R v Knight

Case •

[2023] NSWSC 321

•

31 March 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v Knight [2023] NSWSC 321
Hearing dates: 30 March 2023
Date of orders: 31 March 2023
Decision date: 31 March 2023
Jurisdiction:Common Law
Before: Yehia J
Decision:

(1) The offender is convicted.

(2) Taking into account a discount of 25% to reflect the utilitarian value of the plea of guilty, and the Form 1 offence, the offender is sentenced to a non-parole period of 12 years and 6 months, commencing on 13 March 2021, and expiring on 12 September 2033. There will be a balance of term of 5 years, which will expire on 12 September 2038. The offender is eligible for release to parole at the expiration of the non-parole period.

(2) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and this offence. I direct that your legal representatives explain the significance of that fact to you.

Catchwords:

CRIMINAL LAW – Sentencing – Murder – Single stab wound – Use of a weapon – Tragic consequences – Killing in the context of a domestic relationship – Intention to cause grievous bodily harm – Offence committed in victim’s home an aggravating feature – Offence committed in the presence of a child an aggravating feature – Assessment of objective seriousness – Considerable remorse – Dysfunctional childhood – Relevance to sentencing – Reduction in moral culpability – The conflicting purposes of sentencing – Special circumstances – Adjustment to non-parole period

Legislation Cited:

Crimes Act 1900 (NSW) ss 18(1)(a), 428C

Crimes (Domestic & Personal Violence) Act 2007 (NSW) s 14(1)

Crimes (High Risk Offenders) Act 2006 (NSW) s 25C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(c), 21A(2)(ea), 21A(2)(eb), 21A(5AA), 32(1)

Cases Cited:

Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115

Attorney General’s Application Under s 37 of the Sentencing Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

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

Chandler v R [2023] NSWCCA 59

Dungay v R [2020] NSWCCA 209

Goodburn v R [2020] NSWCCA 77

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Hoskins v R [2021] NSWCCA 169

Kelly v R [2016] NSWCCA 246

Lloyd v R [2022] NSWCCA 18

McKinnon v R [2020] NSWCCA 106

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

Neal v The Queen (1982) 2 ALR 609; [1982] HCA 55

Park v R [2019] NSWCCA 105

R v Ahmed (No 2) [2023] NSWSC 105

R v AN; R v LM; R v WD [2022] NSWSC 1272

R v Archer [2021] NSWSC 1485

R v Biles (No 2) [2017] NSWSC 525

R v Birch [2016] NSWSC 816

R v Brooks (No 5) [2017] NSWSC 824

R v Burns (No 2) [2022] NSWSC 140

R v Conway [2023] NSWSC 55

R v Dennis [2018] NSWSC 1733

R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436

R v Elmir [2022] NSWDC 317

R v Engert (unrep, 20/11/95, NSWCCA)

R v Fernando (1992) 76 A Crim R 52

R v Fredes [2020] NSWSC 1332

R v Jung [2022] NSWSC 1262

R v King [2004] NSWCCA 444

R v Lloyd [2022] NSWSC 906

R v MA [2004] NSWCCA 92

R v Millwood [2012] NSWCCA 2

R v MMK [2006] NSWCCA 272

R v Ruttley(No 7) [2017] NSWSC 1582

R v Ryan (No 4) [2020] NSWSC 1629

Ro v R [2019] NSWCCA 183

Singh v R [2021] NSWCCA 96

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Veen v The Queen (No 2) (1988) 164 CLR 465

Wood v R [2019] NSWCCA 309

Texts Cited:

Australian Bureau of Statistics, Life Tables for Aboriginal and Torres Strait Islander Australians (2015-2017) (29 November 2018)

Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (Public Defenders, Executive Summary, 2022)

New South Wales Law Reform Commission, Sentencing (Report No 139, July 2013)

Vanessa Edwige and Paul Grey, Significance of Culture to Rehabilitation and Wellbeing (August 2021)

Category:Sentence
Parties: Rex (Crown)
Kenneth James Knight (Offender)
Representation:

Counsel:
J Stanhope (Crown)
I Nash (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)
File Number(s): 2021/00071703

Judgment

  1. Kenneth James Knight (the offender) was born in 1970. He is a 52-year-old Aboriginal man from Bourke. Cassandra Brown (Ms Brown or the deceased) was born in 1974. She was a proud Aboriginal woman born and raised in the remote township of Weilmoringle. The offender and Ms Brown were in a domestic relationship for approximately 30 years. They have eight children together, aged between 10 and 28 years.

  2. During the early hours of 13 March 2021, the offender killed Ms Brown by stabbing her once with a knife that he obtained from the kitchen. Their relationship spanned over a period of three decades and although there were instances of domestic violence during that time, they loved each other and were devoted to their children.

  3. The offender has only ever had one partner. His relationship with Ms Brown began when he was 20 years old. Although there were periods of separation, he had no other partners or girlfriends. The offender reported that throughout his life, he has always felt a need to be with his partner. He could not really cope in absence of the relationship.

  4. The offender’s senseless and criminal act has not only taken a mother away from her children and grandchildren, but also devastated the extended family and shaken a community.

  5. He will have to live with the guilt and shame of having killed his partner of 30 years; the woman who provided him with support and stability; the mother of his children; and the person with whom he believed he would live the rest of his life with. It is apt to note that during the counselling session with his psychologist on 5 February 2021, just some weeks before the killing, the offender said that he was encouraging Ms Brown to save money so that they could have a trip away together at the end of the year.

  6. The offender pleaded guilty to murder at Dubbo Local Court and was committed for Sentence in the Supreme Court of New South Wales on 1 September 2022. Evidence and submissions were heard in the Supreme Court of New South Wales, sitting at Bourke, on 30 March 2023. His plea of guilty was entered at the earliest opportunity and, together with other material, demonstrates a significant degree of remorse and a deep sense of shame. The utilitarian value of the plea warrants a discount of 25%.

  7. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act) and carries a maximum penalty of life imprisonment, with a standard non-parole period of 20 years imprisonment. When I sentence the offender for the murder, I take into account one offence of contravene an apprehended domestic violence order (ADVO), contrary to s 14(1) of the Crimes (Domestic & Personal Violence) Act 2007 (NSW). That offence carries a maximum penalty of two years imprisonment and/or a fine of $5,500.

