R v Douglass (No 2)

[2023] NSWSC 465

Supreme Court

New South Wales

Medium Neutral Citation:

R v Douglass (No 2) [2023] NSWSC 465

Hearing dates:

2 February 2023

Decision date:

12 May 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The offender is sentenced to a term of imprisonment comprising a non-parole period of 19 years and 6 months and a balance of term of 6 years and 6 months, being a total sentence of 26 years, to date from 5 October 2016 and to expire on 4 October 2042. The offender will become eligible for release to parole when the non-parole period expires on 4 April 2036.

Catchwords:

SENTENCING – Murder – Sentence after judge-alone trial – Where offender entered elderly deceased's house with a co-offender to steal money – Deceased fatally stabbed by both offender and co-offender – Offender returned to search for money in months before deceased's body discovered – Application of Bugmy v The Queen principle – Offender exposed to childhood physical violence and drug abuse – Complex PTSD contributed to offending to limited extent – No mitigatory remorse – Good prospects of rehabilitation

Legislation Cited:

Crimes Act 1900 (NSW), ss 19A, 112, 154F

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 33, 61

Criminal Procedure Act 1986 (NSW), ss 132, 166

Firearms Act 1966 (NSW), ss 51H, 65

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Douglass v R [2020] NSWCCA 284

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA

DS v R; DM v R [2022] NSWCCA 156

McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94

R v Bedford (1986) 5 NSWLR 711

R v Douglass (No 4) [2019] NSWSC 366

R v Douglass (No 1) [2022] NSWSC 1287

R v Gilmore (1979) 1 A Crim R 416

R v Wilkinson (No 5) [2009] NSWSC 432

Tarrant v R [2007] NSWCCA 124

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Rex
Ammie Douglass (Offender)

Representation:

Counsel:
Mr M Pincott (Crown)
Mr T Jones (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Bannisters Lawyers (Offender)

File Number(s):

2016/197051

Publication restriction:

Pseudonyms used to reflect non-publication orders made on 27 November 2018; 3 August 2022; and 26 September 2022

Judgment

1. HIS HONOUR: On 22 August 2022, Ammie Douglass (the offender), was arraigned before me on a count that between 6 August 2016 and 12 August 2016, at Lithgow, she murdered Christopher Whiteley (the deceased), to which she entered a plea of not guilty. The trial, which was conducted at Bathurst, was by judge alone, pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW). On 9 September 2022, I retired to consider my verdict. On 26 September 2022, I returned a verdict of guilty: R v Douglass (No 1) [2022] NSWSC 1287 (the verdict judgment). The sentence hearing was on 2 February 2023. Supplementary written submissions were received from the parties in mid-February 2023.

2. This was the third trial of the offender on this count. The first was a trial by jury before Schmidt J, sitting in Bathurst, in 2018. The offender was convicted and sentenced to a term of imprisonment of 26 years with a non-parole period of 19 years and 6 months: R v Douglass (No 4) [2019] NSWSC 366 (Schmidt J’s sentence judgment).

3. On 2 November 2020, the conviction was quashed by the Court of Criminal Appeal: Douglass v R [2020] NSWCCA 284. A retrial, which was also by a jury, commenced in January 2022 before R A Hulme J, sitting in Sydney. The evidence was essentially an audio recording of evidence drawn from the first trial, supplemented by viva voce evidence of additional Crown and defence witnesses. The jury were unable to agree upon a verdict.

4. The evidence in the third trial was primarily presented by way of the playing of audio recordings of evidence given in the first trial by the witnesses, including the offender. The audio recordings were edited by the parties and tendered in the form of DVD or CD recordings, as exhibits, together with transcripts of those recordings. The evidence of some witnesses in the second trial and the additional evidence of some of the witnesses in the first trial that was given in the second trial was tendered into evidence by the reading of the edited transcript of their evidence. The current officer in charge of the investigation, Detective Senior Constable Andrew Cole, gave evidence.

5. The maximum penalty for the offence of murder is life imprisonment (Crimes Act 1900 (NSW), s 19A(1)), although it may be reduced to a sentence of imprisonment for a specified term (Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act), s 21(1)), subject to the Court’s finding as to the offender’s level of culpability (CSP Act, s 61(1)). If a sentence of imprisonment for a definite term is imposed, a standard non-parole period applies, which is 20 years in the circumstances of this case.

The facts of the offence

6. It is unnecessary to repeat the facts of the offence, which are set out in the verdict judgment. A summary is as follows.

