R v Hillsley

[2005] NSWSC 652

CITATION:	R v Hillsley [2005] NSWSC 652
HEARING DATE(S):	22/10/2004 and 11/03/2005
JUDGMENT DATE :	4 July 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	See paragraph 42 in detail. Aggregate sentence of thirty years, non-parole period twenty-five years.

CATCHWORDS:	CRIMINAL LAW: - Sentence - murder of adult, abduction and sexual assault of child - offender with history of paedophilia - whether offences against child relevant to criminality of murder - whether life sentence appropriate
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
CASES CITED:	R v Previtera 91997) 94 ACrim R 76 R v Aslett [2004] NSWSC 1228 R v Harris (2000) 50 NSWLR 409 Pearce v The Queen (1998) 194 CLR 610 R v Wickham [2004] NSWCCA 193 Veen v The Queen [No2] (1998) 164 CLR 466 R v Villa [2005] NSWCCA 4
PARTIES:	Regina Jeffrey John Hillsley (offender)
FILE NUMBER(S):	SC 2004/35 SCRM
COUNSEL:	W Dawe QC (Crown) R Hulme SC (offender)
SOLICITORS:	DPP (Crown) Legal Aid Commission (offender)

LOWER COURT JURISDICTION:

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

HIDDEN J

Monday 4 July 2005

2004/35 Regina v Jeffrey John Hillsley

JUDGMENT – REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Jeffrey John Hillsley, pleaded guilty on arraignment in this Court to an indictment containing six counts. The first five counts arise from a course of events between 31 December 2003 and 1 January 2004. The first count is the murder of Michael John Davies. The second and third counts are the aggravated sexual assault of Mr Davies’ ten-year-old step-daughter, the circumstances of aggravation being her age and the fact that she was threatened with actual bodily harm by the use of a knife. The fourth count is the kidnapping of the same child, that is, her being taken with the intention of obtaining the advantage of having sexual intercourse with her. The fifth count is a further aggravated sexual assault upon the child, the only circumstance of aggravation being her age. The sixth count is yet another aggravated sexual assault upon the child on an earlier occasion in December 2003, the circumstance of aggravation again being her age.

2 The charge of murder carries a maximum sentence of imprisonment for life. Each of the charges of aggravated sexual assault carries a maximum sentence of twenty years imprisonment. The charge of kidnapping carries a maximum prison term of fourteen years.

Facts

3 The basic facts are not in dispute, although the offender’s state of mind at the time of the killing is an important issue which I must determine. Before me is an agreed statement of facts, which I should set out in its entirety (referring to the child as “J” and her mother as “Ms H”):