A Life Lost

  1. Before I set out the circumstances giving rise to the offence and my findings, it is apt to commence with an acknowledgment of the life lost. I have not been provided with victim impact statements. However, the material enables me to make the following observations. Ms Brown was a mother of eight and a grandmother. She worked at the Aboriginal Medical Service. She was loved by her children and her family members. The offender’s actions in the early hours of 13 March 2021 caused layer upon layer of tragedy, the impact of which is profound.

  2. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

  3. The sentence I impose does not, and cannot, measure the value of Ms Brown’s life. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and the protection of the community. It must hold the offender to account and reflect the objective seriousness of the offence. It must also reflect the offender’s subjective case, his prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending. The process of sentencing involves what is referred to as “instinctive synthesis”. It requires each of the objective circumstances of the offence and each of the subjective circumstances of the offender to be taken into account in formulating a proportionate sentence. In doing so, I must also apply the relevant principles and have regard to the purposes of sentencing.

Agreed Facts

  1. The circumstances giving rise to the offences are set out in the Statement of Agreed Facts that can be summarised as follows.

  2. At the time of the killing, the offender was subject to an ADVO naming Ms Brown as the person in need of protection. The ADVO prevented the offender from threating or assaulting the deceased, or approaching her, or being in her company, for a period of 12 hours after drinking alcohol, and from living with her.

  3. On Friday, 12 March 2021, the offender and Ms Brown were at her home in Bourke. At about 3:30pm, Ms Brown left the house to attend her place of employment at the Aboriginal Medical Service. The offender remained at the house and commenced drinking alcohol.

  4. At about 6:30pm, the offender left the house and attended the Bourke Bowling Club (Bowling Club). After finishing work, the deceased also attended the Bowling Club. She got there at approximately 7:15pm. Both the deceased and the offender remained at the Bowling Club, drinking and socialising until about midnight.

  5. A review of the Bowling Club’s CCTV footage shows the offender consuming 11 schooners of beer. The CCTV footage also shows that the offender and the deceased did not drink and socialise together for all the time they were at the Bowling Club that night. There were periods when they were together and there is nothing to suggest that there was any tension between them on those occasions.

  6. The offender and the deceased left the Bowling Club together at about 12:05am on Saturday, 13 March 2021. They both got on the courtesy bus provided by the Bowling Club and were eventually driven to the deceased’s house. The bus driver heard the offender asking Ms Brown: “Am I staying at home tonight or do you want me to stay at Leighlan’s?”. The driver did not hear a response but saw them get off the bus at the deceased’s house.

  7. Inside the house, the offender’s and the deceased’s 14-year-old daughter, S, was asleep on the lounge in the living room. Their other daughter, Nakellah (then aged 28 years), was asleep in a bedroom with her infant son. Five other children under the age of 12 years, were together in a separate bedroom in the house.

  8. At about 12:30am, both Nakellah and S were woken by the deceased “singing out” and knocking on the door. Nakellah got out of bed and S opened the door for her mother. S asked her mother to close the door and was told: “No, your father’s out there, getting off the bus.” S walked into her room and Nakellah went back to her bed.

  9. Although the bus driver did not hear Ms Brown’s response to the offender’s question as to whether he was staying at home that night, it is reasonable to infer that he received a positive response. Both of them got off the bus. Ms Brown told her daughter not to close the door, expecting the offender to come in behind her.

  10. A short time after they got home, Nakellah and S heard the deceased and the offender arguing about where the offender should sleep. Ms Brown did not want the offender to sleep with her. The argument continued for “quite a few seconds”. Ms Brown said to the offender: “don’t talk to me like that, you can go along”. The offender said he would go to his sister’s house. Ms Brown told him he could go, or she would get the police to take him.

  11. At this point, S came out of her bedroom and asked her parents to “shut up”. Ms Brown walked past S and headed towards the bedroom. The offender walked into the kitchen and obtained a knife. He held the knife behind his back and approached the deceased, who was standing by the bedroom doorway.

  12. He grabbed Mr Brown by the shoulder, pulled her backwards and stabbed her once in the back with the knife in his right hand. Their daughter, S, witnessed the stabbing. Ms Brown screamed out and Nakellah came out of her room. She saw her mother leaning against a fridge in the bedroom, and the offender in the hallway leading to the loungeroom. Ms Brown said to Nakellah: “Kenneth stabbed me”.

  13. The offender walked towards the front door of the house and threw the knife into the laundry. The deceased fell to the ground. Nakellah grabbed a towel from the kitchen and applied pressure to the wound in the victim’s back. Lachlan, aged 10 years old, was sitting on his bed, watching what was happening. Nakellah called triple zero at 12:32am to ask for assistance.

  14. S went out to the front of the house and saw the offender sitting on the road at the end of the driveway. She asked: “what the fuck did you do that for?”. The offender said: “because she doesn’t love me anymore”.

  15. At about 12:37am, Sergeant Atkins and another officer arrived at the scene. The offender was lying in the middle of the road in front of the house. He was instructed to sit on the kerb. The offender got up and staggered towards the police vehicle, stating: “take me away”.

  16. The police officers entered the house and assisted administered first aid for the deceased. Paramedics arrived at the scene at 12:41am. By this time, Ms Brown was unresponsive and advanced resuscitation procedures were commenced. Those efforts were ultimately unsuccessful, and she was pronounced dead at the scene. A post-mortem examination conducted on 17 March 2021, revealed the cause of death to be a stab wound to the right side of the victim’s back.

  17. While other police and ambulance officers were trying to assist the deceased, Sergeant Atkins approached the offender, who was still laying on the ground outside of the house. The offender was arrested. Police located a knife on the floor of the laundry inside the house.

  18. Police placed paper exhibit bags over the hands of the offender while he was in the police vehicle. During the process, the offender told Senior Constable Smith the following: “I love my woman, bud” and “Yeah, well I done it”.

  19. At about 1:05am, Sergeant Atkins and other police at the scene decided that the offender should be taken to Bourke Hospital due to his state of intoxication. The offender was subsequently transferred to Bourke Hospital. Police noted that the offender’s speech was very slurred, he had trouble comprehending what was said, was sluggish, needed assistance when moving around, had bloodshot eyes, and smelt of alcohol.

