R v Laurence Bede O'Connor

[2008] NSWSC 1297

CITATION:	R v Laurence Bede O'Connor [2008] NSWSC 1297
HEARING DATE(S):	29/09/08, 30/09/08, 1/10/08-3/10/08, 8/10/08-10/10/08, 14/10/08-16/10/08, 4/12/08
JUDGMENT DATE :	5 December 2008
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Studdert AJ
DECISION:	Laurence Bede O’Connor, for the murder of Flordelizza O’Connor I sentence you to a non-parole period of 16 years commencing on the 7th September 2007 and expiring on the 6th September 2023 and to a balance of term of 5 years commencing on the 7th September 2023 and expiring on the 6th September 2028. The earliest date upon which you will be eligible for release on parole will be 6th September 2023.
CATCHWORDS:	CRIMINAL LAW - Sentence - Murder - Consideration of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act
CATEGORY:	Sentence
CASES CITED:	Michael Larry Percy v R (2006) 164 ACR 93 R v AJ P [2004] 150 A Crim R 575 R v Bell (1985) 2 NSWLR 466 R v Berg [2004] NSWCCA 300 R v Bollen (1998) 99 A Crim R 510 R v Holyoak [1995] 82 A Crim R 502 R v Isaacs (1997) 41 NSWLR 374 R v King [2004] NSWCCA 444 R v Previtera [1997] 94 A Crim R 76 R v Toki [2003] NSWCCA 125 R v Way (2004) 60 NSWLR 168 R v Youmaran [2008] NSWSC 762
PARTIES:	Regina Laurence Bede O'Connor
FILE NUMBER(S):	SC 2008/7137
COUNSEL:	Mr M Fox (Crown) Mr E Wilson (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Accused)

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

Studdert AJ

Friday 5 December 2008

2008/7137 Regina v Laurence Bede O’Connor

JUDGMENT

1 HIS HONOUR: Upon the presentation of an indictment before this Court charging him with the murder of his wife Flordelizza O’Connor, the offender Laurence Bede O’Connor pleaded not guilty to murder but guilty to manslaughter. The plea offered by the offender was not acceptable to the Crown and the trial here in Dubbo proceeded accordingly. The only live issue at the trial was provocation, an issue determined by the jury against the offender. The jury found the offender guilty of murder and the offender is now to be sentenced for the commission of this crime.

2 The crime was committed on a property called Quandalli near Tooraweenah on the 7th July 2007. On that date the offender shot his wife twice, thereby causing her death. Two months after the shooting, the offender admitted to police officers what he had done, and showed them where he had buried his wife’s body in a relatively isolated location on the property. Later in the early hours of the 8th September 2007, following his arrest, the offender participated in a lengthy interview in the police station in Dubbo, in which he admitted to the shooting. Then on the 9th September 2007 he returned with police officers to Quandalli participating in a “walk through” of the crime scene, recorded on video, and he explained how and where he had shot his wife. Indeed a re-enactment was carried out with a police officer assuming the role of the deceased. The offender described how he set about arranging to bury his wife, by placing her in the bucket scoop of a tractor, and then taking her for burial up to the isolated location previously mentioned. The offender described how he buried his wife and placed lime on her body, asserting that the lime was used to deter wild pigs from disturbing the body.

3 The body of the deceased was submitted to post mortem examination which disclosed bullet wounds to the trunk and to the head. The entrance wound to the trunk was in the back at the level of the eighth vertebral column. It nicked the aorta and entered the left lung. The wound track was back to front slightly right to left and upwards. The entrance wound to the head was over the right temple. The skin was perforated and the path of the bullet was through the centre of the brain, settling in soft tissue at the back of the head on the left side. The path was slightly downwards. Though the offender in the demonstration earlier mentioned indicated that he placed the weapon to the left temple of the deceased the post mortem findings were otherwise consistent with the offender’s description of the shooting.

