R v JK

[2018] NSWSC 250

Supreme Court

New South Wales

Medium Neutral Citation:	R v JK [2018] NSWSC 250
Hearing dates:	26 February 2018
Date of orders:	05 March 2018
Decision date:	05 March 2018
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Sentenced to imprisonment for 37½ years imprisonment with a non-parole period of 28 years.
Catchwords:	CRIME – sentencing – plea of guilty to murder – killing of child following sustained beatings over several days – horrific injuries through blunt force trauma – history of violence towards child and other members of the family – torture – aggravating circumstances – gratuitous cruelty – offence in victim’s home – offence in the presence of another child – use of weapon – whether life sentence mandatory – extraordinary letter written to offender’s lawyers – where offender refuses to allow further investigation of possible defences – demonstrative of insight and remorse – where offender suffered depression – self-induced intoxication – self-medication with alcohol – possible relevance to sentence – no intention to kill – whether life sentence only option – lengthy determinate sentence imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 19A, 21, 21A, 28, 32, 37, 44, 61, 166, 167 Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Akkawi v R; Akkawi v R [2012] NSWCCA 11 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Devaney v R [2012] NSWCCA 285 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Ghamraoui v R [2009] NSWCCA 111 Luque v R [2017] NSWCCA 226 R v Coulter [2005] NSWSC 101 R v Do (No 4) [2015] NSWSC 512 R v Engert (1995) 84 A Crim R 67 R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 R v Halloun [2014] NSWSC 1705 R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Hines (No 3) [2014] NSWSC 1273 R v Israli [2002] NSWCCA 255 R v Kelsall [2015] NSWSC 480 R v Lock [2017] NSWSC 715 R v Maybir (No 8) [2016] NSWSC 166 R v Mehta [2009] NSWSC 814 R v Ross [2014] NSWSC 707 R v Sumpton (No. 4) [2015] NSWSC 684 R v Walsh [2009] NSWSC 764 Ryan v R [2017] NSWCCA 209 Sumpton v R [2016] NSWCCA 162 SW v R [2013] NSWCCA 103 Tan v R [2010] NSWCCA 207 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Versluys v R [2014] NSWCCA 98 Zaro v Regina [2009] NSWCCA 219
Texts Cited:	The Holy Bible, 1984, Red Letter Edition, Thomas Nelson Publishers Nashville
Category:	Sentence
Parties:	Regina (Crown) JK (Offender)
Representation:	Counsel: Mr L Carr (Crown) Mr P McGrath (Offender)   Solicitors: Director of Public Prosecutions (Crown) Conaghan Lawyers (Offender)
File Number(s):	2015/00278929
Publication restriction:	No publication of material capable of identifying children.

Judgment

1. CN would have turned 13 years old on 23 October 2015. She had a caring nature, cute dimples and a beautiful smile that could light up a room. However, CN did not make it to her thirteenth birthday. Instead, she was buried on that day. After being tied to a bed intermittently and beaten over three days by a man who should have been protecting her, her little body gave up and she died on 23 September 2015. The loss of CN has had a lasting and devastating impact on all of the members of her family who are left behind to grieve and to try to pick up the pieces of their shattered lives. The pain is raw and deep and it will not go away. MP was CN’s grandmother. When her son, AP, read his mother's victim impact statement to the Court last Monday, there was a deep and still sadness permeating the courtroom. His anger, grief and bewilderment were palpable.

2. The man who caused this pain and anguish now stands to be sentenced for the murder of CN. He faces a maximum penalty of life imprisonment and there is a standard non-parole period of 25 years because his victim was a child. This is a case, because of its extreme gravity, where the Crown submits, with force but appropriate circumspection, that the offender should be imprisoned for the term of his natural life. That is the most extreme penalty contemplated under Australian law and can only be imposed when no other penalty will satisfy the community interest in retribution, punishment, community protection and deterrence. To decide whether that very high test has been satisfied, it is necessary to set out in some little detail the facts and circumstances of the offence, the impact it has had on CN’s family, the personal circumstances and background of the offender, and the legal principles that apply in sentencing for such an horrific case.

The facts of the offences

3. The offender was born in Malawi in April 1984. After spending some time in the United States, he arrived in Australia in the early 2000s and studied at Newcastle University. He was in sporadic employment from that time until the date he murdered CN. He has been in custody since 23 September 2015 when he was arrested for the murder, at which time he immediately asked for a lawyer.

4. The offender met TP in 2007 and the couple commenced a relationship in March 2009. TP has been charged with the manslaughter of CN and her trial is to proceed in Newcastle at the conclusion of this sentencing hearing. It is unnecessary for me to refer in any detail to the role that she allegedly played in the offences. When the couple met, TP had two young daughters, CN and NZ. They were the children of another man, a French national, who apparently played no role in their lives. In early 2010 the offender and TP moved into a house in a suburb of Newcastle. They lived there until early 2014 by which time the couple had two more children. The family then moved to a suburb of Maitland where they remained until the death of CN.

5. There was domestic violence within the family from sometime during 2011. This commenced with the offender slapping TP to the head and, some months later, kicking her in the stomach and dragging her by the hair. At the time of the second assault the offender had been drinking heavily. Later in 2011, the offender began to assault CN and NZ. The violence continued through 2012 and 2013. The offender would hit the girls on the legs with sticks causing bruising. He would also slap TP in the face. The assaults on the little girls occurred on a weekly basis.

