R v Boon

[2019] NSWSC 813

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Boon [2019] NSWSC 813
Hearing dates:	28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Imprisonment for 18 years, 6 months with a non-parole period of 13 years, 10 months
Catchwords:	CRIMINAL LAW – sentence – murder – plea of guilty – beating causing death by blunt force head trauma – victim died in hospital the following day – offender seen behaving bizarrely before and after the incident – dispute as to whether offender intended to kill or inflict grievous bodily harm – irrational motivation does not mean that there was no intention to kill – savagery of beating bespeaks intention to kill – offence is in mid-range of objective seriousness – subjective mitigating features including remorse, no significant criminal record, prior good character, unlikelihood of re-offending, good prospects of rehabilitation – 15% discount for guilty plea – no special circumstances
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)
Cases Cited:	Fang v R [2018] NSWCCA 210 R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252
Category:	Sentence
Parties:	Regina Patrick Allen Boon
Representation:	Counsel: Mr L Shaw (Crown) Mr J Trevallion with Ms Bennett (Offender)   Solicitors: Solicitor for Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Offender)
File Number(s):	2017/176899

Judgment

1. HIS HONOUR: At Wee Waa on 13 June 2017, Patrick Allen Boon (the offender) savagely attacked Fred Tuffs, beating him around the head with heavy metal implements. Mr Tuffs sustained severe brain injuries. He was taken to hospital in Narrabri where he was placed on life support, but tragically died early the next morning.

2. The offender was arrested on the evening of 13 June 2017. He was committed for trial from the Moree Local Court on 11 April 2018. He first appeared in this Court on 4 May 2018 and, after six adjournments, he was arraigned before Fullerton J on 3 May 2019 and entered a plea of guilty. Her Honour stood the matter over for sentence today.

3. Murder is a crime for which the sentencing guideposts include a maximum penalty of imprisonment for life and a standard non-parole period of 20 years.

The offence

4. Subject to one aspect, the facts in relation to the offence are agreed. As at 13 June 2017, the offender was aged 37 and Mr Tuffs was aged 57. Both were employed by Boodles Concreting, working at Cotton Seed Distributors in Wee Waa. Mr Tuffs was employed as a site manager and the offender as a concrete agitator (mixer) driver. Mr Tuffs had worked for Boodles Concreting for about five years and the offender had worked for them for two months. The workers were provided with accommodation in Wee Waa at the Imperial Hotel.

Drug binge over the 2017 June long weekend in Condamine, QLD

5. The offender spent the long weekend of 9 to 12 June 2017 at Condamine in Queensland, where he was residing when not in Wee Waa for work. During the early morning of Monday 12 June 2017, he contacted the police at Condamine telling them that people were trying to kill him. Police went to his home where he told them that his ex-partner, Camille Boon, had been tied to the bull bar of a vehicle. Queensland Police contacted Ms Boon and ascertained that this was untrue.

6. The offender was observed by police at that time to be paranoid and hyperactive, and he had rapid, disjointed, and fragmented speech. Statements later obtained by police from friends of the offender who were with him over the long weekend confirmed that his behaviour had been erratic, paranoid, delusional, and out of character.

Tuesday 14 June 2017 – back in Wee Waa

7. Sometime early on Tuesday 13 June 2017, the offender drove from Condamine to Wee Waa, a distance of about 460 kilometres, in order to return to work.

8. Mr Tuffs was seen talking to the offender outside the Imperial Hotel at about 5.30am that day. The offender had a bolt action rifle slung over his shoulder and Mr Tuffs was trying to get the offender to hand it over to him. The offender was heard to be mumbling something like, "I have to find my missus". He seemed, to a witness, to be very disoriented and did not understand what was happening. Mr Tuffs asked the offender to hand the gun over and eventually Mr Tuffs took possession of it. The offender wandered off, looking in drains, apparently for his wife. Mr Tuffs told a witness that he was intending on pulling the bolt out and hiding the weapon. He took the gun away with him.

9. Shortly after this, the offender told another person that he was looking for his wife and that "she's under the road...in a drain somewhere". He continued, "my girlfriend got pissed last night and they were tracking her around the streets". The witness told the offender that he would keep an eye out for her and the offender replied, "she'd have no clothes left on her now after the way they were dragging her around". The offender was later seen lifting drain covers in the street.

10. At about 8.30am that morning, he was spoken to by a local police constable who approached him as he was standing at a manhole. He was lifting the cover of the manhole. The officer asked him what he was doing and he said he was looking for his ex-wife. She asked him whether she was down there and he replied, "I just saw her arm". The officer then saw the offender put his arm down the manhole and call out to his ex-wife to grab onto it.