4 I shall presently refer in closer detail to the marital relationship between the offender and his late wife, but addressing firstly the day of the shooting, the offender’s version of the crime not the subject of dispute at the trial, was in summary as follows:

That on the morning of the 7th July 2007 the deceased climbed on to the roof of the residence at Quandalli to address a leak problem. The offender stayed near the foot of the ladder. The relationship between the offender and the deceased was not previously a harmonious one and whilst on the roof the deceased told the offender she had taken his car keys, his wallet, his cheque book and his deposit books and that she had burnt his tobacco. The offender searched unsuccessfully for his car keys and said when interviewed by the police that he had had a gutful of the deceased doing these things, which he asserted had been going on for years and getting worse and worse (see questions and answers 95 to 101, and 106 to 119, of the record of interview.) There was a loaded .22 rifle kept on the veranda, placed there for shooting birds that raided the strawberries and this was the gun the offender used. As the deceased was about to descend the ladder, the offender reached for the loaded rifle, released the safety catch, and in the course of her descent placed the weapon against his wife’s spine and fired without warning. The victim fell on to the concrete and was moaning. The offender then placed the rifle against the temple of the deceased and fired the second shot.

This outline of events I find to have been established on the evidence.

5 The offender admitted to the police that when he shot the deceased he intended to kill her (see questions and answers 144-145 and questions and answers 590-591 of the interview of the 8th September 2007).

6 I observed earlier that the central issue at the trial was the issue of provocation and this issue is to be regarded in the context of the respective backgrounds of the offender and of the deceased as established by the evidence which I now summarise.

7 The offender was born on the 6th June 1943 so that he is presently 65 years of age. Until the age of 10 years he lived with his father, his mother and his sisters near Dubbo. Then at the age of 10 years he and the family mentioned moved to Quandalli where the offender finished his primary schooling. He attended high school De La Salle College Dubbo but left school at the age of 15½ years having passed the intermediate certificate examinations. He returned to Quandalli where he remained until the time of the shooting, subject to a period on a prison farm to which I shall refer again later. He learned how to run the property from his father. Merino sheep, cattle, pigs and limited farming took place, and it was the offender’s father who made the business decisions. His mother did not participate in them. The offender’s father died in 1988 and his mother left the property some years later. After his father’s death, it was the offender who cared for the property. The offender expected his wife to follow his mother’s example in leaving business decisions to him once he took over the property.

8 In 1985 three years prior to the death of his father, the offender went to the Philippines where he met Flordelizza, his then future wife. He arranged for her to follow him to Australia and they married in this country. There were two children of the marriage Kathleen born in 1986 and James born in 1987.

9 The marriage was seemingly a happy one at the outset and both parents were devoted to the children of the marriage. However stresses developed between the parents and they increased after the children left home after completing their secondary schooling.

10 The evidence establishes that the offender’s physical integrity was impaired by two accidents. He hurt his back in an accident in 1989 and earlier in 1985 he had injured his right wrist.

11 The evidence established that the offender was an alcoholic. He was also an extremely heavy smoker. In 1977 when affected by liquor he was involved in a motor accident causing the death of a motorcyclist. He was convicted of the crime of culpable driving causing death and was sentenced to two years imprisonment with a non parole period of six months. He gave up drinking thereafter for some fifteen years but then started drinking home brew and this he did to excess. The deceased tried to ration the offender’s alcohol intake, allowing him to drink three bottles per day keeping the supplies otherwise under lock and key. The deceased kept the key to the place where the home brew was stored in her possession.

12 By 2000 the condition of the property had deteriorated. The homestead was dilapidated and the offender lost the enthusiasm to work the property, hindered as he was by his physical condition. He decided to lease out most of the property and the deceased resented the leasing. The deceased also resented the offender’s expressed wish to sell the property and to retire into town.

13 The offender resented the deceased’s wish to participate in decisions about the property and he resented the expressed assertion by her that she was “the boss”. Against the wishes of the deceased the offender renewed the lease to one James Terry shortly prior to the shooting. When the deceased learned of this she was extremely upset. In the words of her son James who heard his parents arguing on a visit home just before the shooting, his mother “went ballistic” about the issue of the renewal of the lease.