1. The deceased, Michael Davies, operated a small cleaning business. During 2003, he made the acquaintance of, and befriended, the accused, Jeffrey John Hillsley. The accused resided at unit 505/71-75 Regent Street, Chippendale; the deceased had the cleaning contract for this building.
2. The deceased resided at 37 Anglo Road, Campsie, with his wife, Ms H, their two small children, and Ms H’s daughter by a previous marriage, J (aged 10 years).
3. On about 23 December, 2003, the accused, at the invitation of the deceased, arrived at 37 Anglo Road to spend the Christmas period with the deceased and his family. The accused stayed there until 27 December, when, following an argument with the deceased, he left.
4. On 31 December, 2003, the accused armed himself with a hammer and a knife and set out on foot from his home at Chippendale for the deceased’s home at Campsie. At about 10.30 pm on that date, he entered the deceased’s home via an unlocked window. At this time the deceased and the three children were asleep in their beds; the deceased’s wife was at work.
5. The accused entered the bedroom where the deceased was sleeping. He struck the deceased about the head with the hammer, inflicting fatal injuries.
6. The accused then went to the bedroom where J was sleeping. He awoke her. He threatened her with the knife, threatening to kill her if she did not obey him. He then took her to the rear shed/garage of the premises, where he sexually assaulted her (orally and vaginally).
7. The accused then forced J to accompany him on foot on a journey through the streets of several suburbs. At about 7.00 am on 1 January, 2004, in an area in the vicinity of the Chullora Railway Yards, he again sexually assaulted her (anally). He then continued to lead her through the streets until about 3.00 pm on the same day, by which time they had returned to the Campsie area. At this time, J escaped from the accused, and ran home in a distressed state, where she met police engaged in the search for her.
8. At about 8.30pm, police searching for the accused were informed of the presence of a man in the storm water drain at Campsie. Upon investigating they discovered the accused, and arrested him.
9. The accused participated in an electronically recorded interview with investigating police on 1 January, 2004. The accused made detailed admissions in relation to the offences with which he was charged. He admitted going to the deceased’s home on the evening of 31 December, 2003, armed with a knife and a hammer. He admitted that his purpose in so doing was firstly to assault the deceased; and secondly, to obtain sexual gratification from the deceased’s 10 year old daughter. He admitted entering the deceased’s house through a window. He admitted striking the deceased’s head with the hammer, as the deceased lay in his bed. He admitted to then rousing J from her bed, threatening to kill her with the knife, taking her to the shed/garage at the rear of the premises, and sexually assaulting her (orally) and attempting anal and vaginal sexual intercourse with her. He admitted to then forcing J to accompany him on foot on a journey from the deceased’s home, through several suburbs, and lasting through the night and into the next day. He admitted that during this period, whilst in the vicinity of the Chullora Railway Yards, he again sexually assaulted J (anally).
10. The accused also admitted that he had sexually assaulted J (orally) whilst staying in the deceased’s home earlier in December.
11. J told police that she was sexually assaulted (orally, vaginally) by the accused in the garage of her home; taken from her home by the accused; again sexually assaulted (anally) by the accused, and later she escaped from him. She also disclosed that she had a few days earlier been sexually assaulted by the accused in her home.
12. DNA from a blood-stained hammer found in the deceased’s garage was matched with that of the deceased, and of the accused. A knife was also found in the garage.
13. A post-mortem examination of the deceased concluded that the cause of his death was “multiple blunt force injuries to the head”. Thirteen injuries were identified by Dr Duflou externally on the head of the deceased. Internal examination of the head revealed what Dr Duflou describes as “very extensive injury” and “massive skull fracturing”. The brain “showed very extensive injury”.

4 It is necessary to examine the admissions which the offender made about his attack upon Mr Davies. After being cautioned upon his arrest, he said, “He was harassing me, I wanted to shut him up, so I belted him”. In the course of the long electronically recorded interview with police, he said that he had gone to the deceased’s home to “bash him” because he had not paid him for work which he had done. As to the argument which caused him to leave the home on 27 December, he said of the deceased, “Michael likes to get into your personal life”. He went on to recount having told the deceased about a friend of his who had died after a number of strokes, whereupon the deceased showed disrespect to his friend by joking about the matter. He added, “…that’s what really pushed me over the edge”. He said that he had planned to assault the deceased with a hammer at the block of units at Chippendale in the days after 27 December, but the opportunity to do so did not present itself.

5 He told police that he had walked from his home to the deceased’s home on the day in question because he had no money, and that it had taken him the best part of three hours. He then “wandered around” for some five hours before he entered the home, wondering whether he could carry out his planned attack because he had “never bashed anyone before.” Having decided to go through with it, he removed the family dog from the front yard so that it would not bark and alert the occupants of the house to his presence.

6 While acknowledging his sexual attraction for the ten year old child, he said that he intended to assault her sexually as “further payback to Michael”. He added that he knew that the deceased thought a lot of the girl and that his sexually assaulting her would “really piss him off”. He denied that his purpose in attacking the deceased was to ensure that he could not protect the girl from sexual interference.

7 He said that he took the knife to defend himself if the deceased got the better of him, noting that the deceased was a substantially bigger man. He added that he thought that attacking him while he was in bed was the “best opportunity.” He explained that he wielded the hammer, holding it “right down to the base” because he knew that that was “where the power is”. That, he said, was how he had learned to use a hammer. He maintained that he struck the deceased only three times, and not with “full force”. Consistently throughout the interview he denied that he intended to kill the deceased. He said that he expected that the deceased would be taken to hospital and treated, whereupon he could say to him, “…that’s what you get for being an arsehole”.

