R v AX

[2015] NSWSC 317

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v AX [2015] NSWSC 317
Hearing dates:	19 February 2015
Decision date:	27 March 2015
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Sentenced to imprisonment for 26 years and seven months commencing on 19 May 2014, comprising a non-parole period of 19 years and 11 months and a balance of term of six years and eight months
Catchwords:	CRIMINAL LAW - sentence - murder - offender (23 years old) beats 76-year old victim to death - offender had defrauded victim of $30,000.00 - offender kills victim in hope that fraud will not be discovered - fraud planned but murder an impulsive response to risk of discovery of fraud - objective gravity of crime very high - intention to kill - use of weapons - early plea of guilty - assistance to authorities on unrelated matter (drug supply) - finding of remorse - caution concerning prospects of rehabilitation - specific and general deterrence
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 R v Previtera (1997) 94 A Crim R 76
Texts Cited:	---
Category:	Sentence
Parties:	Regina (Crown) AX (Offender)
Representation:	Counsel: Mr LJ Carr (Crown) Ms BJ Rigg SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2014/118817
Publication restriction:	A non-publication order has been made with respect to the name of the Offender who is to be referred to by the pseudonym AX

REMARKS ON SENTENCE

1. JOHNSON J: The Offender, AX, appears before the Court for sentence for the crime of murder. A pseudonym is used in these remarks to describe the Offender because of evidence before the Court concerning his assistance to authorities on an unrelated matter, to which reference will be made in these remarks on sentence.

2. On 5 December 2014, the Offender pleaded guilty in the Supreme Court to the charge that on 16 April 2014 at The Rock, he did murder Rodney James Willis. That plea of guilty confirmed the plea entered by the Offender in the Local Court at an earlier time.

3. The maximum penalty for murder is life imprisonment and a standard non-parole period of 20 years applies.

Facts of the Offence

4. It is necessary to make findings of fact with respect to the offence. A Statement of Agreed Facts was tendered at the sentencing hearing. In addition, the Offender gave evidence.

5. What follows is drawn from the Statement of Agreed Facts with express reference being made to any findings arising from the evidence of the Offender.

6. At the time of his death on 16 April 2014, Mr Willis was 76 years of age. He resided in a granny flat at the rear of 9 Scott Street, The Rock (“9 Scott Street”). Residing in the main residence at 9 Scott Street was Edwin Owen, the nephew of Mr Willis. The main residence had been owned previously by Mr Owen’s parents who had both passed away, leaving the house to Mr Owen and his sister.

7. Also residing in the main residence from about December 2013-January 2014 were the Offender (aged 23 years), his wife and their two young daughters. The Offender had grown up in The Rock, but had moved to live in Sydney. When he moved back to The Rock in late 2013, the Offender told a number of friends that he was a police informer and was scared of paybacks and that he had moved back so that nobody knew where he was.

8. The Offender and his wife were friends of Mr Owen who permitted them to live in the main residence at 9 Scott Street.

Mr Willis Discovers $30,000.00 is Missing From His Bank Account

9. Around 8.40 am on 16 April 2014, Mr Willis withdrew $100.00 from an ATM. The ATM receipt revealed that $30,000.00 was missing from his bank account. Mr Willis went to the IGA supermarket at The Rock. He spoke to staff at the IGA supermarket about the missing money. Mr Willis returned to his home and telephoned the Friendship Club at Meals on Wheels at 8.58 am, where he left a message advising that he would pick up his meal after he went to the Men’s Shed. Mr Willis then departed for the Men’s Shed at The Rock.

10. Around 9.00 am, the Offender’s wife also attended the IGA supermarket where she purchased groceries and told staff about moving to Melbourne with their family.

11. At the Men’s Shed, Mr Willis spoke of the missing money and said that he was going home to sort it out. He left the Men’s Shed between 9.45 am and 10.00 am to return home to contact his bank.

12. Upon his return home, Mr Willis arranged paperwork relating to the missing money to facilitate his planned contact with the bank. He placed three ATM receipts on his dining table. The first receipt was dated 14 April 2014 showing a balance of $32,287.71. The second receipt was dated 15 April 2014 with a balance of $31,959.07. The third receipt was dated 16 April 2014 and was time stamped “8.40.56”. It was this receipt which revealed that the sum of $30,000.00 was missing from the account.

