King v R

[2015] NSWCCA 99

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	King v R [2015] NSWCCA 99
Hearing dates:	4 May 2015
Decision date:	20 May 2015
Before:	Hoeben CJ at CL at [1] Hidden J at [1] Beech-Jones J at [1]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – murder – victim beaten to death by boyfriend in her apartment – applicant intoxicated by ice at time – whether adequate attention given to rehabilitation in sentence – finding of poor prospects of rehabilitation open on evidence – no error in judge’s refusal to find special circumstances – whether intoxication by ice an aggravating feature – whether principle of totality observed – whether sentence manifestly excessive – grounds of appeal not made out – appeal dismissed.
Legislation Cited:	Crimes Act 1900 – ss 18(1)(a), 35(2), 59(1)
Cases Cited:	Dinsdale v R [2000] HCA 54; 202 CLR 321 House v R [1936] HCA 40; 55 CLR 499 Ma and Pham v R [2007] NSWCCA 240 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v R [1988] HCA 70; 166 CLR 59 Postiglione v R [1997] HCA 26; 189 CLR 295 R v Cimone [2001] NSWCCA 98; 121 A Crim R 433 R v Gittany [2014] NSWSC 49 R v Kennedy [2013] NSWSC 1940 R v Ray [2013] NSWSC 767 R v Richardson [2012] NSWSC 521 R v Vuni [2006] NSWCCA 171
Category:	Principal judgment
Parties:	Sean Lee King – Applicant Regina – Respondent Crown
Representation:	Counsel: Dr R Webb – Applicant Mr N Adams – Respondent Crown Solicitors: AHA Taylor Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2011/230096;2011/121090
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Sean Lee King [2013] NSWSC 801 Date of Decision: 21 June 2013 Before: Bellew J File Number(s): 2011/230096; 2011/121090

Judgment

1. THE COURT:

Offences and sentence

On 8 April 2013 the applicant was arraigned on an indictment which charged that on 10 July 2011 he murdered Jazmin-Jean Ajbschitz (the deceased). The applicant pleaded not guilty to murder but guilty to manslaughter. That plea was rejected and the trial proceeded before a judge and jury. The trial concluded on 29 April 2013 when the applicant was found guilty of the offence of murder.

2. The offence of murder is contrary to s 18(1)(a) of the Crimes Act 1900 for which there is a prescribed maximum penalty of life imprisonment. There is a standard non-parole period for this offence of 20 years.

3. Sentence proceedings were heard on 6 June 2013. On that occasion the applicant was sentenced in relation to two further unrelated charges to which he had previously pleaded guilty in the Local Court on 8 December 2011. The charges were contained in a separate indictment in the following terms:

Count 1 – That on or about 17 April 2010 the applicant did recklessly inflict grievous bodily harm upon David Lindsay. This offence was contrary to s 35(2) of the Crimes Act for which the prescribed maximum term was imprisonment for 10 years with a standard non-parole period of 4 years.

Count 2 – That on or about 17 April 2010 the applicant did assault Kimberley Lasaqa thereby occasioning actual harm to her. This offence was contrary to s 59(1) of the Crimes Act for which the prescribed maximum penalty was imprisonment for 5 years.

4. On 21 June 2013 and 6 December 2013 the applicant was sentenced to imprisonment as follows:

1. In respect of the charge of assaulting Kimberley Lasaqa thereby occasioning actual bodily harm to her, a fixed term of 9 months imprisonment, to commence 1 October 2011 and expire 30 June 2012.

2. In respect of the charge of recklessly inflicting grievous bodily harm upon David Lindsay, a non-parole period of 2 years and 6 months imprisonment, to commence on 1 April 2012 and expire 30 September 2014, with a balance of term of 10 months to expire on 31 July 2015.

3. In respect of the charge of murdering the deceased, a non-parole period of 24 years imprisonment, to commence 1 April 2013 and expire 31 March 2037, with a balance of term of 8 years to expire on 31 March 2045.

5. The total term of imprisonment is one of 33 years and 6 months with a total non-parole period is one of 25 years and 6 months. The applicant will be eligible for release to parole on 1 April 2037.

6. The applicant seeks leave to appeal against the severity of that sentence on the following grounds:

Ground 1 – His Honour accorded insufficient weight to rehabilitation in the structure and casting of the overall sentence.

Ground 2 – His Honour erred in holding intoxication to be an aggravating feature in all of the circumstances.

Ground 3 – His Honour accorded insufficient weight to the principle of totality in the structure and casting of the overall sentence.

Ground 4 – The sentence was manifestly excessive in all the circumstances.

