R v Borg

[2010] NSWSC 951

CITATION:	R v Borg [2010] NSWSC 951
HEARING DATE(S):	12-16, 19-23, 26-30 July 2010; 2, 13, 20, 25 August 2010
JUDGMENT DATE :	17 September 2010
JUDGMENT OF:	Studdert AJ
DECISION:	Terence Michael Borg for the murder of Susan Wirth I sentence you to imprisonment with a non-parole period of 16 years commencing on 12 July 2008 and expiring on 11 July 2024, and to a balance of term thereafter of 5 years expiring on 11 July 2029. The earliest date upon which you will be eligible for release on parole will be 11 July 2024.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW), Part IV Division 1A, ss 21A, 44(2), 54A, 54B, 54D Crimes Act 1900 (NSW), s 23A
CATEGORY:	Sentence
CASES CITED:	Anderson [2006] NSWCCA 156 Berg [2004] NSWCCA 300 Bollen (1998) 99 ACrimR 510 Bugmy v The Queen (1990) 169 CLR 525, 47 ACrimR 433 Disano [2006] NSWCCA 125 Goebel-McGregor [2006] NSWCCA 390] King [2004] NSWCCA 444 Maxwell v R [2007] NSWCCA 304 Mencarious [2008] NSWCCA 237 MLP v R (2006) 164 ACrimR 93 Mulato v R [2006] NSWCCA 282 O’Connor [2008] NSWSC 1297 Power v The Queen (1974) 131 CLR 623 Previtera (1997) 94 ACrimR 76 R v AJP (2004) 150 ACrimR 575 R v Bell (1985) 2 NSWLR 466 R v Cheatham [2002] NSWCCA 360. R v Davies [2004] NSWCCA 319 R v George (2004) 149 ACrimR 38 R v Heffernan [2005] NSWSC 739 R v Isaacs (1997) 41 NSWLR 374 R v McGourty [2002] NSWCCA 335 R v Moffitt (1990) 20 NSWLR 114; 49 ACrimR 20 R v Trevenna (2004) 149 ACrimR 505 R v Way (2004) 60 NSWLR 168 Versluys [2008] NSWCCA 76 Whitmore [2010] NSWCCA 157 Yun [2008] NSWCCA 114
PARTIES:	Regina Terence Michael Borg
FILE NUMBER(S):	SC 2008/198355
COUNSEL:	Mr Crown – Mr Michael O’Brien Offender - Mr Graham Turnbull SC and Ms Tania Evers
SOLICITORS:	Crown - Mr Garry Kenneth Buggy Offender - Renee McKenzie from Intercept Law

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT AJ

FRIDAY 17 SEPTEMBER 2010

2008/198355 REGINA V TERENCE MICHAEL BORG

REMARKS ON SENTENCE

1 HIS HONOUR: The offender Terence Michael Borg was found guilty by the Jury of the murder of Susan Wirth and is now before the Court for sentence for the commission of that crime.

2 The body of the deceased was found on 10 July 2008 in the tray section of a Holden utility parked in a car park adjacent to the Hawkesbury River Railway Station. The evidence established that the offender caused her death on the previous evening at factory premises at 81 Gavenlock Road Tuggerah. The offender surrendered himself at the Gosford Police Station at 3am on 12 July 2008. Shortly thereafter he participated in an ERISP in the course of which he told police that on 9 July 2008 he had been with the deceased in the office of the Gavenlock Road factory discussing their financial settlement. When asked what happened the offender said:

“We were talking and I whacked her in the back of the head with a hockey stick. Not hard. And I don’t know what happened after that, and that’s the truth, I don’t know what happened after that. I’d had a few beers that afternoon, so I was sort of pretty out there but I don’t know, I cant remember anything after that, all I know is I snapped. It was rage. It was bad.”
(Q63 and Answer)

3 Later he went on to say that when he struck the deceased she was sitting at a computer. Later still in the interview he told the police that the blow struck the back of the head of the deceased and he was then asked these questions and gave these answers.

