R v Leigh
[2019] VSC 378
•7 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S CR 2018 0284
| THE QUEEN | |
| v | |
| JIM HANS LEIGH | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 May 2019 |
DATE OF SENTENCE: | 7 June 2019 |
CASE MAY BE CITED AS: | R v Leigh |
MEDIUM NEUTRAL CITATION: | [2019] VSC 378 |
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CRIMINAL LAW – Sentence – Murder – Planned murder of friend to avoid repayment of debt – Victim lured into bathroom and stabbed 34 times to neck and back – Steps taken to avoid responsibility – Confession during interview, but false explanation given for crime – Early plea of guilty - Limited remorse – No prior convictions - Standard sentence scheme – Instinctive synthesis – Very serious example of offence - Above middle range of seriousness – High moral culpability – Just punishment – Denunciation - General deterrence - Protection of community – Sentence of 28 years’ imprisonment with non-parole period of 22 years – But for plea of guilty, sentence of 33 years’ imprisonment with a non-parole period of 26 years – Sentencing Act 1991 ss 5, 5A, 5B, 6AAA and 11A.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr Richard Blackwell | Simon English Lawyers |
HIS HONOUR:
Introduction
Jim Hans Leigh, you have pleaded guilty to the murder of Brian Recourt in Montmorency on 27 June 2018.
The maximum penalty for the crime of murder is life imprisonment. It is a category 1 offence and a standard sentence offence.
Background
Mr Recourt was born in 1971 and was 47 years old at the time of his death. He was a qualified carpenter and joiner who later worked as a prison officer at Port Phillip Prison until he sustained a serious workplace injury to his back, forcing his retirement in 2011. He received a lump sum payment from WorkCover of $232,500 in January 2015, and was in receipt of WorkCover payments at the time of his death. Mr Recourt was significantly physically disabled as a result of the back injury which he sustained at work. He walked with the aid of a crutch at the time of his death.
Mr Recourt met his wife Carolyn[1] in 1994 and they purchased a home together at 11 Wilson Avenue, Montmorency. In 2018, they separated. Mr Recourt continued living at the house, which was the location in which he was to meet his death. He and Carolyn were in the process of arranging a financial settlement at the time of his death.
[1]Mrs Recourt’s correct name is Anita Carolyn Recourt, but she goes by the name of Carolyn.
You were born Jimmie Schoenfeld on 24 May 1965, one of 6 siblings. In August 2000, you legally changed your name to Jim Hans Leigh. You lived in Springvale with your de facto wife and two young children at the time of the offence.
Your working life, in which you put yourself forward as a ‘designer’ and inventor, particularly in the field of water management, had seen you set up numerous registered companies which had failed or otherwise been de-registered. You were declared bankrupt in June 2016 as a result of a debt owed to Anthony Braunthal of $503,700. You borrowed this money in 2011 in connection with a business named ‘Data Collect’.
Investigators identified a number of associates from whom you borrowed significant sums of money since your bankruptcy. In each case, you promised to repay the sums when you received money from your next invention.
You met Mr Recourt in mid-2016 through a mutual associate and you became friends. Becoming aware of the lump sum payment he had received in respect of his injury, you requested that he lend you money. He complied with your request, lending you $200,000 which he transferred into your ANZ Bank account on 6 September 2016. ANZ records show that on 7 September 2016, you withdrew a total of $100,000 in cash from your account in seven separate transactions at different bank branches. On 8 September 2016, you withdrew the remaining $100,000 in cash in five separate transactions at different bank branches. You closed your account within two days of the last withdrawal.
A loan contract was drawn up between you and your de facto wife, on the one hand, and Mr Recourt on the other, and was signed by the parties on 13 September 2016. The loan was expressed to be for a period of six months, with Mr Recourt to receive interest of $20,000 at the conclusion of the loan.
Between September 2016 and 27 June 2018, you remained in contact with Mr Recourt, with your vehicle being observed on a number of occasions outside Mr Recourt’s home address.
There is no evidence that any of the sum of money you borrowed from Mr Recourt was ever repaid, save for $150.00 which you deposited into his bank account the day after you murdered him.