7. The offender had permanently moved to Lithgow from Sydney in August 2016 with her two children, who were then aged 4 and 8, residing at a location that was arranged through Community Housing NSW. She met AS on an earlier trip to Lithgow, commencing an intimate relationship with him in about July or early August 2016. By 7 August 2016, the offender and AS were cohabiting in her residence. At that time, the offender and AS regularly used prohibited drugs, including methylamphetamine (ice). The offender was then aged 26, and her partner, AS, was aged 22.

8. The deceased, who was aged 69, resided alone in a semi-detached house in Lithgow. The offender and AS believed that the deceased had a significant amount of cash in his residence and determined to steal it. In the early evening of 7 August 2016, they armed themselves with knives, accessed the rear yard of the deceased’s property via a laneway and entered his house through the back doorway. At least one of them was wearing a balaclava. They confronted the deceased, who was in his lounge room watching television. The deceased was unarmed and fought with AS. The offender intervened, stabbing the deceased at least twice, in one of his eyes and in his back. AS also stabbed the deceased. With the deceased at least unconscious on the lounge room floor, they found a sum of cash in the deceased’s clothing and elsewhere in his residence, and left.

9. The Crown had put its case for murder against the offender on two alternative bases. The first was that she deliberately and unlawfully stabbed the deceased with the intention of causing him really serious bodily harm or his death, thereby substantially contributing to his death. The alternative basis was by virtue of the doctrine of extended joint criminal enterprise. On that basis, the Crown contended that prior to entering the deceased’s house, the offender and AS agreed to steal from or rob the deceased and the offender knew that AS would be armed with a knife. She foresaw as a possibility that AS would stab the deceased with the intention of at least causing him really serious harm, but nevertheless determined to continue with their joint criminal enterprise to steal from or rob the deceased.

10. The offender’s case was that she was not present at the killing and did not learn of it until, six days later, AS confessed to her that he had killed the deceased. The defence submitted that if, however, the Court was satisfied that the offender was present at the time that the deceased was stabbed, only AS stabbed him and she had not considered in advance of that act the possibility of AS doing so.

11. A post-mortem examination established that the likely cause of death was blood loss from multiple stab wounds and incised wounds. I concluded, in the verdict judgment, that the offender stabbed the deceased with an intention to kill him and that the knife wounds substantially contributed to his death:

“349   Having regard to the evidence that the stab wound to the deceased’s back penetrated his left lung and the stab wound to the eye, I am satisfied that when she stabbed the deceased she did so deliberately and intended by those acts to at least cause him really serious bodily injury. The fact that the accused did not seek medical attention for the deceased, but rather left him alone in his house with serious wounds is, in my view, evidence of consistency of an intention by the accused at the time of the stabbing to kill the deceased.

350   I am satisfied beyond reasonable doubt that the cause of death was the loss of blood due to multiple stab and incised wounds inflicted by the accused and AS. I find beyond reasonable doubt that the wounds inflicted by the accused substantially contributed to the death of the deceased.”

12. The deceased’s body was not discovered by the authorities until 7 September 2016. In the intervening month, AS returned to the residence on multiple occasions to search for more money, sometimes successfully. In that same period, the offender returned to the residence at least once for the same purpose.

13. The offender and AS were arrested on 5 October 2016. AS ultimately pleaded guilty to murder on the basis that he and the offender entered the deceased’s house with the intention of stealing from him and that during the course of a struggle, he and the offender stabbed the deceased, thereby intentionally causing his death.

Earlier proceedings and AS’s sentence

14. AS was sentenced on 3 August 2018 for the murder of the deceased and two firearms offences, with three other offences taken into account on a Form 1 in the sentence for murder, in accordance with s 33 of the CSP Act. The Form 1 offences were: steal motor vehicle, contrary to s 154F of the Crimes Act; aggravated break, enter and steal, contrary to s 112(2) of the Crimes Act; and possessing ammunition without authority, contrary to s 65(3) of the Firearms Act 1966 (NSW). He received an aggregate sentence of 22 years and 6 months with a non-parole period of 16 years and 11 months: R v A [2018] NSWSC 1195. The indicative sentence for the murder of the deceased was 18 years and 7 months with a non-parole period of 13 years and 11 months. AS received discounts on his sentence for murder for an early plea of guilty (25 per cent) and future assistance in the trial of the offender (13 per cent). The starting point of the sentence for the offence of murder, taking into account the Form 1 offences, was thus 30 years.

