R v Graham Anthony George Sloane

[2017] NSWSC 152

Supreme Court

New South Wales

Medium Neutral Citation:	R v Graham Anthony George Sloane [2017] NSWSC 152
Hearing dates:	24 February 2017
Date of orders:	02 March 2017
Decision date:	02 March 2017
Jurisdiction:	Common Law - Criminal
Before:	Wilson J
Decision:	The offender is sentenced to imprisonment for 24 years.  That sentence comprises a non-parole period of 18 years commencing on 12 November 2014 and expiring on 11 November 2032, with a balance of term of 6 years, expiring on 11 November 2038.
Catchwords:	CRIMINAL LAW – SENTENCE – murder – s 18 Crimes Act 1900 (NSW) – multiple stab wounds causing death - plea of not guilty – question of partial defence of substantial impairment at trial – defence rejected by jury - question of continuing relevance of mental illness – question of moral culpability - offender with history of violence – no evidence of motive - breach of conditional liberty – relevance of advanced age
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Barton v R [2009] NSWCCA 164 Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Graham Anthony Sloane [2000] NSWSC 1300 R v Holyoak (1995) 82 A Crim R 502 R v Isaacs (1997) 41 NSWLR 374 R v McLean [2001] NSWCCA 58; 121 A Crim 484 R v Quatami [2001] NSWCCA 35; (2001) 127 A Crim R 369 The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Category:	Sentence
Parties:	Regina Graham Anthony George Sloane
Representation:	Counsel: Mr L Carr (Crown) Ms J Manuel SC (Offender)     Solicitors: Solicitor for Public Prosecutions (Crown) Mandy Hull (Offender)
File Number(s):	2014/334584
Publication restriction:	None.

Judgment

1. On the evening of Remembrance Day 2014 Renee Mitchell was violently murdered for reasons that will probably never be truly known to either her family, or to this Court. Graham Anthony George Sloane was indicted for her murder, and found guilty of that crime by a jury on 9 February 2017. He now stands for sentence.

2. Section 19A of the Crimes Act 1900 (NSW) provides a maximum penalty of life imprisonment for murder. The Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) fixes a standard non-parole period of 20 years. These are the statutory guideposts that the Court must take into account, along with the other facts and circumstances relevant to the assessment of sentence.

3. Murder attracts such a severe maximum sentence because it is regarded as a most serious crime. The reason for that was poignantly illustrated in this case by the victim impact statement read to the Court during the sentence proceedings on 24 February 2017, demonstrating as that statement did, the great and enduring harm done when a member of the community is murdered.

4. The offender having been found guilty of Mrs Mitchell’s murder, it now falls to this Court to determine the facts of the crime, consistent with the jury’s verdict: R v Isaacs (1997) 41 NSWLR 374. Facts to be taken into account which are adverse to the offender must be established beyond reasonable doubt. Matters which the offender relies upon to mitigate his offence must be proved by him on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27].

5. The Court finds the facts established by the evidence to be these.

The Facts

6. The offender came to know Renee Mitchell and her family through his late father, who had been a neighbour of the Mitchells. The offender moved with his wife from Queensland to live with his father in the Windale area in about 2011. He thereafter became friendly with Mrs Mitchell and her husband Dale and their children.

7. In 2012 or 2013 the offender's father and wife both died, and it is common ground that Mr and Mrs Mitchell provided considerable friendship and support to the offender in the aftermath of those events.

8. Initially, the offender continued to live at his late father's home in the same street as the Mitchell family. When he moved to another address in Windale the Mitchells helped him with the move.

9. In about November 2013 the offender and Dale Mitchell argued after the offender made some offensive sexual comments about Renee Mitchell. Having been told he was no longer a welcome visitor to the Mitchell home, the offender did not see the family again until a day in October 2014, when he arrived at the Mitchell home without invitation or preamble.

10. On that day the offender entered the Mitchell home without knocking, greatly to the surprise of Dale Mitchell. Although there is no evidence of it, it seems likely that the offender was told to leave. In any event, he did leave, and Mr Mitchell had no further contact with the offender until about 8 November 2014.

11. On that occasion the offender, who seemed in a happy mood, approached Dale Mitchell and, in unsavoury terms, told him that a woman he had been involved with had been seeing another man. He asked for Mr Mitchell's aid in "castrating" his rival. Mr Mitchell told the offender to go away and not come back.

12. On 11 November 2014 the offender again came unwanted and uninvited to the Mitchell home in Windale, walking into the premises a little before 3pm, where he spoke with Mr and Mrs Mitchell's eldest son, Aaron. Referring to Mr and Mrs Mitchell, the offender asked Aaron, "They're not in bed having sex are they?” (T138:35). After that exchange Dale Mitchell emerged from the bedroom into the lounge room, where he spoke with the offender. He told the offender in peremptory terms to get out of his house. The offender left and Mr Mitchell returned to his bedroom.

13. Mrs Mitchell had been at home during that exchange, but had been in bed, in readiness for a night shift she was to commence at her place of employment that evening.

14. At around 3.15 that afternoon the younger children of the family returned home from school, and sometime after that Mrs Mitchell got up and began preparing the evening meal. Because she had been in bed, she was dressed only in boxer shorts and a t-shirt. She had no shoes on, had not done her hair, and was not wearing her dental plate.

15. Mrs Mitchell placed a telephone call to a friend at 4.33pm and, as a consequence, her friend picked up some cigarettes for her and called around briefly to her house to drop the cigarettes to her. Mrs Mitchell placed another telephone call to the same friend at 4.47pm, evidently to make arrangements for her friend to pick her up later in the evening and drop her to work. She continued with preparations for the evening meal.

16. For a short time at around 5.15pm, the offender attended a Harvey Norman store at Bennetts Green, only a very short distance away from the Mitchell's home, being recorded by closed circuit surveillance systems between 5.14pm and 5.16pm (Ex. Q).

17. It is most likely to have been soon after that that the offender attended the Mitchell home for the second time that day.

18. Mrs Mitchell’s youngest children were in the front yard playing with some neighbouring children. Mrs Mitchell was in the kitchen cooking a meal for her family. Dale Mitchell was in his bedroom. Aaron Mitchell was in the lounge room, keeping an eye on the children through the front windows. He saw the offender drive up and park his car outside the house, and watched as he got out of his car and came up to the house, which he entered without knocking or gaining leave.

19. The offender commented on Aaron Mitchell’s appearance, saying something about Aaron looking good, and that he should stay away from the offender’s wife. (The offender’s wife had died in around 2012, although there is evidence that he was involved with another woman at around this time.) Aaron left the house and went into the back yard.

