that is, application of principles) as revealed by outcomes.

10   With respect to the subject matter covered, this would include:

(a)    prescribed penalties (including maxima);

(b)    methods of proceeding (including the fixing of non-parole periods);

(c)    factors to be taken into account, and

(d)    facts as found.

…

12   It follows that the sentencing judge must sentence according to the penalties available at the time of the offending, taking into account the range of conduct covered by the offence. …

13   What has not been fully considered to date, is the potential operation of other statutory provisions. Thus, in AJB and in Rosenstrauss, it was accepted that, in order to give effect to "sentencing practices" at the time of the offences, it would be appropriate to set a non-parole period of less than half the head sentence. Similarly, in Magnuson, it appears to have been assumed that s 21A of the Sentencing Procedure Act was to be applied in sentencing for offences which pre-dated the commencement of the Act. These assumptions depend upon the operation of the Sentencing Procedure Act, subject to the operation of the transitional provisions in Schedule 2 of the Act.

…

15   There is also the difficulty, adverted to by Spigelman CJ in MJR, of identifying how general law principles were to be identified and their application assessed at a distant point in time. On the one hand, it may be expected that general principles will not have changed greatly. One example of change, however, is the attitude towards pleas of guilty. Thus, some recent cases have referred to R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 as identifying the discount for a plea of guilty, although it post-dated the conduct in question by decades.

…

19   The appropriate resolution of these difficulties is to give primary attention to the range of penalties available (usually a maximum term of imprisonment) and the conduct to which such penalties applied at the date of the offence, in order to assess objectively where, on a broad scale, such offending was likely to fall. These are matters to be determined by reference to the statutory provisions.”

79. Where Basten JA differed from the other two judges in MPB (R A Hulme and Garling JJ) was that Basten JA was unable to discern a sentencing practice or pattern for the offences under consideration whereas the majority did so and applied that practice. Since he was unable to identify such a sentencing practice, Basten JA set out what he regarded as the correct approach to historical offences where no sentencing practice or pattern could be identified.

“34   It follows that the correct approach to the fixing of the sentence involves the following steps:

(a)    determine the facts as now available to the court;

(b)    have regard to the maximum penalty in force at the time of the offending, as a guide to the range of punishment then available;

(c)    identify where, within the range of offending conduct covered by the offence charged, the offence under consideration falls;

(d)    fix the term of the sentence or sentences;

(e) determine whether special circumstances require that the relationship prescribed by s 44 be varied, and

(f) fix a non-parole period in accordance with s 44 of the Sentencing Procedure Act (as in force prior to the 2002 Amendment Act).

35   In accordance with that approach, it is neither necessary nor appropriate to have regard to the actual patterns or practices of sentencing which are now believed to have operated at the time of the offending, whether based on acceptable statistical evidence, cases or memory.”

80. A similar problem to that which confronted Fagan J in this case was considered by this Court in CT v R [2017] NSWCCA 15 where Hoeben CJ at CL (with whom Johnson and Latham JJ agreed) said:

“52   Given that state of the evidence, her Honour was entitled to not only have regard to the effect of those cases but also to the principles identified in Magnuson that in the absence of a clear sentencing pattern, a court can take into account that sentences passed at the relevant time tended to be more lenient than those at the present time, and that there has been a steady increase since then. A sentencing judge should take into account that even when dealing with old offences, a court must impose sentences that adequately reflect the criminality of an offence regardless of when the offences were committed and that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all the purposes of punishment (Power v The Queen [1974] HCA 26; 131 CLR 623).”

81. His Honour was fully cognisant of the requirement to have regard to the principles applying to sentencing for historical offences. He specifically referred to the maximum penalties applicable in 1988 (judgment [2]), the effect on the applicant of being imprisoned after a long time lapse between the commission of the offences and sentencing (judgment [55] – [57]), the general principles of sentencing for historical offences (judgment [66] – [67], the relevance of his youth at the time of the offending (judgment [68] – [70]), the requirement to conform to patterns applicable at the time of the offending (judgment [72]) and made reference to generally comparable cases of murder associated with sexual assault (sentence [74] – [82]).