A victim impact statement

15. The deceased was a retired schoolteacher. At the sentence hearing, Neil Whiteley, a brother of the deceased, read a victim impact statement in which he referred to some aspects of the deceased’s background. In his youth, he was an excellent school student who received the Queen’s Scout Award and went on to do National Service. Mr Whitelely described his shock at learning the details of the killing of his brother, which rendered him unable to work for several months. He continues to be haunted by the thought of his brother being left to die from the multiple knife wounds that he suffered. The Court offers its sincere condolences to the deceased’s family and friends for their loss and the trauma they have suffered from the circumstances of the deceased’s death.

The remarks on sentence of Schmidt J

16. An understanding of the salient findings and reasons for the sentence passed on the offender in the first trial is required since, ordinarily, a sentence imposed on a retrial should not exceed that which was handed down for the same offence at an earlier trial. In R v Gilmore (1979) 1 A Crim R 416, Street CJ, Lusher J agreeing, said, at 419:

“It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial. The application of this ordinary principle will, of course, necessarily yield in relation to the non-parole period if there is some significant subsequent circumstance to be taken into account. … But, so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again.”

17. In R v Bedford (1986) 5 NSWLR 711 at 712-713, Street CJ elaborated upon the term “ordinarily”, that his Honour had used in R v Gilmore:

“The word ‘ordinarily’ must be given full room to operate. It might perhaps have been preferable to have expressed this as a prima facie approach rather than elevating it to principle.

Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view.”

18. In Tarrant v R [2007] NSWCCA 124, following a review of relevant authorities, the Court (Hidden, Bell and Johnson JJ) held, at [39]:

“… a second trial judge might make findings of fact different from, and more culpable than, those made at the first trial. The reference in the cases to findings of fact must encompass the drawing of inferences. No doubt, a second trial judge would not lightly depart from a finding at the first trial which was favourable to the offender. Nevertheless, it is incumbent upon the second trial judge to make his or her own findings of fact. If those findings, conscientiously made, lead to an assessment of the offender’s culpability greater than that of the first trial judge, a sentence heavier than that passed at the first trial is warranted.”

19. It was common ground between the parties on the sentence of the offender before Schmidt J that the jury had determined its verdict on the basis that the offender was guilty of constructive murder; that is, that the offender committed an offence that had a maximum penalty of imprisonment for life or 25 years; in this case, armed robbery with an intention to wound, which had a maximum penalty of imprisonment for 25 years. Her Honour accepted that that was so.

20. Whether the jury must have concluded that the offender stabbed the deceased was disputed by the parties. Her Honour canvassed the evidence tending for and against that proposition, identifying four aspects that favoured a finding that it could not be established to the requisite standard of beyond reasonable doubt. Firstly, although the offender had repeatedly admitted stabbing the deceased, on one occasion she claimed to have stabbed him in an eye, but such an injury was not established in the post-mortem: see [39], [41] of Schmidt J’s sentence judgment. The other three aspects were the absence of forensic evidence that more than one knife was used, the difficulty in understanding the mechanics of how she could have done so as described by AS in his evidence and the irrationality of her making admissions of involvement, regardless of whether she was involved in the murder: see [41] of Schmidt J’s sentence judgment.

21. Schmidt J concluded, at [40], that only AS stabbed the deceased, stating:

“There is no question that the jury’s conclusion that the Crown had proven beyond reasonable doubt that [the offender] was present when [AS] stabbed [the deceased] in the struggle which he described, was open on the evidence. But that the jury could have entertained a reasonable doubt that [the offender] had also stabbed [the offender] was, I am satisfied, also open given all that it had to consider.”

22. Her Honour found, at [56], that although the offender had not stabbed the deceased and therefore her criminal culpability was “somewhat less serious” than that of AS, the objective seriousness of her offence was nevertheless “within the midrange”, as was that of AS. Her Honour continued, at [57]:

“I do accept that because [the offender’s] role in the murder was not proven to have been as serious as that of [AS], her offence was objectively less serious than his. Nevertheless I am satisfied that the Crown’s contention that despite the different parts which they played in [the deceased’s] murder, the seriousness of [the offender’s] offence did not fall far below that of [AS], must also be accepted.”

23. For similar reasons, her Honour found, at [69], that the offender’s moral culpability was “much less significant” than that of AS.

The offender’s case on sentence following this trial

The offender’s criminal record

24. The offender’s only convictions for offences committed prior to the murder were two offences of driving a vehicle on a road while not having been previously licenced, which were committed on consecutive days, being 11 and 12 June 2016, that is, a month before the murder. She received fines of $1,000 for each offence.

25. The offender committed a further offence of driving a vehicle on a road while not having been previously licenced, on 1 September 2016, that is, post-offence and prior to her arrest, for which she received a sentence of one month’s imprisonment, served from 30 March 2017. For three minor offences committed the same day, she received fines of $75.

