R v CB; R v IM - [2006] NSWSC 261

No judgment structure available for this case.

CITATION: R v CB; R v IM [2006] NSWSC 261

HEARING DATE(S): 07/02/06, 09/02/06. 20/02/06, 21/02/06, 22/02/06, 23/02/06, 09/03/06, 16/03/06

JUDGMENT DATE :
7 April 2006

JUDGMENT OF: Buddin J

DECISION: CB. For the offence of maliciously inflicting grievous bodily harm with intent to do so, and taking into account the matters on the Form 1 document, is sentenced to a fixed term of 7 years to commence on 10 August 2004 and to expire on 9 August 2011. For the offence of murder is sentenced to a non-parole period of 13 years with a total term of 18 years. Each term of that sentence will commence on 10 August 2006. The non-parole period will expire on 9 August 2019 and the total term on 9 August 2024. The total effective non-parole period is 15 years and the total effective term is 20 years. The offender is eligible for release on parole on 9 August 2019. IM. For the offence of maliciously inflicting grievous bodily harm with intent to do so, and taking into account the matters on the Form 1 document, is sentenced to a fixed term of 8 years to commence on 29 August 2004 and to expire on 28 August 2012. For the offence of murder is sentenced to a non-parole period of 15 years and six months with a total term of 21 years and six months. Each term of that sentence will commence on 28 February 2007. The non-parole period will expire on 28 August 2022 and the total term on 28 August 2028. The total effective non-parole period is 18 years and the total effective term is 24 years. The offender is eligible for release on parole on 28 August 2022.

CATCHWORDS: Sentence - offences of murder and maliciously inflicting grievous bodily harm with intent to do so - Form 1 matters - one offender on conditional liberty - standard non-parole periods applied to each offence - pleas of guilty - one offender provided assistance to the authorities - parity

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act 1999
Evidence Act

CASES CITED: A-G’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146
AT v Regina [2005] NSWCCA 410
Cameron v the Queen (2002) 187 CLR 65
Pearce v the Queen (1998) 194 CLR 610
Postiglione v The Queen (1996-97) 189 CLR 295
R v AGR (CCA(NSW)), 24 July 1998, unreported)
R v AJP (2004) 150 A Crim R 575
R v Blair (2005) 152 A Crim R 462
R v Chu (CCA(NSW), 16 October 1998, unreported)
R v Coleman (1990) A Crim R 306
R v Dang [2005] NSWCCA 430
R v Darwiche [1999] NSWCCA 293
R v Engert (1995) 84 A Crim R 67
R v Hammoud (2000) 118 A Crim R 66
R v Henry (1999) 46 NSWLR 346
R v MA (2004) 145 A Crim R 434
R v NP [2003] NSWCCA 195
R v Previtera (1997) 94 A Crim R 76
R v Rich [2000] NSWCCA 448
R v Sangalang [2005] NSWCCA 171
R v Simpson (2001) 53 NSWLR 704
R v Sukkar [2006] NSWCCA 92
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Waqa (No2) [2005] NSWCCA 33
R v Way [2004] 60 NSWLR 168
R v Weldon & Carberry (2002) 136 A Crim R 55,
R v Wickham [2004] NSWCCA 193
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: Regina
CB
IM

FILE NUMBER(S): SC 2005/944; 2005/941

COUNSEL: W Creasey (Crown)
W Terracini (Offender CB)
B Hancock (Offender IM)

SOLICITORS: S Kavanagh (Crown)
Ross Hill & Associates (Offender CB)
Morgan Ardino & Co (Offender IM)

LOWER COURT DATE OF DECISION: 07/02/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 7 APRIL 2006

944/2005 – REGINA v CB
941/2005 – REGINA v IM
REMARKS ON SENTENCE

1 HIS HONOUR: The two offenders (whom I shall refer to as CB and IM respectively) appear for sentence in respect of the same two offences. The first is that on 10 August 2004 at Mayfield they did maliciously inflict grievous bodily harm upon Gavin Atkin with intent to do so. The maximum penalty for that offence, pursuant to s 33 of the Crimes Act, is imprisonment for 25 years. They are also to be sentenced for the murder of Garry Samson which occurred during the course of the same incident. That offence attracts a maximum penalty of life imprisonment.

2 In respect of the offence committed against Gavin Atkin each offender was originally charged with attempted murder. To that offence each offender pleaded not guilty. However each offender pleaded guilty to the alternative charge to which reference has just been made. That plea was accepted by the Crown in satisfaction of that count. Each offender also pleaded guilty to the charge of murder.

3 Although the offenders originally entered pleas of not guilty upon arraignment before Barr J, each of them entered the pleas to which I have referred in advance of the date fixed for trial (which was 6 February 2006).

4 In the case of the offender IM, the pleas were entered on 16 December 2005 and in the case of the offender CB, on 27 January 2006. However, at an earlier directions hearing on 14 December Mr Terracini SC, who appeared on behalf of the offender CB, indicated that pleas of guilty were very likely to be entered and that if the matter was to proceed to trial the only issue which would be raised was the “partial defence” of “substantial impairment” within the meaning of s 23A of the Crimes Act. Mr Terracini indicated that that matter needed to be explored before a final decision could be made about the appropriate pleas and that Dr Westmore was not available, given the time of year, to provide an immediate opinion about the matter. I might add that Mr Terracini only came into the matter a few days before the directions hearing. He did so when counsel originally briefed in the matter became unavailable because of other professional commitments. Mr Hancock, who appeared for the offender IM, also came into the matter only after it was fixed for trial.

5 Each of the offenders has also requested that I take into account various offences which appear on a Form 1 document. Each has asked that I take into account offences of larceny of a motor vehicle and larceny. Both the motor vehicle and the property the subject of the simple larceny offence, which included a small safe, seven fishing rods and reels and a quantity of jewellery, belonged to the victim Gavin Atkin. The offender CB has asked that I also take into account an offence of malicious wounding. That offence occurred on 23 July 2004 when the offender struck a friend over the back of the head with a baseball bat. As a result of the attack the victim received 15 stitches to a wound to the back of his head. The offender told his victim that he had struck him because he (the victim) owed him money. It is common ground that I should take those matters into account when sentencing the offenders for the offence of maliciously inflicting grievous bodily harm with intent to do so.

The Facts

6 A comprehensive statement of facts was tendered without objection. It is common ground that it provides the factual basis upon which I should sentence the offenders and I have drawn heavily upon it in providing the summary which follows.

7 As at 10 August 2004 Mr Atkin was residing in a flat in Maitland Road, Mayfield. The flat was located on the first floor over a restaurant. It shared a car park and rear lane with the Beauford Hotel.

8 At that time Mr Atkin was supplying amphetamines in the Newcastle area. He supplied them from his flat and on occasions he also supplied his customers in their homes. Access to his flat was gained via a flight of stairs from the rear car park. A floodlight surveillance camera and television monitor were linked up to the flat which enabled Mr Atkin to observe anyone approaching his flat through the car park.

9 Mr Atkin owned two vehicles - a Ford Telstar sedan and a Ford Falcon sedan – both of which were normally parked at the rear of his flat. The Falcon sedan however was unserviceable. Mr Atkin also possessed a small aluminium runabout that he used in order to go fishing. He also had a small safe, usually located in a wardrobe in his bedroom, in which he kept valuables.

10 The deceased, Garry Sansom, had been living with friends at 39 Dora Street, Mayfield for about 12 months prior to 10 August 2004. He was then aged 33. Those premises are within walking distance of Mr Atkin’s flat. Although he knew Mr Atkin, he did not know and nor was he previously known to either of the offenders. Some years earlier he had sustained permanent ligament and nerve damage to his right arm as a result of a motor vehicle accident. He was in receipt of a disability pension as a result of this injury. He was also an occasional amphetamine user.

11 The offender CB lived with Mr Atkin for a short time in the period preceding the offences. He was a heavy user of amphetamines at the time of the offences.

12 The offender IM was living at his mother’s premises in Windale. Also living there were his mother, his de facto partner and their child. He, too, was using amphetamines at the time of the offences. He was also using heroin.

13 During the evening of 9 August 2004 Mr Atkin went fishing in his runabout. Video footage from the Beauford Hotel security camera showed him returning to his flat at about 2.17am on 10 August. He apparently then entered his flat where he remained until the arrival of the two offenders.

