R v Kennedy

[2013] NSWSC 1940

Supreme Court

New South Wales

Medium Neutral Citation:

R v Kennedy [2013] NSWSC 1940

Hearing dates:

23 July, 30 July, 30 August, 20 September, 12 December, 13 December and 17 December 2013

Decision date:

20 December 2013

Before:

Bellew J

Decision:

1The offender is convicted.

2The offender is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 4 December 2013 and ending on 3 June 2031, with an additional term of 5 years and 10 months imprisonment, commencing on 4 June 2031 and ending on 3 April 2037, a total sentence of 23 years and 4 months imprisonment.

3The offender will be eligible for parole on 4 June 2031.

4The total sentence will expire on 3 April 2037.

Catchwords:

CRIMINAL LAW - Murder - Sentence following late plea of guilty - Where offender heavily intoxicated at the time of the offending - Whether offending aggravated by the fact that it took place in the home shared by the offender and the victim - Whether a finding of special circumstances warranted

Legislation Cited:

Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bellchambers v R [2008] NSWCA 235
DS v R [2012] NSWCCA 159
EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Hasan v R [2010] VSCA 352; (2010) 31 VR 28
Ingham v R [2011] NSWCCA 88
Markarian v R (2005) 228 CLR 357
Montero v R [2013] NSWCCA 214
Muldrock v R (2011) 244 CLR 120
PK v R [2012] NSWCCA 263
R v BIP [2011] NSWCCA 224
R v Carter [2003] NSWCCA 243
R v Comert [2004] NSWCCA 125
R v Dong [2010] NSWSC 1242
R v Engert (1995) 84 A Crim R 67
R v Fidow [2004] NSWCCA 172
R v Goundar [2010] NSWSC 1170
R v GWM [2012] NSWCCA 240
R v Hearne (2001) 124 A Crim R 451
R v Previtera (1997) 94 A Crim R 76
R v Rosenberger (1994) 76 A Crim R 1

Category:

Principal judgment

Parties:

Regina - Crown
Adam John Kennedy - Offender

Representation:

Counsel:
Ms J Baly SC - Crown
Mr M Ramage QC - Offender
Solicitors:
Director of Public Prosecutions NSW - Crown
Michael Croke - Offender

File Number(s):

2012/142513

Publication restriction:

Nil

Judgment

1. On 30 July 2013 Adam John Kennedy ("the offender") pleaded guilty to the murder, on 3 May 2012, of Debara Martin ("the deceased"). The offender's trial had been listed to commence on 12 August 2013.

1. I heard evidence and submissions from the parties on 12, 13 and 17 December 2013.

THE APPLICABLE MAXIMUM PENALTY

1. The maximum penalty for the offence of murder is one of life imprisonment (see Crimes Act 1900 NSW S. 19A). A standard non-parole period of 20 years is prescribed for that offence pursuant to s. 54A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act").

1. Section 61(1) of the Sentencing Act mandates the imposition of a life sentence for murder if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. The Crown has not sought the imposition of a life sentence in the present case, and I am satisfied that such a sentence is not appropriate.

1. In determining the appropriate sentence, I am not required to assess whether, having regard to the standard non-parole period, the offence is in the middle range of objective seriousness, nor am I required to commence by asking whether there are reasons for not imposing the standard non-parole period (see Muldrock v R (2011) 244 CLR 120 at [25]). The relevant statutory provisions contained in the Sentencing Act require an approach to sentencing in which all of the relevant factors are identified. Having identified those factors, I must then reach a determination as to the appropriate sentence (see Muldrock (supra) at [26] citing Markarian v R (2005) 228 CLR 357).

1. The standard non-parole period for the offence of murder requires that content be given to its specification as the non-parole period for an offence in the middle range of objective seriousness. It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock (supra) at [27] and [31]).

VICTIM IMPACT STATEMENTS

1. Victim impact statements were read to the court by:

(i)   Ann Martin, the deceased's mother; and

(ii)   Josephine Martin, the deceased's sister.

1. A further victim impact statement was read to the court on behalf of the deceased's father, Roger Martin.

1. Once again, I take this opportunity of expressing the court's sympathy to the members of the deceased's family. It is to be hoped that the opportunity that each of them has been given to provide a statement to the court will assist their process of grieving in respect of the loss of their daughter and sister. The authorities make clear the approach which is to be taken by a sentencing judge in relation to statements of that kind in a case such as the present (see for example R v Previtera (1997) 94 A Crim R 76).