FACTUAL BACKGROUND

7. The trial was conducted by both parties on the basis that the sole issue for the jury’s determination was whether or not the Crown had established beyond reasonable doubt that the applicant intended to kill the deceased or intended to inflict grievous bodily harm upon her. It was the applicant’s case that as a consequence of smoking crystal methamphetamine (ice) and consuming alcohol during the day on which he murdered the deceased, he was not capable of forming any relevant intention.

8. At the time of her death, the deceased was aged 18 and the applicant was aged 25. They had met at a music festival in 2009 and commenced a relationship shortly thereafter which continued until the time of the deceased's death. It was a volatile relationship, which was marked by episodes of violence by the applicant towards the deceased.

9. On the evening of 9 July 2011 the deceased spent the night with the applicant and returned home the following morning. At that time she lived in an apartment in Ultimo belonging to her mother, who had left Sydney only a few days before after having secured work in Western Australia.

10. The applicant consumed alcohol and smoked ice in the hours leading up to the deceased's murder. There was no evidence as to precisely how much ice was smoked, or precisely how much alcohol was consumed. During the course of the afternoon and early evening of 10 July the applicant and the deceased communicated via text messages. Those messages exhibited a degree of volatility which was typical of that which characterised their relationship.

11. During the latter part of the afternoon of 10 July the applicant met with a friend "D". After spending a period drinking at a local hotel, the applicant drove with D from the Campbelltown area to the city. He smoked a further quantity of ice on the way.

12. Earlier in the day, the deceased had met with two female friends. The three of them went to another friend's place and had some drinks, before returning to the deceased's apartment at approximately 7pm. Following their arrival, all three of them commenced smoking cannabis. It was during this period that the deceased received a number of telephone calls from the applicant. On some of the occasions on which she received these calls, the deceased placed her phone on loud speaker thereby enabling one or both of her friends to hear what was said.

13. The evidence of those friends concerning the conversations between the applicant and the deceased was that the applicant communicated in a voice which was "very angry”. He made threats to kill the deceased and anybody else that she was with. In another conversation the applicant told the deceased that he was coming to see her to which she responded that he could come to the city to see her but she was not going out to see him.

14. The applicant and D were seen on CCTV footage arriving at the front door of the apartment complex where the deceased lived at about 8.59pm. The applicant unsuccessfully attempted to use the security intercom system, before leaving shortly thereafter.

15. The applicant and D returned to the front of the apartment complex at 9.02pm, at which time the applicant again unsuccessfully attempted to use the security intercom system. At approximately 9.04pm, a resident of the apartment complex allowed the applicant and D to enter. This resident activated the security lift and allowed the applicant and D to alight at the fifth floor. The applicant and D commenced to knock on the doors of other apartments looking for the deceased. He was unsuccessful in that endeavour and CCTV footage showed him and D going out onto the street at 9.21pm.

16. The applicant sent a text message to the deceased at 9.35pm and advised her that the battery on his telephone needed to be charged. Following that telephone contact, the applicant returned to the apartment building by himself at 9.59pm. The deceased exited the lift and came into the foyer at 10.02pm. She had a short conversation with the applicant through the glass security door and at 10.03pm opened the door and walked outside. At 10.05 pm, the applicant and the deceased both entered the building and then the lift. This was the last occasion on which the deceased was seen alive. The applicant was next seen coming out of the lift and exiting the apartment complex at 10.31pm.

17. The deceased was murdered by the applicant between 10.05pm and 10.31pm on 10 July 2011. The photographs of the crime scene showed the premises in complete disarray. Numerous items of furniture were upended and indiscriminately strewn about the premises. A dining chair had one of its timber legs broken, and a lamp lay smashed on the floor. There was an indentation in the wall, the shape of which was consistent with the bottom of the leg of a chair having been smashed into it.

18. Deposited along the hallway leading to the bathroom were various items of clothing which had been worn by the deceased, including a scarf and a pair of "leggings". A shoe belonging to the deceased which she was seen to be wearing in the CCTV footage lay nearby. There were blood stains on various parts of the floor of the hallway leading to the bathroom. There was blood smearing present on an adjoining wall. There was further blood staining on the floor of the bathroom.

19. The deceased's body was found lying in the area of the kitchen. Whilst there was no evidence of sexual assault, the lower half of her clothing had been removed in its entirety, and the upper half pulled up so as to reveal her breasts. The force with which the latter occurred was indicated by a corresponding tear in her clothing.