8 That he felt aggrieved by the deceased’s failure to pay him for work he had done finds support in other evidence. Before me are statements by Julia Davis, welfare worker and Grace Versace, counsellor, both of whom had contact with him in 2002 and 2003. According to Ms Davis, he complained to her in August 2003 that the deceased was not paying him for his work and that he was “being used”. He told Ms Versace in the later part of 2003 that he was in financial difficulty because of a gambling problem.

9 This brings me, then, to the question of his intent and motivation in attacking the deceased as he did. The offender is an admitted paedophile and has a criminal history for offences of that kind. It is the Crown case on sentence that he attacked the deceased, intending to kill him. Further, it is the Crown case that the motive for the killing was to facilitate the offender’s access to the deceased’s step-daughter, whom he had sexually assaulted on an earlier occasion and with whom he wished further sexual contact. Those circumstances, the Crown prosecutor submitted, should be inferred from the whole of the evidence. He argued that the offender’s account of his state of mind should be rejected, as should his claim that he struck the deceased only three times with less than full force. The Crown prosecutor relied upon the post mortem findings as to the number and extent of the deceased’s head injuries, together with a photograph of the deceased’s face which is in evidence. On that view of the facts, he submitted, the murder falls into the worst category of case and calls for the imposition of the maximum sentence.

10 I have given this matter anxious consideration, and I acknowledge the assistance of the careful submissions of the Crown prosecutor and of Mr Hulme SC (now a judge of the District Court), who appeared for the offender. To approach the matter in the manner for which the Crown prosecutor contends, I would have to be satisfied beyond reasonable doubt of the inferences he has asked me to draw. I am not. I think it reasonably possible that the offender attacked the deceased for the reasons he gave and that his abduction and sexual assault of the child, although planned before he entered the house, were independent of that attack. That he attacked the deceased by way of retaliation for perceived wrongs was something which he asserted at the outset and which he maintained, together with his denial of an intention to kill, throughout his lengthy and detailed police interview.

11 He initially told the police that he had struck the deceased “about three times.” Later, when asked if he was sure that it was only three times, he answered, “Yes.” Cautioned to be very careful about his answer, he added, “From my recollection, yes.” It is likely that the attack took place quickly, and it is plausible that it was more sustained and ferocious than he remembered. It is fair to say that it appears from a reading of the transcript of the interview that he was generally being candid.

12 The offender admitted that he woke the deceased before he struck him, and the Crown prosecutor relied upon this as demonstrating the callousness of his behaviour. That may be so, but it is not consistent with the actions of a man who wished to dispatch the deceased so as to gain unimpeded access to his step-daughter. That end would have been achieved more efficiently by striking him while he was asleep. A desire for the deceased to be awake, so as to be aware of his assailant’s violence, is more consistent with a retaliatory motive. It is generally conformable with the offender’s account that, far from wanting the deceased dead, he wanted him to live and to endure the pain and anguish which the attack upon him and the abduction and sexual assault of the little girl were meant to engender.

13 Accordingly, he stands for sentence for the murder upon the basis that the attack was motivated by his resentment of the deceased’s treatment of him as he perceived it, and that he intended to inflict grievous bodily harm, not to kill. His desire to cause the deceased distress by the abduction and sexual assault of his stepdaughter bears upon the gravity of those offences, not the murder.

Subjective case

14 The offender was born on 9 December 1951, and is now fifty-three years old. As I have said, he has a criminal history for paedophile offences, some committed in this State and some in the Australian Capital Territory. His record includes some old offences which, with the possible exception of an indecent assault for which he was granted a bond in 1982, are of a different nature. None of those old offences are of significance for present purposes. The offences in the Australian Capital Territory were the subject of a Crown appeal and I have been supplied with a copy of the appellate court’s judgment: The Queen v Hillsley (Federal Court of Australia, unreported, 11 February 1992). In the leading judgment in that case, Gallop J traced the offender’s criminal history which is relevant for present purposes (at pp 4 – 8).