“Q100 What happened to her from that hit?
A I think she hit the ground, hit the floor.

Q101 Did she say anything, yell anything or scream anything?
A I don’t know, I cant, that’s, I, that’s, from there on is a blur and I’ve been thinkin’ about it ever since. I don’t know. I don’t know.

Q102 Um --
A I should’ve went to the police at that point.

Q103 Do you know at that point, from that strike in the head, can you recall if she was moving still?
A I don’t know. I’m telling you the truth, I can’t remember, I honestly can’t remember, and I keep trying to remember and I can’t, I just remember the whack and that’s all I can remember, and I can’t remember nothin’ else.

Q104 What’s, what’s the next point in time that you can remember?
A Waking up.

Q105 Whereabouts?
A In the office, on the floor.

Q106 Yeah.
A And then I put her in the back of the car, drove to Swansea, what was it called, the Comfort, the Comfort Inn or something, if you know, it’s a motel room, bought a dozen beers, a couple of dozen beers, a carton, and got drunk there, got up at about 2.00 in the morning, drove down to Hawkesbury River and left the car at Hawkesbury, then got on a train to Central. That’s it. Oh, then, yeah ---”

4 The post mortem examination of the deceased conducted by Dr Little on 11 July 2008 disclosed multiple injuries to the body of the deceased, in the form of bruises and abrasions, many of which were peri mortem. The injuries were to the head and neck, the trunk, and the upper and lower limbs.

5 Dr Little concluded that the cause of death was strangulation, with head injuries a possible contributing cause. Dr Little opined that there had been blunt force injury to both sides of the larynx area but no damage to the larynx itself. The doctor considered, having regard to the nature and extent of the bruising of the neck, that such was consistent with the deceased having had pressure applied to both sides of the neck by her assailant’s arm. The doctor was asked these questions and gave these answers at (T268):

“Q. Well just on that point, what do you mean, what sort of neck holds?
A. There’s one where it’s a carotid sleeper hold and it’s actually used by police or has been used by police in some jurisdictions because it’s, it does tend to subdue people very rapidly and it can cause them to collapse very quickly. And they do that by placing their arm around across the person’s neck so that the elbow is in front of the neck and then they can push their upper arm against one side of the neck and the forearm against the other side of the neck. And what that does, it exerts pressure on a part of the carotid artery which we talked about before, that goes up in the neck. Where it divides there’s a pressure sensor in the carotid artery, and the whole point of having that is that if, in normal circumstances, if for some reason, the blood pressure going up to your head is particularly high you want to try and protect the brain and so it has a reflex that if the pressure goes up in these sensors, in the blood supply going to the brain, that it will cause the heart to slow down. And that will, so that can be utilised if you push on both sides of the neck at the same time it can slow the heart so that, and actually stop the heart, and that cause, can cause a person to black out. And so, it can be a convenient thing for, causing someone to drop quite rapidly which is why it was used by police. I don’t know if it still is. The risk of you killing the person was there so I guess there are other methods that are less risky now.

Q. And that stopping of the heart what happens if the pressure is taken off?
A. What happens - well if the pressure’s taken off, the blood supply returns and the person regains consciousness.

Q. And how long does it take, I take it that if the heart stops for any, a length of time, then the person ultimately dies?
A. Yes.

Q. How long does that take?
A. Usually it takes a number of minutes for you to get brain death. It’s, usually quoted about 6 minutes that you need to have no blood supply to the brain for it to be irreversibly damaged. But the person will actually become unconscious within a matter of maybe 20 seconds or so.”

6 I accept what the doctor said in describing the manner of strangulation of the deceased.

7 The injury to the back of the head of the deceased was described by the doctor as a large bruise, but there was only a small laceration there and the doctor considered that a moderate amount of force had been applied to the back of the head. It was not Dr Little’s view that the blow to the back of the head killed the deceased but it may have concussed her, thus making it easier to cause the neck injuries.