6. After moving to the second home, the nature and extent of the violence directed towards CN escalated. At one stage she was tied up in the garage with her hands secured to a beam in the garage roof. Her feet were also tied and the offender struck her across the back and legs with an electrical cord causing bruises to her legs and other parts of her body. This outrage was far from being an isolated incident. The assaults became more regular and more violent. CN was tied facedown to a bed, a sock was placed in her mouth to muffle her screams, and she was struck with various weapons including wooden bed slats and belts. On some occasions she was struck in the genital area. These kinds of assaults occurred on fifteen or more occasions and she suffered deep bruising and cuts to her body. On some occasions NZ was ordered by the offender to untie her sister and she observed the extent of her sister's injuries. On other occasions CN was thrown against walls with such force that damage was caused to the gyprock. The offender would slap both girls in the face and punch them in the ribs. If they moved they were tied up and the beatings would continue.

7. On one occasion in July 2015 the offender slapped CN with such force that she suffered a fractured jaw and lost a tooth. That incident gives rise to a charge of inflicting grievous bodily harm which the offender has admitted and asked to be taken into account in sentencing him for the murder. [1] The offence on the Form One is very serious and increases the weight to be given to personal deterrence and retribution in sentencing the offender on the murder charge. [2]

   1. Crimes (Sentencing Procedure) Act 1999 s 32.

   2. Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146, Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413.

8. On one occasion the offender dislocated a finger on TP's hand and she ended up visiting hospital and requiring ongoing physiotherapy. It appears that the violence perpetrated by the offender in the family home was pervasive.

9. In the last week of CN’s life the offender assaulted her repeatedly by slapping her face and punching her in the ribs. The force of the blows and the child’s pain caused her to fall to the floor but the offender made her stand up and continued to assault her. At one stage in the weeks prior to her death, TP warned the offender that the assaults were so bad that he may kill the child. But the assaults continued.

10. Throughout this period of torment neither of the girls was provided with medical assistance. Rather, they were kept out of school for extended periods to allow the obvious injuries they suffered to heal. At times, TP would give the girls Panadol for the pain and would apply antiseptic cream to the wounds. The offender sometimes rubbed "heat rub then salt and vinegar onto the wounds" and on one occasion said to NZ "you've put me through pain, so now you can see how it feels."

11. As the facts indicate, NZ was also subject to violence at the hands of the offender. However the violence directed to her was less extreme than that visited upon poor CN. Even so, the assaults on NZ were severe and included being forced to lie on the bed while the offender whipped her with a tie filled with metal balls. He put music on to hide her cries of pain. The photographs of her injuries are horrific.

12. There was an occasion in July or August 2015 when CN was sick and vomited. When she failed to clean up all of the vomit the offender struck both girls on the back with a leather strap "really hard". NZ described the general violence suffered by her and her sister in the following way:

“Me and my sister would usually get smacked at least once a day…he would usually just hit us on the face with his hand. But if it was serious, he’d tie us, tie us down…like tie us up. And then there was a certain time he’d say that if one person does anything ah, we’d both get in trouble.”

13. The events leading to CNs death commenced on Sunday 20 September 2015 and continued until she died on Tuesday 22 February 2015. The agreed facts described what happened in the following distressing terms:

Sunday 20 September 2015:

About lunchtime on 20 September 2015 CN was in the kitchen eating lunch. She was unable to finish the meal and threw some into the bin. She then went to the lounge room. The offender, the co-accused and NZ were in the lounge room at that time. The offender took CN to the main bedroom and shut the door. The offender tied CN to the bed. ‘Bang, bang, bang’ type noises could be heard coming from the room. CN was heard to call out “Dad, I’m sorry. I promise I’ll change. I promise I’ll change.” The offender could be heard yelling “Stop moving, just stand still.” The offender would not allow anyone into the bedroom during this time. On that Sunday afternoon the offender left the main bedroom at least 3 times before returning on each occasion. There was a time gap of some 5 to 10 minutes between each entry and exit to the room. On each occasion he went into the room ‘bang, bang’ noises could be heard. On each of those occasions the offender was assaulting CN.

During these assaults upon CN, NZ was in CN’s bed room. She was unable to hear anything as the co-accused had told her to close the door. After the offender had finished assaulting CN he called NZ to the lounge room and told her “Go to the room and see where your sister is” and then he said “go untie her” and “tell her to clean up afterwards.” NZ went to the bedroom and found her sister tied to the base of the bed face down on the wooden slats. The mattress had been removed from the bed and CN was on the wooden slats. NZ described the situation as this: “He tied her up both the arms up and the legs up. So she doesn’t move” and she was tied using “just his ties” and with respect to her mouth NZ saw the offender “had put a sock in there, and then got his belt and tied it around.”

CN said to NZ “she was sorry that I had to see her like that.”

NZ was able to see injuries on her sister that she described as follows: “she just had a whole lot of marks everywhere on her back……….there was (other marks) on her legs and her arms, but they weren’t recent ones…..she was bleeding.”

After being untied CN had a shower in the main bedroom en-suite. The offender then instructed NZ to put salt on the wounds and CN cleaned up the blood in the room.

Monday 21 September 2015:

The following morning, NZ woke and was making the bed in the main bedroom. CN was in the kitchen eating breakfast. NZ heard a bang coming from the kitchen and then heard the offender call her name and tell her to get his ties. NZ grabbed the rack of ties from the main bedroom. She then went to CN’s room and gave the offender the ties. NZ saw her sister lying on her bed crying. She saw the offender take the mattress of the bed and tie the hands and feet of her sister to the bed frame. She then left the room and went to the main bedroom. There she was with the co-accused and the other children.