15 In October 1984 he was sentenced in the Sydney District Court to an effective term of imprisonment for eight years, with a non-parole period of four years, for the kidnapping and what is described as the assault of a five-year-old girl. He had persuaded the girl to accompany him to some unoccupied premises at Parramatta, where he had anal intercourse with her. He was released on parole in December 1986 but his parole was revoked in the following month, following a report which expressed concern about what Gallop J described as his “inappropriate and potentially dangerous behaviour towards young girls”. It is not necessary for present purposes to recount that behaviour, which is summarised at p9 of his Honour’s judgment. He was released when his sentence expired, presumably by remission, in December 1989.

16 He then moved to Canberra, where he committed the offences which ultimately brought him before the Federal Court. These were the abduction and sexual assault of a five year old girl and, on a separate occasion, the commission of an act of indecency upon a nine-year-old girl. Both incidents occurred in February 1990. On the first occasion he took the five year old girl to a room in a block of flats, where he had anal intercourse with her. He then took her to the room where he lived, where he again had anal intercourse. On the second occasion he took the nine-year-old girl to his residence, where he attempted to have vaginal intercourse with her but ejaculated before he could achieve penetration.

17 The Crown appeal in respect of those offences was successful, and the appellate court sentenced the offender to terms aggregating imprisonment for twelve years with a non-parole period of six years. In 1995 he was sentenced to a short term of imprisonment for escaping from lawful custody. It is necessary to examine his custodial history following the imposition of the sentences by the Federal Court, and I shall turn to that matter shortly.

18 Otherwise, I have virtually no information about his background or personal history. There is a little in the judgment of Gallop J and it can only be described as bleak. His Honour recorded (at pp7–8) the sentencing judge’s reference to his “quite unfortunate upbringing”, but provided no detail of it. His Honour also recorded the sentencing judge’s reference to his “very strong, sometimes overwhelming, desires to have intercourse with young girls and his inability to resist those impulses”, and the judge’s conclusion that he “represented a serious risk to the community, particularly to young female children”.

19 Later in the judgment, his Honour referred to the evidence of two Probation and Parole officers and of a psychiatrist. That material is not before me but its effect is summarised in the judgment (at pp17–18). The Probation and Parole officers considered that the offender represented a risk to the community. The psychiatrist reported that he had a “severely distorted personality”, which had worsened “as his relationships with adults had repeatedly failed”. The psychiatrist saw it as “imperative” that he undergo treatment, without which there was “a considerable likelihood of repetition of the offences…”.

20 The only other evidence touching upon his background is to be found in the statements of Ms Davis and Ms Versace, to which I have referred. They reveal, without elaboration, that he was estranged from his family and, as I have said, had a gambling problem.

21 I turn, then, to aspects of his custodial history since the commission of the offences in Canberra. There are in evidence various documents from the Department of Corrective Services dealing with his progress since his return to custody in September 1990. As will be seen, he was to remain in custody until February 2002. The charge of escaping from lawful custody arose from his escape from Kirkconnell Correctional Centre on 18 June 1995. He was at large only for one day.

22 During this period of custody (and during the earlier period following his convictions in 1984) he was dealt with for relatively few breaches of prison discipline, and was generally described in reports as a quiet prisoner and a good worker. More importantly, between early 1997 and mid-1998 he expressed a willingness to undertake treatment to avoid re-offending and to participate in counselling to that end. On a number of occasions he complained, apparently with justification, about the inadequacy of psychological services available to him. Generally speaking, he was unable to enter treatment programs for sexual offenders because of his high security classification as a one time escapee. Despite his applying for a reduction of his security status, he remained under that classification until his release.

23 No doubt, his desire to undertake a treatment program was motivated in large part by his hope of being granted parole. However, in April 1998 he wrote to the Parole Board saying that he would not be applying for parole and no longer wished to see any parole officers. In May 1998 his case officer wrote a report criticizing in trenchant terms the lack of services available to the offender and the fact that his access to programs was impeded by his classification. He expressed the offender’s dilemma in this way:

Hillsley is already in his parole period but due to the fact that he has not addressed his sex offending behaviour by doing a sex offenders course he is currently not eligible for parole. He cannot get on a sex offenders course as he needs a ‘C’ classification to do this, he cannot get a ‘C’ classification until he shows that he is attempting to address his sex offending behaviour and he cannot do this as the services are not being made available to allow him to address these issues.