20. Dr Brouwer, a forensic pathologist, gave evidence that the cause of the deceased's death was blunt force trauma injuries to the liver and heart caused by repeated stomping, and resulting in the right side of the deceased's heart being torn. Dr Brouwer's opinion was that the infliction of these injuries would have required the application of "an extreme amount of force" and that death would have occurred within a few minutes. In 20 years of experience, having performed what she described as "a few thousand" autopsies, Dr Brouwer said that aside from instances of high velocity motor vehicle accidents, she had never witnessed blunt force trauma injuries of the kind sustained by the deceased. In addition to these injuries, there was widespread bruising over the whole of the deceased’s body, multiple rib fractures and extensive haemorrhaging to the tongue and the muscles on the left side of the neck. She had extensive facial and head injuries. The injuries to the deceased’s right arm were consistent with her having attempted to protect and defend herself in the course of being attacked.

21. The offender left the building at 10.31 pm. In contrast to his appearance at the time at which he entered, he was seen on CCTV footage to have pulled his hood over his head, and was pulling the sleeves of his top over his hands. He admitted in the course of cross-examination that he did this for the purpose of ensuring (inter alia) that no finger prints or DNA would be left on the inside of the doorway. Having left the premises he met with D and then both of them returned to the apartment complex at 10.34pm and unsuccessfully attempted to enter.

22. At 10.38 pm, D called emergency services from a public telephone and requested an ambulance but gave the wrong address and no ambulance ever arrived at the deceased's premises. Over the ensuing days, the applicant made several attempts to contact the deceased. He was arrested within a few days of the murder having occurred.

SENTENCE PROCEEDINGS

23. The primary judge accepted that the applicant had been smoking ice and consuming alcohol in the period leading up to the deceased’s murder. Although his Honour did not know the quantity of ice and alcohol which had been consumed, he was satisfied that the applicant was affected by those substances which had increased his aggression. His Honour found that despite his intoxication, the applicant was not confused at the time he killed the deceased and that he remained capable of ordered thinking. His Honour accepted the opinion of Dr Stephen Allnutt, forensic psychiatrist, who said that on the material which had been provided to him, the effects of the applicant’s use of ice and consumption of alcohol did not extend to his being confused at the relevant time. His Honour was satisfied that the applicant intended to kill the deceased and had held that intention from at least the time when he telephoned the deceased to tell her that that was what he was coming to do. His Honour found premeditation to that extent.

24. His Honour noted that the offence was committed while the applicant was on conditional liberty. At the time when he committed the offence, he was on parole and subject to a s 9 good behaviour bond. His Honour regarded that as a matter of aggravation.

25. His Honour raised for consideration how the applicant’s intoxication should be treated for the purposes of sentence. When the applicant was cross-examined, he agreed that he was using substantial quantities of steroids and ice. On that issue, the following exchange took place:

“Q. So by the time of 2005, you understood that if you took drugs and drank alcohol, your response in a situation that was, not a good one for you, would be to be acting in a violent way?

A. Yeah, I'd say so.

Q. Then by April 2010, when you attacked the two people in the street, Miss Lasaqa and Mr Lindsay, were you taking drugs at that time?

A. Yes.

…

Q. You knew after that time, didn't you, that if you took drugs and alcohol like that, you could respond very violently; do you agree?

A. After that time, yeah.”

26. In relation to intoxication generally, his Honour said:

“78   Intoxication, whether it is brought about by alcohol or drugs, may explain an offence but will ordinarily not mitigate the penalty, except where the intoxication is the result of an addiction, and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because the offence was committed whilst intoxicated (see Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at [26] citing R v Rosenberger (1994) 76 A Crim R 1 per McClellan CJ at CL with whom Price and R A Hulme JJ agreed).”

27. His Honour’s conclusion in relation to the applicant’s intoxication was:

“82   The evidence in the present case does not support the conclusion that the offender smoked ice for the specific purpose of becoming aggressive. However, on the offender's own evidence his use of drugs was not out of character. Moreover, the link between that use and the virtual inevitability of increased aggression and violence on his part was something which he clearly understood, and of which he had been aware for a long period of time prior to the deceased's murder. He conceded in cross-examination that despite his awareness of such matters, he continued to take drugs.

83   It follows that at the time of the deceased's murder, and indeed for some considerable time prior to that, the offender knew that he had a drug addiction, and knew of the results which would inevitably flow from it (see R v Fletcher-Jones (1994) 75 A Crim R 381 at 387).

…

90   For all of these reasons, the offender's intoxication should be regarded as an aggravating factor. It is one which carries with it significant moral culpability for the predictable consequences of the choice that he made to continue taking drugs in the knowledge of their likely effect upon him (see R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [173] - [207]).”