14 The offenders had been at the premises of the offender IM’s brother, MM, that evening. Apparently the offender CB was indebted to Mr Atkin for drugs which he had purchased from him. Because there was a delay in repaying the debt, Mr Atkin made threats to the offender CB. The offender CB borrowed $100 from MM in order to repay the debt together with a further $30, which both offenders used to catch a taxi from Gateshead to Mayfield. The offender CB booked the taxi using a fictitious name. The offenders were picked up at about 3.45am and dropped off at a BP service station which is within walking distance of Mr Atkin’s flat.

15 Some time between 4.00am and 4.30am, Mr Atkin’s next door neighbour was awoken by a loud banging noise. She got out of bed and heard more banging sounds against the loungeroom wall. She went to the rear verandah but was unable to see anything out of the ordinary in the car park. She observed that the floodlight outside Mr Atkin’s flat was illuminated. As she returned to bed she heard the sounds of a motor vehicle rapidly leaving the car park. She heard the same sounds again a few minutes later. The other occupant of her flat also heard loud bangs and the sound of glass breaking. That person also heard the sound of footsteps on Mr Atkin’s rear stairs. Neither of the two neighbours heard any sounds of voices.

16 As was indicated earlier, the deceased was staying at 39 Dora Street, Mayfield. On this particular evening there were a number of other people staying there as well. At some time during the early hours of the morning Mr Sansom said that he was going to see Mr Atkin in order to purchase what he described as a “foily” (a quantity of marijuana).

17 It is apparent that the deceased arrived at Mr Atkin’s flat very shortly after Mr Atkin had been severely assaulted by the offenders but before they had had a chance to leave. Upon his arrival the deceased was pulled into the flat where he too was assaulted. He sustained severe head injuries from which he died.

18 Because the deceased had been away from the Dora Street premises for a prolonged period, another of the occupants of the premises, Kim Lewins, went to Mr Atkin’s flat to investigate why his return had been delayed. When he arrived there at approximately 6.15am he saw that the doors to the flat were open and that there were no lights on. He noticed that Mr Atkin’s Telstar vehicle was missing. He entered the flat and saw that the deceased who had very obvious head injuries was positioned on his back on the lounge room floor. He checked for a pulse but was unable to find one. He saw Mr Atkin sitting on the lounge covered in blood and making strange moaning sounds. He immediately left the flat and returned to Dora Street where he raised the alarm.

19 The emergency call to the Ambulance Service was received at about 6.20am. An ambulance paramedic, Stephen Whan, examined the deceased in the flat at about 6.30am. He found that he was very cold and that he showed no signs of life. The blood on the floor around his head was congealed. He believed that the deceased had been dead for a couple of hours.

20 Mr Atkin was found on examination to be cold. Nevertheless he had a palpable pulse of reasonable strength and rate and was treated briefly at the scene. He was then removed by ambulance officers and taken to the John Hunter Hospital for assessment and emergency treatment.

21 Police attended the flat at about the same time as the Ambulance Officers. Amongst other things, they located a blood stained pool cue which had been broken into a number of pieces. A cash tin located in the main bedroom gave the appearance of having been forced open. The television monitor in the loungeroom was also found to be operating.

22 The offenders left the scene in Mr Atkin’s Telstar taking with them a number of his fishing rods and reels. They got to Broadmeadow before realising that they had left the safe behind. They then returned to the flat in order to retrieve it before going to the Charlestown area.

23 Residents of Crescent Road, Charlestown awoke at about 5.00am to the sounds of a motor vehicle burning in nearby bushland. They alerted the Fire Brigade and the blaze was extinguished. The vehicle - Mr Atkin’s Telstar - was completely destroyed in the fire. An object described as the movable jaw segment of a Stilson wrench was subsequently located in the burnt out remains of the vehicle.

24 It is not possible to state with absolute precision the sequence in which events occurred after the offenders had left Mayfield. Nevertheless, it appears that they took the safe and the fishing equipment to premises located at 423 Warners Bay Road, Charlestown where an associate of the offender CB resided. They arrived there at about sunrise. The stolen property was left there and the two offenders departed. It is believed that at this stage the vehicle was driven to Crescent Road and set alight. The offenders returned to the premises at about 7.00 – 7.30am. In the presence of a number of young men who had spent the night at those premises, they then forced the safe open using a grinder and an iron bar. One of the young men heard the offender CB say, “We did a rort”. Whilst they were there, the offender CB asked those present whether they wanted any of the rods or if they knew where he could get rid of them. One of those young men saw bloodstains upon the offender CB’s boots. The offender CB took two bracelets from the safe whereupon the offenders left the premises. They left behind the safe, rods and reels.

25 Later that day the offender CB returned to 423 Warners Bay Road in a vehicle being driven by an associate of his, Christopher O’Neill. By this stage police had traced the ownership of the burnt out vehicle to Mr Atkin. Further inquiries led them to the home in Warners Bay Road where they commenced observations. They saw the offender CB arrive and arrested him as he was sitting in the passenger seat of O’Neill’s vehicle. The safe and fishing equipment were located in the vehicle. A bracelet from the safe was located in the glove compartment of O’Neill’s vehicle, it having been placed there by the offender CB.

26 The offender IM left the Newcastle area and went to Sydney where he stayed with his de facto partner in the Mount Druitt area. He later claimed that he had travelled to Sydney alone. He returned to Newcastle and was arrested, in the company of his partner, on 29 August 2004.

27 On 30 August 2004 police carried out a search of the premises at 423 Warners Bay Road and located a Stilson wrench (with the movable jaw missing) on the roof of the garage. The component located in the burnt out vehicle was consistent with having come from the wrench.

28 An autopsy examination of the body of the deceased on 11 August 2004 revealed that he had died as a result of head injuries. He had sustained a complex pattern of bruises, abrasions and lacerations to the head and neck region. The injuries resulted from multiple applications of blunt force trauma delivered with either moderate or severe force. The most severe damage occurred on the right side of his face and skull resulting in depressed skull fractures of the front right of the head, orbit of the eye, zygoma, right maxilla and right side of the jaw. It is likely that the injuries which the deceased sustained would have caused him to lapse very rapidly into a deeply unconscious state. It is also likely that they would have inevitably led to death, whether they were treated or not. Some of the injuries which he sustained were consistent with having been caused by the use of a pool cue and a Stilson wrench.

29 Mr Atkin was treated at the John Hunter Hospital for head injuries consisting of right frontal extradural haematomas, bilateral compound depressed skull fractures and multiple scalp lacerations. He was deeply unconscious on admission. He underwent a craniotomy with evacuation of the extradural haematoma and elevation of the depressed skull fractures. He was transferred to the James Fletcher Hospital for on-going rehabilitation. His injury was described as life threatening by his neuro-surgeon. To this day, Mr Atkin has no independent memory of his assault and he has impaired brain function as a result of it.

30 The offender CB participated in three interviews with police, the first being on the day of his arrest. He initially claimed that he was in his bedroom in Mr Atkin’s flat listening to music when an intruder assaulted the deceased and Mr Atkin. He claimed that he was forced to drive the intruder to Charlestown where the safe was opened. He said that he was then dropped off at Gateshead with the safe (which he had to get rid of because it had his fingerprints and DNA all over it) and fishing equipment (which he took). He claimed that he did not meet the offender IM until later that morning. Indeed, at no stage did he acknowledge to police that IM was with him at any earlier point in time.

31 As the interview progressed, the offender admitted lying to police. He told them that during the days leading up to 10 August his relationship with Mr Atkin had soured. He claimed that Mr Atkin had falsely accused him of smashing the windows of his Falcon sedan. He said that he and Mr Atkin had traded abusive text messages via their mobile telephones, during the course of which he had described Mr Atkin as a “paranoid cunt”. He told police that when he arrived at Mr Atkin’s flat that they had argued. He said that:

…I fuckin’ hit him, and fuckin’ dickhead (a reference to the deceased) come through, you know, like, as I’m about to leave, that’s when dickhead come….

I pulled him through and fuckin’ fucked him all over.