24 A program which became available despite his classification was the Sex Offender Redirection Training Program (SORT) at Junee Correctional Centre. He was transferred to Junee in the middle of 1998 and commenced the program in August of that year. Reports disclose that he was anxious to embark upon it, and that for a time he participated in it satisfactorily and was seen to have started to “address his offending behaviour”. However, it seems that he did not persevere with it and by July 1999 it was noted that he was not attending “therapy groups…”. Why this was so does not appear from the documents but perhaps, in all the circumstances, it is not altogether surprising.

25 Ultimately, on 26 February 2002 he was released at the expiration of his sentences, without the benefit of parole supervision. Nevertheless, he was afforded some assistance by Ms Davis, who secured his accommodation at Chippendale and appears to have provided him with a measure of emotional support, and Ms Versace, who counselled him about his impaired relationship with his family, his gambling and “other lifestyle issues”. They did not attempt to grapple with his pattern of sexual offending, which was no part of their function.

26 Before parting with the subjective material, I should refer to a statement by a former prison officer who prepared a report in 1991 about an encounter he had with the offender at Cooma Correctional Centre. It seems that he had a conversation with the offender, who complained about treatment within the prison system of a kind notoriously meted out to inmates who have committed offences against children. According to the report, the offender said, “The screws have bashed me and the more that happens to me the more the kids will suffer. They won’t find me next time; it will be another Samantha Knight….” Mr Hulme informed me from the Bar table that the report was disputed, although the offender did not give evidence. I am prepared to assume that the remark was made and, on the face of it, it is troubling. However, given that it was made so long ago in circumstances which are unknown, I do not think that it would be fair to afford it any significance for the purpose of sentence.

Victim impact statements

27 I have received in evidence a written statement of the deceased’s wife, Ms H, setting out the effect upon her and the children of his death, together with a similar statement of his adult daughter, Ms Kerri Leigh Thompson. Ms Thompson also read her statement to the Court. That material expresses eloquently the depth of their loss and the enduring effect upon their lives of this tragic and senseless killing. I approach the material in accordance with the long accepted principles enunciated in R v Previtera (1997) 94 ACrim R 76. The wife and family of the deceased have my deepest sympathy. In so saying, I am conscious that this sentencing exercise involves the balance of a number of conflicting factors, and nothing that this Court can do could ever assuage their pain.

28 The statement of Ms H also speaks of the emotional effects upon her daughter of her abduction and sexual assault by the offender. To that matter I shall return.

Sentencing Factors

29 In supplementary written submissions, the Crown prosecutor argued that the murder calls for a life sentence even if I did not find the motivation and intent for which he contended. He relied upon the uncontested facts that the offender intended to attack the deceased with the hammer and then to have sexual intercourse with the child and that, indeed, his abduction and sexual assault of the girl followed immediately after the attack. Accordingly, he argued, the crimes were “intimately connected” and amounted to “the totality of what the offender planned when he entered the premises”. He submitted that “the circumstances of the murder, sexual assault and abduction raise real concerns about future dangerousness and the issue of protection of the community”, so that the case falls into a “worse case scenario”.

30 He relied, by way of analogy, on the remarks on sentence of Wood CJ at CL in R v Aslett [2004] NSWSC 1228. That, however, was a very different case from the present. Aslett stood for sentence for murder and a large number of other serious offences, including two counts of aggravated sexual assault, counts of specially aggravated kidnapping and aggravated car jacking and ten counts of armed robbery. The murder was the shooting of a man in the course of an armed robbery. He had a lengthy criminal record and was on parole at the time of all the offences. Included in his prior history were charges of specially aggravated breaking and entering and a number of charges of aggravated sexual assault, for which he had been sentenced in the District Court. The sentencing judge in that court described the offences as involving “a particularly brutal and planned home invasion”, together with sexual assaults “in which gratuitous cruelty had been inflicted”. That judge imposed very lengthy sentences, which Aslett had only just begun to serve when he was sentenced by Wood CJ at CL.