26. On the day of her arrest for the offence of murder, the offender was also charged with two counts of possessing stolen firearms contrary to s 51H(1) of the Firearms Act and possessing ammunition without authority, contrary to s 65(3) of the Firearms Act. The charges were referred to the Supreme Court from the Local Court pursuant to s 166 of the Criminal Procedure Act. Schmidt J accepted pleas of guilty from the offender and initially purported to sentence her for these offences. However, it became apparent that they were not “related offences” with the murder count as is required by s 166, and they were returned to the Local Court, where she was ultimately sentenced.

27. In recounting the facts for sentence for those offences, Schmidt J noted in the sentence judgment that the weapons, which were shotguns, had been stolen by AS and stored at the offender’s residence together with ammunition.

28. For the two “possess stolen firearms” offences, the offender received in the Local Court wholly concurrent sentences of imprisonment for a period of 18 months, which commenced on 5 October 2016 and expired on 4 April 2018. For the “unlawful possession of ammunition” offence, she received a conviction with no penalty.

29. Since being in custody, the offender has been disciplined for 23 charges, including six for possessing a drug or failing a drug test. The most recent infraction was on 7 May 2020 and the most recent drug matter, being the possession of a drug, was on 7 April 2019.

Report of a psychologist

30. The defence tendered a report by a psychologist, Ann Marie De Santa Brigida, dated 25 January 2019 and updated on 16 January 2023.

31. Ms De Santa Brigida related a history that she took from the offender, which was to the following effect. The offender’s parents were both users of heroin. She was raised by her mother and stepfather, who also used heroin. There was domestic violence in the household, in her presence. Her mother received sentences of imprisonment for offences of violence and thus was sometimes absent from the household. A friend of her stepfather seriously sexually abused her during such absences, when she was between 5 and 7 years old.

32. The offender stated that she was “never in trouble for misbehaviour” in primary school or high school, although she did occasionally truant in high school. She finished school prior to the completion of year 9. She was in mainstream classes throughout but received “learning support from year 3 to year 6”.

33. When the offender was aged 16, she had a child who is presently aged 16. I will refer to the father of the child as the offender’s first partner. When she was aged 18, she commenced a relationship with a person that lasted “on and off” for about 10 years (her second partner) and produced one child, who at the time of the report was aged 11 years. Her second partner was abusive towards her, resulting in an apprehended domestic violence order (an ADVO) being made. In May 2014, the offender moved into a refuge with her children for at least 14 weeks to escape his violence. Ultimately, she determined to move to Lithgow in the hope of obtaining public housing and making a fresh start.

30. The offender told Ms De Santa Brigida that shortly after she commenced a relationship with AS, he became manipulative and physically violent towards her. I note the evidence in the trial that on the evening of 13 August 2016, the offender reported an incident of domestic violence by AS towards her, during which police observed an injury to her lip and swelling under an eye. Police imposed an ADVO upon AS.

31. The offender was granted bail between the end of the second trial and the handing down of the verdict judgment following the third trial. The offender was employed by a commercial cleaning company for four and a half months in that period.

32. The offender told Ms De Santa Brigida that she started using cannabis at age 8 or 9 and continued to do so until her arrest, by then smoking 8 to 9 cones every one to two days. She started using ice when aged 20, her usage quickly escalating to two points (which I infer to be 0.2g) a day, spending $300 per week on that drug. On five occasions, when unable to obtain ice, she used heroin instead. She had not attempted a course of drug rehabilitation prior to her arrest. She acknowledged her use of drugs in prison, saying they were Buprenorphine and Avanza. At the time of Ms De Santa Brigida’s assessment, the offender was receiving depot injections of Buvidal, which, Ms De Santa Brigida noted, although formulated for opioid addictions, also substantially reduces the craving for ice. The offender denied ever having had an issue with the consumption of alcohol.

33. Ms De Santa Brigida assessed the offender as not evidencing an Oppositional Defiant Disorder or Conduct Disorder, during, or as a result of, her developmental years. However, she met the criteria under the International Classification of Diseases 11^th Revision (ICD-11) for a Type II trauma, which is known as a complex post-traumatic stress disorder (Complex PTSD).