8 I accept the doctor’s findings, and find that the deceased died in consequence of strangulation. Some of the injuries were in the nature of bruises in defensive areas, the back of the hands and the outside of the arms. Having reflected on the unchallenged evidence of Dr Little I find that the deceased was strangled during and after a struggle with the offender.

9 A number of central issues were presented for the consideration of the jury at this trial:

1. Was it proved beyond reasonable doubt that at the time the accused strangled the deceased he was not acting in a dissociative state. In other words was it proved beyond reasonable doubt that the accused strangled the deceased by voluntary and deliberate act(s)?

2. Was it proved beyond reasonable doubt that the accused in causing the death of the deceased did not do so under provocation?

3. A second partial defence arose for the jury’s consideration under s 23A of the Crimes Act 1900. When he killed the deceased, was the offender’s ability to control himself substantially impaired by an abnormality of mind arising from an underlying condition?

10 The verdict of the jury conveys that all the above central issues were determined adversely to the offender.

11 It is necessary to consider the history of the relationship of the offender and the deceased and the sequence of events leading up to the commission of this crime.

The relationship between the offender and the deceased and the events leading up to the commission of the crime

12 The deceased and the offender had known each other as teenagers. After leaving school the deceased lived with the offender for a period before they went their separate ways. There after the deceased married twice and had two sons. Both marriages failed. In about 1998 the deceased and the offender resumed their relationship. In the year 2000 the deceased and her two sons joined the offender in his home at Tumbi Umbi. The elder of the deceased’s two sons did not remain in the home at Tumbi Umbi until June 2007 but the deceased and her younger son did.

13 The offender’s father started a business in the building industry some forty years prior to his son’s trial. In 1988 the offender joined his father in partnership trading as Ultra Light Skylights. That business was conducted at Charmhaven. The offender’s father manufactured skylights and the offender installed them. It seems that the offender’s father met up with the deceased after the offender’s marriage failed. The offender and his father quarrelled and in 2004 the offender and the deceased started a business manufacturing and fitting skylights and other roof fixtures and also supplying roofing material. The company was styled “Flashings ‘N More Pty Limited” (FNM). The working relationship between the offender and the deceased involved the offender looking after the factory and the deceased looking after administration.

14 The evidence introduced at the trial established that both the offender and the deceased worked hard in the business. When it was set up in 2004 the deceased was the sole director and the sole shareholder of the company but in 2007 the offender replaced the deceased as the sole director of the company whilst the deceased remained the sole shareholder. A family trust was set up to cover the company’s assets.

15 The personal relationship between the offender and the deceased broke down in 2007 and the deceased went to live with her younger son in a flat at Berkeley Vale, but the deceased continued to participate in the business at Tuggerah.

16 It seems that the business prospered. Over the years the company moved into larger premises at Gavenlock Road Tuggerah where the business was being conducted at the time of the murder.

17 By July 2008, it is apparent that the deceased and the offender were in conflict over their business affairs and by then the deceased had formed a new personal relationship. On 3 July 2008 the deceased telephoned the accountant John Marziano who had been engaged to look after the company’s affairs since 2004. The deceased told Mr Marziano that it was her wish that the directorship be transferred to her and Mr Marziano acting on her instructions forwarded to the deceased the appropriate forms to implement the change of director. The forms were not executed. Also in July 2008 the deceased sought advice from her solicitor as to whether the deceased could lawfully remove the offender from his directorship. The deceased was advised that she could do so and the deceased gave instructions to her solicitor to write a letter to the offender and the letter was written and received by the offender on 4 July 2008, some days before the crime was committed. Omitting the formal parts the letter reads as follows:

“We act for Susan Wirth in relation to the above matter.

We understand that you were the sole Director of the abovementioned company and our client was the sole Shareholder. We are instructed that you have orally indicated to our client that you would ”shut the doors” of the business and cease trading on 4 July 2008 as a reaction to the family law dispute between you and our client.