32 In relation to the assault upon Mr Atkin, the offender CB told police that he initially struck him with an iron bar and then with a pool cue, snapping it in the process. When asked what his intention was in assaulting Mr Atkin, the offender said:

I was intending to leave him a fuckin’ pulp…

33 He also said that he intended causing him serious but not life-threatening injury.

34 So far as the assault upon the deceased was concerned, the offender said:

I looked at the monitor (referring to the screen that was on when police arrived)… and that’s when someone come up the stairs. I went straight to the door. Garry’s gone, What’s going’ on here? It’s me, Garry. Fuckin’ just ripped him inside, threw him on the ground. …

I threw him on the tiles, and then hit him, I dunno about six times.

35 Asked what he hit him with, the offender said:

Fuckin’ trolley bar that I put down on the table after I hit Gavin four times, six times, whatever.

36 He said that he then used a pool cue to hit the deceased about the head. Asked what his intentions were in relation to the deceased, he said:

I just wanted to knock him out.

37 He said that he was aware that the deceased was not breathing when he left the flat although he said that Mr Atkin was still breathing.

38 Whilst at O’Neill’s premises later that morning, the offender CB placed a pair of socks into the garbage. Police later recovered those socks and upon examination found that they contained DNA matching both the deceased and the offender CB. DNA extracted from the Stilson wrench located at 423 Warners Bay Road matched the deceased’s DNA. DNA and fingerprints located upon the safe found in the offender CB’s possession matched that of the offender IM.

39 On the day of his arrest the offender CB was overheard talking to another prisoner whom he told that:

I admitted to them I did it. Double homicide… I did it, both of ‘em, I’ll be doin’ 20 years. 2 murders.

40 A short time later he told the same prisoner:

41 In a second interview with police, on 25 August 2004, the offender CB said that:

I want to apologise and say I am very deep (sic) remorseful for the death of Garry Sansom who was an unfortunate innocent the deceased who was just at the wrong place at the wrong time. …and I feel sorry for his family…I wish I could take back…

42 During this interview the offender again admitted his involvement in the assault upon the deceased and Mr Atkin. He said that he had gone to see Mr Atkin in order to repay him the money he owed him. He said that they had then argued as a result of which he had begun hitting Mr Atkin. He had then struck the deceased when he arrived. He maintained that he was solely responsible for their injuries. He also admitted stealing the property, burning the vehicle, opening the safe and going to O’Neill’s premises before returning to 423 Warners Bay Road where he collected the stolen property. At that stage he said that he had been “off his face” on speed.

43 As I observed earlier the offender IM travelled to Sydney following the commission of these offences. He and his partner stayed with various people in the Mount Druitt area. Whilst they were staying with an acquaintance, Sharni Anderson, IM told her:

I went with this dickhead to somebody’s house and I was waiting out the front because he had to pay some money. I was out there for a long time so I went to see what he was doing. I walked into the house and there was a guy on the floor with half his head caved in. I started freaking out.
…
Then this bloke came up the walkway and we freaked out. He walked straight in and we both started hitting him.

44 At this point, according to Ms Anderson, the offender IM began to cry. When he was asked why he had not just walked out, the offender IM had replied:

I don’t know why. I just freaked.

45 A little later, the offender told Ms Anderson:

I only hit the second guy, I didn’t touch the first guy, I was waiting outside. …
We hit him pretty bad that [sic] I thought we’d killed him.

46 Whilst at Ms Anderson’s premises, the offender IM also had a conversation with her de facto partner, Moyle Ashe, concerning the events of 10 August. Ashe told police that the offender IM had said that:

he was on the run. They went, they killed ... somebody over speed and he just told me what happened, that him and a mate went to pay someone some money, and his mate pulled out a hammer or something...and started bashing him, this bloke’s head or something. And then someone come in and then they jumped, they started attacking him…And then they took their drugs and money and they left.

47 Ashe was asked what the offender IM had told him concerning the first person who had been assaulted. He said that he had been told:

… that he went to pay him his money and then his mate, so they just started punching into him and hit him with the hammer or something.

48 The offender IM told Ashe that he felt sorry for the second bloke who had come in:

cause they really give it to him, or something, and he was only just coming in to score or something, like, he had nothing to do with it or something, he says.

49 The offender IM told Ashe that the second man was assaulted:

cause he come in and seen what was happening. Yeah, he come in and seen what was happening.

50 The offender IM was interviewed by police following his arrest. Set out below is an extract of what he told them:

We went over there to pay him 100, $100..I sat outside, like, we was, we caught a cab from Windale over there, and I sat out where the, like, the corner of the pub is, you know you’ve got the driveway, I sat there. CB went in, and they were, they were arguing. And then I went up there and they were fightin’, and I, I pushed CB off him, all right. And then they went inside and, like, I went in there and I walked out and I just took off, you know. There’s a guy down the street…freaked out ‘cause they were yellin’ and screamin’, I was scattered off me head, you know what I mean, and I freaked out. I ran home, eh, I went all, I slept up, up in Church Street, up at the church, mate, all night, eh. And I, I’ll admit I rang CB at 7 o’clock in the morning all right, and, like, I rung him and I said, What are you doin’? And he told me what went down, and I said, CB, I went up and seen him ‘cause he was up at Ruddo’s. Oh, youse probably know that, he was up at Ruddo’s. And I went up and I said to him, I had a little chat to him, like. I said, Like, get out of here, do somethin’. And he’s gone, I got some shit. And I, I said to him, CB I said we went over there together, mate, not to do that shit, man. I said, I know you fuckin’, and then I went, we went and had a session, I won’t lie, we went and had a session. …

I was at the door of the, like, the back door, mate, you know what I mean, to get out, I grabbed it to get out, mate, ‘cause I stepped 2 foot, I admit that, I went in, eh, you know.

51 The offender IM told police that Mr Atkin had rung up the offender CB the previous day and harassed him for money which he owed him. He said that the offender CB had come to his mother’s place pretty early in the morning and had banged on the windows. He claimed that the offender CB had then told him that they would go over and pay off the debt and have a “shot”. He said that he had believed that they were simply going down the road to “get on”.

52 The offender IM said that while he had been waiting near the hotel he had called the offender CB on his mobile telephone to ask him what was keeping him. He said that he had heard yelling and screaming. He said that he had seen the offender CB and Mr Atkin fighting and that he had pulled the offender CB off him.

53 The offender IM claimed that he had then left and that he had not seen the offender CB again until the following morning. After staying at the church all night he claimed that he had walked home from Mayfield to Windale. He said that he had then left Newcastle and travelled by train to Sydney that morning.

54 The offender IM denied any involvement in the assault upon Mr Atkin. He also maintained that he had never met the deceased. He further denied leaving the area in the Ford Telstar and going to 423 Warners Bay Road where the safe was dropped off. He also denied having seen the offender CB assault the deceased. He also maintained that Mr Atkin was already injured when he (IM) had entered the flat. After the offender was told by police that he was going to be charged, the following exchange occurred:

Q. Anything else you want to say?
A. What can I say, mate? Fuckin’ hell. You can at least put one on me, not two, you know.

Q. Why’s that?
A. Cause now I’ll never get out, eh. I’ll never get out.

Q. Why, why would we only put one on you?
A. You know what I mean, why can’t you just put one on me, like, you know what I mean. Why do youse have to put two on me for? I didn’t bash both of them, you know.

Q. Who did you bash?
A. I didn’t bash no one, you know what I mean. I didn’t bash no Gavin or that other bloke, all right. I didn’t bash ‘em and youse…sittin’ here puttin’ murder on me, you know what I mean. I was probably there when CB was bashing Gavin but I wasn’t there when he did that other bloke, I swear, mate, you know what I mean. I didn’t do nothing of the sort, eh.

55 The offender IM then maintained that the offender CB had hit both of the victims. He denied however having himself played any direct part in the death of Mr Sansom. He told police:

Oh, we, we did go there, not to rob anyone, I’ll be honest. I was going there to get gas, all right. I went in there and CB, they started punchin’ on, right, and, but the other poor bloke, all right, little bit, all right. I, I, I didn’t go, I didn’t hit him, I swear, eh. But CB hit him with, with the chair, mate, I swear, the chair, right. There, there was a bar stool there, he wouldn’t leave the cunt alone, mate, wouldn’t leave it alone, you know, you know what I mean. I, I’m sorry I lied about fuckin’ gettin’ in that car, you know what I mean, I was scared, you know what I mean.