20. Aaron Mitchell heard the offender say, he thought to his mother, “Can we talk out the front” (T140:30).

21. Although no-one saw her leave, and the precise reason for it will probably remain forever a mystery, Mrs Mitchell left the house at this time and got into the offender’s car, whereupon he drove her away, with only her younger children as witnesses to her departure.

22. Mr Mitchell got up soon after, to find that his wife had gone, in the midst of preparations for dinner.

23. It was not Mrs Mitchell’s practice to leave her home without telling a family member that she was going out, and never in the state of undress in which she was that evening. According to Mr Mitchell, it was his wife’s habit to dress, do her hair, and wear her dental plate when going out, and she usually took with her purse, telephone and cigarettes. She made none of those preparations on this evening.

24. It seems likely that she left the house under compulsion. By his own later admission to mental health professionals the offender had a knife in his car on the day; it may be he used it to coerce Mrs Mitchell to go with him. That proposition, however, is speculative; the evidence does not establish why Mrs Mitchell accompanied the offender. I am satisfied, however, that Mrs Mitchell left the house under some form of compulsion from the offender. No other rational conclusion is open on the evidence.

25. Mr Mitchell, concerned at his wife’s inexplicable absence, and having heard from his youngest children that she had gotten into the offender’s car and been driven away by him, telephoned the offender’s mobile telephone, using Mrs Mitchell’s mobile telephone. He placed the call at 6.25pm; it went unanswered. Mr Mitchell tried the number again at 6.26pm, 6.29pm, and 6.31pm, but none of the calls were answered.

26. The offender had driven Mrs Mitchell to Bangalay Reserve at Croudace Road Windale. There, in a grassy area just off the car park, and before an area of shrubs and bush, he fatally stabbed her, using the knife that had been in the car. The knife was never recovered.

27. It seems likely that Mrs Mitchell tried to run away from the offender, perhaps as soon as she could get out of the car. The offender himself told Dr Banks, after numerous protestations of a complete absence of memory, that “it” happened “when she got 20 feet away” (T274:05). He said to Dr Allnutt (T298:30) that he walked up to her and stabbed her in the chest.

28. According to Dr Beer, the forensic pathologist who later examined Mrs Mitchell’s body, she sustained five significant stab wounds, together with other defensive or more minor injuries, to a total of 16 wounds.

29. The most significant injuries were:

1. A penetrating wound to the upper left side of the torso, being 105 millimetres long, with irregular margins indicative of considerable movement of the knife in the wound, additional to the movement of the blade in and out. The wound passed through the skin, partially through the fourth left rib bone, through the left lung, through the pericardium, and into the upper left ventricle and aortic valve of the heart. The track of the wound was left to right, back to front, and downwards.

2. A second penetrating wound to the left torso was 130 millimetres long. It passed through the skin, through muscle located between the fifth and sixth left ribs, through the periphery of the lower lobe of the left lung, through the pericardium, and into and through the lower left ventricle of the heart, and passing through the right ventricle of the heart. It stopped only after having penetrated the sternum, from the back to the front of the bone. This wound was one which, in the unchallenged opinion of Dr Beer, would have taken “considerable force” to inflict (T60:38).

3. A third penetrating wound just below and merging with that just described which was 130 millimetres long, and which passed downwards through the skin, through the intercostal space between the eighth and ninth left ribs, through the left lung, through the diaphragm, and slicing 25 millimetres across the top of the surface of the spleen.

4. A fourth stab wound to the right upper middle chest was 30 millimetres long, and passed through the skin, through the cartilaginous matter connecting the second and third ribs to the sternum, (peripherally) into the upper section of the right lung, into the pericardium, and into the upper right atrium and ventricle of the heart, and then out through the left atrium.

5. A fifth stab wound (numbered 14 by Dr Beer) entered the front of the throat and was 30 millimetres in width. The wound passed through the upper throat above the level of the hyoid bone, sliced the windpipe almost in two, and sliced a piece of bone from the side of the vertebra.

30. Any one of these five wounds could have caused death, and the force required to inflict at least three of them was significant.

31. Additional to these injuries, Mrs Mitchell sustained a number of others, some of which Dr Beer characterised as defensive. There were wounds to the left forearm indicating that Mrs Mitchell raised her arm in an attempt to fend off the blows struck at her by the offender, and to her left hand, likely caused when she tried to grab at the knife in her own defence. Two of the hand wounds were deep, with one partially slicing through the tendon, and the other slicing to bone. The number of injuries to the fingers and left hand suggested to Dr Beer that Mrs Mitchell tried repeatedly to ward off the knife. There were eight such wounds, some of them quite deep.

32. Further stab or slice wounds were noted.

33. One sliced downwards through the skin of the left side of the forehead just below the hairline, exposing the skull bone. Another sliced through the scalp just above the left ear, indenting the skull underneath and leaving a slight incision mark on it. This wound was 50 millimetres in length. There was a cut to the top of the left ear, and a stab wound just above the left shoulder blade, which was 15 millimetres long and 63 millimetres deep.

34. There were various minor abrasions, including an abrasion to the left knee which indicated, together with the dirt adhering to the skin, that Mrs Mitchell had at some point fallen onto her left knee.

35. Dr Beer concluded that the five stab wounds to the torso and throat were probably inflicted within close temporal proximity, and were likely the last injuries inflicted, because of their severe, and inevitably fatal, nature, and because one of the wounds was relatively vertical in orientation, suggesting that Mrs Mitchell had fallen. The other wounds probably preceded these five injuries, and were sustained in the course of Mrs Mitchell trying to flee, and as she sought to protect herself from the knife. Dr Beer said in evidence,

“[…] I would suspect a number of those wounds occurred in a fleeing pursuit type process. They came to a standstill. I would suggest quite possibly that at that point she has gone down onto her knees. At that point probably several blows were imparted and then quite possibly the final three occurred as she went over.” (T81:27)

36. The throat and chest wounds were so severe that Mrs Mitchell could have survived their infliction for only minutes at best.

37. Having inflicted these injuries upon Mrs Mitchell the offender, in his words to Dr Banks, “just walked away” (T273:43).

38. The knife blade used to fatally stab Mrs Mitchell was, in the opinion of Dr Beer, a minimum of 160 millimetres long, with a likely width of 30 millimetres. The offender must have disposed of the weapon and probably after leaving the Reserve, since it was never found, despite a search of the Reserve and of the offender’s home and car.

39. After his attack on Mrs Mitchell the offender returned to her home. Dale Mitchell saw the offender drive up to the house in his car and park in the street outside. He got out of the car, at which time Mr Mitchell noticed that, whilst the offender appeared to be wearing the same shorts he had earlier seen him in, he had removed the shirt he had been wearing. Mr Mitchell thought that he was barefoot.