We are further instructed that the company has responsibility beyond just you and our client and currently employs approximately 11 employees and has a responsibility in respect of numerous contracts. On that basis, your threatened actions would put the company in serious jeopardy of default on various contracts and incurring extensive liability.

On that basis, in accordance with clause 8.5 of the company’s Constitution, our client has as the sole Shareholder of the company, passed a resolution removing you as Director of the company and appointed herself as sole Director thereof. Our client will find an appropriate person to assist her in the running of the company unless you are willing to continue your employment on the same terms until the resolution of the family law dispute between you.

We also wish to note to you that it is incumbent upon both you and our client to preserve the marital assets pending the resolution of your family law dispute. Given that you are primarily responsible for managing the business and the only party to the marriage able to provide the necessary trade skills to continue running the business, your failure to continue to assist in the conduct thereof may constitute a wasting of that asset which would be taken into consideration in by the Court in any distribution of the property between the parties.

We urge you to seek legal advice in relation to this letter and discuss continuing in the business with out client with a view to avoiding any detriment to the company.”

18 Prior to her death the deceased had confided in Shontelle Perrett who worked with her in the office at the factory that she had sacked the offender as director and indeed when the solicitor’s letter was faxed through to the factory on 4 July 2008 Ms Perrett placed the fax on the deceased’s desk where the offender was sitting at the time.

19 There is no doubt then that the relationship between the offender and the deceased was under great strain as at the date the crime was committed.

20 I find the matters reviewed above to have been established on the evidence and the evidence does establish not only had the personal relationship between the deceased and the offender come to an end but that by 9 July 2008 their business relationship was also coming to an end.

The partial defences

21 Although the jury determined the provocation issue against the offender it does not necessarily follow that this issue is to be cast aside altogether. In R v Bell (1985) 2 NSWLR 466 at 485 Lee CJ at CL said in point:

“Another matter raised in argument before us in this Court related to the approach to be made in cases where, for instance, a defence of provocation or self-defence had been raised before the jury and rejected. Had provocation been accepted by the jury, it would have entitled the accused to a verdict of not guilty of murder, but guilty of manslaughter … and if self-defence had been accepted it would have entitled him to an acquittal or a verdict of guilty of manslaughter if the case was one of excessive force in self-defence. The rejection of these (or any other defences) does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent of the factual basis upon which they rested. If the sentencing judge is satisfied from credible evidence in the case that there was a degree of provocation he may take it into account as a mitigating factor; likewise, if the judge is satisfied from credible evidence that there was an element of self-defence involved in the killing. But every case must be judged according to its own circumstances and the question for the Court in every case will be whether on the evidence the factor being put forward as a mitigating factor has a relevant connection with the crime in its full sense as I have explained earlier.”

22 See also R v Heffernan [2005] NSWSC 739.

23 Similarly as to the issue arising under s 23A of the Crimes Act 1900 I must consider the evidence that bears upon this issue notwithstanding the verdict of the jury. See R v Bell (supra), and R v Cheatham [2002] NSWCCA 360.

24 The principles as to fact finding to be applied by a sentencing judge after conviction by a jury were stated by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374 at 377-378 and I direct myself in accordance with those principles. Any finding of fact made against the offender must be arrived at beyond reasonable doubt, and must be consistent with the verdict of the jury.

25 There was a formidable body of evidence introduced at the trial about the importance which the offender attached to his work and the business conducted by FNM:

(1) Shontelle Perrett’s evidence was to the effect that not only was the offender hardworking, but the business was his life.

(2) James McKay, a driver with FNM from 2005 on, gave evidence that the offender and the deceased had built up a decent business and he too said that the business was the offender’s life.

(3) Mitchell Gough, a factory hand with FNM for 2 ½ years prior to July 2008, described the offender as a workaholic who ran a tight ship, who was passionate about the way things operated in the business and who was very strict about the quality of any product manufactured by FNM.

(4) Brent Duncan, a delivery driver, described the offender as completely committed to the business.

(5) James Spowart, a sheetmetal worker, described the offender as a very hard worker.