56 On 30 August 2004 the offender IM was overheard to say to another prisoner, whilst in custody in the cells following his arrest the previous day:

Tell him that he’s a dead man. I am going to cave his head in like I did the other two.

57 This is believed to be a reference to the man O’Neill who had by then made two statements to police. The other prisoner told police that the offender also said:

I killed them two fellas, they were rock spiders and deserved it.

58 Following their arrests the offenders were kept in different gaols but on 27 October 2004 they were conveyed to the Police Station at Newcastle and placed in separate but adjoining cells. An authorised listening device had been installed in order to capture any conversation that might occur between the offenders.

59 On several occasions during the hours that they were in the cells the offenders discussed the events of 10 August 2004. During the course of those conversations the following exchanges took place:

Fletcher, eh.

CB Is he?

IM Yeah, bro.
CB How come?

IM He’s got like a 4 year old, bro. I didn’t want to tell you that, eh.
CB He what?

IM I didn’t want to say that, eh. I was going to keep it in the dark, eh.
CB What is he?

IM He’s got a mind of a 4 year old, eh.
CB Good. That’s good.

IM Yeah, O.K. Yeah. He’s suppose ….. but, you know what I mean, that’s where he is, James Fletcher.
CB Yeah.

IM Yeah, when me girl told me, you what I mean?
CB No, I feel sorry for the cunt, really man.

IM So do I, bro, I wish the fuck we weren’t fuckin’ that scattered CB, now, bro.
CB I was fuckin’ off me head wasn’t I?

IM Yeah, that’s it, bro, you know, it took both of us …..fuck.
…
IM But he said, Gav rung us up and threatened us. You know what I mean?
CB Yeah, yeah, he did, mate.

CB That’s what I mean mate …… so what if I smash a drug dealer.

IM Mm, that’s it - - -.
CB I’m doin’ society a favour.

IM That’s it.
CB Mate, that’s what I was saying, …… I should be given a medal for fuckin’ for knocking drug dealer scum up.
…
CB Yeah, I’m fuckin’ dead set fuckin’ sorry, it’s my fault, man, this fuckin’, it all happened, brother, my fault, man, I instigated it, I fuckin’ premeditated it, you know.

IM Don’t worry, CB, mate. We’re in together, bro.
CB Yeah.

IM Yeah. Eh, CB, I dead set …. I dead set, CB, didn’t want it to go down like that, eh, bro.
CB What?

IM I dead set didn’t want it to happen like that, eh.
CB No, I didn’t want it to happen like that.

IM That cunt, that was a mistake, that, cunt, admit it, CB, he didn’t deserve to fuckin’ die for it.
CB Just the wrong place at the wrong time.

IM That’s it, man, fuck.
CB …….

IM Dead set, I fuckin’ pay for remorse, CB, eh, I want remorse, mate, that, you know what I mean, CB, that hurts me, brother.
CB It does, man.

IM All right. I’m tellin’ ya, eh, I don’t care if it’s recorded or not, you know but CB, fuckin’ it hurts, bro. Eh. Takin’, takin’ a cunt’s life with fuckin’ two kids and, you know what I mean, bro?
CB Did he have two kids?

IM Yeah, he had two kids, eh.
CB Poor cunt.

IM Yeah, yeah.
…

IM (LAUGHING) Oi, ….. yeah, aye, did they show you photos CB?
CB Na they don’t them, ….

IM Yeah, … Muxlow (a police officer) was sayin’ to me, that cunt’s face was fuckin’ deadset fucked up they couldn’t even get dental records bro.
CB Yeah.

IM Yeah.
CB It was more than 20 times aye.

IM Whooooo.
CB It was like this, this is what it sounded like that first man, it sounded like first man, (CLAPPING) and then it started going, (Making sound with voice).

IM (LAUGHING)
CB (LAUGHING) you could hear it breaking at first and then it was just slush man.

IM That’s alright, he shouldn’t have rolled over on us.
CB (LAUGHING) He shouldn’t have come across two fuckin’ lunatics mate.

IM That’s it CB. Oi, deadset, Oi, CB, he yelled out your name.
CB He yelled out my name.

IM Yeah, he yelled and grabbed ya.
CB Yeah.

IM He said, CB, it’s me.
CB Did he.

IM Yeah.
CB I don’t remember.

IM That’s why I hit him bro.
CB Awe true.

Subjective features

60 The offender CB was aged 22 at the time of the offences. He is now aged 23. He has a criminal record which commenced in 1998 when he received a community service order in the Children’s Court for an offence of assault occasioning actual bodily harm. In 2001 he was placed on a bond for shoplifting. In the same year he was imprisoned for three months for the illegal use of a motor vehicle and resisting an officer in the execution of duty. Later in the year a community service order was imposed upon him in respect of a larceny offence. In 2002 he received a suspended sentence for stealing a motor vehicle and a bond for a driving offence. In 2003 he was given a further community service order for resisting police in the execution of duty. Later the same year he served seven weeks in gaol for offences of common assault, intimidation and larceny.

61 CB’s father, who gave evidence before me, provided me with details about his son’s background. He is the eldest of four children. The family lived in Murrurundi until the offender was aged 7, at which time they moved to Chatham. The family remained there until the offender was about 13, when they moved to Wingham.

62 His father told me that the offender had experienced learning difficulties at school as a result of which he had been taunted by other students. He was also poorly motivated and frequently truanted from school. In Year 7 he was excluded from Chatham High School for having cannabis in his possession.

63 His father and mother (who is a primary school teacher) were sufficiently concerned about his behaviour and academic progress to seek counselling for him from a clinical psychologist, David Spencer, who was employed at the Taree Community Health Centre. Mr Spencer conducted an assessment of the offender’s cognitive abilities in 1996 and arrived at the following results:

His reading rate was at an age equivalent level of approximately 8 years of age. His reading accuracy was at an age equivalent level of 9 ½ years. His reading comprehension was at about the ten year level. In general, this would mean CB is somewhere between 4 to 5 years behind what should be his real reading age.

64 Mr Spencer reached the following conclusions about the offender:

65 Unfortunately things did not improve for the offender. In fact they got worse. The offender was subsequently expelled from two further high schools and eventually left school at the age of 15. His behaviour at home also deteriorated. His parents found him impossible to control. His father described him as “living outside the boundaries that we adapted and we had no means to curtail that”. He frequently ran away from home and his conduct, which was violent at times, was exacerbated by his dependence upon both illicit drugs, which he commenced using when he was about 13, and alcohol.

66 CB’s father said that although he and his wife tried valiantly to prevent him from doing so, his son left home permanently at the age of 16. It appears that he left home shortly after a particular incident, to be referred to further below, which prompted CB’s father to report to police that his son had been missing from home for several days.

67 CB’s father said that he noticed a further decline in his son’s behaviour following that incident. He also observed that his son was unable to look after himself after he left home. He said that he and his wife frequently received emergency calls informing them that their son was in hospital. On occasions the offender attempted suicide and told his parents that he regretted having been born. On other occasions his father observed that he was acting in a psychotic fashion in that he would take on a completely different personality. It seems that his behaviour has been kept under control at times, at least whilst he has been on anti-psychotic medication.

68 The offender’s father told me that he and his family would continue to support the offender. He said that the offender now has a partner and a young child. Moreover, his behaviour and physical appearance have improved markedly since he was first taken into custody. It appears that he has been, and is determined to remain, drug-free. He also appears, according to his father, to be developing some insight into his offending behaviour which he is said to regret. I accept that his difficulties with reading inhibit him from doing correspondence courses in gaol which of necessity depend largely upon the use of written material.

69 Because of matters raised for the first time during the course of the offender’s father’s evidence, the proceedings were adjourned in order that further material could be assembled by one of the police officers with carriage of the matter. Suffice it to say that there is now evidence before the Court which is capable of establishing that this offender was sexually molested on a number of occasions by an adult male when he was aged about 15. The offender has now provided a statement to police in which he sets out the details of those activities. Furthermore, he has undertaken to give evidence in accordance with his statement, should the need arise. As I understand the situation, his father is able to provide some support for the offender’s account particularly insofar as he has knowledge that his son had access to unexplained funds at the relevant time.