28. His Honour assessed the objective seriousness of the offending. In doing so, he had regard to the relationship which existed between the applicant and the deceased, i.e. that the applicant was a powerful man who had violent tendencies, whereas the deceased had no such tendencies. His Honour took into account the circumstances of the murder involving as it did multiple acts of stomping and the use of a number of different objects to inflict injury. His Honour noted that the level of violence could be gauged not only from the deceased’s injuries, but from the substantial damage to the premises. His Honour took into account the terror which must have overcome the deceased in the final moments of her life when she was seeking to defend herself from a vicious and unprovoked attack. His Honour took into account that the applicant had been given the benefit of conditional release only three months before. His Honour assessed the objective seriousness of the offending at above the mid range.

29. His Honour assessed the applicant’s subjective case. His Honour noted that he was part indigenous and aged 27 at the time of sentence. The applicant had an unfortunate upbringing in many respects in that his parents separated when he was approximately 3 years old. He had a particular memory of his father, who on one occasion attempted to drown him. Following that incident, his mother, with him and his brother, moved away from his father. Despite that incident, the applicant had strong family support.

30. He left high school in year 9 at the age of 15, without obtaining his School Certificate. He worked in various labouring jobs until the time of his arrest. He was 14 when he started using cannabis, 16 when he started using amphetamines and 18 when he first experimented with ice. By the age of 24, approximately 12 months before the deceased's murder, he was using ice on a regular basis.

31. At the age of 18, the applicant formed a relationship from which a son, who is now 5 years of age, was born. The applicant had maintained contact with his son until the time of his arrest. Since his arrest, he had had little or no contact with the child but expressed a wish to "be a father" when he was released from custody.

32. His Honour noted that it was against that background that he was required to consider the applicant’s remorse and his prospects of rehabilitation.

33. His Honour took into account that in his sworn evidence on sentence, the applicant had expressed, in quite specific terms, his remorse for his actions. When cross-examined, the applicant had not attempted to retreat behind his use of drugs as an excuse for his conduct. The applicant accepted his responsibility for the death of the deceased. His Honour concluded that the applicant’s expression of remorse was fulsome and insightful. His Honour found that the applicant’s evidence “contained statements which reflected an acceptance of responsibility for the deceased’s murder, as well as an acknowledgment and understanding (albeit belated) of the circumstances which had brought about his conduct” (Sentence judgment at [108]).

34. His Honour concluded that the applicant’s expressions of remorse were genuine and he took that into account when considering his prospects of rehabilitation.

35. When considering rehabilitation, the primary judge had regard to the applicant’s criminal history. He considered its importance lay not in its length, but rather in the nature of the offences which were committed. Included in the offences committed by the applicant in 2005 were:

“(i)    assaulting a police officer in the execution of his duty (2);

(ii)    resisting police;

(iii)    carrying a cutting weapon;

(iv)    having custody of an offensive implement in a public place;

(v)    common assault; and

(vi)   assault occasioning actual bodily harm.”

36. His Honour reviewed the facts of those offences and noted that they each involved significant violence. When cross-examined about these offences, the applicant admitted that he was abusing alcohol and drugs at the time.

37. His Honour had available reports from two psychiatrists, Dr Allnutt (for the Crown) and Dr Nielssen (for the applicant). Dr Allnutt concluded:

“In my view the main factors that mediate his aggression are his temperamental impulsivity and substance abuse and dependence disorder.

In my view the offender presents with a number of rehabilitative needs that need to be addressed in order to reduce risks that he may pose and unless these are address (sic) he falls into a group of individuals with a relatively high vulnerability (or risk) to recurrent impulsive aggressive behaviour."

38. Dr Nielssen concluded that a critical factor in the applicant’s rehabilitation was whether or not he ceased his abuse of drugs and alcohol. Dr Nielssen said that the completion of a violent offender's program, and appropriate substance abuse programs, together with ongoing psychiatric review, were important components of any rehabilitation process. He concluded that the prospects for the offender's rehabilitation were necessarily dependent, either wholly or partly, upon him undertaking treatment to address his anger issues and his drug abuse, adhering to such treatment, and adhering to any conditions of his release.

39. His Honour noted that in his evidence, the applicant had expressed a desire to undergo rehabilitative courses in respect of drug use and anger management.

40. In reaching his conclusion as to rehabilitation, his Honour set out his reasoning as follows:

“125   There can often be difficulties in determining an offender's prospects of rehabilitation. The present is an example of such a case. On the one hand, the offender's expressed desire to undertake rehabilitation is laudable. On the other hand, the harsh reality is that this is not the first occasion on which he has expressed that sentiment. It is evident from the remarks of the sentencing judge before whom the offender appeared in April 2011 that the offender made not dissimilar statements on that occasion.

126   The offender agreed in evidence before me that he had told the sentencing judge on that occasion that he was committed to dealing with his problems. This was obviously not the case. Moreover, although the offender generally accepted that the onus had been upon him to address his problems, he gave some impression of wanting to ascribe blame to the relevant authorities for what he saw as their failure to provide him with appropriate forms of rehabilitative treatment.