When she left the room the sound of ‘bang, bang, bang’ came from CN’s room. The offender left and returned to CN’s room on a number of occasions. On each occasion CN remained in the room. On each occasion the offender returned to the room further bang type noises could be heard coming from that room. The offender on each occasion was assaulting CN.

Ultimately the offender called to NZ and told NZ to untie her sister. When NZ went to the room she saw her sister laying on the bed on her stomach. She was bleeding from her back, she had purple bruising on her back and bruises on the bottom of her feet. She was naked from the waist up. One of the wooden bed slats had blood “all over it.” NZ untied her sister and she sat up. CN said to the offender that she was unable to stand up and complained of being dizzy. The offender said that “it was all in her mind and she was just pretending.” The offender pushed NZ out of the room and renewed beating CN. NZ could hear noise coming from the room that she described as “just so much banging.”

Eventually, CN appeared from the room and she made her way to the kitchen. The co-accused saw that she was struggling to walk and she was dazed. She whispered to CN, “Are you OK?” CN said “No mum.” She was complaining that her legs were hurting. At one point CN was trying to eat but was struggling to do so. Due to this she attempted to hide the food. The offender became angry after seeing this and he threw a chair. He ordered the co-accused from the kitchen. A short time later the co-accused returned she saw that CN was under the table and heard the offender say “I don’t give a fuck.” The co-accused said to him, “You’re going to kill her.” He took CN back to the bedroom, tied her up again and struck her again.

Some time passed before NZ went back into the room. The offender had put CN in the shower. The offender told NZ to talk to her sister while she was in the shower and he left the room. NZ did not say anything to her sister as CN was having difficulty remaining awake. Initially CN was standing in the shower but then she fell to the floor. The offender re-entered the room and told CN “to get out of the shower because she could walk and that it was all in her mind.” She stood up to walk out of the shower but she was unable to walk and fell and struck her head on the floor. The offender picked her up, again said she was “pretending” and yelled at NZ to “go away”. NZ left the room. She could hear the banging noise again coming from CN’s room. The co-accused left the main bedroom and went to speak with the offender.

After the beating stopped the offender told NZ and the other children to go outside to play. CN was told to go out as well. Outside CN kept falling down and finding it necessary to sit as she could not stand. The offender again said she was pretending, he took her inside the house and slapped her face. NZ could see this through the blinds. The offender ordered the other children inside and he at that time slapped NZ across the face.

The offender told all the children to go to the lounge room and play the Wii. He told CN to remain standing. He left for a time and when he returned CN had sat down. The offender told the children to go to the main bedroom where they were joined by the co-accused. The offender returned to CN’s room with CN and the banging noises started again. After a time NZ was called to by the offender and she went to the kitchen where the offender told her to go and see what her sister was doing and that CN was making the co-accused cry. NZ went to CN’s room and found her sister tied to the bed in the same manner as before. She was then told to go back to the main bedroom.

At some stage the co-accused assisted CN to the toilet, she was struggling to walk. While CN was on the toilet the co-accused saw bleeding from CN’s vagina. She asked if he had hit her there and she said “Yes”.

Throughout that night the co-accused asserts she checked on CN.

NZ was present in the room on one of the occasions on that day and saw the offender hit CN across the back with a wooden bed slat. She heard her sister scream with pain.

Eventually, NZ and the other children went to bed in the main bedroom.

Tuesday 22 September 2015:

About 6.30 to 7.00 am the co-accused heard a glass smash in the kitchen and the offender yelling at CN. The co-accused walked to the kitchen and saw CN vacuuming and mopping up the smashed glass. After this, CN started to eat and she appeared quite responsive according to the co-accused. She was in the lounge room as was the offender whom was feeding KK. The offender asked CN to get a tissue from the pantry and as she went to the kitchen she vomited. She ran to the bathroom where she vomited again. In the bathroom the co-accused saw the extent of the injuries to her back. She saw bruises, blood and deep lacerations.

Most of the morning NZ was in her room with the other children. At about 11.30am they went to the back yard to play for an hour or two before playing in the garage for some time. They came inside for lunch about 1.00pm before returning outside to play for a couple of hours.

The offender told NZ and the others to come inside. NZ went to the bathroom and saw CN in the bath and spoke with her briefly and played on a tablet. It was about 3.00pm. While NZ was speaking with CN she saw scarring and “scabbed up” injuries on her sister’s back and she described CN’s back as being “purple”.

The offender came in to the bath room and ordered CN to the shower. While CN was in the shower the offender, again hit CN. He struck her to the face and then at one stage he grabbed CN’s head and kneed her to the head. She fell to the shower floor and where he stamped his foot on her, this was described by NZ in these terms “he started stepping on her” and she demonstrated a stomping motion when spoken to by Police. NZ was unable to say where the stomps contacted CN apart from describing it as (his foot) “was going on CN”. NZ was not asked how many stomps the offender delivered to CN.

At this time, NZ’s younger sister was crying so she was told to go and check on her. She took her two younger siblings to the main bedroom and closed the door. She could hear “lots and lots of banging” coming from a room. The offender was further assaulting CN. After a period in the main bedroom the offender yelled out to NZ that CN had vomited in CN’s room and to clean it up, which she did.

While she was cleaning, she heard sounds of CN being further assaulted and at one stage the offender yelled out, “CN.” He repeated her name on more than 10 or 20 occasions. NZ described his voice as sounding worried. After hearing CN’s name she heard a sound coming from CN’s room and she describes it like “hearing her father blowing up a balloon.”