34. Ms De Santa Brigida did not express an opinion as to the offender’s level of risk of future offending, other than to note that an application of the risk of future violence assessment tool known as the Level of Service Inventory-Revised (the LSI-R) yielded a result that she “falls in the low-moderate range for overall risk/needs assessment”. She did not explain the results any further or state whether she had applied that test herself or if the result was in material with which she was briefed. She did not recommend any treatment or provision of services. I note that, although the offender reported being in special classes in primary school, Ms De Santa Brigida’s report did not include an opinion as to the offender’s level of intellectual functioning, or whether she had applied tests to assess the offender’s intellectual functioning. I assume, therefore, that Ms De Santa Brigida considered there was no need to perform a formal assessment since she was clearly in the normal range.

Further material tendered by the offender on sentence

39. The offender tendered a letter in which she maintained her innocence. She stated that she felt “very upset” for the deceased and “great sadness” for his family. She referred to Ms De Santa Brigida’s report, and elaborated on some parts of it, so that the Court had “the correct picture”. She said that her relationship with the father of her older child was brief. It commenced two months before she fell pregnant and ended during her pregnancy. The relationship with her second partner commenced when that child was aged 6 months.

40. In her letter, the offender alleged that her stepfather would “flog” her and psychologically abuse her. She repeated the allegation of being sexually assaulted in an extreme manner when she was a child by a person who was not a part of the household. She stated that she revealed this for the first time to Ms De Santa Brigida when she prepared a report for the sentence hearing following her first conviction.

41. The offender said that her second partner would take drugs and was controlling and paranoid. He would hit and choke her, drug her and sexually assault her while she was unconscious.

42. The offender said that her use of ice from the age of 20 was only “very occasionally” and “on and off” until she was aged 24, sometimes going “a whole month without using”. She gave up using ice altogether while living with her sister before moving to Lithgow, so that, by then, she had not been taking ice for about 8 months. She stated that she resumed using ice when she commenced her relationship with AS.

43. The offender referred to her frustration that she was not caring for her children and her concern as to the poor quality of care that they are presently receiving from her second partner.

44. The offender tendered written references from one of her sisters and a female friend who she has known since primary school. Both women referred to the controlling and abusive relationship that the offender suffered from her second partner. Her sister stated that the offender resided with her while on bail and spoke of her determination to obtain work and achieve a stable lifestyle.

45. The offender tendered a police statement by her, dated 22 May 2014, in which she alleged that her second partner had sexually assaulted her the week before.

46. The offender tendered records from the refuge where she and her children stayed in 2014 and a psychologist’s report in respect of her older child, dated November 2014, that reported psychological and behavioural problems at home and at school.

47. The offender tendered four reports that were generated by domestic violence services between 1 July 2014 and 1 June 2015, which attested to their attempts to obtain public housing for the offender and her children, and two counsellor’s notes dated 27 August and 24 November 2014 concerning on-going unwanted contact from her second partner and its impact on her mental health. Hospital notes were tendered, recording a history of an alleged assault by her second partner on 14 August 2016.

48. The offender tendered documentation from Corrective Services that recorded personal histories that she has given to officers. Its relevance appears to be the consistency of those histories with the content of her letter to the court, the history provided to Ms De Santa Brigida and the account of her sister and friend. I note that in a Corrective Services case note dated 19 December 2018, she stated that she “has being using ice and cannabis on a daily basis up until she was incarcerated”. Some of those notes and reports, and inmate request forms, attest to her continuing concern about the physical, emotional and mental health welfare of her children.

49. Finally, the material includes certificates of completion by the offender of courses available in prison, including the EQUIPS remand addiction program and the Real Understanding of Self Help (RUSH) program in 2017.

Findings on sentence

Objective seriousness

Whether the offender stabbed the deceased

50. The evidence in the third trial was that on multiple occasions the offender made admissions that she had stabbed the deceased, including admissions on five separate occasions that she stabbed him in an eye, which admissions I was satisfied beyond reasonable doubt she had made. By reference to the relevant paragraphs of the verdict judgment, those occasions were as follows.

1. In about late August 2016 to Joshua Sharwood, an admission which she admitted in her evidence she had made: [111], [266].

2. On 29 August 2016 to Ms Spittles, which she denied in her evidence: [98], [272].

3. In late September 2016 to BW, that she stabbed the deceased in an eye and in his back: [120], [121].

4. On the night before she was arrested, to BX, in AX’s presence, which she denied in her evidence: [84], [272].

5. To Paul McLeay, being an admission by the offender in her evidence: [267]. Mr McLeay’s evidence was that towards the end of August 2016 the offender said to him, referring to herself and AS: “They’d stabbed someone, like, killed someone, yeah; stabbed him to death”: [107]. He was not asked if the offender claimed to have stabbed the deceased in an eye.