40. This is of some significance, since it was the offender’s shirt and shoes that were later found to be stained with Mrs Mitchell’s blood. The offender had the presence of mind to remove them before going to the Mitchell’s home.

41. Mr Mitchell demanded to be told where his wife was, to which inquiry the offender asserted,

“I dropped her up the road at Windale shops with my wallet because she is going to Bennetts Green tomorrow and she is going to get some things when she is there.” (T133:40)

42. Mr Mitchell refuted that as impossible, but the offender maintained that it was so. He then returned to his car and drove off at speed.

43. Mr Mitchell asked his older sons to go to the Windale shopping area to look for Mrs Mitchell, but the boys could not find her there. They next went to the offender’s unit in Windale and found the offender out the front of the block of units near his car. He was doing something with a dustpan and brush to the floor of the car. Aaron Mitchell asked the offender about his mother’s whereabouts, but he maintained that he had dropped her at the shops. Although it was not in response to anything raised by the boys, the offender volunteered “I’d be the last person to hurt mum” (T142:40), and repeated it a number of times.

44. The offender allowed the boys to look inside his unit, but nothing was found.

45. At 6.48 that evening, Dale Mitchell telephoned police to report what had happened, and that his wife was missing.

46. By 7.23pm the offender had changed his shirt and divested himself of the shoes he had been wearing earlier. He was recorded thus attired by security cameras when he went to a bottle shop at Windale to buy liquor.

47. At about 7.30pm Senior Constable Jeffes attended the Mitchell home to investigate Mrs Mitchell’s disappearance. Subsequently, at about 8pm, he attended the offender’s unit to speak to him. The offender appeared calm and friendly and was cooperative. He told S/C Jeffes that he had picked Mrs Mitchell up and driven her to the Windale shops at about 4.30pm. He claimed that Mrs Mitchell had his wallet as she had agreed to collect some electrical goods for him the following day. When asked where she was, the offender replied,

“I don’t know. I left her at the shops and drove home.” (T89:30)

48. He denied having heard from or seen her since dropping her at the shops, but promised to have her get in touch with police if she contacted him.

49. At about 6 o’clock the following morning, 12 November 2014, Mrs Mitchell’s body was found in Bangalay Reserve by early morning walkers. Police were advised of the discovery, and the investigation into Mrs Mitchell’s murder began.

The Arrest of the Offender

50. The offender was located by police at about 11.25 that morning driving in Cardiff. His vehicle was stopped and he was arrested. Apparent blood staining was observed by police on the outside of the car near the driver’s door (“the B pillar”) and on the ignition barrel. On arrest he was wearing slip on shoes; the left shoe was visibly stained with what appeared to be blood. A roadside breath test administered to him at the time gave a reading of 0.011 grams of alcohol per 100 millilitres of blood.

51. The offender’s clothing and footwear were seized.

52. He was spoken to at the scene, with the conversation recorded. The offender was then taken to Charleston Police Station where, after seeking and obtaining legal advice, he agreed to be interviewed.

53. During the interview the offender denied any involvement in Mrs Mitchell’s murder, maintaining the version of events he had given to Dale Mitchell and S/C Jeffes.

54. He was later charged and remanded in custody, continuing in custody until today.

The Offender’s movements on 10, 11 and 12 November 2014

55. In the interview with Detective Senior Constable Dean the offender said that, prior to 11 November 2014, he had visited Narrabri and Moree.

56. He made a purchase at a Harvey Norman store at Moree a little before 1.30 in the afternoon on 10 November 2014, for items costing $1,598.95.

57. By that evening the offender had returned to the Newcastle area.

55. At about 9.40pm the offender went to the nursing home where Mrs Mitchell was working a night shift, and asked for her. He was noted to be bare chested, smelling of alcohol, and apparently intoxicated. Mrs Mitchell was fetched and spoke to the offender in the foyer of the nursing home for about 30 seconds or a minute, after which the offender left. She was not observed to be distressed after speaking with the offender, and nothing seemed out of the ordinary.

56. The same man had been seen to attend the nursing home on a previous occasion in mid-October 2014, and ask for Mrs Mitchell, who spoke with him. After that visit, Mrs Mitchell told her supervisor that the man was a family friend.

57. On the morning of 11 November 2014 the offender was in Newcastle West, at a music store known as Muso’s Corner. He spoke there with a salesman, Mr Dunn, about purchasing some musical equipment, referring to a lay-by he had taken out “ages” before for a bass guitar (T162:10). On checking the store’s computer system Mr Dunn found that the lay-by for the guitar (priced at $1,195) had been “put on” the system (T162:21) at a nearby sister store, Foley’s, that day.

58. Mr Dunn explained to the jury that the lay-by could have been taken out on a previous occasion but not “made the system” until that day (T162:20). It had not been “flagged” and the customer had not been contacted (T162:25). Although it was the offender’s case to the jury that he had taken out the lay by that morning prior to attending Muso’s Corner, there was some uncertainty about that in Mr Dunn’s evidence, with the time and date on which the lay-by was taken out left obscure. (See also T175:30.)

59. At Muso’s Corner the offender told Mr Dunn that he was a comedian who had “done shows over in Iraq for the troops” (T162:50 – T163:01). Mr Dunn thought that was “a bit strange” (T173:29), and the offender’s conversation on that topic a “little bit erratic” (T176:40) but he did not ask the offender any questions about it or engage in any further conversation on the subject.

60. The offender moved about the store pointing to various items indicating he wished to purchase them. He selected a number of guitars, all of them of reputable manufacture, without being at the highest end of the price scale. Mr Dunn demonstrated some of the instruments, and there was a discussion about the purchase of accessories, such as guitar cases and straps. Some of the items selected by the offender had prices displayed on them; for others Mr Dunn “made a deal” for the offender. (T164:03)

61. The offender did not play any of the instruments himself prior to selecting them for purchase, something which customers ordinarily did (T174:06), contributing to Mr Dunn’s impression that the offender may have intended them as gifts. If purchased for personal use rather than as presents Mr Dunn thought the mix of items “eclectic” (T174:28) or “inordinate” (T174:35).

62. The total cost of the items selected, including five guitars and two bass guitars, was $8,551.60. The offender paid a cash deposit of $5,000, a sum he had withdrawn from a bank at Belmont at 11.39am that day.

63. Mr Dunn said that his conversations with the offender, over about 45 minutes during the 90 or so minutes that he was in the store, were “quite genuine” (T169:43); and he had no difficulty in understanding the offender (T169:47) and he did not think the offender had any difficulty in understanding him (T170:48).