82. It is clear from his Honour’s reasons that while a sentencing pattern may have been suggested by the statistics, his Honour regarded them as unreliable for the reasons which he gave. His Honour’s reasoning in that regard is entirely consistent with the significant body of case authority which draws attention to the shortcomings of the use of statistics in the sentencing process.

83. While it can be accepted that historical sentencing practices in relation to some sexual offences, particularly those against children, can be identified those practices do not automatically translate to an appropriate sentence for an offence of murder associated with sexual intercourse. None of the authorities provided by the applicant in support of the proposition that non-parole periods during the 1980s were typically between one-third and one-half of the full term of sentence, are murder cases.

84. The applicant’s reliance upon PHv R (an historical child sexual assault case) is, with respect, misconceived. That decision is relied upon to support an argument that even for offences described as “worst case” the minimum period in custody (even for murder) should have been no more than 45 per cent of the total sentence. It is difficult to see how such a sentence could ever be appropriate for a murder of the type that occurred in the present case which is clearly at the high end of objective seriousness. It should be noted that his Honour’s finding was that the attack on the victim was “savage, inhuman and despicable”.

85. As was made clear in Magnuson v R, RL v R and MPB v R, an important guide in sentencing for historic offences is the maximum penalty and the objective gravity of the offending. At the time of this offending, a mandatory sentence of penal servitude for life applied to the offence of murder. For murders in the worst category, parole might never be granted. In this case, the objective gravity of the offending was significant in that the murder was committed for the purpose of avoiding being identified by the deceased as the perpetrator of the sexual assault upon her. Her unit was set alight with the intention of burning her body and other evidence connecting the applicant to the offences.

86. The applicant was one week away from his eighteenth birthday and accordingly, a juvenile at the time of the offending. As his Honour appreciated, s 442 of the Crimes Act applied. His Honour also appreciated that the applicant was precluded from relying on his youth to its fullest extent because of the closeness of his age to 18 and because at the time of the offence he conducted himself as an adult. Consideration also had to be given to the time lapse which proceeded directly from the applicant’s concealment of his crime. The delay in prosecution was in no way attributable to any inaction on the part of the authorities.

87. The sentence actually imposed on the applicant was not outside the range of sentences for such a serious offence, even when taking into account the applicant’s age at the time. This is so even when regard is had to the statistics before his Honour which indicated that a head sentence of 20 years was towards the higher end of sentences imposed on juveniles for murder. It also needs to be kept in mind that the concurrency of the sentence for the sexual offending involved a considerable degree of leniency which favoured the applicant.

88. In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

“54   In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".

55   As the plurality said in Wong:

"[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."”

89. In the instant case, the maximum penalty of life imprisonment for murder has not altered from the time of the offences. Notwithstanding that a lesser sentence than penal servitude for life could be imposed pursuant to s 442 of the Crimes Act, the principles in relation to the limited use the court can make of statistics during the sentencing process remains relevant.

90. In submissions the Crown relied upon the decision of Bradley v The Queen [2017] VSCA 69. One of the grounds of appeal in that case was in similar terms to Ground 2. The facts also were similar. In 2015 the offender was convicted of the 1983 murder of a 14 year old girl. The offender was then aged 21 years. The applicant was sentenced to imprisonment for 27 years with a non-parole period of 21 years. The history of sentencing practice in Victoria is similar to that in New South Wales in that before 1986 a mandatory life sentence applied for murder. A life sentence could be commuted by the Parole Board by releasing offenders after a period of imprisonment. In 1986 mandatory life sentences were abolished. The offender sought to rely upon statistics for 1987 and 1988 showing the average head sentence for murder to be between 16 and 19 years. The Victorian Court of Appeal accepted the Crown submission that the sentencing judge was entitled to conclude (as did his Honour in the present case) that sentencing statistics for 1987 – 1988 were of no real assistance and that the use of bare statistics of that kind had only limited value in any event (Bradley at [64] – [67]).