  20. The offender was assessed at Bourke Hospital from about 1:40am and seen by a doctor. At about 3:20am, he was discharged and escorted to Bourke Police Station. He was seen by custody manager who formed the view that the offender required further recovery time due to his intoxication. The custody manager placed the offender into a “time out” to further recover from his intoxication.

  21. At 9:08am, the offender participated in an electronically recorded interview in which he made a number of admissions regarding the killing. He told police that he had been drinking during the course of the afternoon and evening. When asked by police: “do you want to tell me why you picked the knife up?”, he responded: “maybe because I was drunk, I wish I hadn’t, but I did”.

  22. He was asked what he intended on doing with the knife when he picked it up and he said: “I don’t know, I didn’t mean to hurt anyone, like I’ve been with this woman for fucken that long and I love her man…and I smack her over the years but, you know, not that, not that yeah that bad…It’s only a push for a smack or something like that. I don’t know how this happened”.

  23. No blood sample was taken from the offender, and the precise level of his blood alcohol concentration (BAC) at the time of the stabbing is not known. Expert pharmacological reports were obtained from Dr Pieternel van Nieuwenhuijzen for the prosecution, and from Dr Michael Robertson for the offender.

  24. Relying on a number of assumptions, Dr Robertson reported that the most likely BAC for the offender at the time of the stabbing would have been approximately 0.33%. Dr van Nieuwenhuijzen declined to estimate the offender’s BAC, noting that the assumptions involved variables such as the offender’s pattern of alcohol consumption and tolerance to alcohol, which were unknown.

  25. Both experts agreed that based on the offender’s drinking history on the night of 12 March 2021, he would have consumed an amount of alcohol equivalent to at least 22 standard drinks prior to the stabbing.

  26. Dr Robertson opined that:

“…the ingested alcohol significantly affected Mr Knight’s mental and physical capabilities…Mr Knight’s ability to perceive and think clearly and rationally, control his emotional reactions, understand and appreciate the likely or possible consequences of his actions would have been significantly disrupted. It is likely he was aware of the severity of his actions at the time of the (offence).”

  1. Dr van Nieuwenhuijzen noted that the offender “would have had a very high blood alcohol level”. Dr van Nieuwenhuijzen went on to say that:

“[a]s a result of his intoxication, (the offender’s) cognitive abilities and psychomotor abilities would have been impaired, most likely severely impaired. The intoxication of Mr Knight would have resulted in him being unable to think clearly and make rational decisions. He would have been more impulsive and possibly more aggressive than when he is not affected by alcohol.”

  1. In determining the appropriate sentence, self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor: see s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA). Clearly, the offender was heavily intoxicated at the time that he stabbed his partner. However, that does not excuse his conduct or operate as a mitigating factor. I cannot reduce the sentence because he was well affected by alcohol at the time he committed the offence.

  2. The Crown submitted that it was at least reckless for the offender to become intoxicated, accompany the victim home, and argue with her, matters aggravating the objective seriousness of the offence. In support of that contention, the Crown relies upon Wood v R [2019] NSWCCA 309 (Wood). In that case, the Court held at [134] that:

“A deliberate (or reckless) decision to become intoxicated for the specific purpose of becoming aggressive may be an aggravating factor: Mendes v R [2012] NSWCCA 103 at [75]. However, it is not necessary for an offender to have such a specific purpose in order for the intoxication to be treated as an aggravating factor.”

  1. I am not persuaded that the offender’s intoxication operates as an aggravating factor. There were previous occasions when the offender was violent while under the effects of alcohol. The evidence does not, however, establish coercive control. This is not a case where the deceased and the offender were separated, and the offender was exerting his will over the deceased. The previous occasions of domestic violence, committed whilst he was intoxicated, were sporadic and in the context of an otherwise loving relationship that lasted three decades.

  2. That said, the offender should never have attended the deceased’s home while intoxicated. He was subject to an ADVO, which clearly stated that he was prohibited from being in her company for a period of 12 hours after drinking alcohol. Although they were drinking alcohol together at the Bowling Club, he was not allowed to be in her company, having consumed alcohol. That prohibition existed for very good reason, given the previous incidents of domestic violence perpetrated when the offender was intoxicated. I have taken into account these circumstances as providing the context in which the offence occurred.

  1. The offender’s level of intoxication is relevant for other reasons. Firstly, had the offender pleaded not guilty to murder, his level of intoxication would have been relevant to whether the Crown could prove beyond reasonable doubt the necessary state of mind. Put another way, his stated intoxication would have been relevant to the issue of specific intent. Section 428C of the Crimes Act relevantly provides that:

428C Intoxication in relation to offences of specific intent

(1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.

  1. By pleading guilty to murder, he has not relied upon his intoxication to argue that the prosecution has failed to establish one of the requisite states of minds. Instead, he pleaded guilty at an early opportunity, sparing his children, Ms Brown’s family, his own extended family, and the community, the further trauma of a trial. These are matters relevant to his level of remorse, which will be addressed more fully in due course.

  2. The second way in which his alcohol consumption is relevant, relates to his background of deprivation and disadvantage, and the extent to which his moral culpability is reduced. In Kelly v R [2016] NSWCCA 246, Rothman J said at [46]-[50] (Hoeben CJ at CL and R A Hulme J agreeing):

“[46] The Court is thus required to re-sentence. As the Crown correctly notes, the provisions of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 precluded the use self-induced intoxication of an offender at the time of an offence as a mitigating factor in determining the appropriate sentence.

[47] Even before the introduction of that relatively new sub-section, the intoxication by alcohol or drugs ordinarily did not mitigate the penalty to be imposed on a particular offender: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at [26].

[48] Nevertheless, as McClellan CJ at CL in Bourke said, that ordinary rule does not apply where the intoxication is the result of an addiction and the original addiction did not involve a free choice. His Honour’s comments were that offenders could not expect reductions in sentence merely on account of the offence being committed while the offender was intoxicated.

[49] The Crown submits that the effect of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 is also “to abolish” that part of R v Fernando (1992) 76 A Crim R 58 that the High Court approved in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. I do not agree with that last mentioned submission.

[50] The effect of Fernando and of Bugmy is to recognise that, in certain communities to which the circumstances in Fernando and Bugmy applied, the abuse of alcohol and drugs is so prevalent and accompanied by violence that the intoxication no longer fits the description of being “self-induced”. In that way, the intoxication fits the description to which McClellan CJ at CL referred in Bourke.”