(6) The offender’s sister Karen Scali described the offender as a workaholic and,

(7) her husband Albino Scali said the offender was always working.

(8) The offender’s cousin Gerard Maggs gave evidence that the offender’s business consumed his life.

26 I accept the evidence from those witnesses as briefly summarised, and I find that the offender was an extremely hard working person to whom the business that he had built up with the deceased was of the utmost importance.

27 There was also evidence introduced as to the offender’s temper:

(1) Shontelle Perrett gave evidence that she heard the offender yell at workers if things were not going to plan. It was said that he yelled at employees all the time.

(2) James McKay referred to the offender yelling at employees on occasions.

(3) Andrew Falzon, a factory hand with FNM, gave evidence that the offender would yell if employees did something wrong and his evidence was to the effect that the offender expected the employees to do things correctly.

(4) Trent Devine, a factory hand, gave evidence that the offender yelled at people at work from time to time although he never saw the offender put a hand on any body.

(5) Mitchell Gough said he heard the offender yelling in the factory from time to time.

(6) According to Brent Duncan the offender would “give you a serve if things went wrong” and just get on with it. He described the blow-ups as being “just verbal”.

(7) James Spowart said that the offender would get cranky at work and would yell but he never saw him lay a hand on anybody.

28 I find on the evidence that the offender often lost his temper at work and yelled at employees but there is no evidence that he was ever violent towards anybody before the occasion of the deceased’s death.

29 The offender was assessed by three psychiatrists who gave evidence at the trial. Their evidence addressed the issue of automatism, plainly rejected by the jury. However each psychiatrist gave evidence relevant to my present task.

30 Dr Wilcox was given a history by the offender of mental stress and whilst Dr Wilcox opined that the offender did not suffer from a mental illness when he killed the deceased, the doctor did consider that the offender had a personality disorder characterised by obsessive compulsive traits. The doctor accepted that throughout his life the offender “had been obsessed with work and he’d shown a preoccupation with perfectionism in work” (T592). The doctor went on:

“A.
“I said his need to control also meant that he was more prone to experience stress if things did not go as expected or his way, or if the business was having problems. In the work place he regularly lost his temper and was verbally abusive when his workers did something that he was unhappy about. He lacked patience and acknowledged in the ERISP that his intolerance caused problems in his relationship with Ms Wirth.”


Q. Now that being prior to experiencing stress if things didn’t go as expected and of course, you know that there was the incident where the plates were thrown, would you expect that that may have been as a result of that?
A. That's correct.

Q. Of experiencing stress?
A. If people didn’t do as he asked of them or he was likely to react and, and that could lead to a loss of temper.”

31 Dr Wilcox further opined that the offender

“has a disturbance in personality in that he is an obsessive and controlling man. He has a well documented history of losing his temper when things are not done to his standard or as he requires. His loss of temper did not as a rule result in physical abuse”.

32 Dr Roberts considered that the offender suffered from no mental illness but he did not disagree with the diagnosis expressed by Dr Wilcox that the offender had a personality disorder. Commenting on the history of the offender’s behaviour as to work and the evidence in point given at trial, Dr Roberts concluded that “such behaviour was excessive and disproportionate”.

33 Dr Giuffrida also agreed with Dr Wilcox that the offender had a personality disorder, leading to dysfunction. Dr Giuffrida also considered that the offender had a long standing generalised anxiety disorder. Dr Giuffrida had this to say about the offender:

“Q. And you indicated that on his description, you formed a view about his position in relation to his work activities, isn’t that right?
A. Yes and this is where I would agree more strongly with Dr Wilcox that there was a, truly an obsessional, a pathological obsessional compulsive component to his personality in that his obsession and pre-occupation with his work and business and so on, drove out everything else and caused him to be such a perfectionist that he was bound to come to logger heads with other staff, where he would demand the same level of perfection that he demanded of himself, and I’ve written that I thought he was almost manically driven in his work activities and I say that because there was a kind of relentlessness to his work drive.” (T791-T792)

34 I accept that the offender at the time of the commission of the crime was suffering from a personality disorder as diagnosed by Dr Wilcox and from an anxiety disorder as diagnosed by Dr Giuffrida with the behavioural responses outlined in the passages from the doctors’ evidence which I have set out above.