13. Also on the table was the local Telstra phone book opened to numbers for the Westpac Bank, Mr Willis’ bank. The portable landline telephone, which had its cradle in the granny flat, but was also used by occupants of the main residence, was not immediately located by Mr Willis and he searched for it.

The Offender Had Defrauded Mr Willis’ Account of $30,000.00

14. The Offender was responsible for the defrauding of the account of Mr Willis of the sum of $30,000.00.

15. Mr Willis was in the habit of recording account balance information on the butts of his cheques. The Offender and Mr Owen had on occasions gone through Mr Willis’ property when he was away from the premises. The cheque butts revealed the balance from time to time in Mr Willis’ account and, in early April 2014, indicated that he had a little over $30,000.00 in it.

16. One cheque and its butt were both completely removed from the cheque book. The Offender used this cheque to make out the sum of $30,000.00 from Mr Willis’ account to himself.

17. Mr Willis had written the account balance from the preceding cheque butt and carried it over to the butt of the cheque following the one used by the Offender to withdraw $30,000.00, thereby indicating that Mr Willis was unaware that the cheque had been removed.

18. Mr Willis had in fact driven the Offender and Mr Owen to Wagga Wagga on 15 April 2014. Unbeknown to Mr Willis, the Offender had deposited the cheque into his own St George Bank account.

The Offender Learns that Mr Willis Has Discovered the Fraud

19. On 16 April 2014, the Offender’s wife asked Mr Owen to walk to the IGA supermarket to buy mobile telephone credit. He was also asked to obtain two sticks of cannabis which he did. He purchased the phone credit at 10.16 am and then went and purchased the cannabis before returning home. Mr Owen was gone for about an hour, between approximately 10.00 am and 11.00 am.

20. The Offender’s wife learned that Mr Willis had discovered that $30,000.00 was missing from his bank account. She told the Offender about this. The Offender said in evidence that his wife told him of Mr Willis’ discovery over an hour before he entered the granny flat and commenced to attack Mr Willis (T16-17, 19 February 2015).

21. Before Mr Owen returned, the Offender went to the main sliding door to the granny flat of Mr Willis. The Offender had armed himself with a tyre iron (T17-18, 19 February 2015). The door of the flat was open and Mr Willis was just inside. The Offender assaulted Mr Willis with the tyre iron. His intention, at that stage, was to knock Mr Willis out. The Offender left Mr Willis in the granny flat and went to get a second and heavier weapon, a pipe. He returned with the pipe and renewed his attack on Mr Willis. At this stage, he intended to kill Mr Willis.

22. Mr Willis suffered numerous blows to the head. Mr Willis was initially attacked near the open sliding glass door in the granny flat living room. Cast off stains and impact patterns were located in various parts of the granny flat, indicating that an attack on Mr Willis took place in that area.

23. The Offender then dragged Mr Willis into the bedroom of the granny flat. Blood impact patterns and further cast off patterns were located in the bedroom, indicating that Mr Willis was struck to the head more than once whilst he was on the floor in the bedroom.

24. After Mr Owen returned, the Offender, his wife and Mr Owen went into Mr Owen’s bedroom where the three smoked cannabis for about 20 minutes.

Mr Owen Discovers Mr Willis After the Attack

25. Some time before 11.30 am, Mr Owen went to the granny flat and heard Mr Willis whimpering through the bedroom window. He looked through the window and saw Mr Willis lying on the floor with blood on his head. Mr Owen thought that Mr Willis had fallen over. He went into the flat where Mr Willis was lying face up on the bedroom floor. Mr Willis had blood on his head and was gasping for breath.

26. Mr Owen went back to the main residence and told the Offender’s wife what he had observed. The Offender’s wife and Mr Owen went into the bathroom to tell the Offender, who was in the shower.

27. Mr Owen left the bathroom and contacted “000” at approximately 11.30 am on his way back to the granny flat. Mr Owen was unable to follow the directions of the “000” operator to assist Mr Willis. Neither the Offender nor his wife assisted Mr Willis.

28. Mr Owen was able to locate a neighbour to provide first aid to Mr Willis. CPR commenced until an ambulance and police arrived around 11.50 am. Mr Willis was unresponsive and CPR ceased. Death was pronounced at 12.17 pm.

The Offender Departs for Melbourne

29. Around 11.50 am, the Offender made arrangements with his sister to travel to Melbourne by train. He left 9 Scott Street shortly thereafter and went to his sister’s house. The Offender and his sister caught the 2.15 pm XPT train from The Rock to Melbourne.