11. The offender told her that he had seen his wife being dragged down the main street and that she was in trouble. He also said:

“I've been following her voice all over town this morning in the drains. I heard her screaming down the street because the new fella was dragging her.”

12. Around about 4pm that afternoon, a truck driver returned to the job site at Cotton Seed Distributors after delivering a load and went looking for the deceased, Mr Tuffs. He discovered him lying on his side next to a cupboard in an area that was being used as an office and break room, referred to as the "donger". Mr Tuffs was found to be breathing but unconscious and with catastrophic injuries. The truck driver summoned help and an ambulance attended.

13. The paramedics treated the deceased at the scene and, whilst they were doing so, the offender returned to the worksite and rushed into this room, took something from a cupboard and then hurriedly left. Mr Tuffs was taken to Narrabri Hospital, but he passed away at 6.36am the following day.

Autopsy findings

14. An autopsy was carried out and the direct cause of death was determined to be blunt force head trauma. The forensic pathologist noted the following:

1. complex skull fracture;

2. subdural, extradural and subarachnoid haemorrhage;

3. cerebral contusions;

4. diffuse intracranial injury; and

5. injuries to the hands.

15. The pathologist reported that the deceased:

“… was observed to have a complex compound head injury. This head injury appeared to have resulted from at least three to four applications of severe blunt force trauma, in particular, in the centre of the forehead and the centre of the occipital region" - that is the back of the head - "which were characteristic depressed circular fractures, the former measuring 60 mm in diameter and the latter measuring 50 mm in diameter. This injury was typical of the injury pattern that might be cause by a hammer. The other injuries could have been caused by an implement such as a Stillson wrench. The pattern of injury is consistent with severe blunt force trauma.”

Arrest and police interview

16. The offender was seen leaving the worksite at about ten minutes past four that afternoon in a vehicle, and was seen to be driving rapidly and erratically. He was seen in the town a short distance from the Imperial Hotel. People called the police because he had a rifle slung over his shoulder. This was the firearm that Mr Tuffs had taken from him earlier that day. The offender went into the accommodation area of the hotel and came out a short time later and got into the vehicle and left, but he returned to the Imperial Hotel a short time later

17. He was arrested at the hotel just after 6pm. He had a significant amount of blood on his person. He was taken to the Narrabri Police Station.

18. The rifle that he had been carrying was found on the floor in the doorway to the accommodation rooms at the hotel without a bolt, so it was incapable of discharging a projectile. The offender's room at the hotel was searched and a small quantity of ammunition and a small quantity of cannabis was found.

19. A forensic procedure was carried out and the offender commented that he believed that there was spider inside the glove he was wearing. He said a number of other bizarre things during the course of that procedure, and then he participated in a recorded interview with police, which commenced just after midnight. It is said in the agreed facts that he appeared to have some concentration difficulties in the interview, which he said was because he needed sleep. A number of points emerged in the interview and were noted in the agreed facts.

20. The offender recalled the deceased taking the firearm from him in the morning for safekeeping. He told the police that he had gone to the worksite in the mid-morning and was seated in the break room when Mr Tuffs entered the room. When Mr Tuffs made a comment about the offender needing to get over his failed relationship with his ex-wife, the offender became angry and took possession of a small sledgehammer, described as a handheld four pounder, and hit the deceased to the head two to three times.

21. The offender said that the deceased fell on the floor and that he went outside to dispose of the hammer. He said he then returned to the room and saw that the deceased was trying to get up. He told police that he grabbed the Stillson wrench and struck the deceased to the head several more times. He said that he moved the deceased around, trying to "get him going".

22. When asked about his intentions in assaulting the deceased, the offender said:

"Oh, just once I got started I thought fuck it, I didn't think it would escalate that much".

23. Later he said:

"I was trying not to bloody, but I didn't intend to fuckin' kill him, but, but if tension builds up and start warring, shits got to break I suppose."

24. He told police that he had retrieved the rifle from the deceased's car before he had assaulted the deceased. He said he returned to the room when the deceased was being treated for the purpose of retrieving some ammunition and personal items and then drove into town, where he was later arrested. He said he could not get the firearm to operate because the pin was missing from the magazine.

25. It is said in the agreed facts that the offender's answers to questions in this interview were often non-responsive and nonsensical. Examples are given in the agreed facts which I will not repeat.