Mr Recourt’s wife Carolyn moved out of the Montmorency premises in May 2018. They reached a financial settlement whereby he would pay her $400,000 in return for obtaining sole ownership of the property.
In the lead up to his murder, Mr Recourt made repeated requests for you to repay the money you owed him. Some evidence of this was contained in text messages sent by him to you on 20 February, 21 March, and 9 April 2018.
On Tuesday 26 June 2018, Mr Recourt sent his mother a text message cancelling their regular Wednesday lunch the next day, on the basis that something had come up. The evidence indicates that the ‘something’ was a planned meeting with you at the Montmorency property to discuss repayment of the loan.
The murder of Mr Recourt; 27 June 2018
You left your home address in Springvale in your BMW motor vehicle at about 9.00 am on 27 June 2018 and drove to a location in Templestowe at which your mobile telephone was detected using a nearby tower at 9.50 am. The location where you parked was close to a block of land which you were interested in purchasing. At 9.50 am, you answered a telephone call made to your phone. After that call, your phone remained on and using the same phone tower but was not used again until 1.49 pm. The evidence indicates you deliberately left the phone in the car so that your movements could not be traced by means of the phone. Furthermore, you deliberately selected the location of the block of land as a place to leave your vehicle as you believed you would be able to explain your presence there.
Admissions you were later to make to the police in an interview indicate that you put on running shoes and a top and then ran all the way from where the car was parked in Templestowe to Montmorency, intent on murdering Mr Recourt. You had no developed plan, and were uncertain whether you would be able to bring yourself to carry out the crime, but that was your intention.
On your arrival at the home of Mr Recourt at 11 Wilson Avenue, Montmorency, which occurred just prior to 11 am, you were seen on CCTV footage wearing dark tracksuit pants, a blue running singlet, a cap, and runners. You then stood, out of sight on the front porch of the premises for in excess of half an hour, awaiting the return home of Mr Recourt. You were confident that no one had seen you jog to or enter the front yard of the premises, and that no one detected your presence there as you waited for Mr Recourt to arrive home.
Mr Recourt, for his part, had been attending a medical appointment in Eltham. He arrived at the appointment at 10.40 am. He sent your phone an SMS at 11.20 am, saying that he had still not been seen by the doctor. At 11.22 am, he had a brief conversation with his father. He left the medical centre at 11.40 am. He arrived home at 11.47 am and parked in the driveway. At 11.48 am, he sent a further SMS to your phone which read, ‘I’m home where are you’.
According to your explanation in the police interview, Mr Recourt, on seeing you waiting for him at the front of his property, asked why you were attired in jogging gear, and you said that you needed to get fit. You then went inside the house with your intended victim.
In the lead-up to the murder of Mr Recourt inside his home, you carried out a number of acts calculated to facilitate and conceal your intended crime. First, in a step described by you as ‘the naughty bit by me’,[2] you asked Mr Recourt to send a text message to your phone. At 11.59 am, in compliance with that request, he sent you a message which read, ‘Yeah g’day Jim, its Brian here. Listen I made a mistake. I’ll just catch up with you tomorrow. OK mate? OK, see ya, bye’. Your pretext in asking for this text message to be sent was that you did not want your de facto wife to know you were there with Mr Recourt. In truth, you were seeking to create evidence which would conceal your presence there at that time from the police.
[2]Interview Q 1713.
Having attended at the house without a clear plan as to how the murder would be carried out, you contemplated this matter. Your first thought, as you described it, was to ‘get him’ while he was in a chair.[3] However, having gone to the toilet and noticed that the toilet flush mechanism was not working correctly, a plan materialised in your mind to use the faulty toilet as a means of luring Mr Recourt into the bathroom where you could then kill him. Your plan was to attack your so-called friend while he bent over to try to fix the cistern.
[3]Interview Q 1779.
However, further steps were required by you to set the plan in action. You needed a murder weapon, and a means of hiding this from your intended victim in the moments before you acted. As to the former, you decided upon a large knife from a knife block which you had observed in the kitchen. As to the latter, in a particularly devious and calculated step, you pretended you were cold and asked Mr Recourt to get you a jacket, a request with which he was kind enough to comply.