30. The Offender departed before the arrival of police at 9 Scott Street. A crime scene was established and investigations into the death commenced.

The Offender Makes Admissions and Returns from Melbourne

31. Whilst in Melbourne, the Offender admitted to others that he had committed the murder. A friend contacted “000” and advised police of admissions made by the Offender.

32. Following police notification of an outstanding warrant (for failure to perform community service for an earlier offence), the Offender returned to The Rock of his own volition to have the warrant matter finalised. He made further admissions once back in The Rock.

33. At one stage, the Offender stated that if only Mr Willis had not found out until the next day about the $30,000.00, the cheque would have cleared and they would have already left for Melbourne.

34. The Offender and his wife were arrested at The Rock on 20 April 2014. The Offender declined to answer questions in an electronically recorded interview. On 28 April 2014, the Offender’s sister contacted police and advised that the Offender now wished to participate in an interview.

Police Interview With Offender on 30 April 2014

35. On 30 April 2014, the Offender was interviewed by police and made admissions to killing Mr Willis. It is appropriate to set out extracts from this interview, which assist in following the Offender’s thought processes.

36. The Offender said that Mr Willis was standing in the doorway entrance to the granny flat and “I just fuckin’ cracked, cracked of [sic] on the top of the head … he was still like, just a bit dazed and then fuckin’ I hit him again”.

37. The Offender stated he then ran around the side of the house and dropped to his knees thinking “like what have I, what have I fuckin’ done”. He then went into the main residence and made sure “I turned up the TV loud”.

38. He returned to the granny flat and found Mr Willis “sitting on his arse and … he was just kind of dazed and I didn’t know what to do I thought, fuckin’ oh, what he’s going to fuckin’ get up. So I ran straight through like, in there and then fuckin’ cracked him on the head again” and “I seen that like, he was, he was kind of still alive and I didn’t know what to do like, whether to finish him or not”.

39. The Offender told police that he used a bar and a pipe obtained from the yard of the premises. The initial blows were caused by the smaller item with which he confronted Mr Willis, but when its impact was not substantial, he went back into the yard and found the larger pipe.

40. The Offender told police that he dragged Mr Willis into the bedroom. At that time, the Offender observed that Mr Willis was severely injured, but was still alive.

41. The Offender explained the way he had assaulted Mr Willis with the larger pipe:

“Um, it was just an actual pipe, it was big ‘cause I thought fuck I’m not going to kill with that that’s so fuckin’ mean, like you know what I mean, if I’ve got something bigger like, fuckin’ maybe it might like do it quicker but I couldn’t fuckin’ do it. I couldn’t do it and then when, when Eddy came back and like, fuckin’ I was stressing out, we had a sesh [session of smoking marijuana], we had a sesh and then he kind of already knew something was wrong, you know what I mean.”

42. The Offender told police that he had no recollection of striking Mr Willis in the bedroom of the granny flat.

Injuries Observed on Post-Mortem Examination

43. Post-mortem examination of Mr Willis showed extensive blunt-force injuries involving the head.

44. These injuries included a larger number of lacerations to the scalp (top of the head, right and left side) along with numerous skull fractures (right and left and base of the skull). The brain also showed numerous blunt-force injuries (bruises and tears) involving both sides, with some extending into the underlying white matter. There were numerous areas of traumatic subarachnoid haemorrhage around the brain along with subdural haemorrhages on each side of the brain.

45. Five separate blunt-force injuries to the back of the head were noted, accompanied by lacerations measuring up to 6.2 centimetres. The top of the head showed three lacerations of the scalp measuring up to three centimetres in length, with an underlying fracture of the right parietal bone measuring 18.5 centimetres. Examination of the left side of the head revealed lacerations of up to five centimetres in length. Internal examination of the left side of the head revealed extensive fracturing of the left temporal region. There were numerous areas of traumatic subarachnoid haemorrhage around the brain along with subdural haemorrhages on each side of the brain. Bilateral haemorrhage between the scalp and skull was also noted, together with an extensive transverse hinge-type fracture of the base of the skull along with multiple fractures of the frontal aspect of the base of the skull. The cause of death was blunt-force head injuries.

46. It is apparent from the description of the injuries to Mr Willis that the attack upon him involved considerable force, with the use of weapons, directed to Mr Willis’ head. This was a savage and sustained attack by a young man to a much older man, with the use of heavy weapons.