26. A blood sample was taken from the offender on 15 June 2017 and, upon analysis, it was found that he had levels of methylamphetamine and amphetamine, amongst other things, in his blood, both at levels less than 0.01 mg/L. A forensic pharmacologist offered an opinion in relation to that and said, in effect, that it indicated that the blood methylamphetamine concentration was sufficient to cause psychoactive effect, but it was not possible to determine the extent of that at the time of the altercation as it was not possible to back calculate with sufficient accuracy.

27. Subsequent DNA comparisons confirmed that implements seized from the crime scene, being a large hammer and a Stillson wrench, were used in the assault upon the deceased.

28. There are photographs and measurements of these two implements. They are relatively heavy items that one can well imagine could easily be used with lethal force.

Agreed facts as to prior drug use

29. There is also reference in the agreed facts to the offender's prior drug use based upon a statement obtained from his ex-partner, Camille Boon. He was a regular user of cannabis since the day they met in 2010 and he regularly drank to excess. He commenced using ice – that is, methylamphetamine – in April 2014 and used ice once or twice a week, increasing around October 2014. He became increasingly paranoid, moody, and argumentative during this period. He stopped using ice and cannabis around late April 2015 and his mood improved. He started using ice again in around November or December 2015 and was using it daily in January 2016. He continued to use ice and cannabis regularly in November 2016. The offender and Ms Boon separated in April 2017 and have had intermittent contact since that date.

30. In the course of his evidence before the Court earlier today, the offender said that the period of abstention referred to in the agreed facts is not accurate and that he recalled a period of only about six weeks of abstention in 2015.

The offender's account to a psychiatrist

31. The offender gave an account to a forensic psychiatrist, Dr Anna Farrer, in an interview with her in June 2018. He provided a history that, in essence, confirmed the history of drug use that is contained in the agreed facts. He told Dr Farrer that he had never experienced psychotic symptoms with using ice. He told her that in the days before the offence he tried some pain medication, possibly oxycodone. He said he took two tablets and "it sent me on a spin out" and he was "hearing voices and stuff like that". He also said he felt paranoid.

32. He told Dr Farrer that he could not remember what had happened. He remembered waking up in Moree, and that would be at the police station, and he could not remember doing an interview with the police. He said Mr Tuffs was a friend, although he had only known him for some seven to eight weeks. Mr Tuffs was the foreman at the construction site. He said the offence happened at work at around lunch time, but he could not recall hitting Mr Tuffs or assaulting him.

33. He described psychotic symptoms. He said, according to the second report of Dr Farrer, "I was still paranoid there [at Moree police station] and the paranoia went away the next day when I got to Tamworth [gaol]". He reported that voices started on Sunday and went away after the alleged offence. He recorded that he took OxyContin on Saturday night/Sunday morning in Queensland. He returned to New South Wales on Monday night. He said he was hearing voices during the drive. He said he did not sleep on Monday night. He said "I was still hearing voices" and "I didn't really want to go to work as I wasn't in the right state of mind".

34. He told Dr Farrer that he had used ice the weekend before the offences on the Thursday, Friday, Saturday, Sunday, and stopped on Monday afternoon. He said he was not taking any medications at the time of the alleged offences. He referred to the police interview that he had since read and said "there's a lot of stuff in that interview that doesn't make sense".

35. Under the heading "Criminal Responsibility" in Dr Farrer's second report, she wrote:

“Although Mr Boon reported psychotic symptoms around the time of the alleged offences, including experiencing voices or auditory hallucinations and paranoia shortly before and after the alleged offence, it was not possible to establish a causal link between these symptoms and his alleged behaviour due to his lack of recollection of specific circumstances around the alleged offence.”

36. Dr Farrer's opinion was that the reported symptoms did not reach the threshold for a diagnosis of psychotic disorder such as drug induced psychotic disorder. Her opinion about his prior unusual behaviour was that it suggested impairment in his reasoning and judgment. She explained:

“This impairment, in my opinion, is likely a result of his polysubstance use around the time of the alleged offences, including his possible ingestion of Oxycodone or some type of opiate medication (around 11 June 2017), his use of cannabis (last reported use on night of 12 June 2017 and usual daily use) and his methylamphetamine use (last reported use between 9 and 12 June 2017 with pattern of weekly/binge use).”

37. Dr Farrer said much the same thing about the significance of his impairment in her further report dated 20 June 2019.