91. Having found as he was entitled to do that the statistics placed before him were of little assistance and that accordingly a relevant sentencing pattern or practice had not been established, his Honour’s exercise of the sentencing discretion was conventional and in accordance with authority. His Honour followed the approach and applied the principles in Magnuson v R, RL v R and MPB v R. His Honour had regard to the maximum penalty, the place in the range of objective gravity occupied by the offence, that the sentence must adequately reflect the criminality of the offending, as well as having regard to the statements of principle in the five generally similar cases to which he referred. His Honour had due regard to the applicant’s age but also had appropriate regard to the adult nature of the offending. It is clear by reference to current sentencing practices that the sentence imposed by his Honour was modest and had been appropriately adjusted downwards by his Honour.

92. Ground of Appeal 2 has not been made out.

93. In relation to Ground 3, it is clear that in finding that there were no special circumstances, his Honour did not refer to past sentencing practices. It is also clear that past sentencing practices can be relevant to a finding of whether or not special circumstances exist. In MPB Garling J (with whom Hulme AJ agreed) said:

93   This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 (NSW) was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]-[156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).”

94. What is of significance in this case, however, is that nowhere in the oral or written submissions made on behalf of the applicant in the sentence proceedings before Fagan J, did counsel submit that his Honour should find special circumstances. In particular, no submission was made to the effect that more lenient sentences were passed in the 1980s so that generally speaking lower non-parole periods were imposed and that this was a matter which was relevant to whether special circumstances should be found. In those circumstances, it is difficult to successfully argue that his Honour fell into error because he did not do that which he was never asked to do. In that regard, the observations of Johnson J (with whom McClellan CJ at CL and Rothman J agreed) in Zreika v R [2012] NSWCCA 44 at [80] – [81] are pertinent. In particular, in sentencing appeals, this Court is reviewing the exercise of a discretionary judgment and not rehearing a plea in mitigation. An appeal of this kind is not the occasion for the revision and reformulation of the case presented below.

95. It is true that the written submissions of counsel for the applicant in the sentence proceedings refer to MPB v R. However, that reference was limited to a statement of general principle by Basten JA. In particular his Honour’s attention was not drawn to the observation of Garling J at [93] of that case. In any event, neither MPB nor other authorities on this issue are authority for the proposition that the existence of shorter non-parole periods at the time offences were committed mandates or compels a commensurate variation in the application of s 44 of the Crimes (Sentencing Procedure) Act 1999.

96. The fact that these matters were not drawn to his Honour’s attention and that no submissions were made in relation to them has not resulted in a miscarriage of justice which would entitle this Court to re-examine those matters and resentence the applicant to a lesser non-parole period. As was correctly conceded by the applicant and, as the authorities to which reference has already been made make clear, the sentence imposed must adequately reflect the criminality of the offence whenever the offence was committed. The non-parole period which is imposed must represent the minimum period which was required to be served by an offender having regard to all the purposes of punishment, including deterrence. In the circumstances of this case, I would not be prepared to find that a minimum term of imprisonment of less than 15 years was appropriate to comprehend the seriousness of the offending.

97. Ground 3 has not been made out.

Ground 4 – The learned sentencing judge erred in failing to assess the applicant’s moral culpability for the offences taking into account his deprived upbringing: Bugmy v R [2013] HCA 37; 249 CLR 571; Ingrey v R [2016] NSWCCA 31

98. The applicant submitted that his Honour accepted that he was raised in circumstances of abuse and deprivation and that the mental, sexual and physical abuse at home was the cause of his substance abuse and feelings of depression in 1987 and 1988. The applicant submitted that in those circumstances the principles enunciated in Bugmy v R applied, i.e. that his exposure to extreme violence in circumstances of social deprivation in childhood explained his offending behaviour so that his moral culpability was reduced.

99. The applicant relied upon the judgment of the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) where their Honours said:

“44   Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

100. In relation to that last consideration, the applicant submitted that his Honour had specifically found that there was little risk of him reoffending so that the protection of the community was not a matter which should operate to reduce the mitigatory effect of his deprived upbringing.