Objective Seriousness

  1. While there is no specific category of “domestic violence murder”, the offending in the present case cannot be divorced from the context in which it was committed. The offender and the deceased were in a domestic relationship. There had been previous occasions of domestic violence, although never before had the offender used a weapon. The domestic context in which the offending occurred is entitled to considerable weight in the assessment of the objective seriousness of the matter: see Goodburn v R [2020] NSWCCA 77 at [129]. The courts have a duty to ensure that violent attacks in domestic settings are adequately punished: see R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436.

  2. Ms Brown was killed in her own home where she was entitled to feel safe and secure. She was killed in the presence of one of the children, with other children becoming immediately aware that their mother was severely injured. These are aggravating factors that increase the objective seriousness of the offence: see ss 21A(2)(ea) and 21A(2)(eb) of the CSPA. The offender armed himself with a knife and used it to inflict the single stab wound. Although there are far worse acts constituting the offence of murder, where, for instance, a perpetrator causes death by a sustained and brutal attack upon a victim without the use of weapon, the fact that the offender did use the knife is an aggravating factor also relevant to the assessment of objective seriousness: see s 21A(2)(c) of the CSPA.

  3. While these factors elevate the gravity of the offence, other features lessen it. Firstly, while there was some deliberation by virtue of the offender going to the kitchen to obtain the knife, the offence did not involve any degree of planning. It was an impulsive and spontaneous act that resulted in profoundly tragic consequences.

  4. Secondly, the offender did not intend to kill his partner. This is a case where the offender formed a fleeting intention to cause the deceased really serious injury.

  5. Thirdly, the act that caused death was a single stab wound. This was not a sustained attack upon the deceased by way, for example, of multiple blows.

  6. While the offence does not fall at the lower end of the range, it is certainly below the middle of the range of objective seriousness. The offence of murder carries a standard non-parole period of 20 years imprisonment. The standard non-parole period is neither the starting point, nor the end point, in formulating an appropriate sentence. In formulating the appropriate sentence, I must have regard to all relevant factors, bearing in mind the two legislative guideposts, namely, the maximum penalty and the standard non-parole period.

  7. I intend to depart from the standard non-parole period having regard to the plea of guilty, entered at the first opportunity, the assessment of objective seriousness, and the offender’s compelling subjective case.

Form 1 Offence

  1. The offence of knowingly contravene an ADVO was included on a notice filed by the prosecutor under s 32(1) of the CSPA, and attached to the count on the indictment (the Form 1).

  2. I take into account the Form 1 offence in sentencing as demonstrating an additional need for personal deterrence and retribution. It operates in this case to increase the otherwise appropriate sentence for the substantive offence to reflect the additional weight afforded those considerations: see Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115 at [23] (Bathurst CJ), at [64] (Basten JA) and at [104] (Hoeben CJ at CL); Attorney General’s Application Under s 37 of the Sentencing Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42].

  3. However, the inclusion of the Form 1 offence does not, in itself, increase the assessment of objective seriousness of the substantive offence: see Singh v R [2021] NSWCCA 96; Ro v R [2019] NSWCCA 183.

Subjective Circumstances

  1. The offender relies upon the expert material contained in a report prepared by Dr Peter Ashkar, Clinical Neuropsychologist, dated 8 April 2022; a report prepared by Dr Christopher Lennings, Clinical Psychologist, dated 17 February 2023; and a patient summary from Bourke Aboriginal Corporation Health Service.

  2. The offender’s sister has provided evidence about their family history and life growing up in Bourke. The offender has also given evidence in the sentencing proceedings. He takes full responsibility for his actions. He confirmed the accuracy and honesty of the history provided to the experts. He also confirmed the history provided by his sister. The offender has a fragmented memory about the events in question, but acknowledges that in stabbing the deceased, he intended to hurt her “very badly”. He did not mean to kill her.

  3. He gave evidence of his considerable remorse. To the deceased’s family, he said that he was sorry for the pain and suffering caused. He took full responsibility for his actions that he regrets every day. To his children and grandchildren, he said that he was sorry for what he had done; for taking away their mother and grandmother. He will regret his actions for the rest of his life. To his sister, brother, mother, and the rest of his extended family, he said that he was sorry for what he had done and for letting people down. During the course of giving evidence about his remorse, he appeared distressed and emotional. I am satisfied that his expression of remorse is genuine and heartfelt.

Family Life and Early Childhood

  1. The offender was born and raised in Bourke. In summarising the offender’s background, it is necessary to go into some detail of the degree of disadvantage experienced by the offender and his exposure to substance abuse and violence in his formative years and well into adulthood. It is important to state at the outset that in summarising this material, the Court is very alive to the fact that although there are significant systemic issues, nothing that is said in this judgment should be taken to convey a view that the community, as a whole, is dysfunctional. The local community, both Indigenous and non-Indigenous, is resilient, industrious, and proud of its achievements. What follows is a necessary description of the life and experiences of the offender.

  2. His mother was 16 years old when she gave birth to him, and his father left them when the offender was 5 or 6 years old. His father would come and go at various times, but did not provide the stability, guidance, and support necessary to nurture the children. The offender thinks that he may have 12 siblings from his father’s other relationships with multiple women.

  3. The offender grew up with his mother and maternal grandparents. He has a younger brother, who works on the Bourke Shire Council, and a younger sister, who is a teachers aid at St Ignatius Primary School.

  4. The offender’s early childhood was marred by dysfunction and deprivation. His family home was often overcrowded with lots of people in the house. Growing up, there was very little food at home. Although his grandmother did her best to provide food for the children, the offender and his siblings were often malnourished and hungry. They were provided clothes and food from the “Indian Sisters” of the Mother Teresa Order. People would continually come and go from the family home and there was lots of alcohol and family-related violence. On one occasion, the offender recalled witnessing his uncle being so severely beaten in the community, when alcohol affected, that he lost an eye.

  5. He grew up in a community characterised by endemic violence and alcohol use. His mother re-partnered with at least two men who were severe alcoholics and perpetrated significant domestic violence against her. He witnessed that violence as a child. He was also subjected to physical violence, stating: “I used to get hit for fucking nothing…I would go away and come back when they were not drunk”. The offender’s mother was a heavy drinker, who consumed large amounts of alcohol on the weekends. When he was a boy, he was regularly exposed to his stepfathers’ alcohol use and physical punishment, although he denied experiencing physical and sexual abuse.