The offender's account in the sentence proceedings

38. The offender provided an affidavit which he had not signed, but he affirmed in his oral evidence today that what appeared there was truthful and accurate. What he said in the affidavit about the offence has to be treated with some caution because he has acknowledged that he has little recall of the incident, and has derived more knowledge about what occurred from what he has read in the brief of evidence.

39. He described using drugs on the long weekend in June 2017. He said he had a headache. A friend suggested trying some OxyContin, which is a pain killer, that would fix his headache. He had never taken this medication before. He said, "It made me see and hear things that were not there". He said, "By Tuesday I had spent the weekend on the ice and drinking and seeing things and I had no sleep at all since the Thursday six days earlier". [1]

    1. Affidavit, Patrick Allen Boon, affirmed 28 June 2019 at par 54.

40. In relation to the offence itself, he accepted that his memory was patchy. He said he was hallucinating on the day of the offence. He spoke of the policewoman pulling him up for hearing voices in a drain and telling him to go to work. He remembered being at the police station where he said he heard voices and noises. He thought people were being cut up outside his cell.

41. In relation to the incident itself, he said he felt scared and angry that Mr Tuffs was yelling and coming at him and he panicked. He said that Mr Tuffs said something about his missus being a slut and he responded, "Just because your missus is dead doesn't mean you have to run down my relationship". He claimed "that is what kicked it off". [2] He said he lost his temper and used a rubber hammer to hit holes in the wall. Mr Tuffs came up and grabbed him and he had a four pound lump hammer. The offender said he was angry and decided to fight Mr Tuffs. He took the hammer from him and hit him with it. He said he never meant to kill him; up until that time, he had got on well with him.

    2. Ibid at par 60.

42. As I said, that account has to be treated with some caution given his acceptance of his inability to recall much about what occurred.

43. I pause to observe that section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that in determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. That is of particular significance in this case given that at all material times, it would appear that the offender was in a state of self-induced intoxication.

Family victim impact statements

44. Two members of Mr Tuffs' family have provided family victim impact statements. Sarah Tuffs is a daughter of Mr Tuffs, and Sallianne Tuffs is his sister. They provided very eloquent accounts of the grief that they have experienced through the sudden and tragic loss of their father and brother. It is always important for a judge to bear in mind when sentencing in cases such as this that there is a real personal impact the crime has had, and will continue to have, for a very long time. The members of Mr Tuffs' family and all who loved him and regarded him as a friend have my deepest condolences.

Objective gravity of the offence

45. As to the objective seriousness of the offence, the Crown contends that the offender acted with an intent to kill and the Crown bases that submission on the offender's actions themselves, and on statements he made in the police interview. The particular portion the Crown emphasised is included in the agreed facts and was quoted earlier.    

46. On behalf of the offender, it is submitted that I should have a doubt that there was an intention to kill, but I would be satisfied, as the plea recognises, that there was an intention to inflict grievous bodily harm.

45. In my view, the offender's actions were clearly irrational. They were consistent with a person described in the agreed facts as behaving in a most bizarre way and saying the most bizarre things before and after the incident. But being irrationally motivated does not mean that the attack upon Mr Tuffs was not accompanied by an intention to kill.

46. Dr Farrer says that he had an impaired judgment and would not have fully understood the consequences when he struck Mr Tuffs. I am not clear whether Dr Farrer means he did not fully understand that striking Mr Tuffs multiple times to the head would kill him, or did not fully understand the consequences of killing a person. There is force in the submission by the Crown Prosecutor that the offender's judgment being impaired is more likely acquainted with disinhibition.

47. In any event, in my view, beating the deceased so savagely with two blunt instruments, first with a hammer, and then in a second phase to continue the attack with a reasonably heavy wrench, with every one of the blows with those implements directed to the head of the deceased, bespeaks an intention to kill, even if it was, as I accept, not premeditated.

48. Even if I am wrong about there being an intention to kill, I do not think it really matters in the circumstances of this case. As counsel for the offender pointed out, as a general proposition, an offence involving an intent to kill makes a crime of murder more serious than one involving an intention to inflict really serious bodily harm. But counsel quite appropriately reminded me of R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at [16]-[17] which makes clear that the general proposition does not always apply. In this case, the deceased was killed as the result of an attack of such savagery and ferocity that even if there was a reasonable doubt that he intended to kill, the objective gravity is not any the less.

49. The Crown submits that I should find the offence is, objectively, in the upper end of the mid-range and counsel for the offender submits it is in or around the mid-range. I agree that it is in the mid-range.