35 The offender told police that he “snapped” in the course of the discussion I referred to earlier in these sentencing remarks. This occurred after the deceased said that the company FNM was hers (Q&A62). The offender also told the police later in the interview (Q&A300) that earlier that day, probably around lunchtime, the deceased told him she was replacing him in the business.

36 The offender told Dr Wilcox that at about 4.30pm that day the deceased came into the office and told him he was sacked and that he was to leave the keys to the Mitsubishi, and that if he did not go she would call the police. The offender gave a similar history of events to Dr Roberts, that the deceased had said: “leave the keys on the table, return the keys to the factory and go”. Similarly to Dr Giuffrida the offender said that the deceased told him somewhere between 5.30pm and 6pm to leave the keys to both the ute and the factory and to leave the premises.

37 These histories to the doctors as to the terminal demand by the deceased to the offender as to the handing over of the keys and demanding that he leave the premises were not part of the offender’s account to the police in the ERISP. The offender gave no evidence at trial or at the hearing as to sentence and I am not satisfied that these histories given to the doctors accord with what occurred, but I do find in accordance with the ERISP that somewhere about lunchtime the deceased told the accused that she was replacing him in the business and that there followed the later discussion in which division of property was discussed and the deceased made the assertion that the company was hers.

38 I find that the offender became enraged and he attacked the deceased whilst he was enraged. Of course I bear in mind the jury’s findings in relation to provocation and I also bear in mind that the offender failed to satisfy the jury that at the time he caused the death of the deceased his capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. Further I am satisfied beyond reasonable doubt having considered the evidence relevant to this issue that the conduct of the deceased was not such as could have caused an ordinary person in the position of the offender to have so far lost his self control as have formed the intent requisite to establish the crime of murder.

39 Nevertheless I bear in mind the dicta in Bell previously expressed, and I consider it probable that when the offender struck the deceased with the hockey stick, he did so after the deceased had told him she was replacing him in the business and after she had told him the company was hers earlier on the day of the killing. I find that what the deceased said, and her decision to replace him as a director and to ask him to leave the business altogether impacted on the self control of the offender and that there was a measure of loss of self control when this crime was committed. In making this finding I have regard to the medical evidence which I accept as to the offender’s personality disorder and his chronic anxiety state. Those disorders accounted in part for the impact on the offender’s self control.

40 Having expressed that finding, favourable to the offender, it remains the position that the offender has been found guilty of murder, and it is implicit in the jury’s verdict that the offender was acting voluntarily and deliberately and that he was aware of what he was doing when he struck the deceased over the head with the hockey stick; and further that he was aware of what he was doing when he strangled the deceased. I have regard to the evidence of Dr Little, which I reviewed earlier and which I accept, to the effect that the “sleeper hold” would have to have been in position for an appreciable period of time before death resulted, and reflecting on the doctor’s evidence I am satisfied beyond reasonable doubt that the offender acted with intent to kill.

41 Victim impact statements were produced in the Court and tendered before me. I have considered those statements closely and it is appropriate that the impact which this crime had upon the deceased’s loved ones ought to be acknowledged. However I must also heed the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions in Previtera (1997) 94 ACrimR 76; Bollen (1998) 99 ACrimR 510; Berg [2004] NSWCCA 300 and King [2004] NSWCCA 444. Having regard as I must to the principles to be found in those decisions I cannot allow myself to be influenced by the content of those victim impact statements when determining an appropriate sentence for the crime which the offender has committed.

42 Having regard to the date of the commission of this crime Part IV Division 1A of the Crimes (Sentencing Procedure) Act 1999 applies. The present case is not one attracting a sentence of imprisonment for life so s 54D does not apply. Rather, s 54A and s 54B apply.