127   The first step towards rehabilitation is an acceptance by the person concerned that there are issues which must be addressed. The second is the commitment to address those issues. The third is adherence to that commitment. On the offender's evidence before me, he has taken the first of those steps. Whether he takes the second and the third remains to be seen. I cannot disregard the fact that he expressed some commitment to rehabilitation to the sentencing judge in April 2011, only to abandon it within a short period of time.

128   I do accept that the offender appears to have a supportive family which will assist him in his rehabilitative efforts. I also take into account that he does not have any mental illness, nor any other issue which might impinge upon his ability to undertake the rehabilitative courses which have been identified. The essence of the opinions of Drs Allnutt and Nielssen is that, subject to a number of matters, the offender is at least capable of being rehabilitated over time, such that upon the expiration of any non-parole period it is possible that he may not represent any ongoing danger to the community.

129   In my view, the offender has some prospects of rehabilitation. However, whether those prospects are ever realised is necessarily dependent upon a number of circumstances, particularly those identified by Drs. Allnutt and Nielssen.”

41. It was necessary for his Honour to sentence the applicant for the 2010 offences, as well as for the murder of the deceased. The individual sentences imposed for those offences have not been challenged, but the principles of totality and proportionality have been raised in respect of the extent of the accumulation and concurrency of those sentences. Accordingly, it is necessary to briefly review the facts of those offences.

42. At approximately 10.30pm on 17 April 2010 the two victims, David Lindsay and Kimberley Lasaqa, were at licensed premises in Darlinghurst with a friend. They had both been drinking since approximately 7pm that evening. A discussion took place between Mr Lindsay and Ms Lasaqa and some friends outside those licensed premises. Standing nearby were the applicant and the deceased.

43. For reasons which are not clear, an argument occurred between Mr Lindsay and the deceased in which Ms Lasaqa became involved. As Mr Lindsay and Ms Lasaqa were walking away, the applicant used his closed fist to punch Mr Lindsay on the left side of the face. This occurred when Mr Lindsay was not looking in his direction, the incident having apparently ended as far as he was concerned.

44. The applicant immediately punched Mr Lindsay again to the other side of his face, followed by swinging his leg so that it connected with Mr Lindsay’s upper body. Mr Lindsay then lost consciousness and fell to the ground.

45. When this occurred, Ms Lasaqa said to the applicant "Yeah, you're a big man." The applicant began yelling at her, moved towards her and swung his right leg towards her so that his foot just brushed her face. She raised her fists in front of her in order to defend herself and the applicant continued to yell at her and swung his closed fists at her face, missing her. To defend herself Ms Lasaqa struck at the applicant twice with her fist, connecting with his mouth.

46. As soon as she hit the applicant, Ms Lasaqa moved backwards as he moved quickly towards her, swinging his arms with closed fists. Ms Lasaqa felt two blows to the side of her face which she described as being "really hard". The applicant then pulled her to the ground. While lying on the ground Ms Lasaqa felt two or three kicks to her stomach and the inside of her right leg. After being kicked in the stomach, she could recall very little else.

47. The attack on Ms Lasaqa was witnessed by two security guards. One of them described hearing Ms Lasaqa’s head “crack” as the applicant delivered the first punch. The security guards described the applicant as delivering a "karate" style kick which struck Ms Lasaqa causing her to fall to the ground. Thereafter they observed the applicant kicking Ms Lasaqa’s head "football style" and stomping his foot down on her face while she was lying unconscious on the ground. They observed the applicant pick Ms Lasaqa up by the back of her head and force her head against the side of a parked car. They heard a loud thump and Ms Lasaqa slumped to the ground. The applicant only desisted in his attack upon her when the two security guards intervened. The applicant ran off before the two security guards could detain him.

48. Police and ambulance assistance was called. Ms Lasaqa was bleeding from her mouth and her eyes were black and swollen. It was more than five minutes before she regained consciousness and was taken by ambulance from the scene. Mr Lindsay, who had also lost consciousness, regained it after a short time as he was lying on the ground. While Mr Lindsay and Ms Lasaqa each suffered extensive bruising to the face, and Ms Lasaqa suffered concussion, neither was left with long term injuries.

49. His Honour characterised the applicant’s conduct in relation to those incidents as displaying a high degree of moral culpability. His Honour noted that they were committed when the applicant was intoxicated, in circumstances where he knew that the predictable result of his intoxication would involve aggressive conduct towards others. His Honour regarded the offending to be of a high order. The only mitigating feature was that the applicant pleaded guilty at an early point in time.