64. The offender made some comments of a sexual nature, which Mr Dunn took to be intended as a joke (T171-172), or “banter” (T176:04). He thought his general demeanour was “sleazy and strange” (T177:01), but such behaviour is evidently not unusual for customers of the store (T177:12).

65. The offender left the store, indicating he would collect the goods when he collected a new larger car that he was purchasing.

66. Between 1.25 and 1.28pm the accused was recorded by security cameras outside the Newcastle Leagues Club, located close to Muso’s Corner.

67. Between 1.38 and 1.41pm he was recorded by security cameras at a McDonalds Restaurant at Charlestown.

68. Between 1.48 and 2.05pm the offender was recorded by security cameras at the Harvey Norman store at Bennetts Green. At the store he dealt with Mr Krrop, the store manager, buying some computer equipment. The offender told Mr Kropp that he was touring as a comedian and needed the equipment for that purpose. He selected a laptop computer and a printer and, because he said he would be travelling, selected a mobile broadband device, choosing the brand that provided the best coverage. Mr Kropp suggested that the offender might wish to purchase anti-viral software and there was a discussion about that. The offender asked for and selected anti-viral protection for the computer for a five year period, choosing the brand that was on sale.

69. Mr Kropp thought that the offender knew what he was looking for, without being particularly knowledgeable about computers.

70. The offender provided his name and contact details without difficulty, but was apparently surprised at the cost of the purchase, being $901, telling Mr Kropp that he would have to go and get more money. The goods were put aside for him, pending his return. The offender left the store.

71. At 2.29pm the offender went to the same bank in Belmont that he had earlier attended, and withdrew $200 in cash.

72. At 5.15pm he was back at Bennetts Green to leave a $50 deposit on the computer equipment that he had earlier selected at Harvey Norman.

73. It must have been in the course of the next hour or so that the offender murdered Mrs Mitchell.

74. By 7.23pm the offender was at a liquor store in Windale, wearing no shoes and a blue top. He had plainly divested himself of the by now bloodstained shoes and red jumper prior to entering the store. His demeanour was not such that the attendant thought him intoxicated and, although the offender spoke about going to Iraq, he was regarded as being “pretty normal” and, if anything, “calmer and more laid back” than usual (T226:21).

75. Soon after, Senior Constable Jeffes attended the offender’s unit, Mr Mitchell having notified police of his wife’s disappearance. The offender gave the officer a false account of events, to protect himself from discovery.

76. The offender was arrested on 12 November 2014, as he drove out of the car yard where he had been negotiating the purchase of a new car. He was wearing the shoes bearing Mrs Mitchell’s blood, and there were two visible blood stains on his car. Forensic analysis of the offender’s hands detected some probable blood stains. A search of the offender’s unit revealed the bloodstained red top, with the offender’s wallet in a pocket. There was some visible bloodstaining on the front door.

77. The carelessness with which the offender had treated this evidence is illustrative of his disordered thought processes.

The Offender’s Mental State

81. At the offender’s trial the partial defence of substantial impairment was advanced and relied upon by the offender to reduce his crime from murder to one of manslaughter. In particular, the offender contended that his capacity to control himself was substantially impaired by a pre-existing Bi-polar disorder from which he suffered. That defence was rejected by the jury.

82. The rejection by the jury of the partial defence of substantial impairment does not render the question of the offender’s mental state wholly irrelevant. Any mental illness may still have significance to the assessment made of the offender’s moral culpability, and to other matters relevant to the determination of sentence, including the question of the weight to be given to the principle of general deterrence: Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.

83. The former depends to some degree on the existence and extent of any causal connection between the mental impairment and the commission of the crime.

84. There is no dispute that the offender was suffering from a Bi-polar disorder at the time of the commission of the crime; it is its severity and its relevance to the commission of the crime which is in question.

85. The evidence for the offender’s mental illness comes from those who had an opportunity to observe him at around the time of Mrs Mitchell’s murder, and mental health professionals who examined him subsequent to that event.

86. I have referred already to the offender’s movements on 11 November 2014. In the course of his activities that day and the following day he came into contact with a number of people in the community, some known to him and some not. Some information as to his mental state can be gleaned from that evidence.

87. The offender’s presentation at Muso’s Corner was unusual but, on the evidence of Ian Dunn, not markedly so.

88. The offender told Mr Dunn that he was a comedian who had staged performances for troops stationed in Iraq; this was untrue and points to the grandiose thinking referred to by psychiatrists who subsequently examined the offender. The offender made a large purchase of musical instruments and related items of which he could have had no real need: this also points to his grandiose notions at the time. However, Mr Dunn regarded the offender as genuine, and his conversation as responsive and comprehensible, if on occasion distasteful. Whilst the offender’s purchase stood out to him by virtue of its “crazy nature” (T177:10) he does not seem to have thereby categorised it as illegitimate, or the offender himself as other than genuine.

89. Similarly, although Luke Bisegna referred to the offender in conversation with his employer as “the crazy” (T202:06) this description seemed to be referable to the manner in which the offender went about purchasing a motor vehicle rather than necessarily to his mental state. Mr Bisegna deposed that the offender had not wanted to test drive the car he selected to buy, and sought to leave a cash deposit for the car without benefit of a receipt. He described the offender as “cocky” and speaking in an “aggressive tone” (T190:35), but noted that he had no difficulty in understanding the offender’s conversation, which was appropriately responsive. The offender was able to discuss finance options and to negotiate for a lesser purchase price for the vehicle than that initially offered to him.

90. Andrew Kropp also had business dealings with the offender on 11 November 2014, but he did not notice anything particularly unusual. He assessed the offender as knowing what he wanted with respect to a proposed computer purchase, without necessarily knowing about computers themselves. There was nothing in the purchase which pointed to incapacity; indeed, there was some perspicacity in the selection of sale items, anti-viral software, and a broadband device with wide geographical coverage.

91. On attending the Mitchell residence on the late afternoon of 11 November 2014 the offender walked into the house without knocking, and made some inappropriate comment to Aaron Mitchell, but it is difficult to assess the significance of his conduct in the absence of evidence as to the offender’s usual demeanour.

92. How the offender’s conduct is to be assessed, and what it may say about the extent and severity of his Bi-polar disorder, is informed by the evidence of Christopher Bond, a former neighbour of the offender who had opportunity to observe him in the period leading up to the offence.

93. Mr Bond had known the offender for 14 or 15 years prior to the commission of the offence. He knew him to be a “big drinker” (T231:45) and an impulsive individual, someone who got an idea about something and who would act immediately on the idea until losing interest.

94. Mr Bond was the person to whom the offender was referring when he told investigating police on 12 November 2014 that he had a manager for his work as a comedian.