THE FACTS

1. The Crown tendered a statement of facts which, but for two issues arising from the medical evidence, were agreed. I have dealt with those issues separately below.

1. The deceased was 43 years old at the time of her death and lived with the applicant in Toormina, in northern New South Wales. At the time of her death she had recently commenced work as a kitchen hand at a café in Coffs Harbour. She had previously worked as a sex worker and the offender had been one of her clients.

1. The deceased and the offender commenced a relationship in 2011. That relationship was marked by volatility. One particular source of argument appears to have been the deceased's decision to return to being a sex worker. The deceased had complained to a number of friends and colleagues that the offender had been physically violent toward her in the months leading up to her death. In particular, she had complained that the offender had held a knife to her throat when he was drunk at the end of March 2012. Shortly before her death, she had complained that the offender had hit her, and she was observed at that time to have a black eye and a swollen face. Although she was encouraged to report the incident to the police, she did not to do so.

1. At about 11.30pm on 3 May 2012 the offender arrived at the home of his brother, Luke Kennedy, at Tewinga, a location approximately 38 km south of Toormina. Prior to the offender's arrival, his brother had gone to bed. Having woken to the sound of knocking and screaming, the offender's brother got out of bed and heard the offender saying:

"I've killed her ....I finally killed".

1. The offender's brother noted that the offender appeared to be heavily intoxicated, having seen him previously in that state. He noticed that the offender was stumbling, and on a scale of 1 to 10 he formed the view that the offender was at level 10, or perhaps even 11.

1. The offender asked his brother to assist him in disposing of the deceased's body. This request was refused, and the offender left the house.

1. Brendan Ware, a friend of the offender and his brother, was also staying at the house at Tewinga at that time. He had been sleeping in a bedroom towards the rear of the house when the offender arrived. Mr Ware heard a car approaching the house. He initially stayed in bed but having heard yelling and screaming, he got up and went to the living room where he saw the offender. Mr Ware described the offender as yelling and screaming, "off his ..... head", and saying things about killing or hurting someone in "drunken rampage mumbles". According to Mr. Ware, the offender was known to make violent and intemperate statements when he was intoxicated, although Mr Ware stated that he had never seen the offender as drunk as he was on this occasion. He thought that on a scale of 1 to 10 the offender was at 11.

1. The offender's behaviour caused Mr Ware to leave the house and hide in a nearby paddock. It was not until he heard a car leave the area several hours later that he decided to return. As he approached the inside of the house he saw a person's leg hanging over the sofa. He then ran away again and went to a friend's house.

1. Subsequently, the offender's brother saw the deceased lying on the sofa. He noticed blood dripping from her head, injuries to her face and a white substance that he thought was moisturiser on her head. That same substance had been squirted around the house. The offender's brother formed the view that the deceased was dead at that time.

1. The offender's brother then collected some clothing and left the premises. As he left he noticed items of clothing on the ground near where he had seen the offender and the car earlier that night. He drove to the Macksville Police Station at around 3.00am where he reported the incident.

1. Upon arrival at the premises at Tewinga, police found the deceased's body lying across the sofa. She was wearing underpants, a short black skirt, a pink bra, a singlet type top which had been pushed up revealing her stomach, and ankle length socks. She was not wearing shoes. A baseball bat was found underneath her body.

1. The left side of the deceased's face was heavily bruised and swollen, and blood was draining from her mouth and nose. Her hair was blood soaked and a denture plate was tangled in her hair. She had blood on both hands, both arms, both feet and her right thigh.

1. Drops of a white cream substance were on the deceased's face. An empty 375ml tube of "Palmolive Naturals Conditioner" was resting near the deceased's left ear. There was an oval pattern of white cream on the floor and another oval pattern of white cream on the bottom sheet of the bed located in the bedroom used by the offender's brother.

1. At about 2.25 am on the morning of 4 May 2012 police observed a vehicle being driven by the offender travelling at an excessive speed in a southerly direction along the Pacific Highway near Taree. Police had earlier received reports of a similar vehicle swerving all over the road. When the police stopped the offender, he fled on foot. He was pursued and apprehended. Police observed that the offender's breath smelt strongly of alcohol, his speech was slurred, he was unsteady and he was only partially dressed.