Background and personal circumstances of the offender

52. The offender, as I have said, provided an unsworn affidavit which he affirmed to be truthful and accurate in his oral evidence. From that and other material, I derive that he was born in Townsville in 1980. He is now aged 39.

53. He has a criminal history that comprises nil in New South Wales but two instances of appearing in the Hughenden Magistrates Court in 2001 and 2004, but that was in respect of minor offences for which fines were imposed.

54. The offender was married but separated at the time of the offence from his wife, Camille Boon. He grew up in Hughenden, which is a small outback town in North Central Queensland. His grandparents looked after him through the week as he was growing up whilst his parents were away working. His parents separated when he was aged about eleven. He then lived with his father in Proserpine. His father entered a new partnership with Ms Gail Woods. He has a brother who is aged seventeen and a sister who is aged twenty. His father separated from his new partner when his sister was aged three and he has hardly seen her since.

55. He attended Proserpine State School for Year 7 but did not fit in as he came from the bush and he was bullied. He then attended boarding school for Grades 8 and 9 at Charters Towers. He was lonely there and did not receive any visits from family because of the great distance. The family could not afford to keep him at that school and his grades were not good, so he returned to Hughenden and finished Year 10 in 1995. At that time, he was living with his father.

56. On leaving school, he went to the Northern Territory for twelve months where he worked on a cattle station with an uncle. He got homesick and returned to Hughenden. He obtained work on a sheep and cattle station near there for a couple of years and then on another property nearby for a further 18 months.

57. Around this time, his paternal grandfather became sick and died when he was about 19 years old. He said he became depressed around that time as a result of his grandfather's death and he turned to cannabis and it became a habit.

58. He had a job working with the railways for about a year and then worked on a property again just north of Hughenden. It was a very large property and he remained there for 10 years until he was 31 years old. He stayed with his mother in Hughenden when he went there for weekends. He says that he had a good relationship with his mother which exists to this day. He met his wife Camille in 2010, and she came to work with him at this property for some time.

59. In 2013 and 2014, both of his grandmothers died from cancer. He was close to his grandmother Jessie, who died in March 2014, and he became depressed after that and started using ice.

60. He worked for a time with the Flinders Shire Council as a front-end loader operator and his wife was working in a hotel at the time. They both lost their jobs and moved away to get work, and in 2015 moved to Condamine in Queensland and got work there as station hands. He said that he separated from Camille at the start of 2017. He described them having slowly drifted apart. She had been working in a hotel and they worked different hours and did not see so much of each other. He said he became broken hearted and felt betrayed in relation to this.

61. The offender set out in the affidavit a more detailed account of his use of ice. As mentioned above, the death of his grandmother was in March 2014 and he first turned to ice after that. He blamed ice in part for the breakdown of his marriage. He said he was only using socially about once a month when he had been offered it, and gradually increased his frequency, and he used throughout 2016.

62. He described himself as deriving energy from ice in order to work. He would work in Wee Waa, finishing on a Friday, drive five hours to Condamine, arriving in the evening and then sleep for some time and then drive to Chinchilla, arriving at about 4am on a Saturday and work through to 7pm at night. He was burning himself out and using ice to stay awake.

63. He was challenged in cross-examination about his drug use. He said he was using because his friends were using, but he accepted that he had a choice about the friends he associated with. He also accepted that it was his choice to resume taking drugs after a period of abstinence in 2015.

64. As to his life in gaol, he said he is finding it difficult. He is on anti-depressant medication which he doubts is effective. He has been working in the furniture shop building bed frames. He is more happy to be working; I take it making the best of a bad situation. There are documents from Corrective Services confirming that he is regarded as a competent and productive worker and he is courteous to staff and punctual in attendance.

65. He describes being clearer in his mind now that he is no longer using drugs. He says he is motivated never to use drugs again.

66. He has not been able to access any rehabilitation courses but is willing to do them, if they become available. However, he has done some vocational courses and there is a Statement of Attainment confirming his engagement in an automotive workplace course which included servicing outdoor power equipment engines and he hopes to use those skills finding employment on release.

67. He says he wants to return to Queensland when he is released, ideally to the community of Hughenden, where he has significant support. His father has a farm and needs assistance, and his parents are generally in need of him as they grow older. He is committed to not further offending and says he will stay away from friends who he formerly associated with in using drugs.

68. There is other evidence before the Court comprising an affidavit by his father and letters from friends and people he has worked for, or with, over the years and from a general practitioner in Hughenden. In the main, there is shock, disbelief, and devastation expressed about them learning of what the offender had done. The descriptions of his offence being out of character are repeated. People write of never knowing him to be aggressive or violent. He is described as a hard worker, dedicated and reliable, well-mannered, and respectful to others.