14 The deceased from the time of her arrival in Australia developed a strong attachment for Quandalli. The evidence discloses that the deceased was a devoted mother to her children and an industrious person who worked hard on the property growing vegetables and raising poddy calves, to all of which she gave pet names. The evidence also establishes she cared for the offender but they quarrelled about their future on Quandalli and the deceased was firm on her views that they should stay there and work the property themselves. The deceased was shrill in her expression of those views when arguments occurred.

15 So much is established by the evidence and this is the background against which the final events in the life of the deceased took place on the 7th July 2007.

16 I add to the above that the offender told the police that the shooting was not something that he had been thinking about for a while (question and answer 145). When asked why he decided to shoot her in the head the offender told the police that “she just got that nasty about any business decisions I made, she tried to overrule me” and that “she use to yell and scream and screech”. He added that “she had a real bad speech and it just got very nerve racking. The sound of her voice would drive you up the wall” (questions and answers 150-153).

17 The accused also told the police that he had not had any alcoholic drink since the night before the shooting.

18 Whilst the jury found against the offender on the issue of provocation, it does not necessarily follow that the issue of mitigation by reason of provocation does not fall for consideration. Indeed it does in the way I shall shortly address. In its written submissions the Crown referred to the dicta of Lee CJ at CL in R v Bell (1985) 2 NSWLR 466 at 485, and I record his Honour’s dicta in Bell which are relevant in the present context:

“The rejection of these defences does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent of the factual basis upon which they rested. If the sentencing Judge is satisfied from the credible evidence in the case that there was a degree of provocation, he may take it into account as a mitigating factor. But every case must be judged according to its own circumstances and the question for the Court in every case will be whether on the evidence the factor being put forward as a mitigating factor has a relevant connection with the crime in its full sense as I have explained earlier.”

19 There were of course two ways in which the jury could have arrived at the decision here that the Crown had negatived provocation:

1. that the offender’s conduct in shooting the deceased was not as a result of losing his self-control by reason of any conduct of the deceased towards or effecting the offender; or

2. that the conduct of the deceased was not such as could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed the intent requisite to establish the crime of murder.

20 Since the verdict of the jury does not inform the Court precisely why it determined that provocation had been negatived, I must examine this issue in the present context, mindful of the remarks in Bell cited above. Any finding that I may make which is adverse to the offender requires proof beyond reasonable doubt. See R v Isaacs (1997) 41 NSWLR 374, in particular at 377-378. Any finding favourable to the offender requires satisfaction on the balance of probabilities.

21 There is much credible evidence which indicates that the behaviour of the offender at the time of the shooting was behaviour that contrasted with his behaviour at earlier times in the marriage when the deceased expressed her displeasure or disapproval towards the offender. Kathleen O’Connor gave evidence about her mother being an excitable person whose voice became elevated when she was arguing or angry. According to Kathleen O’Connor her father rarely joined in discussion when her mother became angry. Rather he simply sat there. Indeed in cross-examination Kathleen O’Connor said that whilst her mother became excited and jumped around in quarrels her father simply sat and listened.

22 James O’Connor gave evidence of hearing an argument between his parents when the lease was due for renewal. He said that his mother shouted at his father but that his father just sat there and took it.

23 A neighbour, Mervyn Braithwaite, who first met the offender in about 1995 described the offender as very approachable and well mannered. He said he heard quite a few arguments between the offender and the deceased. On such occasions he said there was a lot of yelling by the deceased but that the offender was pretty passive. In cross-examination Mr Braithwaite said that he did not witness the offender starting any arguments and he never heard the offender raise his voice towards the deceased.

24 There was no evidence that the offender acted violently towards the deceased or towards anybody else before the occasion of the shooting. I do not overlook the offender’s previous criminal offence but it does not assist me in relation to the issue I am presently considering.

25 A finding by the jury that the conduct of the deceased was not such as could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed the intent requisite to establish the crime of murder, would have been to my mind a readily understandable finding and as Mr Wilson pointed out the jury returned with its verdict shortly after being given further instruction on this issue. For my part having considered the evidence relevant to this issue I am satisfied beyond reasonable doubt that the conduct of the deceased was not such as could have caused an ordinary person in the position of the offender to have so far lost self-control as to have formed the intent requisite to establish the crime of murder.