1. The offender was taken to Taree police station and subjected to a breath analysis. He told police he commenced drinking at a hotel at 12 pm on the previous day and had not consumed any food. On analysis, the offender's blood alcohol concentration was 0.150 g/100ml. There is pharmacological evidence, based partly on the offender's account of the amount of alcohol he had consumed, which establishes that the offender's blood alcohol concentration at 9.00 pm on the evening of 3 May 2012 would have been 0.239, and that it would have been 0.224 at 10.00 pm.

1. At the home shared by the offender and the deceased, police observed the following:

• a clear oily residue had been sprayed over the internal side of the front door;
• an empty Coca Cola bottle and an empty water bottle were found on the kitchen bench. The caps of the bottles were on the floor in the living room;
• the kitchen floor was wet and soil was scattered over the floor;
• there were numerous shoe impressions on the kitchen floor, all of one shoe type;
• handwriting and scribble in blue marker pen were on the front of the refrigerator door;
• a symbol which appeared to have been written in tomato sauce was on the inside of the refrigerator;
• soil and shoe impressions similar to those in the kitchen were located in the bathroom;
• a potted plant and soil had been tipped into and around the bowl of the vanity;
• a tube of toothpaste was also in the bowl and had been used to write the letters "BW" and "AK" on the vanity;
• the words "On Dave" appeared to have been written in purple soap on the sliding doors of the vanity;
• a pot containing soil was in the toilet bowl along with a can of air freshener.

1. The offender participated in an electronically recorded interview with police on 14 June 2012. He told police that in the two to three week period leading up to the deceased's death he had been drinking every day and that on 3 May 2012 he had spent most of the day drinking whilst the deceased was at work. He said that at about 5.00pm the deceased had arrived at the hotel looking for him, and that a short time after he returned to the premises at Toormina. Upon arrival, the offender saw that his belongings had been packed up and were out the front of the house.

1. According to the offender, the deceased had told him to "get out" and had complained about the fact that he had been supposed to take her out for dinner that night. The offender and the deceased argued, the deceased being upset about the offender's drinking, before things calmed down and the deceased agreed to let the offender stay.

1. The offender told police that the deceased decided to have a sleep, at which time he went and purchased a bottle of rum. He returned to the house and was having a drink when the deceased woke up. The deceased then started shouting at the offender and ordered him from the house saying:

"Get out of the house before I fucking stab you"

1. According to the offender, an altercation ensued in which the deceased squeezed his testicles, and in which he became fearful that the deceased was going to get a knife to stab him. He asserted that it was in the course of this altercation that he commenced to hit the deceased. He told police that having done so, he began to panic and then telephoned his father, telling him that he had done something "really really stupid". According to the offender, he had decided to take the deceased to the hospital but he said that as he approached the turn off to the hospital, he became overwhelmed by the prospect of being arrested. This appears to have stemmed from the fact that there were outstanding warrants for his arrest in relation to other offences, which he believed might result in his immediate incarceration. He told police that he decided instead to drive to his brother's house, some 38km away, so that his brother could phone an ambulance. It should be noted that there is no evidence to suggest that the offender asked his brother to call an ambulance, or that an ambulance was otherwise called.

1. Both parties made submissions to me regarding the offender's account to police. The Crown urged me to reject the offender's assertion that he was assaulted by the deceased by her grabbing his testicles and further submitted that I would reject the offender's assertion that he was fearful of the possibility that the deceased was intending to obtain a knife and inflict injury with it. It was made clear on behalf of the offender that any previous suggestion of self defence was abandoned. However, it was submitted that the opinion of Professor Lyons, which I have referred to further below, supported at least some aspects of the offender's account.

1. The offender did not give evidence before me, and his account is therefore untested. Although I am satisfied that there was some altercation between the offender and the deceased, the evidence is insufficient to enable me to reach any further conclusion about what occurred in the course of that altercation.

The evidence of Professor Lyons and Professor Hilton

1. Professor Lyons conducted an autopsy of the deceased on 6 May 2012 and his report forms part of the material tendered by the Crown. In terms of the deceased's injuries, Professor Lyons found:

(i)   injuries to the ear, eye, and mouth;

(ii)   evidence of traumatic brain injury;

(iii)   two injury patterns to the neck, namely an area of bruising and a patterned abrasion;

(iv)   a fracture of the greater horn of the hyoid bone;

(v)   multiple bruising to the arms and legs, and to a lesser extent the torso, all of which were of a fingerprint bruise type;

(vi)   a pattern of bruising on the back of both hands, suggestive of a defence pattern of injuries;

(vii)   fractures of the right 6th and 7th ribs, immediately adjacent to the sternum;

(viii)   bruising to the membrane connecting the small intestine to the abdominal cavity around the duodenum, suggestive of moderate to blunt force trauma to the abdomen; and

(ix)   bruising to the left breast, the top of the right foot and the outer left lower leg.