69. Dr Farrar made the diagnoses of "Cannabis Use Disorder, in remission in a controlled environment (custody)" and "Methylamphetamine use disorder, in remission in a controlled environment (custody)". She said that the offender did not meet the diagnostic criteria for any mood disorder, anxiety disorder, or psychotic disorder.

Subjective mitigating features

70. There are a number of subjective mitigating features in this case.

Remorse

71. In the offender's affidavit, he said that he knew what he had done was wrong and devastating. He said it is not in his nature to have ever done anything like this before, but he accepted responsibility for his actions. He understood the seriousness of what has happened and the consequences that will affect not only his life, but others, immensely. He said:

“The sadness and grief that I have caused Fred's family to a friend will haunt me for the rest of my life. I had only known Fred for about two months. He was my boss but also a friend.

The nightmares still wake me up every night. There are no words that will say how sorry I am for what I have done.”

72. He said also:

“I do not expect to get forgiveness from Fred's family but I hope my sentence will give them justice”.

73. This is something that he articulated today in his evidence, as he turned to face those sitting in the public gallery.

74. He concludes his affidavit by saying:

“I am very sorry for the death of Fred. I wish this never happened and will regret it for the rest of my life."

75. I am satisfied that the evidence provided by the offender justifies a finding that he was genuinely remorseful.

Other mitigating factors

76. Other subjective mitigating factors are that he has no significant record of previous convictions; he is of prior good character; he is unlikely to re-offend; and he has good prospects of rehabilitation.

Utilitarian benefit of the offender's plea of guilty

77. The offender's plea of guilty came on arraignment, but 12 months after he was committed for trial. It was submitted that the sentence should be reduced by 20% to reflect the utilitarian benefit flowing from that plea of guilty.

78. The delay after the committal for trial was said to be explained because there was a need to explore issues such as whether he was fit to be tried and whether he had a partial defence of a substantial abnormality of mind available. But that was all resolved by the time of Dr Farrar’s second report of 30 August 2018, and any issue as to his culpability on the basis of possible drug induced psychosis was removed by that second report and, even further, if it needed to be, by the decision of the Court of Criminal Appeal in Fang v R [2018] NSWCCA 210 which was handed down on 28 September 2018. The plea was not forthcoming for another seven months.

79. I am of the view that 15% is the appropriate reduction to allow for the applicant's plea of guilty. There will be some rounding down in the sentence to achieve a practical result.

80. [In relation to the delay in the entry of the plea of guilty I was mindful of the submission by counsel about the offender having changed lawyers and, I infer, having been given more realistic and practical legal advice. I was also mindful that there has never been any suggestion of him denying criminal responsibility for causing the death of the deceased. These are factors that were taken into account, although they could not be factored into the quantification of reduction of sentence for the utilitarian value of the plea of guilty. [3] ]

    3. Inserted during revision of these ex tempore sentencing remarks later on 28 June 2019.

Special circumstances

81. It was submitted that I should find that there are special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole component. They were said to include that the applicant would need assistance when he is released on parole to reintegrate into the community and to assist him maintaining his resolve to abstain from using illicit drugs.

82. I have considered that submission, but I am satisfied that imposing a sentence with the usual proportions is appropriate in this case. The parole period allowed for by that means will allow more than sufficient time, I would think, to achieve the ends suggested by counsel. I have also borne in mind that the non-parole period of the sentence must appropriately reflect the minimum period that I consider the offender should be held in custody.

Crimes (High Risk Offenders) Act 2006 (NSW)

83. I am required by the terms of the Crimes (High Risk Offenders) Act 2006 (NSW) to ensure the offender is made aware of the potential application of that Act to him. In that respect, I ask that the offender's solicitor explain to him how that statute might apply to him when he gets towards the end of his sentence.

Sentence

84. For the murder of Mr Fred Tuffs, for which you have pleaded guilty, you are convicted.

You are sentenced to imprisonment comprising a non-parole period of 13 years and 10 months with a balance of the term of the sentence of four years and eight months.

The sentence will date from 13 June 2017 when you were taken into custody.

You will become eligible for release on parole when the non-parole period expires on 12 April 2031.

That is a total sentence of 18 years and 6 months. Without your plea of guilty it would have been a sentence of 22 years.

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Endnotes

Decision last updated: 01 July 2019