Eventually NZ and her two younger siblings went to bed in the main bedroom. She remembers during the night she was awoken by the co-accused and returned to her room. She also remembers seeing the co-accused enter CN’s bedroom and fix her bed and put CN to bed.

Around 4.00pm on that day the co-accused left the home. She went to the bank and then to the East Maitland Bowling Club where she played the poker machines for a few hours. She states that she received a text message from the offender asking her to return home. She states that when she got home she saw the offender in a room wiping vomit from CN’s mouth. The offender told her that he put CN to bed and there was no need to be concerned. She says she was not allowed to go to CN’s room.

The following morning about 5 or 5.30 am CN was found deceased by the co-accused.

14. A post-mortem examination was conducted on 24 September 2015. The pathologist determined that death was the result of acute blunt force trauma to the head, torso and limbs. There was evidence of multiple applications of force and it was not possible accurately to document the number of injuries. However, fifty separate injuries were observed on the skin alone and many of those injuries may have reflected more than one impact. There was evidence of injuries indicating the possible use of a "linear object" (which I take to be consistent with the use of the wooden slats of the bed which were shown to the Court). There were acute injuries to the liver and bowel likely caused by blunt force trauma (either blows or kicks) to the abdominal area. There was evidence of vomitus in the airways which "is likely to be a terminal event". The learned Crown Prosecutor told me, and I accept, that the pathologist told him that the mechanism of death was that the child went into shock and to adopt his expression "you just give up because you can't take any more”. This was reflected in the post-mortem report where the pathologist described the following mechanism of death: –

“All injuries showed bleeding which was most severe on the back of the torso and on the limbs. The extent of blood loss is not possible to estimate (as there is no way to measure this in the post-mortem setting) however it may have been in order of 1 litre or more. The effect of this degree of blood loss would be to cause the deceased to go into shock and exhibit signs indicating low blood pressure (for example dizziness, fainting, pallor). It is likely that the mechanism of death was cardiorespiratory arrest secondary to shock."

15. The pathologist was of the view that CN would probably have survived if she had received medical assistance.

16. The photographs of the injuries to CN are shocking. I do not have the words to describe them.

17. The violence visited on NZ is not subject to any charge and the offender is not to be sentenced for those assaults. The relevance of the history of violence towards TP and NZ is that it establishes that the offender is not a person of good character in spite of the testimonials from his family to which I will presently refer.

The objective seriousness of the offence

18. It is unnecessary to descend in to the use of adjectives and pejoratives to describe the objective gravity of the offence. The facts speak for themselves. For the purpose of the application of the standard non-parole period, I record the inevitable finding that the objective seriousness of the offending falls well above the putative mid-range of seriousness for such offences. In a slightly different legislative context, the High Court eschewed the practice of describing offences as falling in the “worst category”. [3] However, objectively, the present case must be seen as close to the top of the broad and diverse spectrum of conduct that can be charged as homicide. That is so because of the savage and repeated nature of the beatings over a period of days and because there are a number of aggravating features present. [4]

    3. The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[20].

    4. I do not propose to use s 21A as a checklist but have taken the provision into account while remaining cautious not to double-count any aggravating factor.

19. The offence was committed on a vulnerable victim in her own home and perpetrated by an offender who abused his position of trust. The offence involved the use of a weapon (although many offences of murder do). It was committed in the presence of another child (NZ). While it is unnecessary to resolve the issue of whether the offender, pathologically, is a sadist, I readily accept the concession made by Senior Counsel for the offender that the offence involved gratuitous cruelty to a young, helpless and defeated victim. While Senior Counsel for the offender acknowledged that the harm caused to the victim and her bereaved relatives is substantial, this is a murder case and such harm is an inherent feature of the offence. The impact on CN’s family will be taken into account but this is not a factor under s 21A(2) that further aggravates the offence as a matter of legal principle.

20. I am not satisfied that the offender intended to kill CN. He will be sentenced on the basis that he intended to inflict grievous bodily harm and was recklessly indifferent to human life. However, this is a rare case where the absence of an intention to kill does little, if anything, to mitigate the objective seriousness of the offence. [5]

    5. Cf Versluys v R [2014] NSWCCA 98 at [21] (Hamill J, Simpson and Hidden JJ agreeing) and see, by way of example, Tan v R [2010] NSWCCA 207.

21. In assessing the objective seriousness of the offence, and in deciding on the appropriate sentence, it is important to bear in mind that the offender is not to be sentenced for the savage beatings administered to the victim's sister and the assaults on her mother, which are not the subject of any charge. The offender is not to be punished for those assaults. The relevance of the history of violence towards TP and NZ is that it establishes with clarity that the offender is not a person of good character in spite of his lack of a substantial criminal history and the documentary evidence tended on his behalf. No submission to the contrary was made by Senior Counsel who appeared for him at the sentencing hearing. The history of violence places the murder in its true context and establishes that the events of 20-22 September 2015 were not isolated but formed part of a consistent pattern of cruel and barbaric abuse of a helpless child.

The impact on CN’s family

22. In my opening remarks, I referred fleetingly to the impact of the offence on the victim's family. Her loved ones had to endure the tragedy of attending CN’s funeral on the day they should have been celebrating her thirteenth birthday.