31 Having considered Aslett’s criminal history, the multiple offences for which he was to be sentenced, and such other subjective material as there was, the Chief Judge said, “It is rare that one can say, with any confidence, that a prisoner presents a very serious ongoing danger to the community, or that his rehabilitation prospects are negligible”. His Honour went on to conclude that Aslett was such an offender. Those factors were influential in his decision that a life sentence should be imposed in respect of the murder. His Honour saw it as a serious offence of its kind, committed in the course of a planned armed robbery and involving “an utter recklessness and disregard of human life”. He determined that he had no alternative to the imposition of the maximum sentence because of “the level of culpability in its commission, even though it was a case of felony murder, together with my finding of the dangerousness of the prisoner to the community, and his negligible prospects of rehabilitation…” (at [228]). Later in the remarks ([247]-[248]) he said that, in imposing the life sentence for the murder, he had attached considerable weight to the offences to which I have referred for which Aslett had been sentenced in the District Court. He noted that Aslett had appealed against those convictions and added that, if that appeal were successful, “occasion may well arise for the life sentence to be reviewed on appeal”.

32 In dealing with the sentence for murder in Aslett, the Chief Judge referred to R v Harris (2000) 50 NSWLR 409, a Crown appeal in which his Honour gave the leading judgment. This, again, was a very different case from the present. Harris was a serial killer, who had committed murder on three separate occasions. His Honour said (at [94]) that, in determining whether each of those murders called for the imposition of the maximum sentence, it would have been permissible for the sentencing judge to have had regard to the others. He continued (at [95]):

Particularly was this so in the context of a case where the three killings occurred in quick proximity, and where the last two were similarly motivated and encouraged by the success of the respondent in carrying out and initially escaping both suspicion and detection for the first of those offences.

33 I should also refer to a decision of the Court of Criminal Appeal in R v Villa [2005] NSWCCA 4, in which I was a member of the Court and which was handed down after I received the supplementary submissions in the present case. Villa appealed unsuccessfully against the imposition of life sentences for each of two murders, arising from an incident in which he killed a man and a woman and attempted to murder their three children. The offences occurred at the home where the couple and the children were living. Villa shot one of the children and set fire to the home while that child and his siblings were inside it. Happily, all three were rescued and the boy who had been shot survived.

34 In arriving at life sentences for the two charges of murder the sentencing judge had regard to the attempt to kill the three children. His Honour concluded that Villa had done so to avoid detection and saw this as a demonstration of the depth of his brutality. In delivering the leading judgment, Dunford J referred to Harris and also to Pearce v The Queen (1998) 194 CLR 610, in which the High Court emphasised the need, when sentencing for several offences, to determine the sentence appropriate for each of them before considering questions of concurrence or accumulation and totality. His Honour (at [91]–[93]) saw no conflict between the principles in that case and the approach in Harris and of the sentencing judge in Villa itself. His Honour referred (at [92]) to the “nexus between all offences in that the attempted murders of the children demonstrated the depth of brutality and that the motivation of the attempts to kill the children so as to destroy evidence of the murders effectively linked those offences to the murders”. Simpson J and I agreed, but I added (at [100]):

This is not to deny that such an approach is a delicate exercise. There is a fine line between the legitimate regard to other offences when determining whether a life sentence for murder is called for, on the one hand, and the transgression of the principles enunciated by the High Court in Pearce , on the other.

35 In my view, to take the course urged by the Crown prosecutor in his supplementary submissions in the present case would be to cross that line. As I have already found, the criminality of the murder of the deceased is independent of that of the abduction and sexual assault of his step-daughter. The offences are linked in time and opportunity, but not otherwise. The relevant nexus is not to be found in the fact that part of the offender’s motivation for sexual interference with the girl was to distress the deceased. As I have said, that is a matter bearing upon the criminality not of the murder, but of the abduction and sexual assaults. Nor could a life sentence for the murder be justified on the basis that the offender represents a danger to the community. If he does, it is because of his propensity for paedophilia, not violence. Again, it is a factor bearing upon sentence for the abduction and sexual assaults, not the murder.