1. Initially, Professor Lyons thought that the injuries inflicted to the deceased's head region were most likely caused by an instrument such as the baseball bat found underneath the deceased's body, and were the result of at least three applications of such force. He also thought that the deceased's death was caused by the combined effects of head injury and neck compression. In response to these opinions, two reports of Professor Hilton were tendered in the case for the offender. Whilst Professor Hilton stated that he was "in substantial agreement" with the opinions expressed by Professor Lyons, his reports raised two issues, namely:

(i)   whether an implement such as a baseball bat was used to inflict one or more of the injuries; and

(ii)   whether, having inflicted injury to the deceased at their home, the offender inflicted further injury upon the deceased after that time and in particular, at or about the time that he arrived at his brother's premises.

1. It was initially proposed that both experts would be called to give oral evidence as to these issues but as events transpired this was not possible. Arrangements were then made for the two experts to confer, which resulted in a further report from Professor Lyons being tendered by the Crown. Professor Lyons stated that such report had been prepared with the "substantial agreement" of Professor Hilton, before expressing the following further opinions:

(i)   no baseball bat or similar implement was used in the assault upon the deceased;

(ii)   the injuries to the face, head, neck, hyoid bone and ribs were generally consistent with having been caused by vigorous blows from one or both fists;

(iii)   the abdominal injury was caused by a form of blunt force trauma, which could have resulted from simply the weight of the offender in moving himself into a position in which he was sitting on the deceased;

(iv)   the bruises to the left thigh were unlikely to have been caused by the use of an implement and were consistent with being caused by a fist;

(v)   the complex pattern of injuries was such that it was not possible to describe one particular event as the terminal event.

1. Professor Lyons did make reference to the fact that some of the injuries could have been "caused by a weapon in the sense of a shoe in stamping". However, both parties agreed that this was necessarily speculative and that I should proceed on what were, in effect, the joint opinions set out in [34](i) to (v) above.

1. Bearing all of these matters in mind, I am satisfied that the deceased's injuries, and her resultant death, were caused by multiple blows struck by the offender with his fists.

The offender's intention

1. The Crown submitted that there were a number of factors which supported a conclusion that the offender had acted with an intention to kill the deceased. Those factors were said to include:

(i)   the severity of the assault upon the deceased;

(ii)   the statement made by the offender to his brother to the effect that he had "finally killed" the deceased; and

(iii)   the request made by the offender to his brother for assistance in disposing of the deceased's body.

1. However, the Crown expressly acknowledged that it remained open to me to find that the offender acted with an intention to inflict grievous bodily harm as opposed to an intention to kill. In circumstances where the Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender, I am not satisfied that the offender acted with an intention to kill the deceased. I have reached that conclusion for a number of reasons.

1. Firstly, whilst the injuries sustained by the deceased were both significant and widespread, caution must be exercised in drawing an inference of intention from such evidence, particularly in circumstances where the offender was intoxicated (see Bellchambers v R [2008] NSWCCA 235 at [36] per Allsop P (as his Honour then was)).

1. Secondly, whilst I have had regard to the statements made by the offender to his brother, on the evidence before me the offender was still in an intoxicated state when those words were said.

1. Finally, even if it is accepted that the offender was at one point intending to dispose of the deceased's body, and that he requested assistance from his brother in that regard, I do not consider that circumstance to be consistent only with an intention to kill the deceased. It may, for example, have arisen as a result of the deceased being in a state of panic.

1. For all of these reasons, I find that in repeatedly punching the deceased, the offender acted with an intention to cause the deceased grievous bodily harm.

The statutory aggravating factors

1. Two statutory aggravating factors were relied upon by the Crown, the first of which was that the offence was committed in the home of the deceased (see s. 21A(2)(eb) of the Sentencing Act). Given that the premises in which the incident occurred were those of the both the offender and the deceased, it was submitted on the offender's behalf that s. 21A(2)(eb) had no application.