95. The offender raised the idea of becoming a comedian, with Mr Bond acting as his manager, a couple of times prior to November 2014. Mr Bond was involved in the entertainment industry and so the offender’s choice of him as a possible manager does not seem extraordinary of itself. Mr Bond himself seems to have contemplated the suggestion as a possibility; he gave his own busyness as a reason why nothing came of it (T233:26) and agreed that the offender’s scheme of travelling overseas to work may have been one of his impulsive ideas (T233:40).

96. Mr Bond deposed that the offender had suggested that he and his wife join a musical band with him and perhaps others as part of the proposed tour. That Mr Bond did not see anything bizarre about the offender’s scheme for entering the entertainment industry was clear from his evidence. He told the jury that he and his wife listened to the offender’s plans, “taking it in and working out how the concept would come around” (T238:18). Mr Bond and his wife were prepared to “rethink” their situation to see whether the offender’s proposal should be accepted (T239:36).

97. Some other schemes suggested by the offender, such as a business selling trucks, were similarly not regarded dismissively by Mr Bond. Indeed, noting the offender’s contacts in the trucking industry, Mr Bond assessed the scheme to buy and sell trucks as a viable one, at least in theory (T240:44).

98. Whilst the offender’s means were not extensive, being in receipt of a veteran’s pension, he did have what was referred to as “a fairly substantial term deposit” (T243:30).

99. The offender accompanied Mr Bond to a meeting in early October 2014 connected with music industry awards, on which occasion Mr Bond observed him to be “not himself” (T234:09). Although the offender was initially “fine”, as the meeting progressed the offender became agitated and seemed not to be keeping up with the conversation around him.

100. The last occasion on which Mr Bond saw the offender was about a week before Mrs Mitchell’s murder, when the offender attended Mr Bond’s home. He seemed to be “not with it”, unsteady, fidgety, and agitated. Mr Bond thought something was “not quite right” (T235:37).

101. Mr Bond went to the offender’s unit after the offender’s arrest and described it as looking “like a bomb had hit it” (T242:30). He observed that other residences in which the offender had lived had always been tidy, although the offender had lived with either his wife or mother at those addresses. The offender himself explained the chaotic state of his apartment to police by saying that he was in the process of packing up to leave (Ex. H, Q917, p.88 of the aide memoire).

102. The final evidence concerning the offender’s presentation in the community was Ex. H, the recorded interview between the offender and investigating police of 12 November 2014. In it, the offender maintained the version of events that he had given Dale Mitchell the previous evening, that being that he had seen Mrs Mitchell to arrange for her to collect some of his purchases from Bennetts Green on the following day, but had left her at the Windale shopping area, in possession of his wallet containing a sum of money, after she had seen an acquaintance whom she wished to speak to.

103. The offender appeared to attempt to deflect suspicion for Mrs Mitchell’s murder onto her husband, and gave police a false account of a relationship he claimed to have had with Mrs Mitchell. Whilst it may not have been skilfully done, the offender’s assertions and claims were intended as exculpatory. Although his comments were frequently in very poor taste and even offensive at times, there is no evidence of his usual manner and demeanour, at a time when he was not said to be mentally ill, that would permit any comparison to be made.

104. By report Dr Westmore, who viewed the recording of the interview with police, “thought there could be abnormalities detected in [the offender’s] presentation” (Ex. SD, p.13).

105. On the accounts of lay witnesses the offender’s behaviour in the period preceding his crime was occasionally odd, and his spending injudicious, but there was nothing in it that might explain the events of 11 November 2014.

106. The unchallenged expert evidence was that the offender was suffering from Bi-polar disorder in the period leading up to the commission of the offence.

107. On reception to prison on or soon after 12 November 2014 the offender was found to be belligerent and aggressive and not following direction. He was thereafter admitted to the Mental Health Screening Unit, and assessed by a rapid response team. On 16 November 2014 he was noted to be “disconnected from reality” (T250:11) by the examining doctor, Dr Elliott. He told Dr Elliott that his family had recently been killed in a car crash, and made other false claims.

108. Dr Tuan Nguy, consultant psychiatrist with Justice Health, saw the offender on 27 November 2014 and conducted a mental state and cognitive examination. The doctor found evidence of some mild cognitive impairment, and noted that the offender was elevated in mood, overfamiliar, and grandiose. The offender told the doctor that “spooks”, his term for police or the British police, had found the real killer and that he, the offender, was to be released. His beliefs in that regard were seen as fixed and false.

109. Although Dr Nguy concluded that the offender was diagnostically uncertain, he thought the offender was likely to be suffering from mania. His opinion given on 1 December 2014 was that the offender had had “an acute episode of probable psychosis bipolar effective disorder, manic episode with psychotic features and alcohol abuse dependence” (T256:02).

110. The offender was sufficiently ill as to be transferred to a mental health facility and subjected to involuntary treatment pursuant to s 55 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

111. The offender was assessed by Dr Bruce Westmore and, although no report from Dr Westmore is in evidence, an account of some of his conclusions is (Ex. SD). It appears that Dr Westmore found that, whilst the accounts of lay witnesses with which he had been briefed suggested deterioration in the offender’s behaviour, there was insufficient evidence to provide an opinion as to whether the offender’s mental illness played an immediate, direct, or obvious role in the offence.

112. Dr Stephen Allnutt saw the offender on three occasions, 1 November 2015, 22 December 2016 and 11 January 2017. He concluded that the offender had a combination of depressive and hypomanic symptoms at the time when Mrs Mitchell was murdered, one of the expressions or symptoms of the latter being excessive spending. Dr Allnutt accepted that the offender had Bi-polar affective disorder, describing such a condition in the following terms:

“Bipolar affective disorder is a condition that generally onsets in one’s twenties, characterised by episodes of mood fluctuation. Over a long period of time, a person doesn’t necessarily manifest symptoms of bipolar affective disorder and often there are periods of common, most commonly there are periods of normal mood. So when we talk about bipolar affective disorder, we’re talking really about a propensity to experience periods of mood innovation or mania, sometimes of a lesser severity, called hypomania, that’s with an ‘o’, ‘p-o’. And periods of depression, consistent with major depression. So when you use the term that a person has bipolar affective disorder, really what it means is this person has a propensity to these mood fluctuations but it doesn’t mean they are sitting in those mood states all the time. So, but that does mean he has an underlying condition” (T292:05-18).

113. The offender had initially claimed to Dr Allnutt that he had no memory of the events surrounding the death of Mrs Mitchell, a claim Dr Allnutt regarded as inconsistent with the clinical picture he had noted, and inconsistent with the disposal of the murder weapon, and the accounts of events given to police and others subsequent to the crime. The doctor ultimately concluded that the offender had simply chosen to claim amnesia, rather than genuinely experiencing such a condition.