Once you had put on the jacket, you surreptitiously grabbed the largest knife from the block and secreted the knife underneath the jacket. When asked why you had picked the biggest knife, you said to the police, ‘I picked the biggest knife so I knew there wouldn’t be resistance…My brain thinks quick…’[4]
[4]Interview QQ 2076-2077.
You then returned to the bathroom and told Mr Recourt that the toilet was not working. He came into the bathroom. He leant over the cistern to fix it, and you pulled out the knife and stabbed him once to right side of the neck and then a further 33 times to the back, all but one of these to the left side.
The autopsy subsequently carried out by Dr Heinrich Bouwer ascertained that the single stab wound to the right of the neck, just below the right ear, which was the first wound you inflicted, extended downwards and inwards into the upper cervical spinal cord, which was incised. Bony injury was also caused by this blow. The injury to the spinal cord would have resulted in sudden loss of nerve function to the diaphragm and would have affected Mr Recourt’s ability to breath. The following 33 stab wounds, inflicted upon Mr Recourt after he had been rendered helpless and seriously injured from the first wound, were to the upper and lower back. All but one of these was to the left side. The majority of these wounds were of sufficient severity to enter the thoracic and abdominal cavities and cause significant damage to vital internal organs. In many cases, they also caused damage to ribs and vertebrae. The opinion of the pathologist, who attended the scene and observed the body of Mr Recourt in situ, was that he would have collapsed almost instantaneously upon being stabbed. He would have died rapidly from cardiorespiratory arrest due to blood loss and the spinal cord injury. At least moderate to severe force had been used to inflict the injuries. There were no defensive injuries.
This brief recitation of the shocking injuries you caused to your victim barely does justice to the considerable ferocity of your attack upon him.
Having attacked Mr Recourt in this fashion, and as he lay dead or dying in his bathroom, you set about concealing and avoiding responsibility for your crime in clinical and callous fashion. You wrapped the blood-stained knife in your top and took it and a coffee cup, which you feared may have your finger prints on it, with you as you then ran away from the scene and back to your car. On the way, you disposed of the knife and the cup in a house you ran past, placing the knife under the house. On your return to your vehicle, you changed into a spare set of clothing you had brought along for the purpose. You disposed of your bloodied clothing, including your joggers, into a bin, which was then collected by a garbage disposal truck.
At 1.49 pm, you activated your mobile phone, and then left the Templestowe area. You drove to your sister’s home and had a shower. You then went home, and, as you said, tried to lead a normal life.
The next morning at 11.08 am, you attended the Bendigo Bank branch at Pinewood Shopping Centre in Mount Waverley. You deposited $150.00 cash into the account of Mr Recourt, to divert suspicion from you. You sent a photograph of the deposit receipt to Mr Recourt’s mobile phone.
At 4.00 pm on Friday 29 June 2018, Carolyn Recourt attended at 11 Wilson Avenue for a pre-arranged visit with Mr Recourt. When he did not answer the door, Carolyn entered the home and located Mr Recourt’s body in the bathroom. She contacted the police.
Homicide Squad investigation
The Homicide Squad commenced an investigation in which, it seems, you were a person of interest at an early time. Before your arrest, you told a friend, David Sidebottom, that police were investigating the death of one of your investors, and that you needed to prove that you did not owe any money to the dead man. You told another friend, Ian Podger, of the death of an investor, and of the fact that police had spoken to you about the matter. You told Mr Podger, in respect of the murder, that ‘the wife did it’. You repeated that claim to another associate of yours, Max Collins. You discussed the investigation with your de facto wife Dany. You told her not to worry, and that you had nothing to do with the death of Mr Recourt. You also told your friend Ray Cambareri that you were not involved.
Arrest and interview
You were arrested by police on 11 July 2018. On interview, you provided a false and exculpatory account to the police in which you persisted for some hours and 1585 questions and answers, until you reached a point where you confessed your crime.[5]
[5]Transcript of interview commences page 681 of depositions.