1. In R v Comert [2004] NSWCCA 125, a case of sexual assault committed by a husband upon his wife, the sentencing judge had concluded that the offending was aggravated by the fact that it had occurred in the victim's home. Hidden and Hislop JJ said (at [29]):

"Reading the relevant part of the sentencing judge's remarks as a whole, there can be no doubt that her Honour did characterise, as an additional aggravating feature, the fact that the offence was committed in the complainant's home. We are satisfied that, in so doing, her Honour fell into error. No doubt, that would have been an aggravating feature if the offender had been an intruder. However, we are unable to see how a sexual assault on a woman by her husband is rendered more serious because it was perpetrated in the matrimonial home. This, of course, is not to deny the gravity of offences of violence, whether or not of a sexual nature, committed in a domestic setting".

1. That reasoning has been applied in several cases since that time (see for example EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740; Ingham v R [2011] NSWCCA 88; R v BIP [2011] NSWCCA 224; DS v R [2012] NSWCCA 159; and Essex v R [2013] NSWCCA 11).

1. In Melbom v R [2013] NSWCCA 210 the applicant had been convicted of offences of reckless wounding and threatening to use an offensive weapon which had been committed in the home of the victims, who had previously invited the applicant to live with them. R A Hulme J (with whom Simpson and Price JJ agreed) noted (at [44]) that the Crown had conceded the correctness of the earlier authorities cited in [45] above. However his Honour appeared to express some doubt as to such correctness, observing (at [44]):

" ..... the plain words of s. 21A(2)(eb) do not support the limitation that this Court has placed on their application. ..... It was never intended by Parliament that there should be the constraint upon their application that this Court has imposed".

1. Simpson J (at [2]) shared the reservations expressed by R A Hulme J and thought that the time had arrived for a re-examination of those earlier decisions. R A Hulme J ultimately concluded (at [51]) that the sentencing judge had not simply referred to the fact that the offending was aggravated by the fact that it occurred in the home occupied by the victims and the applicant. His Honour added:

"Her approach would clearly have been contrary to authority if that was all that she had said".

1. More recently, in Montero v R [2013] NSWCCA 214, the Court of Criminal Appeal considered offences of aggravated sexual assault committed in the applicant's home in circumstances where the victim was an acquaintance of the applicant's girlfriend. The sentencing judge had made reference to the place of the offending as an aggravating factor. R A Hulme J (with whom Leeming JA and Button J agreed) having referred to the decisions cited in [45] above and the decision of Melbom, was not persuaded that the sentencing judge had erred in finding that the offending was aggravated by the fact that it had occurred in the applicant's home, because it was not that fact alone which had been taken into account (at [52]). The additional factors which aggravated the offending included that:

(i)   the victim was a guest;

(ii)   she had gone to bed with an 18 year old woman who had been her friend for six years;

(iii)   she had, as a result, an entitlement to a feeling of safety and security;

(iv)   unbeknown to her, the applicant had taken the place of her friend in the bed and had proceeded to sexually assault her.

1. His Honour proceeded (at [53]) to draw a distinction between the facts in the case before him and those in Comert (an assault by a husband upon his wife in their home), EK (assaults by a father in the home in which he and the victim lived), Ingham (where the offender was a regular overnight visitor to the premises in which he sexually assaulted two complainants in his care) and BIP, DS and Essex (each of which concerned sexual assaults by men of children of their respective partners, committed in the home). His Honour also concluded (at [55]) that even if the sentencing judge had erred in the manner for which the applicant contended, he had nevertheless been entitled to take into account the violation of the victim's expectation of safety and security as a factor which rendered the offending more serious.

1. The circumstances of the offending in Montero which led his Honour to reach his conclusions are quite different from the circumstances of the present offending, which are far closer to those considered in the earlier decisions to which his Honour referred. Although doubts have been expressed about the correctness of those decisions, the occasion for reconsidering them has not yet arisen. Accordingly, in the absence of any matter over and above the fact that the offending took place in the home occupied by the offender and the victim, I have reached the conclusion that s. 21A(2)(eb), on the present state of the authorities, has no application to the circumstances of the present case.

1. The second statutory aggravating factor relied upon by the Crown arises from s. 21A(2)(j) of the Sentencing Act, namely that the offence was committed by the offender at a time when he was on conditional liberty. There is no dispute that the offender was on bail for firearms offences at the relevant time. I am satisfied that this aggravates the offending.

Other aggravating factors

1. The Crown submitted that there were two other factors which aggravated the offending. The first was the placing of cream to the face of the deceased which the Crown argued was a further act of aggression. In the context of that submission, the Crown referred to the fact that the offender had done "some bizarre things .... which remain unexplained". The placing of cream on the deceased certainly falls into the category to which the Crown referred but I am unable, without more, to categorise it as an act of aggression.