70 The alleged perpetrator of these offences has already come to the notice of police. Indeed, he is due to face court in the near future in respect of allegations of sexual misconduct of a similar kind which are said to have been committed against another young person. I have not been furnished with the details of those allegations but I was informed that the Crown Prosecutor who has carriage of that matter is of the view that the material provided by the offender has potential value. Moreover, I was informed that the Crown will seek to rely upon it as tendency and/or coincidence evidence pursuant to ss 97 and 98 of the Evidence Act in the trial of the alleged perpetrator in respect of the other complainant. It is however far too early to gauge whether the material will also be used in support of a prosecution of the alleged perpetrator for the offences alleged to have been committed against the offender CB. That matter requires further investigation and the provision of a more detailed statement from the offender CB. I am informed that, if required, he is prepared to provide such a statement.

71 It is pertinent to observe that police were already aware of a connection between the offender CB and the alleged perpetrator of offences against him by reason of the report (to which I referred earlier) made by the offender’s father that his son had gone missing. This report was made at or about the time that the activities in respect of which the offender has now made a statement were alleged to have occurred.

72 It is unnecessary, in the circumstances, to further detail the assistance which has been provided to the authorities by the offender. It does however mean that a claim for leniency, pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999, needs to be properly considered. In due course I shall consider that matter in a little more detail.

73 Dr Westmore prepared a report at the request of the solicitors acting for the offender CB. He diagnosed him as suffering from a psychotic illness at the time of the incident. It was not however of a kind that would enable him to rely upon the provisions of s 23A of the Crimes Act. For the purposes of his examination, Dr Westmore was provided with the offender’s prison, medical and psychological files. Dr Westmore described that material in the following terms:

The available medical notes are quite voluminous and will not be reported on individually in this report, however the documents do indicate that CB has suffered from a psychotic illness in the past and that it was thought that the illness was likely to be drug induced. Clinical notes made shortly after he was admitted into custody indicate that he was agitated and behaviourally disturbed. He was banging walls and it was thought that his mood was elevated. He was seen to be singing and dancing. A nursing entry indicates that he had poor impulse control and that he was sensitive to perceived hostility. A self harming attempt by hanging is noted to have occurred in 2000 and he reported being suicidal every day.

An entry dated 16 August 2004 noted that he was emotional at times but there was no evidence of any perceptual disturbances. A review on 25 August 2004 indicated he was agitated and his speech was pressured. His affect was elevated. Again no perceptual disturbances were described. This author felt that CB remained psychotic but the symptoms of his illness were responding to treatment. These entries appear to have been made predominantly by nursing staff and no clear diagnostic formulations seem to have been made in relation to CB and the precise nature of the reported psychotic symptoms is unclear.

A medical entry on 1 November 2004 diagnoses CB as suffering from either a schizophrenic illness or a drug induced psychosis.

74 Dr Westmore concluded that the psychosis from which the offender was suffering at the time of the offences was drug induced. There was no evidence however that the offender entertained delusional beliefs or had hallucinations about his victims.

75 Dr Westmore also concluded that the offender’s “explanation for his actions [was] essentially non-psychotic”. That explanation included an account that he and his co-offender had gone to Mr Atkin’s home pursuant to a plan to rob him of his drugs. The offender CB told Dr Westmore that on the day of the offences he had used between one and three grams of “speed and ice” which he had taken intravenously. Dr Westmore was of the opinion that the offender’s drug dependency at the time affected “his judgment and his impulse control”. Dr Westmore reported that the offender had informed him that:

at the time the current offences arose he was also breaking into shops. Later he would continue hearing alarm sounds in his head, the sound of screeching car brakes and breaking windows. He said he would also hear the shower running. He told me he was laughing and crying at the same time.

76 Dr Westmore reported that the offender had been placed on antidepressants when he first was taken into custody. He had however been off all medication for a period of time and he informed Dr Westmore that his mental state had stabilised in that time. It seems that for a short period of time, after he had revealed to the court details of the sexual abuse which he had suffered, the offender resumed taking medication.

77 Finally Dr Westmore, who also gave oral evidence before me, expressed the view that the offender graduated to using more potent drugs only after he was sexually abused.

78 The offender IM was aged 23 at the time of the offences and is now 25. He too has a criminal record. It also began in the Children’s Court where in 1997 he was sentenced to a control order of three months in respect of offences of armed robbery and common assault. In the same year he was placed on probation in respect of offences of common assault and malicious damage. In 1998 a control order of six months was imposed upon him for offences of driving a conveyance which was taken without the consent of the owner. A similar offence in the same year attracted a fine. He was also placed on a recognisance for malicious damage to property. In 1999 a control order of eight months was imposed upon him for stealing a motor vehicle. In 2000 he was fined in the Local Court for offences of having custody of an offensive implement and for malicious damage to property. In 2001 he was sentenced to six months imprisonment for an offence of break, enter and steal. In the same year he was also placed upon a bond in respect of offences of receiving stolen property, assault occasioning actual bodily harm, larceny, intimidation and malicious damage. In July 2004 he was sentenced to 16 months imprisonment, which was suspended upon condition that he enter into a bond to be of good behaviour, in respect of offences of assault occasioning actual bodily harm and being carried in a conveyance which was taken without the consent of the owner. Accordingly he was on conditional liberty at the time of these offences.

79 I have been provided with a report by Dr Olav Nielssen about the offender IM. The following extract from the report sets out details of his background:

IM said that he was born in Blacktown Hospital and was the youngest of three children. He said that his older brother is also in gaol and his sister moved to Queensland. He said that his father was from the former Yugoslavia, but he did not speak his father’s language or know much about his father’s background.

IM said that his father was “a bad alcoholic” who was violent towards he [sic] and his siblings when drunk. He said that neither of his parents worked consistently and the family were always short of money. He said that he was placed in foster care for a period during early childhood but could not remember the exact years. He said that when he was seven or eight years old he returned to the care of his parents and the family moved to the Newcastle area.

IM said that he did not know anything about his early development. He said that he was disruptive from kindergarten and truanted school regularly from the latter part of primary school and left school altogether in Year 7. He said that was unable to read or write despite periods spent in juvenile justice centres when he had remedial education. He said that he had never had any kind of paid work and has supported himself by crime from the age of twelve.

IM said that his upbringing was affected by sexual abuse in [sic] the hands of a paternal uncle. He said that he told his father what happened but his father said he did not believe him and did nothing about it. He said that he was later classified as uncontrollable and placed in a home by his parents, but he saw it as “a way of getting away from the abuse”.

IM said that he had been in a relationship with his girlfriend for nine years and they had a son now aged two and a half. He said that his only hobby had been “being a dad”.

…

IM said that he had abused most classes of drugs from the age of twelve. He said that he began with cannabis and alcohol but was dependent on heroin within a few years and described heroin as his favourite drug, as he said it made him “a nicer person”. He said that he began using heroin regularly after his release from prison in 2001 and his greatest intake was as much as a gram of $300 worth per day, accompanied by severe withdrawal symptoms when unable to obtain heroin.

He said that he had taken gas (amphetamine) from the age of fourteen whenever it was available, usually in periods of continuous use of up to two weeks at a time. He said “the gas eats me away” and affected his physical health as he stopped eating and often became paranoid.

He did not report any periods of abstinence apart from time spent in custody and said that he had never attended any kind of drug rehabilitation centre or been prescribed anti-craving medication such as methadone.

80 The offender told Dr Nielssen that in the weeks preceding the offences he and CB had been using drugs together. He told him that “we were both lost and scattered to the max”. He claimed that he was badly affected by drugs at the time of the offences and was “not sure what was real and what was not”. He informed Dr Nielssen that “whilst he remembered some of what happened he did not remember the sequence of events that led to the commission of the [offences]”.

81 Dr Nielssen diagnosed the offender as having an “adjustment disorder with depressed mood” together with a history of substance dependence and abuse. He summarised his opinion of the offender in the following terms:

IM is a twenty four year old man who reported a difficult upbringing with parental neglect, physical and sexual abuse, conduct problems in childhood, institutional care, disrupted education, severe substance abuse from early adolescence and no vocational training or employment. The only positive feature of the history he provided was a relatively longstanding relationship with his partner and mother of his child, despite his behaviour towards her.

The diagnosis of substance dependence and abuse was made on the history of a period of opiate dependence and the harmful physical and psychological consequences of amphetamine use.

The diagnosis of low intelligence was made on the basis of clinical assessment of intellectual function, taking into account the effects of his disrupted education and the lack of stimulation in his upbringing.