23. I received a statement from MP, courageously read in open Court by her son AP. I also received a document prepared on behalf of NZ. It is impossible to understand, let alone describe, the devastating impact of this murder on CN’s loved ones. The actions of the offender have caused deep wounds in all of the members of CN’s family. Her relatives cannot believe that a person to whom they extended their generosity and hospitality over a number of years could have caused such harrowing pain to them or the egregious breach of trust involved in the offender’s conduct towards CN. The family has lost trust in people and will miss CN for the rest of their lives. They grieve that they will not get to celebrate her 16th and 18th birthdays or her graduation from high school and the fact that they will not be able to advise her about her choices as she enters adulthood. They treasured the possibility that she may one day be married and have a family of her own. All of this has been taken from them.

24. NZ was so confronted by the possibility of sharing her experiences and emotions with the Court that she was unable to write a statement. However, her foster carer VK described the impact of her experiences and her feelings about the loss of her sister. She despairs that she will never be able to speak to her "best friend" again. She misses her grandparents, aunts, uncles and cousins from whom she has been separated as a result of these events. She feels she will need ongoing psychological support for the rest of her life. She sleeps with the light on every night. She has expressed thoughts of self-harm and even suicide so that she can "be dead with her sister". She fears the offender will contact her younger siblings and she won't be able to protect them. She says:

"Every day this is with me. This is my story and I wish it wasn't."

25. The last paragraph of MP’s victim impact statement describes the offender’s behaviour as inexcusable and unacceptable and poses the central question eating away at the hearts of the family. That question is: why?

26. I accept the prosecutor’s submission that it is appropriate to take into account the impact of the death of CN on her family in determining the appropriate punishment because it is an aspect of the harm done to the community. [6] The law cherishes and protects all human life and all lives are considered by the law to be equal. I have previously discussed the way in which victim impact statements can properly inform the exercise of the sentencing discretion. [7]

    6. Crimes (Sentencing Procedure) Act 1999, s 28(4).

    7. R v Hines (No 3) [2014] NSWSC 1273 at [77]-[85]. See also R v Do (No 4) [2015] NSWSC 512 (Davies J); R v Halloun [2014] NSWSC 1705 (McCallum J); R v Sumpton (No. 4) [2015] NSWSC 684 at [36] – [44]; Sumpton v R [2016] NSWCCA 162.

27. To those members of CN’s family present in court today, on behalf of the Court and the community, I express my deepest sympathy for your loss. I know that nothing I say, and no sentence I impose, can really help you. I know that no penalty imposed on the offender will seem sufficient. I hope your pain diminishes in time but I don’t know if it will. I hope, at least, that you will always cherish your memories of CN.

The offender's case on sentence

28. The offender was 31 years old at the time of the offence and will turn 34 in April this year. He does not have a substantial criminal record. He has two previous offences of drink driving and two offences of failing or refusing to undergo breath analysis. All of those offences apparently involved the use of alcohol. In 2008 he was convicted and fined $600 for an offence of common assault and damaging property. That was a domestic assault against a previous partner. He became involved in an argument with his partner and her mother and ended up punching his former partner a number of times causing small lacerations to her hand and forehead. He also smashed some windows.

29. I do not accept the Crown submissions that his lack of a substantial criminal record carries no weight. However, in view of the history of violence involved in the lead up to the present offence, as well as the extreme nature of the offence itself, the absence of a substantial criminal record does not carry very much weight even though, technically at least, it is a mitigating circumstance to be weighed in the offender's favour.

30. A body of material was tendered on the offender's behalf. This included a number of testimonials from his family who live in Malawi. At times, the material speaks of the offender in the most glowing terms. It describes a happy and well-adjusted childhood. The parents, siblings and in-laws clearly love the offender and, perhaps understandably, see only the good side of him. The nature and terms of their references suggests that many of them have little or no idea of the magnitude and gravity of this offence and the history of violence towards his family in Australia. There is some reference (in his father’s letter) to the soul of CN resting in peace but little to suggest the family knows the facts of the case. His brother says the family “decided to not dwell on the issues to do with what happened at JK’s house but accept that he made a mistake.” Later he refers to “the terrible mistake on the fateful day”. The offender’s sister appears to have more insight when she said it is “awkward” to describe her brother “as a good person that came from a good [Christian] home” because “it seems so contradictory looking at what actually took place.” The descriptions of his love for, and protective attitude towards, his wife and children is completely at odds with his actions between 2012 and 2015.

31. Nothing in the material provided by the offender’s family answers the question posed by CN’s grandmother, which is to say, why did this happen? I suspect, although I cannot act upon the suspicion, that there is more to the offender's story and family background than meets the eye.

32. I am satisfied that the offender comes from a good and respected family who do good work in the community in Malawi. I am satisfied that they continue to support him. This support is a positive feature of the offender’s case and is relevant to the offender’s prospects of rehabilitation if he is ever released from gaol. The offender left Malawi and studied in the United States before coming to Australia. It is clear that he and his family held high hopes for him but that those hopes have not been realised.

33. There was also a letter from a minister of religion describing the offender in very positive terms. The Reverend quotes passages of the Bible concerning the Christian tenet of forgiveness. Again, there is nothing to suggest that the Reverend has any idea of the nature of the offending in the present case. Without doubting his sincerity, I do not find his letter of any assistance in determining the appropriate penalty.

34. In the circumstances, while I have taken the family’s testimonials and opinions into account, it is difficult to give them very much weight. As I have said, insofar as this body of evidence suggests the offender is a person of good character, the history of violence directed towards CN, NZ and TP satisfies me that he is not.

35. However, I will take into account the fact (which is expressed in some of the letters) that those dearest to the offender, and best able to provide him with support while he is in custody, live in Africa and will be unable to visit him while he is in gaol. This means the offender’s incarceration will be, as I expect it has been to this point, lonely and onerous.