50. In relation to totality and special circumstances, his Honour said:

““170   Mr Stratton submitted that I should find special circumstances on the basis that the offender was a young man with a limited criminal history. He submitted that in circumstances where the offender may face the temptation of drug abuse, it was in his interests, as well as those of the community in general, that the statutory relationship be varied so as to allow a longer period on parole.

171   In my view, the matters upon which Mr Stratton relied do not constitute special circumstances. In any event, the balance of the term that I have imposed is necessarily lengthy.”

172   In structuring the sentences I have had regard to the principle of totality (see Pearce v R [1998] HCA 57; 194 CLR 610). The end result is that the balance of the term of imprisonment, as a proportion of the mandatory period, constitutes a slightly diminished proportion of the aggregate sentence. Where sentencing in respect of multiple offences has the effect of reducing, to below 75 per cent, the ratio that the non-parole period bears to the head sentence, it is sometimes the case that special circumstances are found in order to restore the statutory ratio to the overall result (see KW v R (No. 2) [2013] NSWCCA 84 at [3] per Simpson J, Harrison and Adamson JJ agreeing). However, for the reasons I have already expressed, I do not consider that a finding of special circumstances is warranted in the present case.

173   It has been observed that the ratio which is imposed by s. 44 of the Sentencing Act is calculated by reference to an individual sentence, not to an accumulated term of imprisonment comprising several sentences (see Hillier v Director of Public Prosecutions [2009] NSWCCA 312 per Basten JA at [58] - [59]; Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236). There is accordingly no general requirement that the proportion between the effective non-parole period and the aggregate sentence should not exceed 75 per cent (see Barrett v R [2011] NSWCCA 213 at [29] per Hidden J, Whealy JA and Johnson J agreeing) although where it does so, a sentencing judge should explain why such a course has been taken (see Connelly v R [2012] NSWCCA 144 at [32] per Rothman J, McClellan CJ at CL and Hidden J agreeing; Baghdadi v R [2012] NSWCCA 212 at [32] per Davies J at [32], Macfarlan JA and Johnson J agreeing).

174   For the reasons I have already given, I am not prepared to find special circumstances in the case of the offender. The aggregate sentence at which I have arrived takes into account all of the matters to which I have referred. Moreover, the proportion between the effective non-parole period and the aggregate sentence only marginally exceeds 75 per cent.”

51. His Honour noted that although the 2010 offences had occurred at the one time, they involved separate acts of criminality with separate victims and that there should be some partial accumulation of the sentences imposed. Senior counsel for the applicant at trial accepted that there should be some accumulation between the murder sentence and that for the 2010 offences.

THE APPEAL

Ground 1 – His Honour accorded insufficient weight to rehabilitation in the structure and casting of the overall sentence.

52. The applicant submitted that rehabilitation was one of the cornerstones of the sentencing discretion (R v Cimone [2001] NSWCCA 98; 121 A Crim R 433 per Beazley JA at [19]). He submitted that having regard to the total non-parole period of 25 years and 6 months, it was clear that his Honour had given insufficient weight to the applicant having the “prospects of rehabilitation” which he had found. The applicant submitted that the aggregate non-parole period did not adequately reflect his Honour’s findings of fulsome, insightful and genuine remorse.

53. The applicant submitted that his Honour had not adequately taken into account the mitigating factor of his drug use. His early use of and addiction to drugs was part of a difficult upbringing and more weight should have been given to it. The applicant submitted that insufficient weight was given to the low prospect of him re-offending, keeping in mind that he would be over 50 years of age when he was released. The applicant submitted that the effect of the non-parole period was to impose a “crushing sentence” which was antithetical to any prospect of appropriate rehabilitation taking place.

54. Although this was not raised as a separate ground of appeal (as it should have been), the applicant submitted that his Honour’s discretion miscarried when he refused to make a finding of special circumstances. The applicant submitted that his youth, limited criminal history, his prospects of rehabilitation, his disadvantaged background, dislocated upbringing and accumulation of sentences, constituted special circumstances and his Honour should have made a finding to that effect. The applicant submitted that having made such a finding, his Honour should have then adjusted the ratio between the non-parole period and the parole period so as to produce a figure significantly less than 75 percent.

55. The applicant submitted that there was a substantial body of evidence to indicate that his prospects of rehabilitation were good to which his Honour did not give adequate weight - he had a supportive family to assist him in his rehabilitative efforts, his remarks and gestures of remorse were genuine, he had an understanding that drugs were a major contributor to his criminal behaviours and he had no intellectual barriers which would prevent him from dealing with recidivist risks.