The Offender’s Drug Use

47. The Offender told police during the interview of 30 April 2014 that he was using drugs heavily on a daily basis in the lead up to the offence, and that he was affected by drugs (cannabis) at the time of the commission of the offence. He disclosed that he became aware on the morning of 16 April 2014 that Mr Willis had discovered the money missing from his account.

48. The Offender has been in custody since his arrest on 20 April 2014.

49. The Offender’s wife has also been charged with murder. She has pleaded not guilty. The Crown asserts that the Offender and his wife were part of a joint criminal enterprise to kill Mr Willis. That is denied by the Offender.

The Offender’s Subjective Circumstances

50. The Offender was 23 years old at the time of the offence and is now 24 years of age.

51. He has a prior criminal history. On 29 July 2009, he appeared before the Wagga Wagga Local Court on a charge of destroying property and was fined $250.00.

52. On 8 November 2013, he appeared before the Mt Druitt Local Court on a charge of using an offensive weapon with intent to commit an indictable offence, for which he was ordered to perform 120 hours’ community service.

53. The Offender failed to comply with his community service order and an arrest warrant issued in that respect on 30 January 2014. It was this warrant which was mentioned earlier in these remarks (at [32]).

54. On 22 October 2014, the Offender appeared before the Wagga Wagga Local Court. He was sentenced for the offence (previously dealt with by way of community service order on 8 November 2013) to imprisonment for one month, commencing on 20 April 2014 and expiring on 19 May 2014.

55. The Offender has been in custody solely with respect to the offence of murder since 19 May 2014.

56. An affidavit of the Offender dated 19 February 2015 was relied upon at the sentencing hearing. As mentioned, the Offender gave evidence at that hearing.

57. In addition, a report dated 9 February 2015 of Michelle Player, psychologist, was tendered in the defence case on sentence. The Offender’s affidavit confirmed that (subject to some limited matters), the history contained in Ms Player’s report was true.

58. The evidence reveals that the Offender was born in New Zealand and came to Australia in 1998, when he was eight years old. He has three sisters, two older and one younger than him. The family relocated fairly frequently before settling at The Rock when the Offender was 13 years old. The Offender left home and lived in Sydney from 2009 when he was 18 years old. As mentioned, he resided at The Rock from about December 2013 to April 2014.

59. After completing Year 10, the Offender left school in early Year 11 in order to pursue employment. He worked at an oil refinery for a period and then undertook door-to-door sales and telemarketing. He had generally been claiming Centrelink benefits between 2012 and his arrest in April 2014.

60. The Offender stated that he had met his wife in Sydney in 2010 when he was 19 years old. They married in 2011. There are two daughters of the relationship, now aged three and two years. The children are currently in the care of their grandparents.

61. The Offender has a history of drug use, including cannabis, ecstasy and amphetamines as well as methamphetamine (ice) since he was 19 years old.

62. The Offender stated that his gambling behaviour had been problematic since he was 18 years old.

63. Ms Player undertook cognitive assessment testing of the Offender and noted that the Offender achieved a result that placed him within the low-average to average range of cognitive ability, outperforming 37% of the normative sample for his age. Ms Player stated that the Offender impressed with reasonably well developed intellectual skills which appeared commensurate with his report at school and employment history.

64. Ms Player undertook a risk assessment with respect to the Offender. Ms Player considered historical and clinical risk factors and assessed the Offender as being a moderate risk for future violence.

The Offender’s Plea of Guilty and Assistance to Authorities

65. It was common ground that the Offender had pleaded guilty to the charge of murder at the earliest opportunity in the Local Court. In accordance with accepted principles, the Offender is entitled to a discount of 25% as a result of his plea of guilty.

66. The Crown has placed material before the Court which indicates that the Offender has assisted law enforcement authorities in the detection and investigation of drug supply offences. The Offender’s assistance arose following his arrest in April 2013 when he was charged with certain drug offences. These charges were withdrawn in November 2013 as a result of drug analysis which determined that no prohibited drugs were contained within the samples to which the charges related. The Offender’s assistance played no part in the decision to withdraw the charges against him.

65. Investigating police have described the Offender’s assistance as being crucial to the success of a police operation and the subsequent charging of a person with drug supply offences.

66. Assistance to authorities for the purpose of s.23 Crimes (Sentencing Procedure) Act 1999 may relate to assistance in areas unrelated to the crime for which the Offender is to be sentenced. In this case, the assistance of the Offender predated the commission of the crime of murder.