36. The most significant documents tendered in the offender's case are a psychological report prepared by Mr Tim Watson-Munro and a letter dated 20 November 2017 written by the offender to his solicitor.

37. Having been charged in 2015, the offender was committed for trial on 12 April 2017. On 2 June 2017 he was arraigned and pleaded not guilty. His trial was listed to commence on Monday 26 February 2018. On 22 November 2017, the offender asked to be re-arraigned. He entered a plea of guilty. While the plea came very late, it saved a substantial amount of court time and, if a determinate sentence (as opposed to a life sentence) is imposed, his plea would entitle him to a discount of around 10% for the utilitarian value of the plea.

38. The change of plea came after the offender wrote a rather extraordinary letter to his solicitor. The letter is dated 20 November 2017. In the letter, the offender instructed his solicitors that he would enter a plea of guilty and that he did not want any further investigations to be made into any medical and psychiatric issues that might bear upon his culpability. He told his solicitor “I have no intentions of asking the Judge to go easy on me” and “if I don’t ask the Judge for the maximum, then as God is my witness, I only want what is fair and just so at least TP and the kids can attempt their quest for peace.” He said he did not want his family to be present at the hearing and that he was “prepared to spend the remainder of my days confined.” He spoke of the shame eating away inside of him. He referred to waterfalls of remorse.

39. Towards the end of the letter, the offender made passing reference to Jeremiah 20:14. He did not quote the text but, with his customary diligence, the Crown Prosecutor researched the biblical passage and advised me that it is in the following terms:

“Cursed be the day I was born. May the day my mother bore me not be blessed.”

40. The offender described his actions as a “monstrosity” and eschewed any attempt to explain or justify it by “medical/clinical terminology”. He said he was “all things evil”, that “something did not sit right in my heart” and asked rhetorically: “why should I plead not guilty, or guilty to a lesser charge, when I didn’t give my family a chance”. He said he had condemned [his Australian family] and would not drag them through the courts and legal system any longer.

41. There is more of the same in this letter, the likes of which I have not previously seen. This was not a letter to a Judge asking for leniency but rather a heartfelt and sincere explanation to his lawyers as to the offender’s reasons for deciding to plead guilty and forbidding his solicitors from pursuing any defence that may be available to him.

42. It is true, as the Crown Prosecutor submitted, that this expression of remorse and insight came very late. However, it is a cogent piece of evidence. While it does not explain how and why the offender came to act as he did, it demonstrates a degree of insight and contrition that is relevant to the exercise of the sentencing discretion in a number of ways. In particular, it provides some hope for the offender’s prospects of rehabilitation if he is ever released from gaol.

43. The report of Mr Watson-Munro denies that there is any major psychiatric disturbance, or evidence of any childhood trauma, but says it is clear that the offender “has suffered longstanding symptoms of depression, anxiety and features of an Adjustment Disorder arising from his earlier life in Malawi and his subsequent attempts to better himself in Australia.” Mr Watson-Munro says that in the absence of treatment for this depressive illness, the offender developed a significant dependence on alcohol. There is an abundance of evidence of the offender’s abuse of alcohol. The agreed facts say he was drinking up to “8 litres of wine a day” and the offender’s lawyers have extracted the many references to the offender abusing alcohol disclosed in the prosecution brief of evidence. [8]

    8. This is item 2 in Exhibit 1.

44. Self-induced intoxication cannot be relied on as a mitigating factor. [9] However, the evidence of alcohol abuse in this case supports Mr Watson-Munro’s diagnosis of depression in that it suggests the offender was self-medicating his untreated depressive illness. I accept on balance that this is not a case where the use of alcohol led to the depression. [10] Rather it is one where the depressive disorder led to the use of alcohol. [11] This may have some impact on the proper exercise of the sentencing discretion. [12] As Senior Counsel for the offender submitted, it may also be relevant to rehabilitation in that, if the depression is treated and the alcohol dependence is addressed, the offender may be unlikely to offend in the future. However, even if a determinate sentence is imposed, the release date would be so many years into the future that assessing his prospects of rehabilitation and, conversely, the extent to which he might then represent a danger to the community is largely an exercise in speculation.

    9. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA).

    10. Cf Zaro v Regina [2009] NSWCCA 219 at [34]-[36].

    11. Cf R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273](c)(ii) (Wood CJ at CL), Spigelman CJ agreeing at [201].

    12. See Ryan v R [2017] NSWCCA 209 at [12]-[13] where I summarised the principles distilled by Spigelman CJ in R v Israli [2002] NSWCCA 255 at [22]-[26] and McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

45. While the opinions of Mr Watson-Munro are based on the self-reported and untested assertions of the offender, the psychologist was not cross-examined. As Allsop P explained in Devaney v R, [13] part of the professional skill and expertise offered by witnesses such as Mr Watson-Munro is the ability to provide opinions based on the history provided set against what is known and hypothesised by the expert. As Allsop P noted, it is one thing to discount self-serving statements made to an expert witness when the source of those statements is not called to give evidence, but it is another thing to criticise the professional opinions of an expert in the absence of cross-examination. Mr Watson-Munro formed his opinions based on the history, supported by the independent evidence of the high levels of alcohol consumption, and psychometric testing administered in the course of the examination. It is significant that the assessment was conducted after the letter written by the offender to his solicitor. It is unlikely in the circumstances that the offender was attempting to manipulate the psychologist, or exaggerating or misreporting his symptoms.