Consideration

56. A ground of appeal framed in terms of “insufficient weight” being given to a particular factor suffers a very significant preliminary difficulty. It accepts that consideration was given to the factor by the sentencing judge but then has to persuade a Court of Criminal Appeal that the sentencing discretion miscarried. Such a challenge can only be successfully mounted if error of the kind identified in House v R [1936] HCA 40; 55 CLR 499 is identified.

57. In this case his Honour considered all of the positive considerations which favoured good prospects of rehabilitation, together with those which did not. There is no factor identified by the applicant which his Honour did not take into account. Having identified all of those matters, his Honour concluded, as he was entitled to do, that the applicant “had some prospects of rehabilitation”. A powerful consideration which influenced his Honour was that the applicant had three months before the murder told a court of his intention to become drug free and rehabilitate himself only to abandon that pursuit within a very short time. No error has been identified in his Honour’s approach or reasoning. The submission goes no further than to assert that his Honour should have arrived at a different result.

58. The applicant’s submissions take into account the positive remarks and findings of the primary judge in isolation, but fail to have regard to his Honour’s remarks as a whole. Genuine expressions of remorse and insight of themselves do not necessarily translate into good prospects of rehabilitation. They have to be balanced against other factors which bear upon this issue which as his Honour indicated, pointed towards a less positive outcome.

59. The negative matters to which his Honour had regard were substantial and important. He took into account the applicant’s criminal history, containing as it did instances of violent behaviour committed under the influence of drugs and alcohol. He was on parole when the murder was committed. Despite being dealt with leniently and mercifully by the judge to whom he had indicated a firm intention to engage in drug rehabilitation, he abandoned that intention within a short time after being sentenced. His Honour was entitled to take into account the substantial violence associated with the 2010 offences.

60. In those circumstances, his Honour was entitled to balance those negative considerations against his positive findings as he did at [125] – [129] of his sentence judgment. The challenge to his Honour’s findings as to rehabilitation has not been made out.

61. His Honour refused to find special circumstances. His Honour was entitled to do so. To the extent that his Honour’s refusal to find special circumstances is relevant to this ground of appeal, his Honour pointed out that the balance of term was sufficiently long to accommodate any need for rehabilitation after the applicant was released on parole.

62. As his Honour explained, the matters relied upon as constituting “special circumstances” were matters which could in certain cases constitute special circumstances but do not compel a finding to that effect. On the facts of this case, the decision whether or not to make such a finding involved an exercise of discretion by his Honour which has not been demonstrated to have miscarried.

63. Similarly, on the facts of this case any reliance upon accumulation as constituting a basis for a finding of special circumstances is misconceived. The fixed term sentence imposed for assault occasioning actual bodily harm (the AOABH offence) expired long before the date on which the applicant was sentenced for all three offences. The sentence for recklessly inflicting grievous bodily harm (the GBH offence) was to be served concurrently with the sentence imposed for the AOABH offence and the non-parole period has expired. The sentence imposed for murder was only 1 year cumulative upon the GBH offence, the remaining 18 months being served concurrently. The non-parole period for the GBH offence expired 6 months into the murder sentence and the entire sentence for the GBH offence will expire on 31 July 2015. The degree of accumulation when considered in light of the very lengthy sentence required to be served for the offence of murder had a negligible impact on the overall sentence and did not justify a finding of special circumstances.

64. His Honour noted that the ratio between the non parole period and the balance of term referred to in s 44(1) of the Sentencing Act only applies to individual sentences. His Honour also noted that where two or more sentences were imposed there was no requirement that the same ratio exist between the total non parole period and the total balance of term but it was “sometimes the case” that sentencing judges “restore[d] the statutory ratio”. His Honour did not adopt that approach because His Honour considered that the aggregate sentence imposed took into account the matters that might otherwise warrant a variation and the proportion of the effective non parole period and the aggregate sentence “only marginally exceed[ed] 75 percent” in this case. There was no challenge to this aspect of His Honour’s judgement.

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

Ground 2 – His Honour erred in holding intoxication to be an aggravating feature in all of the circumstances.

66. The applicant accepted that he was a violent man and a drug addict. He accepted that the evidence at trial and in the sentence proceedings demonstrated that his intoxication was frequent. He submitted, however, that the instances of violence and aggression perpetrated by him were infrequent by comparison. He submitted that as a matter of logic, it followed that just because he became intoxicated by the ingestion of alcohol and ice, did not mean that he would necessarily act aggressively.

67. The applicant submitted that contrary to his Honour’s finding, there was no nexus between his drug ingestion and the commission of the offence of murder. He submitted that there was no connection between the ingestion of drugs and the formation of the intent to kill. He submitted that the intention to kill was the result of a sudden onset of rage in which no premeditation was involved. He submitted that it was clear from the sequence of events that the murderous rage was rapidly followed by a degree of remorse as to what he had done.