1. The second matter was the request made by the offender, to his brother, for assistance in disposing of the deceased's body. The general principle that the treatment of the body of a murder victim is capable of amounting to an aggravating factor has been extended to cases where such treatment does not involve any form of mutilation (see R v Goundar [2010] NSWSC 1170; R v Dong [2010] NSWSC 1242). In the present case the offender's disposal of the deceased's body consisted of leaving the body at his brother's premises after his request for assistance was not met. This aggravates the offending to some degree, although it must be recognised that such degree of aggravation is less than, for example, an instance in which a body is deposited in bushland (see Goundar).

The offender's intoxication

1. I have already made reference to the fact that the offender had been drinking heavily up to the time of the offending. I am satisfied that he was grossly intoxicated when he killed the deceased. The fact that the offender had been drinking heavily was not, on the evidence, out of the ordinary. Significantly, he had been given the benefit of a bond under s. 9 of the Sentencing Act when sentenced in June 2008 for an offence of being armed with intent to commit an indictable offence. It was a condition of that bond that he obey all reasonable directions in relation to (inter alia) drug and alcohol rehabilitation. The fact that the offender was intoxicated does not aggravate the offence, nor does it mitigate it. I accept, as was submitted on behalf of the offender, that it may assist in providing an explanation for the offending (see Hasan v R [2010] VSCA 352; (2010) 31 VR 28; R v GWM [2012] NSWCCA 240).

The objective seriousness of the offending

1. The Crown submitted that I should find that the offending fell "in the middle of the range of seriousness" for offences of murder. Counsel for the offender submitted that the offending should be regarded as "less than mid range". The Court of Criminal Appeal has observed that a sentencing judge need not, and arguably should not, engage in the exercise of quantifying the distance between the offending before the court, and the conduct involved in a putative offence in the middle of the range (see PK v R [2012] NSWCCA 263 per McCallum J at [25] with whom Macfarlan JA and Price J agreed). However, the assessment of objective seriousness of the offending nevertheless remains an important part of the sentencing process.

1. Exactly what it was that motivated the offender to act in the manner in which he did remains unexplained. Some of his actions were, as the Crown submitted, bizarre. What is clear however, is that although there is no evidence to suggest that the offender's attack was pre-planned, it was nevertheless brutal and sustained. It involved a high degree of violence with repeated use of the fists and resulted in a multitude of injuries being inflicted upon the deceased. It follows that this was, on any view, an offence of significant objective seriousness.

THE OFFENDER'S SUBJECTIVE CASE

The offender's background

1. The offender's father gave evidence before me. A statement prepared by him was admitted without objection and he was cross-examined by the Crown. The offender is now 26 years of age and was 24 years of age at the time of the commission of the offence. His parents separated when he was 12, at which time he remained living with his mother although his father saw him regularly. His father has since formed the view that the separation had a greater effect upon the offender than may have been appreciated at the time.

1. The offender left school without completing Year 9 and was initially employed by his mother working in a nursery. His mother then formed a new relationship and moved to Queensland. The offender remained in NSW living what appears to have been a nomadic existence without a fixed address. At the age of 19 he moved back to live with his father. An attempt to attend TAFE for the purposes of obtaining his School Certificate was unsuccessful and he abandoned his studies. He obtained employment as a process worker and later as a fork lift driver before problems emerged in relation to his being able to retain his employment. This, it seems, was the first indication that the offender was drinking to excess. He obtained an apprenticeship as a cabinet maker before returning to his previous job as a process worker but fell into a routine of spending the entirety of his wages on alcohol. His difficulties with alcohol appear to have continued, largely unabated, since his late teens.

1. The offender's father described the offender as "beside himself" and "a visual and mental wreck" when he first saw him following his arrest. He also gave evidence of the remorse expressed by the offender to him on more than one occasion since that time.

Medical evidence

1. Tendered in the offender's case was a report of Anthony Diment, Consultant Psychologist, dated 3 December 2013. The offender's history to Mr Diment as to his upbringing was generally consistent with the evidence of his father.

1. The history provided by the offender to Mr Diment also included an assertion that in his early 20s he had consulted a General Practitioner who "thought he had psychiatric problems" and who "said (he) might have schizophrenia". The offender told Mr Diment that he felt "bad" about that suggestion and ceased attending the doctor. No other medical evidence has been tendered to support these assertions.