51. In the verdict judgment, at [348], I found that the offender had stabbed the deceased, at least in one of his eyes and in his back. The evidence of BW was particularly compelling, in my view, in support of the finding that the offender voluntarily admitted as much and, in all the circumstances, that the admission was reliable. I noted that the pathologist’s evidence was neutral as to whether, in view of the severely decomposed state of the deceased’s body, there could have been a knife injury to one of his eyes, but that there were six established stab wounds, including one to the deceased’s back that penetrated his left lung: [38], [42]-[44].

52. The evidence of BW and Mr McLeay was not available in the first trial. BW’s evidence significantly strengthened the prosecution case as to whether the offender stabbed the deceased and, if so, whereabouts on the deceased’s body. The offender did not give further evidence in the second trial, so there was no evidence from her in response to BW’s allegation. However, it was put to BW in cross-examination that the offender did not make the admissions alleged by her, which she denied.

Aggravating circumstances

53. By reference to s 21A of the CSP Act, I note the following aggravating factors. The offender committed the offence in company: s 21A(2)(e). The deceased was a vulnerable person, by reason of his age and his physical isolation from others at the time of the offence: s 21A(2)(l). The victim was killed in his home, where he was entitled to feel safe: s 21A(2)(eb).

54. The Crown submitted that the offence involved an element of gratuitous cruelty (s 21A(2)(f)) by the offender abandoning the deceased to die from his wounds. Having regard to the nature of gratuitous cruelty as an exacerbating factor on sentence as explained by Howie J in McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94, at [30], that submission is not made out.

55. The offence was part of a planned criminal activity in that the offender and AS planned and prepared for the intended offence of stealing from the deceased’s property, but not the offence of murder itself: s 21A(2)(n). The offender is not being sentenced for the larceny, but it is a matter of aggravation of the murder that it was committed in the course of the larceny. In the same way, it is relevant that the offence of murder, although immediately committed to assist AS, was ultimately committed in the course of seeking financial gain: s 21A(2)(o).

56. The murder involved the use of a weapon: s 21A(2)(c). However, that factor is of lesser significance since the offence of murder typically involves the use of either a traditional weapon, such as a knife or firearm, or an object that is being used as a weapon.

57. In the verdict judgment, at [346], I found that at least on one occasion the offender returned to the house in the month following the murder to continue her search for money, while the deceased’s body remained on the floor. I find that this callous indifference exhibited such disrespect for the deceased’s body as to constitute an aggravating factor for the offence of murder, although not in the manner more commonly encountered of post-offence disrespect in cases of murder, for example by the dismemberment of the body: R v Wilkinson (No 5) [2009] NSWSC 432 per Johnson J, at [61].

Moral culpability

58. Central to a determination of the offender’s moral culpability and subjective factors on sentence is the offender’s letter to the Court and the history that she provided to Ms De Santa Brigida, both of which I approach with considerable caution, since the offender’s account of her history in those documents was not given on oath and has not been tested. I make the following findings.

59. The offender’s claim that when she was a young child she was sexually assaulted on more than one occasion by an adult male who was a friend of her stepfather is difficult to assess. I am conscious that offenders who have in fact been sexually abused as a child may not disclose such experiences until, years later, they come into contact with the criminal justice system and are assessed by a forensic expert or a health care professional. On the other hand, the offender had pre-offence contact with counsellors, at least in the context of domestic abuse advice and her need for emergency accommodation. Although she first informed Ms De Santa Brigida of the allegation in 2019, there is no evidence of her having made a statement to police concerning this allegation against, apparently, a known person. Again, there are sound reasons as to why a complainant may choose not to assist police to investigate such an allegation. However, in the absence of sworn evidence or any supporting material, I decline to find that, on the balance of probabilities, the offender was sexually assaulted as a child.

60. Ms De Santa Brigida’s determination that the offender qualified for assessment as having a Complex PTSD depended in part on the offender’s history that she had been sexually assaulted as a child. I am, however, satisfied that the other aspects of the offender’s history that grounded that assessment are made out, because of other material that is consistent with that history and is unlikely to have been fabricated. The offender witnessed physically violent behaviour between her parents, who were using addictive prohibited drugs. Her mother committed criminal offences that were sufficiently serious to warrant sentences of imprisonment.

61. The offender’s childhood exposure to physical violence, serious drug abuse by her mother and stepfather and the consequent absence of positive moral role-models and pro-social behaviour in her formative childhood environment, enlivens the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43].