66. The applicant submitted that the passages of cross-examination set out in his Honour’s sentence judgment went no further than to establish that he could respond violently while intoxicated by alcohol and ice, but would not necessarily do so. The applicant accepted that when he was using alcohol and ice he was a very dangerous and violent person but that situation would only arise in circumstances where he was provoked. He submitted that the evidence before the sentencing judge fell short of an admission by him that drugs were taken with a view to disinhibiting boundaries otherwise available to be called upon in resisting violent impulses.

Consideration

69. The conclusion by his Honour that the applicant’s intoxication was an aggravating feature was well open. His Honour’s finding of aggravation was based on expert evidence that established that one of the effects of the use of ice was increased aggression. The applicant’s evidence was that he knew that fact, yet nonetheless continued to ingest ice and alcohol. The effect of his Honour’s finding was that the applicant continued to ingest ice and alcohol despite his knowledge that this brought about increased aggression on his part. That the applicant was aware of this connection was clear from the assurances which he made to a District Court judge three months before the murder that he had developed an insight into the effects of drugs and that he was committed to addressing his drug abuse problem. It is also clear from the evidence which he gave in the sentence proceedings when the following exchange occurred:

“Q. And it is true to say that you could predict that you would respond very aggressively and violently if you were abusing those types of substances, would you agree?

A. Yes."

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

Ground 3 – His Honour accorded insufficient weight to the principle of totality in the structure and casting of the overall sentence.

71. In support of this ground, the applicant relied upon the following statements of principle: Mill v R [1988] HCA 70; 166 CLR 59 at 62-63 where the Court (Wilson, Deane, Dawson, Toohey, Gaudron JJ) said:

“8   The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms:

'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

72. In Postiglione v R [1997] HCA 26; 189 CLR 295 at 307 – 308 McHugh J said:

“The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:

"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."”

73. By reference to those statements, the applicant submitted that the sentencing judge gave insufficient weight to the principle of totality in that having partly accumulated the sentences a reduction in the non-parole period was warranted in all the circumstances. The applicant submitted that the sentences imposed by his Honour “look wrong” in that they are crushing so as to extinguish any rehabilitative aspect of the sentencing discretion. This was because the nature of the criminality was not so grave as to allow that principle of sentencing to be ignored.

Consideration

74. As already pointed out, the extent of the accumulation was modest in the extreme and did no more than add a year and a half to the sentence for murder. This was despite the fact that the criminality in the AOABH and GBH offences was substantial. Such accumulation as occurred was of minimal significance in the circumstances of this case and did not reflect an error in the application of the totality principle.

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

Ground 4 – The sentence was manifestly excessive in all the circumstances.

76. By reference to what was described as four “comparable recent cases”, the applicant sought to establish that the sentence imposed by his Honour was outside the proper range for offences of this kind. The cases relied upon were: R v Kennedy [2013] NSWSC 1940 (Bellew J); R v Ray [2013] NSWSC 767 (R A Hulme J); R v Richardson [2012] NSWSC 521 (McCallum J); R v Gittany [2014] NSWSC 49 (McCallum J).

77. The applicant submitted that taking into account the objective features of the case, the applicant’s subjective circumstances, the total sentence imposed and the range that exists for not dissimilar cases, the sentence imposed was manifestly excessive.

Consideration

78. As the High Court has pointed out, to establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was “unreasonable or plainly unjust” (Dinsdale v R [2000] HCA 54; 202 CLR 321; Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). This has to be established in a context where there is no single correct sentence and the judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle (R v Vuni [2006] NSWCCA 171 at [33]).

79. In Markarian the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) said:

“25   As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

…

27   Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. …”

80. The reliance on four specific sentencing judgments in other matters, as a means of establishing some kind of benchmark against which the reasonableness of this sentence is to be measured, is not particularly helpful. Murder, like manslaughter, has been aptly described as a protean offence. Each case, to a large extent, depends upon its own facts. Axiomatically, differences in facts and circumstances will often lead to differences in the resulting sentence. While there are some similarities in the four cases to which the Court was referred, the differences are significant and substantial. For example, in none of the cases to which the Court was referred was the violence perpetrated against the victim as extreme as in this case. Having regard to the exceptionally violent nature of the murder, the terror and suffering experienced by the deceased, the absence of a compelling subjective case and the applicant’s limited prospects for rehabilitation, it cannot be said that the sentence is reflective of error of the kind asserted.

81. No error of the kind identified in Markarian has been shown in this case. This ground of appeal has not been made out.

Orders

82. The orders of the Court are:

1. Leave to appeal is granted.

2. The appeal is dismissed.

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Decision last updated: 20 May 2015