  6. The offender had a close and loving relationship with his grandmother and grandfather. They did not have alcohol or family violence-related issues, but were not able to protect him from the community dysfunction he was exposed to. His adolescent years were quite unstable and lacking in supervision. He left his grandparents when he was about 15 years old and returned to live with his mother. Sometimes he would move between the two households. He left school at the age of 15 and reported getting into trouble as a juvenile with police.

  7. Of some note is that he did not commence drinking until the age of 19. Despite the excessive drinking by many of the adults around him, he successfully avoided alcohol until the age of 19. Dr Lennings opined that the offender:

“was exposed to chronic alcohol fuelled violence, even when he wasn’t drinking, and it seems under those circumstances he was simply unable to gain an appreciation of how life could have otherwise been different.” [1]

1. Psychological Report of Dr Christopher Lennings, dated 17 February 2023 (Psychological Report of Dr Lennings), 4[21].

  1. Since the age of 19, the offender consumed alcohol heavily. He would commence his drinking binges on the weekends, and they would often last for a couple of days. On days when he would not use alcohol, he experienced severe withdrawal symptoms, including “tremors and shakes”. [2]

    2. Psychological Report of Dr Peter Ashkar, dated 8 April 2022 (Psychological Report of Dr Ashkar), 3[7].

  2. The offender often experienced episodes of black outs when drinking alcohol. He would sometimes wake up from drinking and find himself in places “where he absolutely had no idea how he got there”. [3] Dr Lennings diagnosed the offender with Alcohol Use Disorder in sustained remission within a controlled environment.

    3. Psychological Report of Dr Lennings, above n 1, 6[29].

  3. In recent years, the offender attempted to stop drinking alcohol, on one occasion having a bet with his daughter that he could remain abstinent. He failed to do so. The progress notes prepared by Mr Grech, Psychologist at the Bourke Aboriginal Corporation Health Service, reveal a genuine desire on the part of the offender to try to stop drinking, albeit without success. He expressed feelings of shame and remorse for his heavy drinking, however, “would surrender to his compulsion to drink and would be unable to stop”. [4]

    4. Ibid.

Education and Employment

  1. The offender was disconnected from schooling and education from a young age. He repeated Year 4 and Year 5 in primary school and eventually left schooling altogether in Year 9. After leaving school, he succeeded in securing seasonal work and labouring work. In the lead up to his arrest, the offender was a carer for his mother.

  2. Dr Ashkar assessed the offender’s overall level of intellectual functioning in the low average range. His information processing skills, which include simple attention, concentration, and information processing speed, are average. His learning and memory skills are also average. The offender demonstrates inefficiencies in his higher level/executive thinking in conversation and when required to locate events in time, which may be explained by his heavy alcohol use. These difficulties are relatively mild and do not impair his functioning.

Mental and Physical Health

  1. The offender reported experiencing depressive moods since the offence. He described feeling withdrawn, isolated, and morose. On some occasions, he would become angry and irritable for periods of days and up to a week. He also reported relatively enduring periods of appetite disturbance, sleep disturbance, loss of energy, low self-esteem, indecisiveness, and lack of agency. Dr Lennings confirms that his symptoms are “suggestive that he has entered depression”. [5] In particular, Dr Lennings diagnosed the offender with dysthymia or persistent low-level depression.

    5. Ibid 7[40].

  2. Prior to the offence, the offender articulated that sadness was his dominant feeling when sober enough to know how he felt, and he reported no period of sustained normal or good mood. Dr Lennings stated:

“In my view the onset for these symptoms is likely prior to age 21 but the combination of his low selfawareness and heavy alcohol use have masked his symptoms and prevented appropriate intervention strategies occurring.” [6]

6. Ibid 9[47].

  1. The offender was observed to also have “poor emotional regulation”. [7] Dr Lennings opined that:

“The accumulation of dysfunction and neglect in his childhood and adolescence and the lack of any significant or realistic opportunity for him during his early adult years and the absence of life enhancing experiences as function of the community of despair he lived in has contributed to his emotional and behavioural difficulties over the years. When he does think about himself, he has low self-esteem and confidence.” [8]

7. Ibid 8[41].

8. Ibid.

  1. In summarising the offender’s background, it is also a relevant to refer to the information provided by the Australian Bureau of Statistics with respect to the life expectancy of an Aboriginal and Torres Strait Islander man in New South Wales for the period between 2015 and 2017. That number is 70.9 years. Aboriginal and Torres Strait Islander people living in the most disadvantaged areas have the worst life expectancy, with a life expectancy of an Indigenous male in remote and very remote locations being 65.9 years. [9]

    9. Australian Bureau of Statistics, Life Tables for Aboriginal and Torres Strait Islander Australians (2015-2017) (29 November 2018) (

  2. The offender is 52 years old. He will spend a significant portion of his remaining life in custody.

Remorse

  1. I am satisfied that the offender is deeply remorseful for his actions. That remorse is demonstrated in a number of powerful ways. Firstly, he expressed remorse to Dr Ashkar and Dr Lennings, not only in words, but by his demeanour.

  2. Secondly, he pleaded guilty at the first opportunity in circumstances where it is arguable, given his level of intoxication, that the Crown may have had difficulties establishing the requisite intention for murder.

  3. Thirdly, the offender has given evidence in the sentencing proceedings. I have already referred to that evidence. I found the offender to be genuinely and deeply remorseful.

Prospects of Rehabilitation

  1. The offender’s criminal record reveals convictions for assault occasioning actual bodily harm in 2009 and 2015. In 2018, he was convicted and sentenced to an Intensive Correction Order (ICO) for assault occasioning actual bodily harm and contravening an ADVO. Ms Brown was the victim of those offences. It is unclear as to what, if any, counselling or treatment he received during the suspended terms of imprisonment and the ICO. The conditions of the ICO included being supervised by Community Corrections and 240 hours of treatment programs. It was a condition of the ICO that he attend alcohol and drug counselling and anger management intervention programs as directed by Community Corrections.