26 Whilst the verdict of the jury reveals that the offender did not act under provocation within S.23 of the Crimes Act, I find on the balance of probabilities that the offender shot the deceased after the conduct by the deceased on the morning of the shooting impacted upon his self control and that he was subject to some loss of self control at the time of the shooting. In his evidence in this Court the offender accepted that the action of the deceased in hiding the bank books, keys and the tobacco were only childish acts. He said that he shot his wife out of frustration and annoyance and rage. He also acknowledged that he shot his wife for very flimsy reasons. Nevertheless following close reflection on the evidence in point I have made the finding expressed above and it follows that the offender is entitled to have taken into account as a mitigating factor the circumstance that there was some loss of self control at the time of the shooting after the deceased had conducted herself in the manner described in the evidence.

27 I turn to consider subjective features of this case.

28 I have already dealt with aspects of this in a review of the background of the offender set out in paragraph 7 and following above.

29 In the hearing as to sentence Mr Wilson introduced reports from Dr Allnutt and Dr Pulman.

30 Dr Allnutt made an assessment of the offender on the 15th February 2008 (see Exhibit 2 as to sentence). His opinion was that the offender manifested no psychiatric disorder which would have rendered him unfit to stand trial but Dr Allnutt invited a neuropsychological assessment directed to the possibility of a defence to the crime charged of substantial impairment. Hence it was that a neuropsychological assessment was made by Dr Pulman in May 2008 (see exhibit 3 as to sentence). According to Dr Pulman there was no evidence of any deficits in neuropsychological functioning that could be considered as substantial impairment under section 23A of the Crimes Act. The only other medical evidence introduced on the hearing as to sentence was a report from Dr Stephen Hampton. His report (exhibit 1 on sentence) was based on a review of records concerning the offender since he has been in custody. The report refers to no serious medical problems suffered by the offender. The opinion is expressed in this report that Justice Health will be able to provide services required for any treatment of the offender which may become necessary concerning his respiratory tract problems and other matters addressed in the report.

31 In his own evidence the offender told the Court that his health was better now than at the time of his arrest. The offender says that he entertains no suicidal thoughts now. He was treated for his skin cancer whilst in custody and he is presently on no medication. There does not appear to be any existing medical condition at present rendering the circumstances of his incarceration more burdensome than would otherwise be expected.

32 Whilst the shooting was deliberate and carried out with the intention to kill I do accept as Mr Wilson submitted, that the commission of the crime was not premeditated and that the rifle was within reach because it had been placed where it was to deter birds. The fatal decision which the offender took was taken whilst the deceased was on the roof, and shortly before her descent down the ladder.

33 I accept the submission made by Mr Wilson that I should find that the offender is remorseful and contrite in respect of his crime. In making this finding I do not overlook the fact that after the shooting he acted swiftly to conceal the body of the deceased and that he lied on many occasions, to his children, to his sister and to police officers about the whereabouts of his wife. I accept the submission made that in so acting the offender was significantly motivated by a perception that he needed time to put his affairs in order by selling animals, grain and machinery. In the period between the date of the shooting and his confession of his crime to police the offender drank to excess and he did so continually. But in any event whether in covering up his crime for some two months the offender was only motivated by wanting to put his affairs in order, nevertheless I find that by the time he confessed to his crime, the offender was indeed contrite and remorseful. Following the shooting, the offender contemplated suicide, as evidenced by his note and his map (see exhibits L and N). When interviewed on the 8th September 2007 (answer to question 457) the offender said “remorse. Pretty terrible thing. I’ve owned up.” He referred to the fact that he had two children and that they would never be able to look him in the face (see questions and answers 457 and 458). In his evidence at the trial the offender acknowledged that what happened on the morning of the shooting before he fired the shot could have been resolved, and he agreed that he had shot his wife for what seemed flimsy reasons.

34 I am satisfied that the offender’s prospects of rehabilitation are good. Indeed I consider it highly unlikely that this offender will re-offend at any time in the future.

35 I find that the offender offered considerable assistance to the police after he told a police officer on the 7th September 2007 that he wanted “to come clean”. Thereafter he confessed to his crime and showed the police where he had buried his wife’s body.