    13. Devaney v R [2012] NSWCCA 285 at [88]. See also Luque v R [2017] NSWCCA 226 at [116].

40. No submission was made suggesting that Mr Watson-Munro was not qualified to provide the opinions he proffered. [14] I accept the opinion of Mr Watson-Munro that the offender was suffering from a long-standing depressive disorder but that he did not have any major psychiatric disturbance. However, that finding does not lead to any automatic consequence, let alone an automatic reduction in the sentence. [15]

    14. Cf Ryan v R [2017] NSWCCA 209 at [9] and the cases referred to the footnote. I do not accept, at least as a general proposition, that a psychologist does not have the necessary qualifications to make such a diagnosis. In passing I note that in his sentencing judgment in R v Kelsall [2015] NSWSC 480, RA Hulme J preferred the opinions of a psychologist over those of two psychiatrists.

    15. R v Engert (1995) 84 A Crim R 67 at 71.

Life sentences and comparable cases

47. Section 61(1) of the Crimes (Sentencing Procedure) Act1999 provides for “mandatory life sentences” in murder cases where “the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition” of a life sentence. Counsel for both sides referred to my discussion of the provision in R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [16] . While the Crown Prosecutor noted there was “some conjecture as to the correctness of the two stage approach” adopted in earlier cases, he supported the approach I explained in sentencing the Qaumi brothers. What I said in that case (omitting footnotes) was as follows:

    16. R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 at [182]-[194].

“182. Section 19A of the Crimes Act provides that the maximum penalty for murder is imprisonment for life. A person sentenced to imprisonment for life for murder is to serve that sentence for the term of their natural life. Since the abolition of the death penalty, this is the most severe penalty contemplated under Australian law. It should only be imposed in the extreme circumstances provided for by the law. It has a capacity to crush hope and kill any motivation an offender may have to reform. It is considered by some societies and some tribunals to be inhumane and contrary to human rights. However, it is part of the law of New South Wales and must be imposed in extreme cases. The relevant statutory provision reflects this.

183. Section 61(1) of the Crimes (Sentencing) Procedure Act provides:

“61 Mandatory life sentences for certain offences

(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

184. The first thing to note about the section is that the imposition of a life sentence is mandatory if the court is satisfied of the statutory prerequisite that “the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition” of a life sentence. The second thing to note is the importance of the use of the word “only” within that statutory requirement. If any other sentence will meet the community interest in the four matters referred to, that other sentence – and not a life sentence – should be imposed.

185. Section 61(3) provides “nothing in subsection (1) affects section 21(1)”. Section 21(1) preserves the Court’s discretion to impose a penalty less than the maximum even in cases where the offender is liable to a maximum penalty of imprisonment for life.

186. In Knight v R [2006] NSWCCA 292 McClellan CJ at CL (with whom Adams and Latham JJ agreed)said that the operation of s 61(1) and s 21(1) required a “two stage approach” stating at [23]:

“23   Firstly,consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.”

187. The High Court recently criticized the use of phrases such as “worst category” and held that the “better approach is for the court to clearly record whether the offence is, or is not, so grave as to warrant the imposition of the maximum penalty. The High Court has criticised two stage sentencing in other contexts. Many of the cases describing this two stage process were decided before the High Court made its decision in Muldrock v The Queen.

188. The “two stage approach” was employed in cases such as R v Miles [2002] NSWCCA 276 at [204]; R v Merritt [2004] NSWCCA 19 at [37]; and Dean v R [2015] NSWCCA 307 at [73]. In Miles Stein JA described the two-stage process at [52]:

“The first question is whether the level of culpability is so extreme as to warrant the imposition of a life term? Secondly, whether the subjective features are capable of displacing the need to impose the maximum term?”

189. Some of the authorities recognise that a tension exists between s 61(1) and s 61(3). In Dean v R their Honours said (at [95]) that:

“Certainly, the tension recognised in the authorities as existing between s 61(1) and s 61(3) can only readily be reconciled by assuming that that there has been a determination that a life sentence is required to be imposed and then asking whether, in the circumstances, nevertheless a lesser (fixed term) sentence is appropriate. In other words, there must first be an assessment that the level of culpability is such that a life sentence is required, having regard to the four indicia specified in s 61(1), before one can sensibly apply s 21(1).”

190. Similarly, in R v Merritt [2004] NSWCCA 19 Wood CJ at CL (Tobias JA and Hidden J agreeing) noted at [36] the tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) and the preservation by s 61(3) of the s 21(1) discretion to impose a lesser sentence.

191. There is debate as to whether the two-stage process is the correct approach. I doubt that it is. The case of Dean v R was subject to an application for special leave to appeal to the High Court. It was submitted that the two stage approach is wrong and that the “two sections have to sit alongside each other” with s 21(1) merely preserving the court’s discretion in sentencing. While the application was refused on the facts of that case, Bell J commented:

“We would not wish to be taken to be endorsing everything stated by the Court of Criminal Appeal in determining this matter.”

192. That comment is rather (and, no doubt, deliberately) opaque. It is axiomatic that the observations of the High Court in granting or refusing special leave do not constitute binding precedent. However, the statements of the High Court in cases such as Markarian v The Queen, Muldrock v The Queen and most recently in Kilic v The Queen, satisfy me that the correct approach does not involve a two stage process. I do not consider the earlier judgments of the Court of Criminal Appeal suggesting otherwise are binding in the sense that they mandate that a two stage approach is necessary.