43 Section 54A provides:

“(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”

44 Section 54B provides

“(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(5) The failure of a court to comply with this section does not invalidate the sentence.”

45 The standard non-parole period for the crime of murder is 20 years. This does not mean that it is appropriate to use that period as a starting point to which discounts are added. The Court of Criminal Appeal has made it plain that such an approach is incorrect. See Maxwell v R [2007] NSWCCA 304 at [21] and Mulato v R [2006] NSWCCA 282 at [13].

46 In R v Way (2004) 60 NSWLR 168 the provisions of the statute with which I am here concerned were considered. See also R v AJP (2004) 150 ACrimR 575 and MLP v R (2006) 164 ACrimR 93.

47 In R v AJP Simpson J analysed Way and stated a number of propositions as emerging from it, and with her Honour’s analysis Adams and Howie JJ agreed:

“[13] The following propositions emerge from Way and subsequent cases:

(i) while s 54B(2) requires, in sentencing in respect of an offence to which Div 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (at [67]);

(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (at [68]);

(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (at [74]-[77]);

(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (at [85]-[86]);

(v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (at [101]);

(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence (at [101]-[102]);

(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (at [122]); see also R v Davies [2004] NSWCCA 319.”

48 In MLP v R Grove and Hislop JJ agreed with Kirby J and in his judgment Kirby J referred to the passage I have cited from the judgment of Simpson J in R v AJP, commenting that her Honour provided a helpful distillation of the principles emerging from R v Way. With that observation I respectfully agree. Kirby J went on in MLP:

“[33] The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence:

First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna (2004) 149 ACrimR 505, per Barr J; R v George (2004) 149 ACrimR 38).
Secondly, should the offence be characterised as being in the mid-range of objective seriousness? That task should be approached in the manner suggested by Simpson J, intuitively evaluating the objective seriousness of the offence and looking to those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid-range. If the offence falls within the mid-range, the standard non parole period should apply, subject to the remaining issues.
Thirdly, are there other reasons in the matters identified in s 21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s 21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s 21A(1) provides that the matters specifically identified in the subparagraphs of s 21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s 21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period.
Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s 44(2) of the Crimes (Sentencing Procedure) Act , that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve ( Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525, 47 ACrimR 433).

[34] There is no requirement that these issues be addressed in any particular order ( R v Moffitt (1990) 20 NSWLR 114, 49 ACrimR 20), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear in the mind the following advice provided in R v Way :

‘[124] The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.’.”

49 I must pay close regard to what was said in AJP and in MLP in addressing my present task.

50 I heed s 21A of the Crimes (Sentencing Procedure) Act 1999.

(1) As to s 21A(2)(o) the Crown submitted that a finding that the offence was committed for financial gain was warranted. I am not satisfied beyond reasonable doubt that the offender was motivated by thought of financial gain when doing what he did.

(2) As to s 21A(2)(m), the Crown submitted that the crime involved “a series of criminal acts”. The cause of death was strangulation. I do not consider s 21A(2)(m) is enlivened here strictly speaking, but it is certainly appropriate that I have regard to all the circumstances of the killing in assessing the objective gravity of the offence which the offender committed.

51 Mr Turnbull submitted that there are mitigating factors for the purpose of s 21A(3):

(1) That the offence was not planned: s 21A(3)(b). I accept this submission and I find this was not a premeditated crime. Indeed sometime after he left work on 9 July 2008 Mr McKay, the delivery driver, said the offender telephoned him asking him to be at the factory the following morning at 6am so that a customer could pick something up. There would be no basis to conclude that at the time of that conversation with his employee the offender had any intention to commit the crime which he did commit an hour or two later.

(2) There was provocation: s 21A(3)(c). I accept that there was some provocation that influenced the behaviour of the offender, and I consider this submission bearing in mind what was said in Bell (supra).