36 The Crown prosecutor also submitted that the case exhibits a number of the aggravating features to be found in s21A of the Crimes (Sentencing Procedure) Act. It would not be appropriate to regard some of the matters he raised as aggravating factors, because they are reflected in the multiplicity of the charges or are elements of the offences, or are matters of a kind which the general law would not permit to be taken into account in aggravation: R v Wickham [2004] NSWCCA 193, per Howie J at [22]ff. However, I do take into account the extent to which the offences of 31 December and 1 January were planned. I am also mindful that the murder involved the use of a weapon, although that is a factor of relatively little significance in a case of homicide. I also take into account the fact that the abduction and sexual offences must have a substantial psychological effect on that unfortunate girl. So much is already apparent from the victim impact statement of her mother.

37 As I have said, the offender pleaded guilty to all the charges upon arraignment. The committal proceedings were conducted on the papers and were uncontested. He volunteered his guilt of the sixth count, the earlier aggravated sexual assault, before the young complainant had been formally interviewed. The manner in which the offender has approached the proceedings from the outset is of considerable utilitarian benefit, and should also be seen as some evidence of his remorse. These are matters properly to be taken into account in his favour, although they cannot be given such weight as to result in sentences which are inadequate to reflect his criminality.

38 That criminality is undoubtedly grave. The offender invaded the security of the victims’ home at night. The attack upon the unfortunate deceased was brutal. His young step-daughter had already been sexually assaulted by the offender on one occasion, and she was to be the victim of three further serious sexual assaults over an extended period of time when she was effectively the offender’s captive. That he did so not just to satisfy his lust for her but also to wreak vengeance upon the deceased only adds to the enormity of those crimes.

39 He has no record for offences of violence. However, his record of paedophile offences speaks for itself. To borrow some of the expressions in the joint judgment in Veen v The Queen [No 2] (1998) 164 CLR 466 at 477, that record illuminates his moral culpability and shows his dangerous propensity for offences of that kind, such that considerations of deterrence demand the imposition of condign punishment. Given his efforts, largely frustrated, to obtain treatment as a sexual offender when he was last in custody, I would not say that there is no hope of his rehabilitation. Nevertheless, the sentences for the abduction and aggravated sexual assault counts must be directed to the protection of society. The effect of the sentences I propose for all offences is such that he will have no prospect of release until he is an old man.

Sentence

40 In recognition of the offender’s pleas of guilty and co-operation with the investigating police and the prosecuting authority, I have reduced the sentences I would otherwise have passed on the abduction and sexual assault counts by about twenty-five percent. I do not think it appropriate to quantify the reduction of sentence for the murder. It is sufficient to say that, but for those factors, the sentence for that count would have been in the order of twenty years. The murder and the aggravated sexual assaults are caught by the provisions for standard non-parole periods in division 1A of Pt 4 of the Crimes (Sentencing Procedure) Act. For each of those offences I propose to set a shorter non-parole period because of the offender’s pleas of guilty and co-operation, although I accept the place of the standard non-parole periods as reference points or guide posts: R v Way (2004) 60 NSWLR 168.

41 I have done the best I can to assess each sentence, and the structure of all of them, with an eye to totality. I have reduced the non-parole period for the murder below the statutory norm because of the accumulation of that sentence upon the others. Otherwise, I find no special circumstances and none were suggested in argument.

42 Jeffrey John Hillsley, on the sixth count (the earlier aggravated sexual assault) you are sentenced to imprisonment for eight years, with a non-parole period of six years, to date from the day you were taken into custody, 1 January 2004. On each of the second and third counts (aggravated sexual assault) you are sentenced to imprisonment for twelve years, with a non-parole period of nine years, to date from 1 January 2008. On the fourth count (kidnapping) you are sentenced to imprisonment for seven and a half years, to date from 1 January 2009. I decline to set a non-parole period in respect of that sentence because of the sentences on the other counts. On the fifth count (aggravated sexual assault) you are sentenced to imprisonment for twelve years, with a non-parole period of nine years, to date from 1 January 2010. On the first count (murder) you are sentenced to imprisonment for sixteen years, with a non-parole period of eleven years, to date from 1 January 2018.

43 Effectively, then, the overall sentence is imprisonment for thirty years with a non-parole period of twenty-five years. That effective non-parole period is high as a proportion of the total sentence, but any lesser period would be inadequate to mark the criminality of these offences. You will be eligible for release on parole on 31 December 2028.

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