From the point in the interview in which you admitted your guilt, you repeatedly gave an explanation for the crime that Mr Recourt, in demanding that you repay the money you owed him, had threatened to harm your son if you did not. You claimed that this was the reason why you had killed him. You said that the threat had been made about two weeks before you killed him, and had been repeated more recently. Indeed, you claimed that in a threat the day before the murder, Mr Recourt had said that if you did not come up with the money, he would cut off your son’s arm.[6] You said, ‘I realise that at the end of the day if I go to prison, at least I save my kid’s life…I knew what I was doing but it was like I was in a trance. I’m not gonna use defence of (sic) anything, the truth is I knew what I was doing. But I had to protect my son and it was just…automatic.’[7] You claimed that you had to stop Brian coming after your kids, and that was why you had killed him.
[6]Q 1692.
[7]Q 1602.
Following the interview, you accompanied members of the Homicide Squad to the scene of the crime, and showed them to a number of locations, including the house at which you had disposed of the knife and the coffee cup. The knife was recovered by the police.
The motivation for the crime
As indicated already, you made repeated claims to the police that you had killed Mr Recourt because he had threatened to harm your son. In a consultation you had with a psychiatrist Dr Leon Turnbull on 6 March 2019, who provided a report on the plea hearing,[8] you repeated and elaborated on that claim. When you spoke with the psychologist Dr Aaron Cunningham on 12 December 2018,[9] you made a different claim that Mr Recourt had threatened the safety of your family to gain your ‘intellectual property and the prototype of the technology’ you were seeking to develop, and that you had felt you had no choice but to commit murder to protect your family. In a letter to the Court, tendered on your behalf,[10] and written since you have been in custody, you again repeated the claim that the murder you carried out had been connected with a threat by Mr Recourt to the safety of your son and family.
[8]Exhibit 3.
[9]Report became Exhibit 2.
[10] Exhibit 4.
Before me, it was indicated by your counsel Mr Backwell that the position of claiming that Mr Recourt had threatened the safety of your son was one which you had maintained throughout your interaction with professionals and your family. He acknowledged that it would be a matter which would go in mitigation, and that it would be up to you to establish the truth of the claim on the balance of probabilities before I could act on it. Mr Backwell made it clear he would call no evidence on the matter, and when I asked whether he took issue with the proposition that I could readily reject the claim as being false, he submitted it was a matter for me to decide.
I am satisfied beyond reasonable doubt that there is no truth whatsoever to the claims you made of having been threatened in any way by Mr Recourt. Those claims always sounded entirely implausible, and I find that they were made in a desperate attempt by you to explain the terrible crime you had committed.
Furthermore, I am satisfied beyond reasonable doubt that the reason why you murdered Mr Recourt was because you owed him a large sum of money which he was requiring you to repay, and you wanted to avoid repayment of that debt.
Nature and gravity of the offence and your culpability and degree of responsibility
Two of the matters I am required to take into account when sentencing you are the nature and gravity of the offence to which you have pleaded guilty, and your culpability and degree of responsibility for that offence.
Mr Backwell submitted that I should consider the offence to fall within the mid-range of seriousness. The prosecutor Mr Rochford QC, on the other hand, submitted that it was a murder in the upper end of the range, for a number of reasons.
There are many serious features of this crime. It was a planned and premeditated murder of a physically disabled man, in what was meant to be the safety of his own home, carried out for financial reasons by a person who pretended to be his friend. The crime was clinically and carefully thought out. When the murder was carried out, it was done in circumstances of extravagant and gratuitous violence with the infliction of no fewer than 34 knife wounds, many of which were individually exceedingly serious, but which were collectively quite horrific. Mr Backwell described the attack as a frenzied one, and with good reason. Mr Rochford labelled the crime as being a brutal, callous, vicious and nasty murder. All of those labels can be readily accepted.
Your later flight from the scene and efforts to conceal your involvement, which extended to claiming to others that the wife of Mr Recourt might be responsible for his murder, betrayed a heartless disregard for the entirely innocent life you had taken and a disturbing lack of regret for the serious crime you had committed.
It is true, as your counsel submitted, that this was not a contract killing. However, that does not mean that your crime can not be considered to be in the upper category of seriousness. The fact is, the attribution of labels to a crime is not what is important. What is important is a consideration of the seriousness of a crime as indicated by its individual features. On any view, your murder of Mr Recourt is an exceedingly serious example of the always-serious crime of murder. Your moral culpability for this crime is very high.