82 The offender IM was prescribed an anti-depressant when first admitted into custody.

83 A further report prepared by a consultant forensic psychologist, Tim Watson-Munro, was also tendered on behalf of the offender IM. He reports that although the offender professed to have limited recall of the events of the night in question he nonetheless “expressed regret for what occurred, which appears to have developed in the context of his increasing insight into his problems in the setting of him being drug-free since the time of his arrest”. In addition to his claim that he has remained free of drugs since his incarceration, the offender maintains that his health has improved and that he has gained 20 kg in weight. He has also undertaken a number of drug and alcohol awareness courses whilst in custody and currently has employment within the gaol system.

84 Mr Watson-Munro agreed with Dr Nielssen’s diagnosis of the offender. He went on to explain in the following terms the setting within which those disorders had occurred:

IM alleges that he was sexually abused by a paternal uncle during his formative years. He alleges that the abuse went on for quite a number of years and that there was some passive avoidance of the issue by his father. In relation to this he claims to have told his father what was occurring but there was strong denial from the father and in this setting the abuse continued.

As a consequence of this, IM developed a broad spectrum of symptoms indicative of a diagnosis of an Adjustment Disorder. These included flashbacks to the abuse, protracted sleep disturbance with nightmares, anticipatory anxiety, hypervigilence to danger, an inability to trust people and a sense of despair regarding the future in the context of ongoing depression.

Because of the denial which occurred in the family, he remained symptomatic without treatment. It appears to have been essentially in this context that he started using hard drugs at an early age.

85 Mr Watson-Munro referred to the offender having suffered:

…symptoms of amphetamine psychosis inclusive of auditory hallucinations, disorientation in time, place and person, severe paranoia and ongoing sleep disturbance.

86 He concluded that that material suggested that the offender’s “judgment was severely compromised at the material time in relation to the current offences”.

87 Dr Nielssen and Mr Watson-Munro both report that the offender IM complained to them that he had been sexually assaulted as a child. Although the offender did not give sworn evidence about the matter I am prepared to accept that conduct of that nature did occur, on the basis that there is independent corroboration that it did. To that end I was provided with material from the Children’s Court which demonstrates that a 16 year old male was found to have committed an act of aggravated indecency upon the offender IM when he was 11 years of age. The offence, which occurred in October 1992, took place in bushland but was apparently witnessed by two people. The offender IM maintained that the other man was endeavouring to rape him at the time that they were disturbed by the two eyewitnesses. The eyewitness accounts provide support for that allegation. He also maintained that the other man threatened him if he did not comply with his wishes. It is to be noted that the offender made an immediate complaint to his parents about the perpetrator who was obviously someone well-known to them. The matter has proceeded upon the basis that the perpetrator is the same person to whom reference was made in the reports of Dr Nielssen and Mr Watson-Munro.

88 I have received two victim impact statements from the deceased’s family. One was from his brother and the other was prepared on behalf of his mother by a psychologist from whom she has been receiving counselling. That material details the impact which his death has had upon them, both physically and emotionally. His mother expresses her grief, anguish and sense of despair at having lost the son to whom she gave life. There is reference also to the particular anguish which she experienced by reason of being deprived of the opportunity to view her son’s body for a final time because of its condition. That exacerbated her distress particularly because she and the deceased had had a disagreement which remained unresolved at the time of his death.

89 The feelings which the deceased’s family express and the sense of loss which they have each suffered are entirely understandable. It is impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of those statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I am aware of course that the effect of Mr Sansom’s death upon his relatives is not, for present purposes, a relevant consideration: see R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death. The above remarks apply equally to Mr Atkin and his family.

Relevant sentencing principles

90 I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, which is in the following terms:

3A

91 The Court of Criminal Appeal in R v MA (2004) 145 A Crim R 434 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment, which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. In a passage which is particularly apposite to the present case, a majority of the court in Veen (No2) said:

[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (at 476)

92 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that a human being’s life has been taken.

93 The Crown did not however submit that the murder of the deceased fell within the worst category of case. I accept that the present offence, serious as it is, does not warrant a sentence of imprisonment for life as provided for in s 61 of the Crimes (Sentencing Procedure) Act. That being so, s 21 of that Act, which provides for the imposition of a “sentence of imprisonment for a specified term” in circumstances such as the present, has application. Accordingly I propose to impose a determinate sentence upon each of the offenders for the offence of murder.

94 That being so, in determining the appropriate sentences for the offenders I must also have regard to the various aggravating factors which are set out in s 21A of the Crimes (Sentencing Procedure) Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. I must also weigh in the balance those matters upon which the offenders are entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3) of the Crimes (Sentencing Procedure) Act. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. I will make specific reference to those matters which I regard as relevant. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I consider as being of particular relevance.

95 The relevant aggravating features which are common to both offences are the fact that they involved the use of a weapon or weapons and that they were committed in company: Crimes (Sentencing Procedure) Act, s 21A(2)(c) and (e). So far as the offender IM is concerned it is also relevant, as I have already observed, that he was on conditional liberty at the time: see s 21A(2)(j). Also relevant, but only so far as count 1 is concerned, is the fact that the injuries or damage caused was substantial and the fact that the offence was, to some extent, part of a planned criminal activity: s 21A(2)(g) and (n).

96 I have already observed that each of the offenders has a criminal record. Moreover each has a record for offences of violence. The details of those offences were in evidence. It is unnecessary to refer to that material in any detail although it does not reflect well upon the offenders

97 Nevertheless, the nature and extent of those records does not assume any great significance for present purposes particularly as those prior offences pale into insignificance when compared with the present matters. Moreover, in having regard to them I have been careful to approach this issue in accordance with what was said by the Court of Criminal Appeal in a line of cases including R v Wickham [2004] NSWCCA 193 and R v Blair (2005) 152 A Crim R 462.

98 The first offence was a most serious offence of its kind. It is common ground that it involved a measure of premeditation. At the very least, the evidence compels the conclusion that there must have been a realisation on the part of the offenders that some level of violence was likely to be occasioned to Mr Atkin when they arrived at his flat. In that context I have had particular regard to the fact that the relationship between Mr Atkin and the offender CB was strained at the time and that the offender CB was motivated to go to Mr Atkin’s premises at least in part because he intended to rob him. I reject the version proffered by the offender IM in his interviews with police concerning his involvement, or more accurately his lack of involvement, in this offence. That version of events is not only internally inconsistent but it is at odds with the version of events which he subsequently gave to other people. I refer in particular to what he said to Moyle Ashe and to the other prisoner in the cells on 30 August 2004, and to what appears in the recorded conversations which he and the offender CB had on 27 October 2004.

99 It may be that the offender CB initiated the assault and perhaps played a slightly more significant role in it, but the offender IM acknowledges by his plea that he is criminally responsible, pursuant to a joint criminal enterprise entered into with the offender CB, for the attack upon Mr Atkin. Moreover, the number of blows and the extent of the injuries which Mr Atkin sustained, they having been inflicted with at least one if not two dangerous weapons to his head, suggest offences of very considerable gravity.

100 So far as the offence of murder is concerned, it is true that it cannot be said to have been premeditated, simply because the deceased’s presence at the scene could not have been anticipated. Accordingly, the offence can be characterised as not being “part of a planned or organised criminal activity”: Crimes (Sentencing Procedure) Act, s 21A(3)(b). Nevertheless, the offenders’ motivation for killing the deceased (namely, as the Crown put it, “to prevent [him] from raising the alarm and to allow them to make good their escape”) reveals criminality of a high order. The observations which I made in relation to the injuries sustained by Mr Atkin apply equally to those which were inflicted upon the deceased. Although I am of the view that it is of no great consequence in the circumstances of this case, I am not however prepared to find to the requisite standard that the offenders acted with an intention to kill, as distinct from an intention to inflict grievous bodily harm, particularly given that the Crown accepted that the blows to Mr Atkin were inflicted with an intention to inflict grievous bodily harm.