(3) That the offender was a person of good character with no significant prior record: s 21A(3)(e) and (f). I accept this submission. The offender’s criminal history reveals that he was placed on a recognisance for a period of two years in relation to an offence of assault occasioning actual bodily harm back in 1977. There is no record of any offence having been committed by him since that time. I consider he was to be regarded as a person of good character with no significant record of convictions, and indeed none for 21 years.

(4) That the offender is unlikely to re-offend: s 21A(3)(g). Having reflected on the evidence I accept this submission.

(5) That the offender has good prospects of rehabilitation: s 21A(3)(h). Again I accept this submission, having regard to the offender’s history as a whole.

(6) That the offender has shown remorse: s 21A(3)(i). Mr Turnbull submitted that I should find the offender has shown remorse and he asked me to so conclude by reason of the offender having surrendered himself to the police and by reason of what he has said in his ERISP and subsequently. I bear in mind that he freely admitted to the police that he had struck the deceased with the hockey stick. There has been no expression of contrition from the offender in this Court and I am not persuaded by Mr Turnbull’s submissions or by the evidence to which he referred that the offender has shown remorse in the strict sense. He has however shown a measure of acceptance of responsibility for what he did. He admitted the use of the hockey stick and whilst he did not admit strangling the deceased he did not deny having done so. I take these matters into consideration.

52 Deterrence of the offender as an element of sentencing does not loom large in the circumstances of this case. General deterrence however is a significant consideration.

53 In the course of submissions the Crown referred to sentences in imposed in a number of cases: Mencarious [2008] NSWCCA 237; Versluys [2008] NSWCCA 76; Yun [2008] NSWCCA 114; Goebel-McGregor [2006] NSWCCA 390; Anderson [2006] NSWCCA 156; Disano [2006] NSWCCA 125 and Whitmore [2010] NSWCCA 157. Mr Turnbull referred me also to the decision in O’Connor [2008] NSWSC 1297.

54 I have considered those various decisions but of course ultimately my task is to determine what sentence is appropriate in the present case. I have come to the conclusion that the present offence falls short of the middle of the range of objective seriousness for offences of murder. In so concluding I bear in mind my finding that the offender was subject to some loss of self control at the time he killed the deceased to which his underlying personality disorder and anxiety condition contributed. I am also mindful that there was a lack of premeditation and planning in this crime.

55 In determining the sentence to be imposed I must take account of the mitigating features found for the purposes of s 21A(3) as earlier recorded.

56 Mr Turnbull submitted that I should find special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. He submitted that I should make that finding having regard to the age of the offender and to his previous history. Mr Turnbull submitted that because he has not been in prison before, having regard to his age and background he will require a lengthy period of support when he is released from custody.

57 The offender is now 53 years of age.

58 Having reflected on Mr Turnbull’s submission I do not conclude there are special circumstances in this case. The balance of the term I am about to specify will suffice to address the matters raised by Mr Turnbull and I do not consider that the non-parole period for the sentence should be any less than the period I am about to specify.

59 Whilst I have determined that the present offence falls short of the middle of the range of objective seriousness for offences of murder it by no means follows that the crime committed by the offender was other than a very serious one indeed. The offender took the life of the deceased by deliberately strangling her and he did this after striking the deceased on the back of the head with a hockey stick. The offender’s behaviour was cowardly and brutal and the crime merits condign punishment. I must have due regard in the sentence that I am about to impose of considerations of deterrence and retribution and punishment of the offender such as reflect the gravity of the crime he committed.

60 The offender has been in custody since the date upon which he surrendered himself to the police, namely, 12 July 2008. Credit is to be given for that period already spent in custody and I therefore propose to backdate the sentence to commence on that date.

61 I now pass sentence as follows:

Terence Michael Borg for the murder of Susan Wirth I sentence you to imprisonment with a non-parole period of 16 years commencing on 12 July 2008 and expiring on 11 July 2024, and to a balance of term thereafter of 5 years expiring on 11 July 2029. The earliest date upon which you will be eligible for release on parole will be 11 July 2024.

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