36 The manner in which this trial was conducted is to be considered. In focusing on the issue of provocation a shortening of the time taken up at the trial was achieved. The utilitarian consequence of this is a matter to be brought into account in the offender’s favour.

37 In approaching my sentencing task I must heed the provisions of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999.

38 The present case is not one calling for a sentence of life imprisonment nor does the Crown submit that such a sentence is called for. Accordingly section 54B of the Crimes (Sentencing Procedure) Act needs to be considered. Under this section a standard non-parole period of twenty years has been set. Section 54D is of course to be read in conjunction with section 54A and section 54B. Section 54A(2) provides:

”For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”

Section 54B provides:

(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(5) The failure of a court to comply with this section does not invalidate the sentence.

39 The effect of Part 4 Division 1A and how it bears upon the task of sentencing was considered in R v Way (2004) 60 NSWLR 168 and in R v AJP [2004] 150 A Crim R 575 and again in MLP v R [2006] 164 A Crim R 93.

40 I refer to the judgment of Kirby J in MLP v R with which Grove J and Hislop J agreed. His Honour referred in MLP to what Simpson J had said earlier in AJP. His Honour described her Honour’s remarks in the earlier case as being “a helpful distillation of the principles in Way”. With that description I respectfully agree. What her Honour said in AJP was this:

[32] The following propositions emerge from Way and subsequent cases:

(i) while s 54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; …

(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);

(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74]–[77]);

(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85]–[86]);

(v) that an offence is “typical” or “common” does not dictate that it is in the middle of the range of objective seriousness (para [101]);

(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101]–[102]);

(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319

41 Having cited the above dicta Kirby J proceeded in MLP at [33] to [34]:

[33] The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence:

· First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna [2004] NSWCCA 43, per Barr J; R v George [2004] NSWCCA 247).

· Secondly, should the offence be characterised as being in the mid range of objective seriousness? That task should be approached in the manner suggested by Simpson J (above), intuitively evaluating the objective seriousness of the offence and looking to those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid range. If the offence falls within the mid range, the standard non parole period should apply, subject to the remaining issues.

· Thirdly, are there other reasons in the matters identified in s 21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s 21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s 21A(1) provides that the matters specifically identified in the subparagraphs of s 21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s 21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period.

· Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s 44(2) of the Crimes (Sentencing Procedure) Act 1999, that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve (Power v R (1974) 131 CLR 623 at 628; Bugmy v R (1990) 169 CLR 525).

[34] There is no requirement that these issues be addressed in any particular order ( R v Moffitt (1990) 20 NSWLR 114 ), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear in the mind the following advice provided in R v Way:
124 The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.

42 I heed what was said by Simpson J in AJP and by Kirby J in MLP in considering the sentence to be imposed on this offender.

43 The Crown has submitted, in my view correctly, that there are aggravating features of this case under section 21A of the Crimes (Sentencing Procedure) Act:

(i) that the commission of the crime involved the use of a weapon (section 21A(2)(c))

(ii) that there were two discrete acts of shooting (section 21A(2)(m))

44 Mr Wilson has submitted that there are mitigating features for the purposes of section 21A(3):

(i) the offence was not part of a planned activity (section 21A(3)(b)).

(ii) the offender was provoked by the deceased (section 21A(3)(c)).

(iii) the offender has no record relevant for present purposes (section 21A(3)(e)).

(iv) the offender is to be considered of good character (section 21A(3)(m)).

(v) the offender is unlikely to re-offend (section 21A(3)(g)).

(vi) the offender has good prospects of rehabilitation (section 21A(3)(h)).

(vii) the offender has shown remorse (section 21A(3)(i)).
(viii) the offender provided assistance to law enforcement authorities (section 21A(3)(m)).

45 I consider that the evidence establishes the existence of each of the mitigating features advanced by Mr Wilson. As to provocation, I have previously expressed my finding as to there being some measure of loss of self-control (see para 26 above). I earlier identified assistance I find the offender offered to the police and he also identified to them the fire arm that he had used.

46 I have concluded that the present offence is below the middle of the range of objective seriousness for offences of murder, albeit not by much. In reaching this conclusion I am mindful of the lack of premeditation and the absence of planning, and the fact that the offender was subjected to some loss of self-control.