  2. The offender reported remaining abstinent for a period of three or four months in compliance with some form of court order. However, when the supervision ended, he relapsed and resumed drinking alcohol. Mr Grech was counselling the offender. The progress notes dated 27 February 2021 to 5 March 2021, include a number of entries where the offender expressed the desire to give up alcohol, sometimes reducing his intake to one night a week. In the end, the offender was not successful in remaining abstinent.

  3. The offender’s long-standing addiction to alcohol and his related offending militates against a positive finding with respect to his rehabilitation. On the other hand, by all accounts, he was a devoted and loving father. I accept that he is deeply remorseful for his actions.

  4. Given that the offender will be spending a lengthy period in prison, it is difficult to predict with any certainty his prospects of rehabilitation when he is released to the community. Doing the best that I can on the material before me at present, I find that he has reasonable prospects of rehabilitation and is unlikely to re-offend. Much will depend upon his capacity to remain abstinent once he returns to the community.

  5. His prospects of rehabilitation will also be enhanced by connecting with culturally appropriate supports and programs to address his long-standing alcohol and anger management issues. The offender described his community as being plagued by “endemic violence”. [10] Although he has strong family affiliations, the offender struggled to identify any strong cultural support. This is highly unfortunate.

    10. Psychological Report of Dr Lennings, above n 1, 4[17].

  1. In their 2021 report, titled ‘Significance of Culture to Rehabilitation and Wellbeing’, Ms Edwige and Dr Gray highlight the importance of culturally appropriate treatment programs and support services in providing Aboriginal and Torres Strait Islander offenders with a “crucial first step in the healing process”. Family and community healing provides an increased “sense of safety and enables the building of safe and healthy connections, which are essential elements of healing from trauma” and to the “social and emotional wellbeing” of Aboriginal and Torres Strait Islander peoples. [11]

    11. Vanessa Edwige and Paul Grey, Significance of Culture to Rehabilitation and Wellbeing (August 2021) 71.

Moral Culpability

  1. The evidence relating to the offender’s community and his subjective circumstances within it have been summarised above. There is no requirement that the offender establish a causal connection between his background of deprivation and disadvantage and the commission of the offence: see Dungay v R [2020] NSWCCA 209 at [136]-[153]; Lloyd v R [2022] NSWCCA 18 at [27]; Chandler v R [2023] NSWCCA 59 at [150], although it is important to note that the unchallenged evidence of Dr Lennings is that the offender’s background of disadvantage and deprivation directly contributed to the offence.

  2. The principles enunciated in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) apply in this case. It is, therefore, appropriate that I set out, in summary form, some of these relevant principles.

  3. The relevance of childhood deprivation and early exposure to violence and drug and alcohol abuse in sentencing has long been recognised by courts in New South Wales. In the context of an offender raised in “an Aboriginal community in which alcohol abuse and violence were endemic”, the principles were discussed by Wood J (as his Honour then was) in R v Fernando (1992) 76 A Crim R 52 (Fernando). His Honour noted at 62 that:

“…the relevance of Aboriginality is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

…

realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them…”

  1. Simpson J (as her Honour then was) endorsed this approach in R v Millwood [2012] NSWCCA 2 at [69]:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

  1. Recognising the offender’s background of disadvantage and deprivation and giving it weight as a mitigating factor, is not intended to suggest that the Court is acting upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Instead, it is relevant to the consideration of the relationship of these background matters to the assessment of the offender’s moral culpability and a proper consideration of principles of proportionality and equal justice.

  2. In Bugmy, the plurality held at [43]-[44]:

“[43] The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However this is not to suggest… that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

  1. More recently, in Hoskins v R [2021] NSWCCA 169, Basten JA at [57] held:

“…The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage.”

  1. Applying these principles to the present case, I am satisfied that the offender’s moral culpability is significantly reduced. There are, however, countervailing factors that must also be considered. In Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 (Munda) at [53], the majority held that mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penality which is disproportion to the gravity of the instant offence.

  2. At [54]-[55], the majority discussed the competing purposes of punishment:

“[54] It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

[55] A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.” (emphasis added)

  1. Although expressing that caution should be exercised when balancing the various purposes of sentencing, having regard to the offender’s subjective case and the need to vindicate the dignity of each victim of violence, the Court nonetheless endorsed the approach taken in Neal v The Queen (1982) 2 ALR 609; [1982] HCA 55 and Fernando, stating at [51]-[52]:

“[51] The statement by Brennan J in Neal has consistently been applied in this country by intermediate appellate courts. Thus in Fernando, Wood J said:

"[I]n sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender."

[52] In R v Fuller‑Cust, Eames JA observed that, in the application of the principle stated by Brennan J, regard to an offender's Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender's Aboriginality is not "overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored." Moreover, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender's recidivism.”

Purposes of Sentencing

  1. Section 3A of the CSPA sets out the purposes for which a court can impose a sentence. The section relevantly provides that:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

  1. Given that s 3A does not depart from the approach taken at common law, it is necessary to commence by discussing the case of Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen (No 2)), where Mason CJ, Brennan, Dawson and Toohey JJ said at 476:

“… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

  1. In R v Engert (unrep, 20/11/95, NSWCCA), Gleeson CJ, after discussing Veen (No 2), 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. … 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. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock), the High Court at [20] said the following of s 3A:

“The purposes there stated [in s 3A] are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) in applying them.”

  1. In its 2013 report concentrated on the amendments to the CSPA, the New South Wales Law Reform Commission (NSWLRC) stated that:

“Consistently with the common law, s 3A does not identify a single overarching purpose, nor does it rank the various purposes. The courts in NSW have, however, held that a court must address all of the purposes when framing a sentence.” [12]

12. New South Wales Law Reform Commission, Sentencing (Report No 139, July 2013) 14[2.5].

  1. The NSWLRC went on to state that the sentence process involves a complex and intricate interplay which emerges as a compromise between these overlapping, “distinct and partly conflicting principles”. The importance attached to any particular purposes of sentencing will vary, not only with the individual circumstances, but also over time, reflecting changes in society and community perceptions. [13]

    13. Ibid.

  2. More recently, when discussing the various purposes of sentencing, Hamill J in R v Brooks (No 5) [2017] NSWSC 824 (Brooks (No 5)) at [17] stated:

“It is necessary to consider the many and varied matters that inform the proper exercise of the sentencing discretion and to determine a fair, just and appropriate penalty, taking into account all of those circumstances. These matters pull in opposite directions.”