193. The correct approach to s 61 is for the sentencing judge to consider all of the evidence relevant to the sentencing discretion, apply the relevant sentencing principles (common law and statute) and make an assessment of the extremity of the offender’s culpability and the “community interest in retribution, punishment, community protection and deterrence.” The sentencing Judge must consider whether the only way that the community interest so identified can be met is by the imposition of a life sentence. This is not a multi-stage process. Rather, it is an intuitive evaluation of the all of the material and principles and an application of the legislation providing for mandatory life sentences.

194. In R v Adams (No 7), Button J identified a number of features of cases that have attracted life sentences. These included cases of multiple murders, cases featuring “some exceptional heinous act of cruelty, torture or mutilation” and, relevantly, “a cold blooded contract killing.”

48. The present case involves heinous acts of cruelty and behaviour that might well be categorised as “torture”. The culpability is extreme and the community interest in retribution, punishment and deterrence is profound. I accept that the community interest in community protection is of less significance but it still has a role to play. The question is whether these interests can “only” be met through the imposition of a sentence that would see the offender die in prison.

49. Counsel took me to a number of generally similar cases, where children were killed following prolonged periods of unspeakable acts of violence. After submissions closed, I was provided with a schedule summarising 23 such cases. Life sentences were imposed in three of those cases. In two of those cases, there was more than one victim. [17] In the third, the sentencing Judge found that the offender had “a compulsion to kill and mutilate young girls”. [18]

    17. R v Mehta [2009] NSWSC 814 and R v Walsh [2009] NSWSC 764.

    18. R v Coulter [2005] NSWSC 101 at [62].

50. In the cases most analogous to the present, sentences in the vicinity of 40 years with non-parole periods of around 30 years were imposed. In SW v R [2013] NSWCCA 103 a sentence of 40 years with a non-parole period of 30 years was imposed on appeal and after the offender pleaded not guilty. Similarly, in R v Ross [2014] NSWSC 707, Rothman J imposed a sentence of 40 years with a non-parole period of 30 years after trial. In R v Maybir (No 8) [2016] NSWSC 166 RA Hulme J imposed an aggregate sentence of 42 years with a non-parole period of 31½ years, after trial and incorporating a number of other serious offences. Finally, in R v Lock [2017] NSWSC 715 Latham J imposed a sentence of 36 years with a non-parole period of 27 years. None of these cases are completely analogous to the present case but they all involved the brutal killing of a child. None of the cases could be considered objectively to be more serious than the offences committed by the offender. However, each of those sentences were imposed after trial.

51. I am very grateful for the diligence of the lawyers on both sides for bringing these, and other, cases to my attention. However, no two sentencing cases are alike and a consideration of those cases does not relieve me of the responsibility of applying the terms of s 61(1) to the particular facts and circumstances of this case and in setting an appropriate sentence for this individual offender in the peculiar and horrific circumstances of this offence.

The sentence

52. I have taken into account the purposes of sentencing both under the common law and in s 3A of the Crimes (Sentencing Procedure) Act. I have applied the relevant provisions of the legislation including s 21A, although I have not found it necessary or desirable to use the provisions of sub-s (2) and (3) as a checklist of aggravating and mitigating factors. [19] I have kept firmly in mind the maximum penalty and applied the standard non-parole period in the manner explained by the High Court. At all times during my deliberations, I have recalled the duty of the court to protect the sanctity of human life, to vindicate the victims of homicide and to have regard to the substantial harm done to the community by such crimes. I have considered the suffering that this awful crime has caused to the victim’s family. I have tried to imagine CN’s suffering, pain and anguish.

    19. Cf Ghamraoui v R [2009] NSWCCA 111 at [23].

53. Notwithstanding the horrendous nature of the offending, I have concluded that the community interests identified in s 61(1) can be met by the imposition of a lengthy, but determinate, sentence. The things that persuade me to that judgment include (i) the offender’s plea of guilty, (ii) his relatively minor criminal history, (iii) the insight and remorse demonstrated by his letter to the solicitor, (iv) the absence of an intention to kill (notwithstanding my finding that this is one of those rare cases where the absence of an intention to kill does not take the case outside of the putative “worst case”), (v) the longstanding depression suffered by the offender, (vi) the distance of the offender from his family and the consequent lack of support and visits he will receive from those who remain supportive of him. Ultimately, this is my intuitive judgment based on the whole of the evidence and the circumstances of this case.

54. For the charge of murder, and taking into account the offence on the Form One, I would commence with a total sentence of 42 years. Applying a discount of slightly more than 10% for the plea of guilty, the total sentence will be one of 37½ years. Notwithstanding the fair approach taken by the Crown Prosecutor to the subject, I am unable to make a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act other than for the purpose of rounding down the length of the non-parole period so that it is measured in years rather than months and days. [20] There will be non-parole period of 28 years.

    20. Senior Counsel for the offender conceded there were no special circumstances. As to “rounding down” the sentence, see Akkawi v R; Akkawi v R [2012] NSWCCA 11 per Simpson J at [101]-[102] (Simpson J), Versluys v R [2014] NSWCCA 98 at [2] (Hidden J) and [37] (Hamill J).

55. JK for the offence of murder you are convicted and sentenced to a non-parole period of 28 years to commence on 23 September 2015 and expire on 22 September 2043. There will be a balance of term of 9½ years commencing on 23 September 2043 and expiring on 22 March 2053.

56. On the application of the Crown Prosecutor, each of the offences to be dealt with pursuant to ss 166-167 Criminal Procedure Act1986 is dismissed.

57. I am required to inform you that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offence for which you have been sentenced. I will leave it to Mr McGrath and Mr Conaghan to explain the potential implications of that on your date of release.

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Endnotes

Decision last updated: 05 March 2018