47 There are also of course the mitigating features found for the purpose of section 21A(3) to be considered in order to arrive at an appropriate non-parole period and in order to structure a suitable sentence.

48 In the course of his submissions, Mr Wilson referred to the sentences imposed in many cases for the crime of murder. I have considered each of the decisions to which I have been referred in the written submissions, but I do not consider it would be useful to review all those decisions here. One of those cases was R v Toki [2003] NSWCCA 125. In Toki Hidden J reviewed sentences imposed in cases of murder in the setting of an intimate relationship. Having conducted an extensive review and identifying certain exceptional cases his Honour concluded that:

“otherwise sentences ranged from 14 to 24 years, the majority of them being less than 20 years” (para 29).

49 The decision in Toki preceded the introduction of Part 4 Division 1A and in R v Youmaran [2008] NSWSC 762 Rothman J remarked (at para 4) “the introduction of a standard non-parole period for the crime of murder had a significant effect in increasing the range of sentences generally imposed for the crime of murder.”. His Honour’s observations accord with my review of the cases. The observation also seems to be consistent with the schedule of sentences which Mr Wilson handed up in the course of submissions.

50 Ultimately of course my task is to determine what sentence is appropriate in the present case by reference to the particular features of it, both objective and subjective.

51 A Victim Impact Statement was read in Court by Kathleen O’Connor and this statement refers to the tragic consequences of what happened, particularly concerning herself and her brother. It is appropriate that the impact of the crime committed by the offender be acknowledged. However I must heed the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions in Previtera [1997] 94 A Crim R 76; Bollen (1998) 99 A Crim R 510; Berg [2004] NSWCCA 300 and King [2004] NSWCCA 444. It is not appropriate, following the authorities mentioned, that I be influenced by the content of the Victim Impact Statement in determining an appropriate sentence.

52 Mr Wilson submitted that there are special circumstances for the purposes of section 44(2) of the Crimes (Sentencing Procedure) Act. Mr Wilson refers to the offender’s age and to the circumstance that the length of the sentence to be imposed may mean that the offender could spend the rest of his life in custody. He submitted further that as he ages the hardship associated with the offender’s incarceration will increase. Reference was made to R v Holyoak [1995] 82 A Crim R 502. In that case Allen J remarked that advanced age is not a reason for not imposing a proper penalty even if the penalty imposed would mean that the offender may spend the whole of his remaining years in custody. However Allen J proceeded to say:

“Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant. Likewise, the effect of the sentence upon general deterrence is not irrelevant. What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free. These considerations weigh heavily upon me.

53 The observations made by Allen J in the above cited passage are not to be ignored. I am mindful of the fact that the offender is at present sixty-five years of age and I do not overlook this in deciding upon an appropriate sentence. However I am not persuaded that there are special circumstances which would warrant reduction of the non-parole period which I here consider to be appropriate, by reason of the offender’s age. I have expressed findings in relation to the offender’s prospects of rehabilitation and consider no longer period than that which I am about to set by way of the balance of the term is required in this case. Moreover I consider the non parole period for the sentence should be no less than I am about to set, having regard to the objective gravity of the crime committed by the offender.

54 Whilst I have determined that the present offence is below the middle of the range of objective seriousness for the purposes of Division 4 Part 1A it by no means follows that this crime committed by the offender is to be regarded as anything other than a serious offence as indeed are all offences of murder. The offender shot his unsuspecting victim twice at close range with intent to kill. The crime he committed was a callous and a cowardly one. The crime is to be denounced and considerations of deterrence and punishment of the offender must be adequately addressed.

55 The offender has been in custody since the 7th September 2007. The sentence is to be backdated accordingly.

56 I now proceed to pass sentence as follows:

Laurence Bede O’Connor, for the murder of Flordelizza O’Connor I sentence you to a non-parole period of 16 years commencing on the 7th September 2007 and expiring on the 6th September 2023 and to a balance of term of 5 years commencing on the 7th September 2023 and expiring on the 6th September 2028. The earliest date upon which you will be eligible for release on parole will be 6th September 2023.
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