62. Following a brief relationship when she was aged about 16, the offender gave birth to a child. The offender’s subsequent relationship for a period of about nine or ten years with her second partner was, on occasion, physically and sexually violent. There is a degree of corroboration in her relatively contemporaneous statement of complaint to police and reports to counsellors. I accept that the offender used ice from the age of 20 and 25, that is until about December 2015, which was about 8 months before she moved to Lithgow.

63. The offender commenced a relationship with AS no more than a few weeks before she committed the offence. I am not satisfied by the evidence, on the balance of probabilities, that AS’s behaviour towards the offender at any time before the offence involved actual or threatened physical or sexual violence or any form of psychological or emotional duress.

64. I am satisfied beyond reasonable doubt that the offender was regularly using ice during her relationship with AS in the period leading up to the commission of the offence. There is insufficient evidence to make a finding as to whether the offender was under the influence of ice at the time of the offence, which in any event would be irrelevant as a mitigatory factor, pursuant to s 21A(5AA) of the CSP Act.

65. I am satisfied that the original idea and proposal for the commission of the intended offence of stealing from the deceased came from AS and that the initial decision to stand their ground when confronted by the deceased, rather than simply leave, was also made by AS. The offender chose to conform with that decision and stay, as well. The evidence does not permit a finding as to why the offender set out to steal from the deceased; that is, whether her share of the funds was intended to be used partly or wholly to purchase prohibited drugs or to provide materially for herself and her children or for some other purpose or purposes.

66. I accept that, to a limited extent, the offender’s Complex PTSD contributed to the offender’s decision, made on the spur of the moment, to assist AS by stabbing the deceased in one of his eyes and in his back. I find that, accordingly, the offender’s moral culpability was reduced, but from a starting point of a high level, having regard to the sheer savagery of the offence and the disrespect shown to the deceased’s remains.

Conclusion as to objective seriousness

67. The offender was the elder of the two young perpetrators, armed with knives and at least one wearing a balaclava. The deceased was elderly, unarmed, outnumbered, isolated and taken by surprise. The offender’s motive for being in his home was to steal his money. When the deceased confronted AS, she chose to not leave but instead to use deadly force with a weapon against him as he tried to physically remove AS, her motive for killing the deceased thus being to assist AS. After stabbing the deceased and leaving him to die, she pursued her original objective of searching for his money, indifferent to his plight and suffering, returning at least once before his body was found a month later to search for more money. She did not know the deceased and had no reason to think ill of him.

68. To the limited extent that the offender’s Complex PTSD directly contributed to her commission of the offence, it is a relevant consideration in fixing the level of objective seriousness of the offence: Tepania v R [2018] NSWCCA 247 at [112]; DS v R; DM v R [2022] NSWCCA 156 at [96].

69. The Crown submitted on sentence that the Court would determine that the seriousness of the offence was “above the mid-range”, having regard to the Court’s findings as to the circumstances of the offence, including the offender’s role, namely, that she stabbed the deceased in an eye and in his back, and that her intention was to kill him. The offender did not make a submission as to the level of objective seriousness that the Court should find.

70. I find that the offence is in the mid-range of objective seriousness for offences of this type. I am satisfied on the evidence that the offenders were equally responsible for his death, having regard to the cause of death, being a loss of blood that was attributable to the multiple knife wounds inflicted by both offenders, and that they both chose to leave the deceased unconscious, alone in his home and without medical attention, with the inevitable foreseeable consequence that he would die.

Remorse

71. In her letter to the Court, the offender expressed empathy with the plight of the deceased and the grief of his family. I do not accept that account as being evidence of remorse or in any other way an entitlement to mitigation. It may be that since the offence she has gained some insight into the appalling nature of her offence, but in the absence of an admission of guilt and an assumption of responsibility, it counts for little in the sentencing exercise.

Prospects of rehabilitation

72. As noted, the offender’s only priors were two offences of driving unlicensed, that were committed approximately two months before this offence. The absence of any significant record of previous convictions is a mitigatory factor: s 21A(3)(e) of the CSP Act.

73. I note that the subsequent commission of the firearms offences, although serious, was consequent to her relationship with AS.

74. It is concerning that the offender has incurred so many disciplinary matters whilst in custody, particularly involving drugs. There was a significant improvement in her behaviour in custody in 2020, there being only two offences in that calendar year and none in her last 21 months in custody. Following her last disciplinary matter relating to drugs, on 7 April 2019, she commenced depot injections of Buvidal. I note that her period on bail between 25 February 2022 and 26 September 2022, when she was returned to custody following the conviction, was without incident. I note as well the account by the offender’s sister as to the offender’s determination in that brief period of respite back in the community to obtain employment and live a law-abiding life in that period.