Co-operation, plea of guilty and remorse
As indicated already, having, for some time during the interview, maintained a false account of innocence, part-way through, your confessed to the police, and in doing so, as emphasised by Mr Backwell, provided information to the police about this crime which they could not otherwise have known. He submitted that you deserve credit for the cooperation you gave to the police after question 1586 in the interview.
I accept that that is so, and do take into account in your favour the fact that you confessed to the police. However, that allowance is somewhat tempered by the fact that, embedded within your confession was an entirely false explanation for your crime.
Importantly, as Mr Backwell submitted, this matter was always going to be a plea of guilty, in light of your confession. At the answer to question 2320, you said you were guilty.
You pleaded guilty to murder at the committal mention on 1 November 2018. You then repeated that plea of guilty at the initial directions hearing in this Court. Your plea of guilty and the early stage at which it was entered is a very important matter in mitigation of sentence. The utilitarian benefit of your plea would itself lead to a significant reduction in sentence. As to whether you should receive full allowance for what have been called the subjective criteria attaching to your plea,[11] namely remorse, willingness to facilitate the course of justice, and acceptance of responsibility, that is by no means as clear. You gave an account to the police in which you falsely, as I have found, accused your victim of having brought on his own murder by threatening harm to your son. This dishonest smearing of the name of Mr Recourt, carried out to set up almost a moral justification for what you had done, was hardly one of the hallmarks of remorse. As for the other evidence pointing to possible remorse contained in what you have said to family members and, to an extent, to Dr Turnbull, again, its effect is substantially muddied by your continuing false claims about Mr Recourt having threatened you.
[11]Phillips v The Queen (2012) 37 VR 594 [36] (Redlich JA and Curtain AJA).
Mr Backwell submitted that a rejection of your claim of having been threatened should not mean that remorse ‘goes out the window entirely’.[12] He did concede, however, that it would have some effect on my finding as to remorse, while maintaining it would not reduce the weight to be attached to remorse ‘to zero’.
[12]Plea transcript 34.
Mr Rochford accepted that your plea of guilty, your confession, and your cooperation with police were indications of some remorse, but that the degree of remorse demonstrated was limited because of the false story you told.
In the circumstances, I am prepared to take into account in your favour the fact that, through your plea of guilty and other matters, you have exhibited some remorse, although I must note that it could by no means be described as sincere and heartfelt.
Your background
Your personal background did not assume great significance during the plea, and was not canvassed in detail. The background was set out to an extent in the report of Dr Cunningham and also in more detail in some of the character references tendered on your behalf as Exhibit 1. You are 53 years old, were born in Victoria, have five siblings, and were raised in Chadstone. Your father apparently left the family when you were only young, and you never really knew him. It seems you have no memory even of meeting him, although the accounts of your sisters Christiane and Ingrid and your mother Gerda point to your father being responsible for a violent and troubled home in which you spent your formative years. You were a shy and introverted child who struggled academically. When you left school after Year 10, you could neither read nor write. Indeed, you continued to struggle with illiteracy until you made some substantial strides during your time in custody, as evidence by the letter you wrote to the Court.[13] When you left school, you worked for many years for a company involved in water filtration and irrigation systems. You later worked yourself in related areas. You set up and ran a number of companies, and apparently developed and patented a number of products.
[13]Exhibit 4.
You left the family home at the age of 25 and then had a long-term relationship which continued until your partner Chris was unfaithful to you. You have been with your de facto wife Dany for some years, and you have two children aged four and two. You have separated from your de facto wife since your incarceration, and have had no visits from your de facto wife and children since you have been in custody. Mr Backwell described you as being largely isolated in prison, although you have received visits from your oldest sister Christiane and have spoken to your twin sister Ingrid on the phone.
You have no prior convictions at all. Your mother and your sisters described you as a person who never acted in a violent manner. To say the least, your commission of this murder is an event which is completely out of character for you.