67. The Crown acknowledges that the assistance was of crucial significance to the police and substantially contributed to the prosecution of a drug dealer. The Crown submitted that the Offender’s assistance would attract a discount in the order of 5%.

68. Ms Rigg SC, for the Offender, submitted that a discount equal to or a little higher than that suggested by the Crown would be appropriate, perhaps in a range of a total discount (including 25% for the plea of guilty) of between 30% to 33⅓% from a notional starting point.

69. Section 23(3) Crimes (Sentencing Procedure) Act 1999 provides that a lesser penalty imposed, as a result of assistance to authorities, must not be unreasonably disproportionate to the nature and circumstances of the offence for which sentence is to be passed.

70. Senior counsel for the Offender acknowledged fairly that, especially in circumstances where there is no evidence of hardship in custody, there may be an unfair advantage to a person in the Offender’s situation in receiving a particular percentage as a discount as compared to another offender whose assistance was exactly the same and with equivalent resulting risk or fears of reprisals, but who has committed, for example, a robbery or a break, enter and steal offence.

71. The fact that the Offender is to be sentenced to a long period of imprisonment for murder is a factor to be kept in mind in determining any appropriate allowance for his assistance to authorities. In all the circumstances, I am satisfied that a total discount of 30% should be allowed; 25% relating to the Offender’s plea of guilty and 5% for his past assistance to authorities with respect to unrelated crime. Any greater allowance for the Offender’s assistance would result in a sentence which was unreasonably disproportionate to the nature and circumstances of the offence of murder.

Victim Impact Statements

74. Three victim impact statements were read at the sentencing hearing. These were the statements of Ms Meaghan Owen, a niece of Mr Willis, Mrs Christine Willis, the sister-in-law of Mr Willis and Ms Holly Marsden, a niece of Mr Willis.

75. The makers of these victim impact statements lay outside the definition of “family victim” for the purpose of ss.26 and 28 Crimes (Sentencing Procedure) Act 1999. The Court was asked to take these statements into account in accordance with the principles in R v Previtera (1997) 94 A Crim R 76 at 84-87.

76. The statements of Ms Owen, Mrs Willis and Ms Marsden speak of the devastating effect upon the family arising from the death of Mr Willis. It is clear that Mr Willis was a highly respected member of The Rock community and that his loss has affected many members of that community. He contributed a great deal to community life.

77. I express the sympathy of the Court and the community to the family of Mr Willis for their loss.

78. The law of sentencing requires that substantial parts of these remarks on sentence concern the circumstances of the Offender. It should not be thought, however, that I have lost sight of the impact of this terrible crime on those affected by it.

Objective Gravity of the Offence

79. The Crown submitted that this case, although extremely serious and approaching the worst category, did not call for a sentence of life imprisonment under s.61(1) Crimes (Sentencing Procedure) Act 1999.

80. The Crown submitted that a substantial determinate sentence should be passed in this case.

81. I have had regard to the provisions in ss.54A and 54B Crimes (Sentencing Procedure) Act 1999 in considering the role of the standard non-parole period of 20 years on sentence. The standard non-parole period is a guidepost to be taken into account, together with the maximum penalty, as part of the instinctive synthesis process. The standard non-parole period is to be taken into account in determining the appropriate sentence, together with other relevant considerations: s.54B(2).

82. The Court must record reasons for setting a non-parole period that is longer or shorter than the standard non-parole period: s.54B(3). However, the Court is not required to record the extent to which the seriousness of the offence differs from that of an offence to which the standard non-parole period applies: s.54B(6).

83. Using the statutory language in s.54A(2), the Crown submitted that this offence lay within the upper range of objective seriousness for murder. Ms Rigg SC submitted that the objective seriousness of this offence lay somewhat above the mid-range of objective seriousness, but not within the upper range and not approaching the worst category of case.

84. I have considered the objective gravity of this crime, having regard to both common law and statutory factors which bear upon this question. In forming a view concerning objective gravity, I have taken into account a number of the features of the crime addressed by counsel, including the moral culpability of the Offender. A number of these features extend beyond “objective factors affecting the relative seriousness” of the offence for the purpose of the standard non-parole period: ss.54A(2) and 54B(2) Crimes (Sentencing Procedure) Act 1999.