113. In evidence at trial Dr Allnutt said that he believed that, at the time of Mrs Mitchell’s murder, the offender retained the capacity to understand events, and to differentiate right from wrong. Although he could not definitively rule out the possibility that the offender was not able to control his actions, the doctor appeared to be generally unpersuaded by the offender’s claims in that regard.

114. The only basis upon which to conclude that the offender could not control his actions was the offender’s own assertion to that effect, made for the first time in December 2016 to Dr Allnutt. Nothing about the urge as described by the offender was consistent with what Dr Allnutt would have expected of a genuine psychotic phenomenon. The urge was transient, rather than persistent; there was no information as to its derivation, such as insertion into the mind from an external source; and it was not associated with any fear or appreciation of adverse consequences following a failure to act on the urge.

115. Dr Allnutt did not regard the offender’s assertions of acting under compulsion as “convincing”, and thought the foundation for his claim was “limited” (T307:20-27). My assessment of the evidence is that the offender was able to control his actions; he simply chose not to, acting on a motivation that is not established on the evidence.

116. Although it is not possible to know the basis upon which the jury rejected the partial defence, it seems at least likely that the jury did not accept the offender’s claim to have acted as a consequence of an uncontrollable urge, probably because the veracity or genuineness of the offender’s claims in this regard must be considered as suspect.

117. In the evidence before the Court on sentence there is a clear basis for circumspection as to the truth of the offender’s various claims about his crime and the surrounding circumstances. In evidence that was not before the jury (Ex. SD) Dr Allnutt referred to the offender as an unreliable historian. He considered the offender’s claims to amnesia implausible, and his accounts of events over time inconsistent. Additionally, the doctor referred to a number of contradictions between aspects of the offender’s accounts and the statements of witnesses (the statements not being in evidence before the Court).

118. The only accounts from the offender of these events, in which he concedes his responsibility for the crime, are those given to Dr Banks and Dr Allnutt. The offender did not give evidence before the Court, and was not subjected to cross-examination; his accounts should therefore be treated with circumspection: R v Quatami [2001] NSWCCA 35; (2001) 127 A Crim R 369 [58]-[59]. The accounts themselves point to a deliberate attempt to dissemble and mislead.

119. The offender’s account of stabbing Mrs Mitchell for example, when compared with the forensic evidence, must be false. The offender’s description, which I do not propose to repeat here, is found at page 5 of Ex. SD. It is entirely inconsistent with the evidence of Dr Beer, which clearly points to a struggle, in which Mrs Mitchell did what she could to defend herself.

120. I note that, in the past, the offender has shown himself perfectly willing to lie as a calculated stratagem to minimise his culpability for crime (Ex. SC.5). With respect to this matter, the offender conceded to Dr Allnutt that the account given to police originated in his “fear of getting caught” (Ex. SC.4, p.2). That is, he deliberately lied to the police in an attempt to evade responsibility for his crime.

121. For my part, I would not accept the truth of anything the offender told Dr Allnutt or Dr Banks except where it is otherwise supported by evidence independent of him, or, being adverse to his interests, is unlikely to be the product of a lie, or is not in dispute.

122. Ultimately, the only basis upon which I have concluded that the offender’s Bi-polar disorder was in some way causally connected to his crime is the irrationality of it. Because it was wholly irrational, and without any discernible motive, it is reasonable to infer that the offender’s mental disorder had a role to play in his decision to kill Mrs Mitchell.

123. I do not accept, however, that the offender’s sense of the wrongfulness of what he had done was impaired by the disorder from which he suffered. The offender well understood the consequences of his actions, at the time, and later when seeking to avoid some of those consequences by disposing of the murder weapon and lying to police and others about his movements. He was able to judge right from wrong and, even on his account to Dr Allnutt, he knew his actions in stabbing Mrs Mitchell as he did were wrong.

124. That the offender manifested signs of distress when at the car yard on 12 November 2014 and advised by telephone of Mrs Mitchell’s murder does not establish that he was either shocked or distressed by the news. That the offender was well capable of dissembling to protect himself is clear from other evidence.

125. In the interview with police, at a time when the offender was consciously and deliberately deceiving police in an attempt to evade the legal consequences of his actions, he showed some signs of distress over Mrs Mitchell’s death. His distress may have been genuine; it may equally have been no more than part of the performance staged for police. It does not establish, even on balance, that his sense of the wrongfulness of his conduct was impaired.

126. His assertions that Dale Mitchell was the true killer and that he, the offender, would be released do not establish that he was unaware of, or did not appreciate, the wrongness, of his actions. These claims too seem more likely to be part of the offender’s conscious efforts to evade responsibility than evidence of an inability to appreciate the magnitude of what he had done. That his efforts were clumsy and readily exposed is likely to be the consequence of his chaotic thinking, as opposed to his chaotic thinking being the cause and origin of the lies.

127. I have concluded that, contrary to his recent assertions of December 2016, the offender was able to control his actions; rather choosing not to restrain his “urge” to kill Mrs Mitchell, for a reason not established on the evidence.

128. In such circumstances, the extent to which the offender’s mental illness operates to reduce his moral culpability cannot be great.

129. There is some evidence of the consumption of alcohol by the offender proximate to the commission of the crime, but it is equivocal, and I have not considered it further. Voluntary intoxication could not be regarded as a mitigating feature in any event.

The Objective Gravity of the Crime

131. The degree of an offender’s moral culpability for a crime is relevant to the assessment of the gravity of that crime. I have concluded that the offender’s moral culpability is lessened by the causal contribution of his mental illness, but not greatly so.

132. I have also concluded that the offender took Mrs Mitchell from her home under some coercion. On all of the evidence, that is the only rational hypothesis available to explain Mrs Mitchell’s sudden departure from her home, in a state of undress, without shoes, telephone or purse, without saying anything to her family, including the younger children whom she must have passed in the front yard as she went to the offender’s car, and in the midst of preparing the family’s evening meal (T130-131).

133. That is particularly so when those features of the matter are viewed against the acrimonious relationship that existed between the Mitchells and the offender. Dale Mitchell regarded the offender with hostility and there is unchallenged evidence that Mrs Mitchell was unwilling to be in the offender’s company (T127:21). The offender had been peremptorily sent away when he attended the home earlier that day; Mrs Mitchell having been present in the home is likely to have been aware of that, and of her husband’s irritation with the offender. That she would soon after join the offender in his car for a drive, without telling her husband, in the circumstances that I have already referred to, is beyond credulity.