1. The offender also asserted that whilst in custody he had consulted a psychiatrist who "said (he) had bipolar" for which he was prescribed anti-depressant medication. According to the offender, the side effects of that medication caused it to be replaced by a form of anti-convulsant medication which, according to Mr Diment, is also prescribed in cases of Bipolar Disorder. No evidence from Justice Health was tendered in support of this history or treatment.

1. Having conducted formal testing, Mr Diment concluded that the offender presented with DSM5 diagnostic criteria for the following:

(i)   generalised anxiety disorder;

(ii)   panic disorder;

(iii)   persistent depressive disorder (moderate, chronic)

(iv)   substance-related and addictive disorder (alchohol/cannabis)

1. Mr Diment also expressed the view that the offender exhibited criteria consistent with a diagnosis of Bipolar Disorder. He appears to have based this opinion, at least in part, upon the history provided to him by the offender and, in particular, upon the offender's assertion that he is currently taking prescribed medication which is used to treat that illness. However, Mr Diment acknowledged that he would "require further psychiatric/medical opinion" in relation to this issue. In circumstances where the offender's history to Mr Diment in respect of his medical history is not corroborated, and given the qualification expressed by Mr Diment, I am not satisfied that the offender suffers from Bipolar Disorder.

1. I accept Mr Diment's diagnoses of the conditions set out in [63] above. Although it was not suggested that the offender's mental state was causally related to his commission of the offence, it was submitted on his behalf that the court should nevertheless have regard to such matters on sentence. The Crown conceded that the offender's mental state was relevant in the overall assessment of his subjective case, but submitted that I would conclude that the source of the offender's current depression and anxiety was, in large measure, his present circumstances and, in particular, his incarceration. In those circumstances, it was submitted that general deterrence remained an important consideration.

1. Even where an offender's mental state is not causally connected to the commission of the relevant offence, it may remain the case that such condition renders the offender an inappropriate vehicle for general deterrence (see R v Engert (1995) 84 A Crim R 67 per Allen J at 72). However, that is not to say that evidence of a mental disability inevitably leads to the conclusion that general deterrence is of less significance. In Engert (supra) Gleeson CJ said (at 68):

"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise".

1. The decision in Engert was referred to by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 where his Honour (commencing at [177]) set out a number of principles relating to the sentencing of mentally ill offenders. More recently, the decision in Engert was expressly applied by the Court of Criminal Appeal in Iskandar v R [2013] NSWCCA 235. In that case, the Court determined that the sentencing judge had not erred in concluding that in the circumstances of that case general deterrence remained an important consideration notwithstanding the offender's mental illness.

1. I am satisfied that general deterrence remains an important consideration in the present case, and that its importance is not lessened by the conditions diagnosed by Mr Diment. There remains, in particular, a necessity to make it abundantly clear that the unprovoked perpetration of violence by persons who are grossly intoxicated has no place in the community. That said, and although there is no evidence which would suggest that the offender's mental state renders his conditions of custody more onerous, I have taken that mental state into account in my overall assessment of his subjective case. Mr Diment expressed the view that the offender's depression and anxiety (and, if it exists, his Bipolar condition) required treatment, and that the offender would benefit from programs designed to address issues of drug and alcohol abuse. I have also taken these matters into account, along with the offender's reported expressions of willingness to undergo such treatment.

The plea of guilty

1. The offender was first arraigned on 5 April 2013 at which time he entered a plea of not guilty. The matter was then listed for trial commencing on 12 August 2013. The matter came before the court again on 5 July 2013 at which time the trial date was confirmed. There was no suggestion on that occasion that a plea of guilty might be entered.

1. The matter first came before me on 23 July 2013 for the purposes of ascertaining (inter alia) the proposed length of the trial. On that occasion, an indication was given that it was likely that the offender would plead guilty. The matter was adjourned until 30 July 2013, at which time the plea of guilty was entered. That was only two weeks prior to the proposed commencement of the trial.

1. It was submitted on behalf of the offender that there had been indications prior to 23 July that the matter would not proceed to trial and that in these circumstances, the appropriate discount to reflect the utilitarian value of the plea was 20%. The Crown's position was that what might be described as a vague indication of a plea was given shortly before the matter first came before me on 23 July. However, the Crown pointed out that trial preparation continued until such time as the plea was entered on 30 July. In these circumstances, the Crown submitted that the range of appropriate discount was between 12% and 15%.