85. The factors to which I have had particular regard in assessing objective gravity are the following:

1. the victim, Mr Willis, was vulnerable by reason of his age (76 years) with the Offender (23 years) being more than 50 years younger than him;

2. Mr Willis had done nothing to the Offender to bring about this attack - on the contrary, Mr Willis appears to have got on well with the Offender and he assisted the Offender from time to time;

3. the offence was committed in the home of the victim, the granny flat at the rear of the separate residence where the Offender resided;

4. the offence involved the use of two weapons and two separate attacks by the Offender upon the victim, separated by some time;

5. the Offender armed himself with the tyre iron and made his way to the granny flat where he attacked Mr Willis in the doorway, striking him a number of blows to the head;

6. the lack of any defensive type injuries (apart from a bruise over the back of the left forearm) suggests a sudden attack carried out without warning from the Offender;

7. after the initial attack, the Offender returned to the main house and “turned up the TV loud” before returning to the granny flat, with this act done to cover any noise that might emanate from the granny flat during the continued attack upon the victim - clearly, the Offender had given some thought to what should be done in between the two attacks, to reduce the prospect of others hearing the second phase;

8. upon the Offender’s return to the granny flat, Mr Willis was still alive - the Offender had obtained a more substantial and heavier weapon (a pipe) - the Offender dragged Mr Willis from the lounge room area to the bedroom where he was further attacked and left to die, before his discovery by Mr Owen;

9. the Offender made no effort to assist Mr Willis - he went into the main residence, smoked cannabis with the others and then showered;

10. the degree of violence, as evidenced by the injuries and forensic evidence of blood patterns and blood stains at different points in the granny flat, was very substantial;

11. the motive for the attack was to ensure that he obtained the sum of $30,000.00, which the Offender had sought to obtain fraudulently from Mr Willis - the attack occurred when the Offender became aware that Mr Willis had discovered that the money was apparently missing from his bank account - the Offender was motivated by greed by way of his wish to ensure he obtained the money and to reduce the prospect of discovery by others of his fraud;

12. the Offender’s desire to obtain money was linked to his wish to leave The Rock and travel to Melbourne, a plan which was affected by some anxiety on his part arising from his involvement in drugs and possible knowledge that he had provided information to police in that respect.

86. I accept that the Offender had used cannabis prior to the commission of the offence. This constituted self-induced intoxication at the time of the offence which is not to be taken into account as a mitigating factor on sentence: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.

87. To the extent that it may assist the sentencing process, and using the language of s.54A(2), I record my conclusion that the present offence lies well above the middle of the range of seriousness for an offence of murder.

88. This offence involved sustained violence with a weapon directed to an elderly man in his own home by a young assailant. The victim had done nothing to the Offender to bring about this attack. All that Mr Willis had done was to detect that someone had defrauded him of almost all of the funds in his bank account. When it became clear to the Offender that Mr Willis was taking action to stop the fraud being finalised, the Offender proceeded to viciously attack Mr Willis.

89. The Offender was putting into effect a plan to defraud Mr Willis. I accept that the Offender’s decision to attack Mr Willis began as an impulsive reaction, albeit in circumstances where about one hour had passed between his learning of Mr Willis’ discovery of the fraud and the commencement of the attack. It was an extreme response adopted by the Offender to protect his own interests against those of Mr Willis.

90. I am satisfied beyond reasonable doubt that the Offender acted with the intention to kill Mr Willis, certainly at the time of the second attack upon him. I am satisfied that the Offender acted at the least with an intent to cause grievous bodily harm to Mr Willis at the time of the first attack.

91. I accept that, at the conclusion of the second attack, the Offender was aware that he had caused extremely grave injuries to Mr Willis. He took no steps to assist Mr Willis. This fortifies a conclusion that he wished and expected Mr Willis to die. It was only when Mr Owen heard Mr Willis that a call for emergency assistance was made.

92. The fact that the Offender was somewhat anxious at the time of the offence, concerning the prospect of discovery of his assistance to authorities about drug supply, provides limited assistance to him. There were, of course, other steps which he could have taken to reduce concerns of this type which were not apparently availed of by him. Although this aspect does bear upon the Offender’s moral culpability and thus the objective gravity of the crime, it provides limited assistance to the Offender.

93. It may be said, at one level, that the Offender could have simply run away to Melbourne without harming Mr Willis. Given this simple alternative, it may be considered difficult to understand why the Offender would choose the extreme option of killing Mr Willis. However, it must be kept in mind that the Offender, in acting as he did, wished to maximise the prospect that he would obtain the sum of $30,000.00, with the killing of Mr Willis at that time reducing the prospect that the payment of the money would be stopped.