101. The applicant submitted that his Honour erred in failing to make any assessment of his moral culpability by reference to his deprived background. He submitted that an atmosphere where criminal activity included sexual abuse, was likely to distort his moral compass, particularly when he was so exposed as a young person. The applicant submitted that his sexual abuse was at the hands of different perpetrators and extended to repeated brutality and deprivation at the hands of his father. On that issue, the applicant relied upon what was said in Ingrey v R (Hoeben CJ at CL with whom Adams and Fullerton JJ agreed):

“39   … The applicant’s background was considerably better than that described in Bugmy, Fernando and a number of similar cases which have come before the courts. Nevertheless, the applicant’s exposure to crime at an early age would still have “compromise[d] the person’s capacity to mature and learn from experience” (Bugmy at [43]).”

102. The applicant submitted that this was a relevant consideration to be taken into account by his Honour in the assessment of his moral culpability and on the question of whether the crime was indeed “adult” in nature. The applicant submitted that when regard is had to the factor of the applicant’s deprived background and the application of Bugmy v R, a lesser sentence was warranted in law.

Consideration

103. When considering this ground of appeal, it is important to note the findings which his Honour actually made on this issue. His Honour found that during 1987 and 1988 the applicant and his sister had to “provide for ourselves” because their father denied them food at home. This led to the applicant working “odd jobs up the golf course in the golf range” during 1987 and 1988 to help pay for food. His Honour found that in his teens and up to the date when the offences were committed, the applicant was athletic and active, playing cricket and rugby league in season, and engaging in surfboard riding all year round. His father inflicted corporal punishment on the offender frequently for little or no cause. He suffered “mental abuse” from his father involving ridicule. At times his father was uncaring and locked the household refrigerator, depriving the children of free access to it. On the other hand the applicant’s stepmother was loving, warm and caring. The applicant came in contact with a paternal uncle, who lived in Sydney, who also inflicted corporal punishment on him on occasions.

104. In relation to sexual offending, his Honour accepted that on two occasions the uncle did sexually abuse him. There was no evidence of sexual abuse in the home. His Honour specifically rejected the applicant’s evidence that he was regularly sexually abused by the two neighbours, Kevin Haywood and Ronald Jolley. There was no suggestion that he was ever sexually abused by his father.

105. When one compares that upbringing with the circumstances surrounding the upbringing of the offenders in Bugmy v R, Munda v Western Australia [2013] HCA 38; 249 CLR 600 and even the less extreme circumstances which surrounded the offender in Ingrey v R, the applicant has failed to establish a background and upbringing which could be properly characterised as amounting to deprivation. Specifically, there was no sexual abuse at home and there was no real link established between his use of marijuana, LSD and alcohol on weekends and his upbringing.

106. While the applicant experienced a difficult and unfortunate upbringing, there was no evidence of the sort of “extreme violence and social deprivation” to which Bugmy and Munda were exposed. Their histories involved being raised in circumstances of extreme physical and mental violence surrounded by alcohol and drug abuse. There was a clear link between that kind of upbringing and the offences for which they were to be sentenced. Similarly, in the case of Ingrey his background during his formative years involved exposure to persons who were active in the criminal world and there was a general acceptance among the members of his wider family and peers that breaking the law was acceptable. The link between his offending and his upbringing was clear and compelling so as to be relevant to his moral culpability for that offending.

107. Such is not the case with the applicant. The cruel and uncaring treatment of him by his father and the two occasions when he was apparently sexually abused by his uncle, do not explain either his substance abuse or his sexual assault and murder of the deceased. In a number of other respects the applicant’s upbringing was quite normal, i.e. that of a normal schoolboy who was an enthusiastic participant in sports, in circumstances where, at least to some extent, the uncaring conduct of his father was balanced by the loving support of his stepmother.