1. It is well established that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10% - 25% discount on sentence. The primary consideration which determines where, within that range, a particular case should fall, is the timing of the plea (see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418, 419; [152], [154] and [160](iii) per Spigelman CJ). A discount towards the bottom of the range is appropriate for late pleas unless there are particular benefits arising from the prospective length and complexity of the trial (Thomson at 418; [155]). In circumstances where the offender's plea was entered virtually on the eve of an estimated three week trial, a suggested discount of 20% is, in my view, wholly inappropriate. Bearing in mind that timing of the plea primarily determines where, within the range, a particular case falls, I take the view that the appropriate discount is one of 12.5%.

Remorse

1. The actions of the offender in depositing the deceased's body at the home of his brother, after his request for assistance in disposing of the body was rejected, were not consistent with genuine remorse. However, as I have noted, the offender's father gave evidence that from an early stage following his arrest, the offender expressed his remorse for the offending. Those expressions have, according to the offender's father, continued. I formed the view that the offender's father was a truthful witness and I have no reason to doubt his evidence. I am satisfied that the applicant is remorseful and I take that into account as a mitigating factor.

The offender's youth

1. The offender was aged 24 at the time of the offence. It was submitted on his behalf that whilst he was "not a child he nevertheless should be regarded as a youth and some allowance made in reduction of his sentence for the impulsiveness of his youth". I am unable to accept that submission. Whilst an allowance can, in an appropriate case, be made for an offender's youth as opposed to just his or her biological age (see R v Hearne (2001) 124 A Crim R 451 at [25]) the offender in the present case was clearly an adult at the relevant time. There is no evidence that immaturity, or for that matter impulsivity, played any part in his offending.

The offender's criminal history

1. The offender has a criminal history dating back to 2005. There are some offences of violence, and others which are obviously alcohol related. In particular, and as previously noted, he was dealt with in 2008 on a charge of being armed with intent to commit an indictable offence and was given a bond under s. 9 of the Sentencing Act, which carried with it, in effect, a condition that he address his drug and alcohol addiction. By virtue of his criminal history, the offender is not a person of prior good character and is not entitled to leniency on that basis.

The offender's prospects of rehabilitation

1. As I have previously noted, Mr Diment thought that the offender required treatment to address his mental state, and thought that he would benefit from undertaking remedial programs. He reported that the offender had expressed a willingness to undertake such treatment. The offender's prospects of rehabilitation are necessarily dependent, at least in part, upon him successfully addressing his alcohol addiction. Although he has expressed a willingness to undertake treatment, it is of concern that he has previously been given the benefit of a bond designed to address that very issue. The commission of the present offence makes it clear that his efforts on that occasion fell short of what was required. In these circumstances the offender's prospects of rehabilitation remain uncertain.

The commencement date of the sentence

1. The offender was arrested on 4 May 2012 and was refused bail. There were, at that time, warrants for his arrest in respect of other charges including escaping from lawful custody as well as firearms offences. Following his arrest for the deceased's murder, he was sentenced in respect of those outstanding matters. Those sentences expired on 3 December 2013. In those circumstances, the Crown submitted that the sentence in respect of the present matter should commence on 4 December 2013. It was submitted on behalf of the offender that if such a course were taken a finding of special circumstances should be made.

1. In my view, there is no reason why the Crown's submission as to the starting date should not be accepted. As to the submission made on behalf of the offender, circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]). I have already reached the conclusion that the offender's prospects of rehabilitation are uncertain. Accordingly, I do not find special circumstances. The period in which the offender will be on parole will be significant in any event.

1. In sentencing the offender I have had regard to the provisions of s. 54B of the Sentencing Act as amended by Schedule 1[3] of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act NSW 2013 ("the Amendment Act"). In particular:

(i) I have taken into account the applicable standard non-parole period as required by s. 54B(2); and

(ii) I have set out above my reasons for the sentence I propose to impose as required by s. 54B(3).

ORDERS

1. The offender is convicted.

1. The offender is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 4 December 2013 and ending on 3 June 2031, with an additional term of 5 years and 10 months imprisonment, commencing on 4 June 2031 and ending on 3 April 2037, a total sentence of 23 years and 4 months imprisonment.

1. The offender will be eligible for parole on 4 June 2031.

1. The total sentence will expire on 3 April 2037.

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Decision last updated: 07 January 2014