94. Although it may be said that all crimes of murder are most serious, I am satisfied that the murder in this case is a very grave example of the crime, and that this conclusion will be a critical one in determining the appropriate sentence.

Other Factors Relevant to Sentence

95. Although the Offender manifested no remorse for his crime immediately after its commission and at the time when he fled to Melbourne, it may be said that a level of remorse commenced to manifest itself when he returned voluntarily to New South Wales, and soon after made admissions to police. Since then, his plea of guilty was entered at the earliest opportunity. He expressed contrition, in his own way, in evidence at the sentencing hearing before me.

96. I accept that the Offender has demonstrated remorse and contrition for his offence.

97. Although the Offender has a limited prior criminal history, he had not taken advantage of a sentence by way of community service imposed only months before the present offence. The present offence was committed whilst the Offender was subject to a form of conditional liberty: R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 at [5]-[8]. This factor does not assist the Offender on sentence.

98. It is difficult to form a conclusion favourable to the Offender concerning prospects of rehabilitation at this time. It must be kept in mind that the head sentence and non-parole period to be imposed will be very lengthy, so that any assessment of his prospects of reoffending, and his level of dangerousness, will relate to a potential release date many years away. The fact that the Offender was capable of committing a terrible crime like this, for reasons of self-interest, is also relevant to an assessment of his dangerousness and risk of reoffending in the future. What may be said is that the report of Ms Player, taken with the evidence of the Offender as to steps which he proposes to take in custody, provides some foundation for the view that he proposes to make constructive use of his time in custody. Time will tell in this respect.

99. General deterrence is an important factor on sentence for a crime such as this, where wanton violence is directed to an elderly citizen with deadly consequences and for no good reason.

100. Specific deterrence is important as well in this case. The Offender had opportunities in the courts but came to commit this offence.

101. I take into account the evidence of the Offender’s disturbed upbringing and his substance abuse and gambling difficulties. His personal history, and these manifestations, provide a background against which this most serious crime was committed.

Determining an Appropriate Sentence

102. I have referred to a range of factors to be considered on sentence. It is necessary now to conclude the process of instinctive synthesis for the purpose of passing sentence.

103. The offence committed by the Offender is of a very high level of objective gravity. The Offender’s subjective circumstances serve to explain aspects of his background, and provide some context for the commission of this offence.

104. The Offender has demonstrated remorse. His prospects of rehabilitation are difficult to assess at this time.

105. The sentence to be imposed must reflect the need for specific deterrence and general deterrence.

106. The Offender is entitled to a combined discount of 30% for his plea of guilty (25%) and his assistance to authorities (5%).

107. Having regard to all relevant objective and subjective factors and relevant sentencing principles, I am satisfied that an appropriate head sentence, prior to application of the 30% discount, would be one of 38 years. After allowance is made for the 30% discount, and with some rounding, a head sentence of 26 years and seven months ought be fixed.

108. Given the length of the head sentence and non-parole period involved, a finding of special circumstances should not be made in this case, except to the very limited extent to which rounding alters the strict statutory ratio. I am satisfied that the parole period component to be incorporated in the sentence to be passed will provide ample opportunity, by way of conditional liberty, in the event that the Offender is released to parole at the conclusion of the non-parole period to be fixed.

109. Accordingly, the sentence to be imposed will comprise a head sentence of 26 years and seven months with (after some rounding), a non-parole period of 19 years and 11 months. The sentence will commence from 19 May 2014.

110. These remarks on sentence record my reasons for setting a non-parole period that is shorter than the standard non-parole period, in accordance with the requirements of s.54B(3) Crimes (Sentencing Procedure) Act 1999.

111. Would the Offender please stand.

112. For the crime of murder of Rodney James Willis, I sentence you to imprisonment comprising a non-parole period of 19 years and 11 months commencing on 19 May 2014 and expiring on 18 April 2034 with a balance of term of six years and eight months commencing on 19 April 2034 and expiring on 18 December 2040.

113. The earliest date upon which you will be eligible for release to parole is 19 April 2034.

114. Pursuant to s.25C(1) of the Crimes (High Risk Offenders) Act 2006, I advise you of the existence of that Act and the fact that it applies to you and to this offence.

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Decision last updated: 30 March 2015