134. The offender submitted that Mrs Mitchell’s previous willingness to speak to him at her place of employment pointed to her general willingness to do so, but I do not accept that submission. The circumstances of Mrs Mitchell’s brief conversations with the offender then are quite different from the events of 11 November 2014, and can say nothing about what happened on that afternoon.

135. The evidence from Harold Stair is that the offender visited Mrs Mitchell on two occasions at the nursing home at which she worked, in mid-October 2014 and again on the evening of 10 November 2014. On the first occasion the offender spoke to Mrs Mitchell, with Mrs Mitchell telling her supervisor that he was a family friend. There is no evidence about the length or subject of their conversation.

136. On 10 November 2014 the offender attended the nursing home at about 9.40pm asking for Mrs Mitchell. He was shirtless, smelt of alcohol, and appeared to be drunk. A staff member fetched Mrs Mitchell, and she spoke to the offender for between 30 seconds to a minute in the foyer of the nursing home. She did not leave the premises and, since Mr Stair saw where Mrs Mitchell held the conversation and noted its approximate duration, it is reasonable to conclude that he was in the vicinity throughout her conversation with the offender.

137. At the conclusion of the conversation Mr Stair did not observe anything about Mrs Mitchell to suggest that she was distressed. Even had she objected to the offender’s visit however, it must be at least unlikely that she would discuss the matter with her supervisor, particularly when she was relatively new to her job, having been employed for only a year (T156:34).

138. For Mrs Mitchell to answer a summons from staff to speak to a man asking for her at her place of employment, and then speak to her caller very briefly within the premises of her workplace, when at least one other person was in the vicinity, is a vastly different proposition to leaving the safety of her home, in the midst of cooking a meal, unshod and in a state of undress, to get into a car with a man to whose company she objected.

139. The offender submits that it is inconceivable that Mrs Mitchell would submit to coercion in circumstances where she could have called for help from her husband and the older teenagers present. That however, overlooks the power that fear of harm – to herself or more particularly her children – may have exercised over Mrs Mitchell. Although the nature of the compulsion applied by the offender to Mrs Mitchell cannot be known, I am satisfied beyond reasonable doubt that compulsion there was. Mrs Mitchell did not leave her home willingly to accompany the offender.

140. Having taken Mrs Mitchell from the comfort and safety of her home, the offender took her to a place of seclusion where she was particularly vulnerable. In a bushland reserve on a weekday evening, the prospect of aid from others was limited. She was alone with the offender, who had armed himself with a knife.

141. The offender used the knife upon the unarmed and defenceless Mrs Mitchell in what was a brutal and pitiless assault, and which continued despite her attempts to protect herself, with Mrs Mitchell even seizing the knife to prevent the attack. The defensive wounds of which Dr Beer gave evidence, and to which I have already referred, bespeak a struggle, as Mrs Mitchell tried to save her life. Many of the blows to which she was subjected were inflicted with significant force, and a number of them, even taken singly, were lethal. Mrs Mitchell must have been terrified and in pain during this savage assault.

142. The level of force used, the number and severity of the wounds, and the fact that they were directed towards the throat and chest, leads to the inevitable conclusion that the offender acted with an intention to kill. That he had such intent is confirmed by what the offender later told Dr Allnutt. Whilst an intention to kill is not always more serious than an intention to inflict serious harm, it does increase the gravity of the crime in the circumstances of this offence.

143. There is some evidence to suggest that the offender planned to take Mrs Mitchell away and kill her. He told Dr Allnutt that he had been watching television, and then got “an uncontrollable urge to pick her up and kill her” (T296:47; T298:10-33). At a subsequent interview he said the urge to kill manifested after Mrs Mitchell had gotten into his car. Since there is no evidence of any other reason for his visit to Mrs Mitchell’s house, other than to carry out his plan to kill her, I conclude that the offender’s initial account to Dr Allnutt is to be preferred.

144. Whilst I do not accept that any urge was uncontrollable, and although the motivation for the offender’s decision to pick Mrs Mitchell up and murder her is entirely opaque, I am satisfied beyond reasonable doubt that, when the offender drove to Mrs Mitchell’s home, he did so with the intention of taking her away and killing her.

145. To that extent, and no doubt influenced to some degree by his mental disorder and consequent irrational thinking, there was premeditation. The use of the knife seems to have been opportunistic, in that the knife was in the car for another purpose, and was taken up and used by the offender. The use of a weapon does increase the seriousness of the crime, although not greatly so, given the frequency with which weapons are used in the commission of murder more generally.

146. After his attack upon Mrs Mitchell, the offender simply left her where she had fallen. He took some steps to cover his crime, by disposing of the knife, and he subsequently lied to members of Mrs Mitchell’s family and to police to avoid responsibility for his crime. He initially claimed amnesia to doctors.

147. This is a very grave crime indeed.

The Offender’s Subjective Circumstances

148. The offender was born on 27 February 1948. He was aged 66 years at the time of the murder. He is now 69 years old. Evidence of his personal circumstances before this Court is limited, but in part may be gleaned from R v Graham Anthony Sloane [2000] NSWSC 1300.

149. The offender’s background is as a member of the Armed Services, serving for 20 years in the Army and attaining the rank of sergeant. He received a Commendation for Brave Conduct in 1982 for saving the life of a fellow soldier during a training incident with live ammunition, and he rescued a child from drowning some years after that. He was a recipient, as a teenager, of a Duke of Edinburgh Award.

150. After leaving the Army the offender set up a business in security, but the business failed, leading to considerable financial stress upon the offender and his then wife. His marriage broke down.

151. The offender has also worked in the trucking industry.

152. At the time of the commission of the crime the offender had been retired for about four years. He lived alone at a unit in Windale. He told Dr Allnutt that he had a number of medical problems, including heart disease and joint problems.

153. The offender was diagnosed in 2009 with Post Traumatic Stress Disorder, and he was admitted to Toronto Private Hospital in the six months prior to Mrs Mitchell’s murder for treatment for that disorder. The offender has also been treated in the past for depression. The deaths of his father and wife left the offender feeling lonely and distressed.

154. The acrimonious end of the offender’s first marriage led indirectly to the most significant entry against him in his criminal history, a conviction for manslaughter entered on 14 February 1997. The victim of that crime was the offender’s 72 year old mother-in-law, whom the offender strangled to death when she refused to divulge the whereabouts of her daughter. In the assessment of the sentencing judge, Hunt CJ at CL, the attack upon the deceased was one of “substantial violence” (Ex SC.5, p.3).

155. After having killed his mother-in-law, and after arranging the body in such a way as to suggest accident, the offender denied any knowledge of the crime, and gave varying accounts of his actions. The sentencing judge concluded that the offender “knew very well what he was doing”. His Honour was “unimpressed by the different versions” the offender gave over time of the circumstances surrounding the killing: R v Graham Anthony Sloane [2000] NSWSC 1300 at 7.