Expert reports tendered on the plea
Dr Cunningham carried out testing on you to assess your level of cognitive functioning. Your full-scale IQ as determined with the use of the WAIS-IV[14] was 86, meaning that 82 percent of your peers would do better than you. However, Dr Cunningham was of the view that because of the significant differences in your results across the different indexes, this may by a poor measure of your actual intelligence.
[14]Wechsler Adult Intelligence Scale – Fourth Edition.
Dr Cunningham sought to administer the Millon Clinical Multiaxial Inventory 4th Edition, a psychological assessment tool intended to provide information on personality traits, including specific psychiatric disorders. Your profile was unable to be accurately determined due to a tendency towards avoiding self-disclosure. This was either due to evasiveness or a ‘broad deficit in introspection owing to emotional impoverishment’.[15]
[15]Exhibit 2, page 3.
Dr Cunningham, who assessed you at the Metropolitan Remand Centre on 12 December 2018, noted that whilst you were cooperative and friendly, it was difficult to keep you ‘on task’. You had difficulty engaging in mutual conversation, your communication style being largely one-sided and egocentric. He asserted that many of your ideas in respect of your career and future prospects did not appear to be grounded in reality, an opinion which, I should say, accords with my perception of the hope you seemingly harbour of coming up with and patenting inventions, in prison, which will not only support your family, but lead to the betterment of mankind.
Whilst Dr Cunningham was of the view that the results of his mental state assessment of you were not indicative of the presence of mental illness or personality disorder, he was concerned that some aspects of your behaviour may be suggestive of an underlying Autism Spectrum Disorder, and further that your ideas as to your career present as grandiose. He opined that you would benefit from further psychiatric assessment to determine whether you are suffering from a delusional disorder. It was for that reason that the plea hearing was delayed earlier this year, and the opinion of Dr Turnbull was sought.
Dr Leon Turnbull, an occupational and forensic psychiatrist, assessed you on 6 March 2019. He described you as a ‘curious man’, but said he had no clear psychiatric diagnosis to apply. He found you to be ‘wholly capable at the time of assessment, without any obvious psychiatric difficulties’. He said he had no specific recommendations for psychological or psychiatric services being involved, and doubted there was a role for psychotropics.
In short, neither expert pointed to the existence in you of any mental impairment which would in any way explain or mitigate the seriousness of your offending. Not surprisingly, Mr Backwell made it clear he placed no reliance on the principles in R v Verdins.[16]
[16](2007) 16 VR 269.
Standard sentence scheme
Your crime having been committed after 1 February 2018, the standard sentence scheme applies to this offence.
As pointed out by Champion J in R v Brown (‘Brown’)[17]:
[17][2018] VSC 742 (‘Brown’).
The Explanatory Memorandum for the Amendment Act states:
The aim of the standard sentence scheme is to increase sentences for standard sentence offences and ensure that sentencing outcomes are more consistent with community expectations.
‘Community expectations’ are not defined or further elaborated (sic) in the Explanatory Memorandum or the Second Reading Speech for the Bill, though there is clearly an expressed intent that lengths of sentences will increase.
However, as VLA submitted, this intent does not manifest in the text of the legislation. There is no legislative provision that necessitates a higher sentence be imposed in any individual case, including in a case of murder. While sentences might rise as a consequence of courts considering the standard sentence as an additional sentencing factor, it is not an imperative to which I must have regard.[18]
[18]Ibid [54]-[56] (citations omitted).
Pursuant to s 3(2)(b) of the Crimes Act 1958, the standard sentence for murder is 25 years.
Pursuant to s 5A(1)(b) of the Sentencing Act 1991 (‘the Act’), the period of 25 years is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
The Amended Summary of Prosecution Opening[19] filed in this matter, which was presented orally during the plea, set out the law applicable to a standard sentence offence. The matters set out therein were acknowledged to be correct by your counsel. I accept the prosecution contentions to be correct.
[19]Exhibit A.
I was invited by the Crown to approach the task of sentencing you for this standard sentence offence of murder in a manner consistent with the approach of the High Court of Australia in Muldrock v R (‘Muldrock’).[20] I will do so. I have been much assisted by a consideration of the sentences passed by Champion J in the cases of Brown[21] and R v Robertson (‘Robertson’).[22] Brown was the first sentence passed on an offender for murder once that crime became a standard sentence offence. His Honour comprehensively canvassed the applicable law, including the extraneous materials.