101 A significant factor to be weighed in the offenders’ favour is that each has pleaded guilty. It is no small matter to plead guilty to the most serious offence in the criminal calendar. I referred at the outset to the circumstances in which they entered those pleas. Although it cannot not be said that they were entered at the first available opportunity, they were indicated at a sufficiently early time to enable resources of the State and Court to be saved and the inconvenience to witnesses to be significantly minimised. Furthermore, a number of witnesses were spared from the ordeal of having to give evidence. Moreover, the offender CB made extensive admissions to police concerning his involvement in the offences to which he pleaded guilty. It is true that he did so only after some initial prevarication. Nonetheless, his admissions were of such a nature as to guarantee his conviction of these offences. The offender IM on the other hand was far from forthcoming when he spoke to police. He did however plead guilty a little earlier than the offender CB. It is clear that the pleas were entered after negotiations between the parties in respect of count 1.

102 In the circumstances the offenders have each “facilitated the course of justice”: Cameron v the Queen (2002) 187 CLR 65. Accordingly, they are each entitled to an appropriate discount upon the basis that their pleas of guilty have utilitarian value. I would assess that each is entitled to a discount at or slightly above the mid-point of the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383. See also Crimes (Sentencing Procedure) Act, s 21A(3)(k) and s 22.

103 I am prepared to allow a further small reduction of sentence to each of the offenders on account of their contrition: Crimes (Sentencing Procedure) Act, s 21A(3)(i). That is apparent not only in their pleas of guilty but also in other parts of the evidence, albeit that it tends to have been expressed in rather unconventional terms.

104 The offender CB is entitled to an additional discount for his assistance to the authorities. The assistance which he has provided is highly unusual in that it relates to offences in respect of which he is the alleged victim. Although unusual his circumstances are not unique: see R v Rich [2000] NSWCCA 448. Nevertheless, there does not seem to be any reason why the normal principles which pertain to the sentencing of offenders who provide assistance to the authorities ought not to be applied in the present case.

105 In assessing the weight to be given to this aspect of the case I have had regard to the various factors identified in s 23(2) of the Crimes (Sentencing Procedure) Act. It is true that the disclosure of the information came late in the day, although that is a not uncommon feature of offences of this type. It is of some significance however that there is no evidence before the Court to suggest that the offender will encounter harsher custodial conditions as a result of his disclosure. The Court of Criminal Appeal has recently emphasised the fact that a person is not serving his sentence in such conditions must be taken into account in evaluating the extent of the discount for assistance: see R v Sukkar [2006] NSWCCA 92. Although the offender may be at some risk in the future should his status as a witness become known within the gaol system, I can only proceed upon the basis of the circumstances which presently exist.

106 It is also true, as the Crown points out, that the evidence of the offender CB will be subject to various warnings. Nevertheless, given the point in time at which I am considering the matter, I can do no more than assess the potential value of the assistance which has been foreshadowed. Of necessity any such assessment must be speculative. The exercise is made particularly difficult in the present case as it is simply not possible to determine at the present moment whether the offences alleged to have been committed against the offender CB will be the subject of a separate prosecution. That said, what I must do is to assess, as best I can, the “intrinsic value of the assistance to the state”: R v Darwiche [1999] NSWCCA 293 at par 18.

107 What seems tolerably clear is that the assistance which has been offered has the potential to be of considerable utility in the prosecution of the alleged perpetrator of what appear to be serious offences of a similar kind against another complainant. Although I am in no position to determine the admissibility of the offender’s evidence in that other trial, it is nonetheless apparent that tendency and/or coincidence evidence can be powerful material before a jury. Not only does the community have an interest in the prosecution of such offences but the other complainant may well benefit, in the sense of being personally vindicated, from having the present offender’s evidence available in those proceedings. As the Crown acknowledged in its written submissions the “offender’s assertions appear to have substance to them … [and he] has done about as much as he can in the circumstances. It remains for him to honour his undertaking.”

108 In R v Chu (CCA(NSW), 16 October 1998, unreported), Spigelman CJ observed that although no fixed tariff existed for the provision of assistance to the authorities, discounts in the order of 20% to 50% had frequently been allowed. See also Sukkar (supra). Sometimes a “rolled-up” discount for both a plea of guilty and assistance to the authorities is deemed to be appropriate. As to the different approaches which can be legitimately adopted, see R v Waqa (No2) [2005] NSWCCA 33. The courts have made it clear that the component of the discount which relates to future assistance should however be quantified: see Waqa (No2) (supra) at pars 14, 21. The discount which will be extended to the offender CB for his assistance will be almost entirely attributable to the future assistance component of it.

109 In the final analysis I must also have due regard to s 23(3) of the Act. In R v NP [2003] NSWCCA 195, Simpson J observed that:

The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.

Crimes (Sentencing Procedure) Act 1999

110 In the present case it appears to me that a discount of 15% should be allowed to the offender CB for the future assistance which he has promised.

111 The evidence suggests that the offenders have each developed a significant dependency upon illicit drugs and particularly after they were each subjected to sexual abuse. That abuse certainly provided the setting in which the escalation of their drug-taking activities occurred. In R v AGR (CCA(NSW), 24 July 1998, unreported), James J, with whom Mason P and Grove J agreed, observed:

In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child and that that history of sexual abuse has contributed to the offender’s own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty as reducing the offender’s moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge. Evidence that a child sexual assault offender was himself sexually abused as a child can also be relevant to the offender’s prospects of rehabilitation, as was recognised by his Honour. However, in holding that that was the only way in which it was open to him to take into account the evidence that the applicant had himself been sexually abused as a child, I consider that his Honour was in error. (at p 6)

112 It appears to be accepted on all sides that the same principles should apply in the present case even though the offenders stand for sentence in respect of matters which are of a quite different nature from offences entailing sexual abuse. The expert evidence, and particularly that of Dr Westmore in relation to the offender CB, reveals that the offenders were somewhat mentally impaired at the time of the commission of the offences. Although the condition of the offenders seems to have been largely drug induced, I am prepared to find that the offenders were not “fully aware of the consequences of [their] actions”, by reason of their mental condition at the time of the offences: Crimes (Sentencing Procedure) Act, s 21A(3)(j). See also R v Engert (1995) 84 A Crim R 67.

113 However, in my view, only limited weight should be given to this aspect of the matter, particularly given the passage of time between the abuse suffered by the offenders and the brutal crimes which they perpetrated. Furthermore their actions, both at the time of and subsequent to the acts in question, also demonstrate a considerable degree of deliberation on the part of each offender. Moreover, both offenders were acting in a state of self-induced intoxication at the time: see R v Coleman (1990) A Crim R 306 and R v Henry (1999) 46 NSWLR 346 at 394 - 5.

114 Each of the offences attracts the operation of s 54A of the Crimes (Sentencing Procedure) Act. Section 54A(2) provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table to this Division”. The standard non-parole period is 20 years for the offence of murder and 7 years for the s 33 offence. Section 54B sets out the mechanism by which the non-parole period is to be determined. The relevant sub-sections are in the following terms:

…
(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.

115 In construing the section, I have had regard to the principles set out in R v Way [2004] 60 NSWLR 168. The correct approach to be followed appears in the following passages:

In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: “are there reasons for not imposing the standard non-parole period?”

(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).

Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.

Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.

If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .

In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.

The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.

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 para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.

….

116 In R v AJP (2004) 150 A Crim R 575, Simpson J provided the following helpful summary of the principles to be applied:

(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 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 (para [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 (para [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 (paras [74] – [77]);

actus reus

mens rea

(v) that an offence is “typical” or “common” does not dictate that it is in the middle of the range of objective seriousness (para [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: (paras [101] – [102]);

R v GJ Davies

R v Sangalang

AT v Regina

R v Dang

117 As I understand the position, it is common ground that I should impose a non-parole period, at least so far as the offence of murder is concerned, which is shorter than the standard non-parole period in respect of each offender. A significant reason for doing so is that each of the offenders have pleaded guilty. In the case of the offender CB an additional reason lies in his having provided assistance to the authorities. I have also had some regard to the other matters, personal to the offenders, which affect the seriousness of the offences: see Way (supra) at par 86.

118 I would assess the offence which gives rise to count 1 as being above “the middle of the range of objective seriousness” for such an offence. That conclusion explains the sentences which I am about to impose for that offence albeit that the actual sentences also of course reflect the offenders’ personal circumstances, which as I have just indicated are different particularly in one important respect.

119 Not without some hesitation I have concluded that the offenders still have some prospects of rehabilitation. I do so in part because of the fact that in pleading guilty they have accepted responsibility for their actions. Furthermore, by reason of the sentences which I shall impose they will, by the time that they are released, have reached an age at which they can be reasonably expected to have achieved a measure of maturity.