156. The manslaughter was brought on the basis of unlawful and dangerous act, and the sentencing judge concluded that it was a very serious crime. It was a crime committed at a time when the offender was subject to a recognisance.

157. The offender has other entries against him in his criminal history, both in Queensland and in New South Wales. In 1993 in Queensland the offender was convicted of failing to secure weapons, assault occasioning actual bodily harm, break and enter dwelling at night with intent, and unlawful assault. Monetary penalties imposed for some offences were not met and the offender was obliged to perform community service. Also in Queensland the offender was dealt with, in 2006 and 2007, for breaching that State’s equivalent of an apprehended domestic violence order, and public nuisance. Monetary penalties were imposed.

158. In New South Wales, the offender has some minor entries against him which are of no present relevance, together with the conviction for manslaughter, and more recent convictions for contravening apprehended domestic violence orders. He was dealt with for the latter crimes in August 2012, being two offences where the protected person was his former wife, and October 2014. The offence dealt with in October 2014 resulted in the offender being placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 12 months duration. It was just over a month after entering that bond that the offender murdered Mrs Mitchell.

159. The breach of conditional liberty is a matter of serious aggravation.

160. The offender’s criminal history gives rise to a need for the sentence imposed upon him to give full weight to the principle of specific deterrence, a need not greatly mitigated by his mental illness.

161. In custody, the offender has not breached rules for prison discipline, and there was evidence before the Court in 1997 that he was a trusted prisoner who filled a mentoring role amongst other prisoners. He completed some educational courses when incarcerated.

162. The offender’s mental health appears to have stabilised as a result of treatment received in custody. He is medicated and, as at December 2016, was not seeing a mental health professional (Ex SC.4, p.1). There is no evidence that would suggest that a custodial sentence will weigh more heavily on the offender than would otherwise be the case.

163. The offender is entitled to consideration because of his willingness to facilitate the administration of justice. The offender signalled his intention to enter a plea of guilty to the statutory alternative at an early stage, and the only issue at trial was the availability of the partial defence of substantial impairment. His trial was conducted sensibly and expeditiously. His sentence will be less in recognition of those matters.

164. Whilst it was argued that the offender’s plea to manslaughter was some evidence of remorse, I do not accept that it has that additional relevance. It is apparent that the evidence available to the Crown was considerable, and the likelihood that the offender would be found to have killed Mrs Mitchell was very high. In such circumstances, his plea to manslaughter might well be seen as both recognition of the inevitable, and an attempt to secure the best possible outcome for himself. I do not regard it, without more, as evidence of contrition.

165. Since I do not accept the offender’s demonstration of distress at the car yard and to police on 12 November 2014 as reliable evidence of true grief, there is no basis upon which to conclude that the offender is remorseful or contrite for his terrible crime. Although the offender expressed regret for Mrs Mitchell’s death to Dr Allnutt, noting the many lies he has told both to medical professionals and police, I do not accept those untested expressions as necessarily genuine.

148. There is no credible evidence to suggest that the offender feels any empathy for Mrs Mitchell, or those harmed indirectly by his crime. He sat completely impassive when a very moving victim impact statement relating the anguish experienced by Mrs Mitchell’s husband and children was read to the Court on 24 February 2017.

149. The absence of remorse and contrition is generally considered to be a feature weighing against the existence of prospects of rehabilitation. It is difficult to see how an individual can be rehabilitated without first feeling the full weight of his or her wrongdoing. The offender submits that he has good prospects of rehabilitation, but that submission seems founded on little more than that advanced age and infirmity will render it unlikely that he will reoffend in the future.

150. I accept that the offender will be elderly upon the expiration of the non-parole period imposed upon him such that the likelihood of the commission by him of future violent crime is reduced, but that is not the same thing as rehabilitation.

151. I am unable to say what the offender’s prospects in that regard may be. If he continues to accept appropriate medical treatment for his Bi-polar disorder, and abstains from heavy drinking, it may be that he will not re-offend in the future. However, the offender is a man who has violently taken two lives, on each occasion the life of a defenceless woman, and on each occasion when subject to conditional liberty. He must, on that basis alone, pose some risk of future dangerousness.

152. Only advanced age can ameliorate that risk.

153. The offender’s age is of further relevance to sentence since increasing age will lead to increasing personal difficulties and some vulnerability in custody. Those features ameliorate the sentence to be imposed to some degree.

154. Additionally, there must be a prospect that the offender will die in custody before the expiration of the non-parole period. Whilst this is a consideration, and the offender’s age is a material feature to be taken into account along with other subjective features, advanced age cannot give rise to an expectation that the elderly can offend with relative impunity: R v Holyoak(1995) 82 A Crim R 502 at 507, [44]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved, and one that accords with the general moral sense of the community: R v McLean [2001] NSWCCA 58; 121 A Crim 484 at 492 [45]. In some cases, and the offender’s may be such a case, compliance with that principle may have the practical effect of imposing a life sentence: Barton v R [2009] NSWCCA 164 at [22]-[27].

Other

173. The purposes of sentencing an offender are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). They are to punish the offender and ensure he is made accountable for his actions, to denounce the crime, to recognise harm, to deter others, to protect the community and to promote the rehabilitation of the offender.

174. Having regard to the conclusion I have reached that the offender’s mental illness had a causal role to play in the commission of the offence, the need for denunciation is to some extent reduced, although not significantly.

175. Also because of the offender’s illness, the offender is less amenable as a vehicle for the application of the principle of general deterrence. It continues to have some role to play, but that role is reduced.

176. Specific deterrence remains relevant, as I have already noted.

177. The offender’s age, his likely vulnerability in custody with the infirmity of advancing age, and his mental illness, are all features of his case which could form a basis for a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, I have already considered each of those factors in determining the overall sentence to be imposed, with each of them having an ameliorating effect on that sentence. In those circumstances, I do not intend to make a finding of special circumstances. In any event, in view of the length of sentence that must be imposed, the parole period that will apply as a consequence of the ordinary ratio of sentence will be adequate.

178. It remains to impose sentence.

Sentence

179. Graham Anthony Sloane is convicted of the offence of murdering Renee Mitchell on 11 November 2014 at Windale in this State.

180. He is sentenced to imprisonment comprising a non-parole period of 18 years, and a balance of the term of sentence of 6 years. The sentence is to date from 12 November 2014, and the non-parole period will expire on 11 November 2032. The total sentence, which is one of 24 years, will expire on 11 November 2038.

181. The offender is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offence of murder.

**********

Decision last updated: 02 March 2017