[20](2011) 244 CLR 120 (‘Muldrock’).
[21]Brown (n 16).
[22][2019] VSC 145 (‘Robertson’).
Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. Section 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing you.
The introduction of the standard sentence regime is not intended to interfere with the requirement that my sentence of you should be the result of my instinctive or intuitive synthesis of the relevant considerations in this case.
The standard sentence is but one of the many factors I am required to take into account. It does not have primacy. In the words of the Attorney-General in his Second Reading Speech:
The standard sentence scheme introduces an additional factor for courts to take into account, in the form of a legislative guidepost…Courts will be required to consider the standard sentence alongside other relevant sentencing factors…[23]
[23]Attorney-General Martin Pakula, Second Reading Speech for the Sentencing Amendment Bill 2017.
Another legislative guidepost, of course, is the maximum penalty for murder, namely, life imprisonment.
Being a guidepost, the standard sentence is not a starting point from which the sentence should be fashioned. It is simply one of the factors to be taken into account in determining the appropriate sentence.
In accordance with the approach of the High Court in Muldrock[24], it is clear that the Court is not permitted to engage in a two-step approach to sentencing,
…commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by enquiring if there are matters justifying a longer or shorter period.[25]
[24]Muldrock (n 19).
[25]Ibid [28].
I have sought to ensure I do not engage in any such two-stage process.
Current sentencing practices
The requirement in section 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but section 5B(2)(b) dictates that I
must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.
As was stated by Champion J in Brown:
The plain language of s 5B(2)(b) expresses Parliament’s clear intent to alter the scope of s 5(2)(b) when sentencing for a standard sentence offence. The Explanatory Memorandum to the Amending Act further indicates:
It is intended that…courts sentencing offenders for standard sentence offences should start from a ‘clean slate’ with respect to current sentencing practices…
The effect of the new section 5B(2)(b) of the Sentencing Act 1991 is to prevent the courts from having regard to current sentencing practices for ‘old’ offences (offences alleged to have been committed prior to commencement of the standard sentence scheme). This will allow a new sentencing practice to be established for standard sentence offences that is consistent with community expectations.[26]
[26]Brown (n 16) [108].
This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[27] I have endeavoured to apply such principles in formulating the appropriate sentence to pass upon you.
[27]Ibid [111].
Currently, Brown and Robertson are the only cases to have applied the standard sentence scheme to the offence of murder. It is still too early to conclude that any meaningful sentencing practices have emerged. However, I have considered the circumstances of those two cases, and noted the sentences passed. Like this case, both of those sentences concerned offenders who pleaded guilty to murder. Both were serious examples of the crime, considered by his Honour to be above the middle range of seriousness. In terms of its objective features, I believe the facts of your crime are every bit as serious as those of either of those offences, although I note, of course, that no sentence passed in any other case has the status of a precedent to be followed by me.
Victim impact statements
Five victim impact statements were read aloud by the prosecutor before me. In addition, a further two victim impact statements were filed although not read aloud. All seven statements became Exhibit C on the plea. The authors of the victim impact statements and their relationship with Mr Recourt were as follows:
Anita Carolyn Recourt – Wife
Susan Recourt – Mother
Nicholas Recourt – Father
Emil Bernat – Brother-in-law
Anna Bernat – Sister-in-law
Zoe Recourt – Sister
Vimala Recourt – Stepmother
I will not go into the content of the victim impact statements in detail. Suffice to say that they reveal graphically and in respectful and clear terms the tragic effect of the murder of Mr Recourt on each of them. Mr Recourt was described as a loving and kind man with a heart of gold who was constantly concerned about the needs of others. The ongoing grief, anguish and fear generated by your senseless murder of this much-loved family member are powerfully described. Each of the authors refers to the emptiness and sense of loss with which they struggle on a daily basis. In some cases, they are tormented by the shocking and heartless way in which Mr Recourt was lured to his death in his own home by someone pretending to be his friend. In the case of Carolyn, she discovered the body of her husband in that terrible state, an event which will no doubt remain in her mind forever.