120 I am mindful of the fact that I am sentencing the offenders for two offences, albeit that they occurred during the course of the one incident. That being so, I am obliged to have regard to the principles enunciated in Pearce v the Queen (1998) 194 CLR 610, which of course include questions of totality.

121 It is clear that a sentencing judge has a broad discretion in relation to the approach to be adopted when sentencing for multiple offences: see R v Hammoud (2000) 118 A Crim R 66. In R v Weldon & Carberry (2002) 136 A Crim R 55, Ipp JA (with whom Hulme and Bell JJ agreed) stated the relevant principles to be applied. His Honour said:

A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case: Hoare v The Queen (1989) 167 CLR 348; 40 A CrimR 391.

The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

Wilkins

Pearce v The Queen

122 It is fundamental that I fix an appropriate sentence for each offence. Notwithstanding the fact that the offences occurred during the course of a connected set of events, two separate offences of very considerable gravity were committed by the offenders. Accordingly, I intend to impose sentences which are partly concurrent with, and partly cumulative upon each other.

123 It was not urged upon me that this was a case which warranted a finding of “special circumstances”. In the result, the relationship which the total effective non-parole period that I shall impose bears to the total effective sentence will in each case be in accordance with the normal statutory proportion. In setting those effective overall non-parole periods I have not overlooked the need to fix the minimum period which the offenders must spend in custody: see R v Simpson (2001) 53 NSWLR 704.

124 That leaves the question of parity. It is clear that there are matters which distinguish their cases. For example, the offender IM was on conditional liberty at the time that these offences were committed and has a slightly worse record. CB, on the other hand, has an additional serious offence to be taken into account on the Form 1 document and may have played, at least initially, a more serious role in these offences. But he also made, as I have said, quite fulsome admissions to police whereas IM did not. In the final analysis, it is common ground that it will be necessary for the purpose of sentencing to differentiate between them, mainly because the offender CB has provided significant assistance to the authorities, a matter upon which IM is unable to rely.

125 Nevertheless, it is necessary to ensure that there is “due proportion” between the sentences which are imposed. The correct principles to be applied were stated by Dawson and Gaudron JJ in Postiglione v The Queen (1996-97) 189 CLR 295, in which their Honours said:

126 I will first impose a sentence in respect of the first count in relation to which I will take into account the matters which appear on the Form 1 documents. In doing so, I must have regard to the decision of the Court of Criminal Appeal in A-G’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146. It is appropriate to provide for an upwards adjustment of the sentences which would otherwise be appropriate for count 1, although the increase so far as IM at least is concerned will be relatively modest. I propose to impose a fixed sentence in respect of count 1 because the sentence which I shall then impose for the offence of murder will be both of greater duration and accumulated upon it.

127 The crimes committed by the offenders were violent and callous. So much is apparent from the photographs which were tendered in evidence. Furthermore, the Stilson wrench which it can be inferred was used in the commission of the offences was also put into evidence. It is a substantial implement. The death of Mr Sansom was unwarranted, needless and entirely without justification. The community expects that the law will protect the sanctity of human life and that those who unlawfully take the life of another will be met with salutary penalties. Appropriate punishment must also be imposed upon persons who inflict vicious injuries of the kind which were sustained by Mr Atkin.

128 Each offender has been in continuous custody since the date of his arrest, on 10 August 2004 in the case of CB and on 29 August 2004 in the case of IM. The sentences to be imposed upon the offenders will commence from those dates.

CB

129 For the offence of maliciously inflicting grievous bodily harm with intent to do so, and taking into account the matters on the Form 1 document, you are sentenced to a fixed term of 7 years to commence on 10 August 2004 and to expire on 9 August 2011. For the offence of murder you are sentenced to a non-parole period of 13 years with a total term of 18 years. Each term of that sentence will commence on 10 August 2006. The non-parole period will expire on 9 August 2019 and the total term on 9 August 2024. The total effective non-parole period is 15 years and the total effective term is 20 years. The offender CB is eligible for release on parole on 9 August 2019.

IM

130 For the offence of maliciously inflicting grievous bodily harm with intent to do so, and taking into account the matters on the Form 1 document, you are sentenced to a fixed term of 8 years to commence on 29 August 2004 and to expire on 28 August 2012. For the offence of murder you are sentenced to a non-parole period of 15 years and six months with a total term of 21 years and six months. Each term of that sentence will commence on 28 February 2007. The non-parole period will expire on 28 August 2022 and the total term on 28 August 2028. The total effective non-parole period is 18 years and the total effective term is 24 years. The offender IM is eligible for release on parole on 28 August 2022.

**********

Citations

R v CB; R v Im [2006] NSWSC 261

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1

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CITATION:	R v CB; R v IM [2006] NSWSC 261
HEARING DATE(S):	07/02/06, 09/02/06. 20/02/06, 21/02/06, 22/02/06, 23/02/06, 09/03/06, 16/03/06
JUDGMENT DATE :	7 April 2006
JUDGMENT OF:	Buddin J
DECISION:	CB. For the offence of maliciously inflicting grievous bodily harm with intent to do so, and taking into account the matters on the Form 1 document, is sentenced to a fixed term of 7 years to commence on 10 August 2004 and to expire on 9 August 2011. For the offence of murder is sentenced to a non-parole period of 13 years with a total term of 18 years. Each term of that sentence will commence on 10 August 2006. The non-parole period will expire on 9 August 2019 and the total term on 9 August 2024. The total effective non-parole period is 15 years and the total effective term is 20 years. The offender is eligible for release on parole on 9 August 2019. IM. For the offence of maliciously inflicting grievous bodily harm with intent to do so, and taking into account the matters on the Form 1 document, is sentenced to a fixed term of 8 years to commence on 29 August 2004 and to expire on 28 August 2012. For the offence of murder is sentenced to a non-parole period of 15 years and six months with a total term of 21 years and six months. Each term of that sentence will commence on 28 February 2007. The non-parole period will expire on 28 August 2022 and the total term on 28 August 2028. The total effective non-parole period is 18 years and the total effective term is 24 years. The offender is eligible for release on parole on 28 August 2022.
CATCHWORDS:	Sentence - offences of murder and maliciously inflicting grievous bodily harm with intent to do so - Form 1 matters - one offender on conditional liberty - standard non-parole periods applied to each offence - pleas of guilty - one offender provided assistance to the authorities - parity
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act 1999 Evidence Act
CASES CITED:	A-G’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146 AT v Regina [2005] NSWCCA 410 Cameron v the Queen (2002) 187 CLR 65 Pearce v the Queen (1998) 194 CLR 610 Postiglione v The Queen (1996-97) 189 CLR 295 R v AGR (CCA(NSW)), 24 July 1998, unreported) R v AJP (2004) 150 A Crim R 575 R v Blair (2005) 152 A Crim R 462 R v Chu (CCA(NSW), 16 October 1998, unreported) R v Coleman (1990) A Crim R 306 R v Dang [2005] NSWCCA 430 R v Darwiche [1999] NSWCCA 293 R v Engert (1995) 84 A Crim R 67 R v Hammoud (2000) 118 A Crim R 66 R v Henry (1999) 46 NSWLR 346 R v MA (2004) 145 A Crim R 434 R v NP [2003] NSWCCA 195 R v Previtera (1997) 94 A Crim R 76 R v Rich [2000] NSWCCA 448 R v Sangalang [2005] NSWCCA 171 R v Simpson (2001) 53 NSWLR 704 R v Sukkar [2006] NSWCCA 92 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Waqa (No2) [2005] NSWCCA 33 R v Way [2004] 60 NSWLR 168 R v Weldon & Carberry (2002) 136 A Crim R 55, R v Wickham [2004] NSWCCA 193 Veen v The Queen (No2) (1988) 164 CLR 465
PARTIES:	Regina CB IM
FILE NUMBER(S):	SC 2005/944; 2005/941
COUNSEL:	W Creasey (Crown) W Terracini (Offender CB) B Hancock (Offender IM)
SOLICITORS:	S Kavanagh (Crown) Ross Hill & Associates (Offender CB) Morgan Ardino & Co (Offender IM)
LOWER COURT DATE OF DECISION:	07/02/2006