  1. Section 3A, in setting out the various purposes of sentencing, does not identify a single overarching purpose, neither does it identify a primary purpose or establish any priority among the various purposes. In particular, it reflects the necessity to reconcile and rationalise the s 3A purposes in considering the sentence appropriate to the particular offence. I must engage in a process of “instinctive synthesis” which takes account of and balances the “conflicting and contradictory” factors which bear upon the sentencing exercise: see R v MA [2004] NSWCCA 92 at [23]; R v King [2004] NSWCCA 444 at [130]; R v MMK [2006] NSWCCA 272 at [10]; R v Burns (No 2) [2022] NSWSC 140 (Burns (No 2)) at [64].

  2. In arriving at the appropriate sentence, I have had regard to the purposes set out in s 3A of the CSPA. Although the offender’s deprived and disadvantaged background operates to reduce the weight afforded general deterrence, it remains a relevant consideration given the domestic context in which the offence was committed. The offender must be punished for his crime and a sentence must be imposed that deters others from inflicting violence on their domestic partners.

Special Circumstances

  1. Dr Lennings opines that the impacts of a lengthy custodial sentence on the offender would increase his likelihood of becoming institutionalised. Dr Lennings stated:

“At the behavioural level ongoing institutionalisation will build on Mr Knight’s already low self-esteem and poor agency and further erode any residual capacity he may have for independent and adaptive living. It will magnify his dependency on others and if those others have behavioural or psychological problems that will then further compromise Mr Knight’s post-prison adjustment.” [14]

14. Psychological Report of Dr Lennings, above n 1, 10[55].

  1. There is a real risk that the offender will become institutionalised. The executive summary of Bugmy Bar Book Chapter on ‘Impacts of Imprisonment on Remand in Custody’ includes the following observations:

“The experience of incarceration may result in poor mental health outcomes, both by exacerbating existing mental health conditions and causing new experiences of poor mental health. Adverse mental health impacts may be especially pronounced for people with backgrounds of trauma, and may compromise a person's ability to engage with and benefit from support upon release. [15]

15. Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (Public Defenders, Executive Summary, 2022) 1.

  1. In addition, Dr Lennings expressed concern for the offender’s psychological state following the imposition of a lengthy custodial sentence. Dr Lennings opined that:

“At the psychological level Mr Knight cannot escape the guilt and remorse he feels but has no access to professional supports that can assist him through that. Further the long history of complex trauma he has been exposed to cannot be moderated by alcohol use, as he has done in the past and this will independently exert a significant psychological pressure on him. That is the reason why I believe he meets criteria for persistent depression, he cannot effectively do anything to relieve the misery and regret he currently experiences. The risk is that at some point he may develop a Major Depression.” [16]

16. Psychological Report of Dr Lennings, above n 1, 10[55].

  1. The offender gave evidence during the proceedings of COVID-19 restrictions that have applied during his time on remand. He gave evidence that on five or six occasions, he has been locked down for periods of approximately 10 days. The impacts of the COVID-19 pandemic on custodial conditions are well known to the criminal courts and have been recognised as a relevant consideration in determining the appropriate sentence: see McKinnon v R [2020] NSWCCA 106 at [32], applied more recently in R v Elmir [2022] NSWDC 317 at [145]; R v AN; R v LM; R v WD [2022] NSWSC 1272 at [32].

  2. I find special circumstances warranting a modest variation of the statutory ratio for the following combined reasons: Firstly, there is a real risk that the offender will become institutionalised. Secondly, this is the first time that he serves a term of full-time imprisonment. Thirdly, there is a risk that at some point during his term of imprisonment, he may develop major depression. Fourthly, he will require a lengthy period on parole to assist with readjusting to life in the community and obtaining culturally appropriate rehabilitation programs.

Comparable Cases

  1. The point of sentencing judges having regard to what has been done in other cases is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases and statistical data may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence: see The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26].

  2. However, the use of comparative cases and statistical data should be approached with some caution. I bear in mind that information about sentences that have been passed in other cases does not necessarily capture the spectrum of facts in a particular case, or are otherwise determinative of the upper or lower limits of sentencing discretion: see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [25]-[28]; Munda at [39]; Park v R [2019] NSWCCA 105 at [34].

Crown Cases

  1. The Crown relied upon the following comparative cases:

Wood v R [2019] NSWCCA 309

  1. In Wood, the appellant pleaded guilty to murdering his female partner. The offender stabbed his partner in her home late at night after a long period of drinking. Their relationship was historically characterised by violence, and the offender was also sentenced for breaching an ADVO naming the deceased as the person in need of protection. The offender was intoxicated at the time of the offence, and his decision to become intoxicated was taken to be an aggravating feature in light of his previous violent behaviour. Following a discount of 25%, the offender was sentenced to a term of imprisonment of 24 years, with a non-parole period of 18 years imprisonment.

  2. This case can be distinguished. The objective seriousness was significantly higher. The appellant was sentenced on the basis that he caused his partner’s death with an intention to kill her. The objective seriousness was assessed as being above the mid-range.

R v Ruttley (No 7) [2017] NSWSC 1582

  1. In R v Ruttley (No 7) [2017] NSWSC 1582, the offender was found guilty after trial of murdering his long-term partner. The offence took place after the offender had consumed about 12 stubbies of beer in a session of drinking. The offender transported and disposed of the deceased’s body at unknown location. The deceased’s body had never been located. The offender was sentenced to a term of imprisonment of 24 years, with a non-parole period of 18 years imprisonment.

  2. This case can also be distinguished. The offender was found guilty after trial. There was no discount applied to the sentence.

R v Biles (No 2) [2017] NSWSC 525

  1. In R v Biles (No 2) [2017] NSWSC 525, the offender and the deceased were in a relationship for approximately three years and shared one child together. The offence occurred in the deceased’s house following an altercation between the offender and the deceased. The offender punched the deceased repeatedly to the head, with sufficient force to break her jaw and render her unconscious, in turn causing obstruction of her airway, substantially contributing to her death. Both the offender and deceased had been drinking heavily. The offender was sentenced to a term of imprisonment of 24 years, with a non-parole period of 18 years imprisonment.