108. The applicant has failed to link the commission of the offences to the unfortunate events in his upbringing. That upbringing itself when compared to the circumstances in the cases upon which the applicant relies was significantly better. Even if the applicant’s difficulties at home were taken at their highest, it is difficult to see why his moral culpability for beating, raping and strangling the deceased into unconsciousness and then leaving her to die after setting fire to her unit, should be reduced by anything arising from his childhood nor could his upbringing excuse this behaviour.

109. Moreover, the fact that the applicant had only one conviction (for stealing) before these offences is an indication that his moral compass was not so compromised by the difficulties in his upbringing as to attract the application of the principles in Bugmy v R; Munda v Western Australia and Ingrey v R.

110. This ground of appeal has not been made out.

Ground 5 – The learned sentencing judge erred in failing to hold and take into account as a matter of mitigation in his determination of sentence that the applicant was a person to be regarded as a person of good character (s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.

111. The applicant submitted that at the time of the offending he was a person of good character. The only offence which had then occurred was a single offence of stealing for which a conviction was recorded in May 1988, i.e. four months before these offences. The applicant submitted that in those circumstances, his Honour should have taken into account his prior good character as at 1988 when determining an appropriate sentence for the offences.

112. The applicant submitted that despite his subsequent criminal history, his honour should have held that at the time of the offence and for the purposes of s 21A(3)(f) the applicant was a person of prior good character. He submitted that his Honour should also have found that despite the minor matters on the applicant’s record, he had become relevantly rehabilitated in that there had been no repetition of any violent offending. The applicant submitted that his Honour had erred in failing to take into account in the applicant’s favour his previous good character at the time of the offending and that there had not been any offences of violence since these offences.

Consideration

113. The applicant’s counsel made no submissions in the sentence proceedings that the applicant was a person of prior good character and that that fact should be taken into account as a mitigating factor. No character evidence was called on his behalf. It was for the applicant to establish good character on the balance of probabilities. As with Ground 3, the observations of this Court in Zreika v R have application – i.e. the applicant should be bound by the way he put his case in the sentence proceedings.

114. In respect of the applicant’s character, the focus in the sentence proceedings was primarily on his previous conviction for stealing which his Honour accepted was committed at a time when the applicant and his sister had to provide for themselves. His Honour’s findings as to the applicant’s character were:

“61   The offender’s record, which commenced nearly 9 years after the crimes for which he is now before the Court, is not a material factor in determining an appropriate sentence. On the one hand, the record does not include any significant offences of violence nor any sexual offences at all. It could not be said against Alexis Katsis that his conduct subsequent to September 1988 has demonstrated any heightened requirement for specific deterrence with respect to crimes of this nature or that future protection of the community is a pressing consideration.

62   On the other hand, nor could it be said that the offender has since September 1988 lived an exemplary or blameless life which might be regarded as having redeemed in any degree his grave crimes of September 1988. The subsequent record does not attract lenience. It is essentially neutral.”

115. While good character must be taken into account in mitigation of penalty, that proposition can be affected by the nature of the offence. In R v Kennedy [2000] NSWCCA 527 the Court (Simpson and Howie JJ) said:

“21 It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.”

116. In this case general deterrence was a matter of considerable importance and the circumstances of the offending involved an extremely high level of objective criminality. Those considerations would have entitled his Honour to give little or no weight to the applicant’s prior good character even if the matter had been raised, as it should have been, in the sentence proceedings.

117. In relation to the applicant’s post offending conduct, his Honour was entitled to treat it in the way in which he did given the findings which he made, that it was essentially neutral. It could certainly not be said that the applicant had subsequently become a person of good character just because he had not repeated the episode of murder and violence which the offending involved. In any event, the submission that following the offences the applicant “had never committed a crime of any violence” is not correct. The applicant had been convicted of common assault in 1998 for which he was sentenced to the rising of the court and again in 2000 for which he was fined $1,000.

118. This ground of appeal has not been made out.

Proposed orders

119. The orders which I propose are:

1. Leave to appeal against sentence is granted.

2. The appeal is dismissed.

120. SCHMIDT J: I agree with Hoeben CJ at CL.

121. CAMPBELL J: I agree with Hoeben CJ at CL.

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Decision last updated: 14 February 2018