The devastating consequences of your crime upon the family and loved ones of Mr Recourt cannot be overstated. I take the victim impact statements into account as I am required to do under the Act.
Prospects of rehabilitation; specific deterrence
Mr Backwell submitted that there are some prospects of rehabilitation in your case. He relied upon your plea of guilty, the important fact that you have no criminal history, and the fact that you will be of relatively advanced years when you become eligible for parole. He further submitted that specific deterrence does not assume much significance in your case. Mr Rochford accepted on behalf of the Crown that there are some prospects of rehabilitation. He did not address me separately on the issue of specific deterrence.
I accept that there are some prospects of rehabilitation, although it must be noted that the issue is made somewhat unclear by the absence of any real explanation why a person of your previous good character could have seen the need to commit a crime such as this, and have been willing to carry out the crime in such a fashion.
For the same reason, the need for specific deterrence is not entirely extinguished by the particular circumstances of this crime, your good character, and your anticipated age at the time you might be considered for parole.
Non-parole period
If I sentence you to a head sentence of 20 years or more, I am required by section 11A(4) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 70 percent of the head sentence. The head sentence I impose will be in excess of 20 years.
Mr Backwell did not submit that it would be in the interests of justice that a non-parole period of less than 70 percent of the head sentence be imposed. Taking into account that concession, and bearing in mind all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, I will fix a non-parole period that will significantly exceed 70 percent of the head sentence. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. In this case, I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in this case.
Important sentencing considerations
As indicated earlier, this is a very serious example of the crime of murder. The crime was justifiably described by Mr Rochford as a brutal and callous one. It has a combination of features that elevate your crime above the mid-range of the spectrum of seriousness. Your carefully planned and efficiently carried out crime involved a level of violence at the extreme end of the spectrum. Having lured your unwitting and entirely innocent victim into his bathroom, you stabbed him in shocking fashion to the neck, cutting his spinal cord and rendering him helpless. That you then saw the need to stab him a further 33 times in the back as he lay stricken and slumped over the toilet is scarcely believable. As for your calm and calculated departure from the scene, and your attempts to cover your tracks, these are matters which showed a disturbing lack of normal humanity. And all of this to avoid the repayment of a debt.
To my mind, the important reasons for which sentence must be passed in your case are just punishment, denunciation, general deterrence, and protection of the community. You must be punished in a way which reflects the shocking seriousness of your crime and amounts to an appropriate response to it. The sentence of this Court must make it perfectly clear that the Court deplores violent crimes of this sort. The life of Brian Recourt was precious. You took it away for entirely selfish and perverse reasons, but in the clear knowledge of the severity of your actions. You were a mature adult of normal intelligence, suffering no mental impairment. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to inflict extreme violence in pursuit of a selfish desire to avoid financial or other hardship that such conduct will be met with strong punishment. As for the protection of the community, that does not cease to be important merely because you will be of relatively advanced years by the time you become eligible for parole. You committed a crime that was inexplicable and extreme, and there is the need for the community to be protected from any repetition of your conduct in future.
Sentence
Jim Hans Leigh, for the murder of Brian Recourt, you are sentenced to be imprisoned for a period of 28 years. I fix a period of 22 years during which you will not be eligible to be released on parole.
Section 5B(5) statement
Section 5B(4) of the Act requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.
As I understand it, the applicable law does not require me in complying with the requirement of section 5B(5) to ‘attribute particular mathematical values’ to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[28] It does, however, require me to ‘identify fully the facts, matters and circumstances’ which bear upon the judgment I have reached as to the appropriate sentence.[29] I have endeavoured to do that in some detail during these reasons for sentence.
[28]Muldrock (n 19) [29]; Brown (n 16) [69]-[73]; Robertson (n 21) [94]-[96].
[29]Ibid.
The sentence I have passed exceeds the standard sentence for the offence of murder. I have taken into account all of the matters I am required to consider under section 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentence I have just announced.
Section 6AAA declaration
I indicate pursuant to section 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 33 years’ imprisonment with a non-parole period of 26 years.
Pre-sentence detention
I declare that you have served 331 days by way of pre-sentence detention, up to and including 6 June 2019.
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