  2. This case involved objectively more serious offending. The offender repeatedly assaulted the deceased by punching and kicking her. He was found guilty after trial and, therefore, no discount applied to the sentence.

R v Birch [2016] NSWSC 816

  1. In R v Birch [2016] NSWSC 816, the offender and the deceased were both Aboriginal, and were in a relationship for approximately three years. During that time, there were incidents of domestic violence, some resulting in physical injury to the deceased. The offender and deceased had been drinking on the day of the killing, and on the days preceding it. The murder took place at the home they shared. The offender could not find his key card and argued with the deceased. He assaulted the deceased by punching her repeatedly. The offender fell asleep in his bed. The following morning, the body of the deceased was discovered in the hallway. She had multiple fractures to her rib cage, resulting in two lacerations to the heart. The offender pleaded guilty to murder and following a discount of 25%, he was sentenced to a term of imprisonment of 20 years, with a non-parole period of 13 years imprisonment.

  2. While there are some similarities, the objective seriousness was higher in that case. The objective seriousness was assessed as being in the mid-range, the offender having repeatedly punched the victim. The killing was described as a brutal attack.

Defence Cases

  1. With respect to offences involving a single stab wound, the offender relied upon the following comparative cases: R v Conway [2023] NSWSC 55; Burns (No 2); R v Archer [2021] NSWSC 1485; R v Fredes [2020] NSWSC 1332; R v Dennis [2018] NSWSC 1733; Brooks (No 5). These cases reveal a head sentence range of between 21 years imprisonment and 16 years imprisonment, and a range of non-parole periods of between 14 years and 6 months imprisonment and 12 years imprisonment.

  2. The offender also relied on the following comparative cases involving the murder of intimate partners:

R v Ahmed (No 2) [2023] NSWSC 105

  1. In R v Ahmed (No 2) [2023] NSWSC 105, the offender was sentenced for the murder of his wife of approximately six years. The offence occurred in the context of the offender’s jealous rage relating to deceased having a romantic relationship with another man. While demanding to see the deceased’s phone, the offender picked up a knife and threatened to kill her. After seeing messages, some of a sexualised nature, on the deceased’s phone, the offender inflicted 14 stab wounds. N Adams J described the offence as a “grave example of murder”, having occurred in the deceased’s home. Her Honour also found that the offender intended to kill the deceased, and waited until she was dead to call police. The offender was sentenced to a term of imprisonment of 24 years, with a non-parole period of 18 years imprisonment.

  2. Clearly, the offending in that case was more objectively serious.

R v Jung [2022] NSWSC 1262

  1. In R v Jung [2022] NSWSC 1262, the offender was sentenced for the murder of his intimate partner. At the time of the killing, the offender and the deceased were engaged in an extra-marital affair for approximately three years. The sentencing Judge found that the offender had an intention to kill the deceased, having strangled her with a telephone charger cord to “hide” the extra-marital affair. Following a discount of 25%, the offender was sentenced to a term of imprisonment of 18 years imprisonment, with a non-parole period of 13 years and 6 months imprisonment.

  2. The offender was sentenced on the basis that he had an intention to kill the deceased, a feature that made that case more objectively serious than the present.

R v Lloyd [2022] NSWSC 906

  1. In R v Lloyd [2022] NSWSC 906, the offender and the deceased had previously been in an intimate relationship for about three years. The relationship was marred with domestic violence, and a number of ADVOs were in place to protect the deceased. While at the deceased’s front door, the offender struck the deceased with a baseball bat, predominantly to the left side of her head. The offender then inflicted multiple stab wounds to the deceased’s face and neck. The sentencing Judge found that the killing fell “above the mid-range of objective seriousness”. The offender was ultimately sentenced to 25 years and 6 months imprisonment, with a non-parole period of 19 years and 1 month imprisonment.

  2. This case can be distinguished for a number of reasons. Firstly, the offender was sentenced on the basis that he intended to kill the deceased. Secondly, the objective seriousness was assessed as falling above the mid-range.

R v Ryan (No 4) [2020] NSWSC 1629

  1. In R v Ryan (No 4) [2020] NSWSC 1629, the offender was sentenced for an offence of murder, in addition to an offence of contravening an ADVO. The offender was in a relationship with the deceased for approximately 38 years, and they shared two adult children together. Prior to the offence, the offender had been recorded making threats over the telephone of physical violence against the deceased if she did not bring the new romantic relationship to an end. Prior to or during the fatal ordeal, the offender held a knife to the throat of the deceased, ordered her to telephone her sister and brother-in-law, and demanded they advise the deceased not to leave the offender. The sentencing Judge found that the number and location of the wounds inflicted demonstrated “an undoubted intention to kill”. The Court found that this was an “extremely grave” example of murder. The offender was sentenced to an aggregate term of imprisonment of 23 years, with a non-parole period of 17 years imprisonment.

  2. Again, the case can be distinguished. The offender was sentenced on the basis of “an undoubted intention to kill”. He had inflicted well over 30 stab wounds using two knives. Furthermore, the offender was found guilty after trial.

  3. While the “comparable cases” provide some guidance with respect to applicable principle, there are factors that distinguish the cases relied upon.

  4. As indicated above, the sentence I impose must have regard to the objective seriousness of the offence in this case, the offender’s subjective case, the purposes of sentencing, and relevant principles. I have concluded that a total sentence that reflects all these matters is 17 years and 6 months imprisonment.

Orders

  1. Accordingly, the offender is convicted.

  2. Taking into account a discount of 25% to reflect the utilitarian value of the plea of guilty, and the Form 1 offence, the offender is sentenced to a non-parole period of 12 years and 6 months, commencing on 13 March 2021, and expiring on 12 September 2033. There will be a balance of term of 5 years, which will expire on 12 September 2038. The offender is eligible for release to parole at the expiration of the non-parole period.

  3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and this offence. I direct that your legal representatives explain the significance of that fact to you.

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Endnotes

Decision last updated: 01 April 2023

Most Recent Citation
Cases Citing This Decision

3

R v Kilby (No 2) [2025] NSWSC 748
R v COLLINS [2025] NSWDC 107
R v Thompson [2025] NSWCCA 133
Cases Cited

50

Statutory Material Cited

4

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
R v Barrientos [1999] NSWCCA 1