72. I conclude that the offender’s serious criminal behaviour was essentially confined to the period in which she was in a relationship with AS. It is apparent from the evidence in the trial that the relationship is over and that neither of them aspire to rekindle it. She appears to have made significant progress in dealing with her long-standing use of ice, which clearly was a criminogenic factor.

73. I have the advantage of assessing the offender’s prospects of rehabilitation six years and eight months after she committed the offence, and following the seven months that she was recently residing in the community. Overall, with the benefit of that longer period of assessment, I consider her to have good prospects of rehabilitation, which is a mitigatory factor pursuant to s 21A(3)(h) of the CSP Act.

Determinations

Other relevant sentencing principles

77. I am satisfied that no sentence other than one of imprisonment is appropriate and that, having regard to her level of culpability, a determinate sentence should be imposed. I have regard to the purposes of sentencing an offender that are identified in s 3A of the CSP Act, the maximum penalty for the offence of murder and the standard non-parole period of 20 years.

78. The circumstances of the offence require a reflection of specific and general deterrence. The offender’s Complex PTSD slightly reduces the weight to be accorded to considerations of general deterrence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA at [177].

79. It was submitted on the offender’s behalf that her need for rehabilitation warranted an adjustment of the statutory ratio of the non-parole period to the total sentence. However, I am of the view that the statutory ratio will provide a sufficient period of time for that to occur.

80. Although I have made findings as to some aspects of the objective seriousness of the offence and the offender’s moral culpability that tend towards a more severe sentence than that which was imposed following the first trial, the mitigatory effect of the offender’s positive prospects of rehabilitation, assessed from this post-offence vantage point, aligns the appropriate punishment with the sentence imposed by Schmidt J.

Pre-sentence custody and accumulation

81. The offender is presently aged 32. She was held on remand from the date of her arrest on 5 October 2016 until 25 February 2022, which was immediately following the end of the trial before R A Hulme J. She was returned to custody on 26 September 2022, the date of the verdict judgment, being a period of seven months and one day that she was released on bail. I note that the conditions of the offender’s bail were reasonably strict, obliging her to report to police daily and to be subject to enforcement conditions in respect of her abstention from the use of unprescribed or prohibited drugs, and alcohol.

82. The offender’s sentences of imprisonment of 18 months for each of the two firearms offences were served concurrently with each other and while she was on remand. Those sentences were imposed one month after the sentence in the first trial was handed down and were completed before the Court of Criminal Appeal quashed the conviction for murder. As I have already noted, the offender also received a sentence of 1 month’s imprisonment for a driving offence, served from 30 March 2017. In all the circumstances, I will backdate the fresh sentence to her date of arrest.

Parity

83. In sentencing AS, Schmidt J noted that he was subject to conditional liberty at the time of the offence, in the form of multiple bonds (two s 12 bonds and one s 9 bond). Her Honour assessed the objective seriousness of the offence committed by AS as “falling within the mid-range for such offending”. Her Honour accepted that AS was remorseful for the offence but did not find that he was unlikely to reoffend or that he had good prospects of rehabilitation. AS is an Indigenous man who had a difficult childhood and drug and alcohol and mental health issues. As noted, the starting point of his sentence for murder was 30 years, taking into account three Form 1 offences.

84. My finding that the offender was not the originator of the criminal enterprise that culminated in the offence of murder, her absence of a prior record of criminal offending (although she admits to having been a user of prohibited drugs before the offence) and her positive prospects of rehabilitation are significant points of distinction from the circumstances that applied to the sentencing exercise in respect of AS, so that the sentence to be imposed on this offender is not, in my view, disparate to that imposed on AS.

The Crimes (High Risk Offenders) Act 2006 (NSW)

85. Section 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offender. I inform her that, pursuant to that Act, as the release date of her sentence of imprisonment approaches, the State may apply to the Supreme Court for an order that at the end of her sentence she remain in detention or that she be released subject to supervision. An order for continuing detention may be made if the Court is then satisfied to a high degree of probability that she poses an unacceptable risk of committing another serious offence if not kept in detention. An order for extended supervision may be made if the Court is then satisfied to a high degree of probability that she poses an unacceptable risk of committing another serious offence if not kept under supervision.

Sentence

86. The offender is sentenced to a term of imprisonment comprising a non-parole period of 19 years and 6 months and a balance of term of 6 years and 6 months, being a total sentence of 26 years, to date from 5 October 2016 and to expire on 4 October 2042. The offender will become eligible for release to parole when the non-parole period expires on 4 April 2036.

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Decision last updated: 12 May 2023