R v Mathew Aquilina

[2013] NSWSC 525

Supreme Court

New South Wales

Medium Neutral Citation:

R v Mathew Aquilina [2013] NSWSC 525

Hearing dates:

27 - 29 August, 3 - 6 September, 10 - 13 September, 17 - 20 September, 24 - 26 September 2012; 30 November 2012; 1 March 2013; 27 March 2013

Decision date:

10 May 2013

Jurisdiction:

Common Law - Criminal

Before:

Bellew J

Decision:

1.The offender is sentenced to a non-parole period of 21 years imprisonment commencing on 5 January 2011 and ending on 4 January 2032, with an additional term of 7 years imprisonment, commencing on 5 January 2032, and ending on 4 January 2039.

2.The total term is one of 28 years imprisonment.

3.The offender will be eligible for parole on 5 January 2032 and his sentence will expire on 4 January 2039.

Catchwords:

CRIMINAL LAW - murder - where offender pleaded guilty to manslaughter and was convicted by a jury of murder - offender's participation in joint enterprise - where offender killed the deceased by strangulation - where offender a party to disposal and interference of the deceased's body on two occasions - where defence of provocation rejected by the jury - whether evidence supported a finding of provocation as a mitigating factor

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

Cases Cited:

Butters v R [2010] NSWCCA 1
Cheung v R [2001] HCA 67; (2001) 209 CLR 1
Knight v R [2006] NSWCCA 292
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120

Category:

Principal judgment

Parties:

Regina - Crown

Mathew Aquilina - Offender

Representation:

Mr P Barnett SC - Crown

Ms T Evers - Offender
Director of Public Prosecutions NSW - Crown
Rice, More and Gibson Solicitors - Offender

File Number(s):

2011/3717

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 27 August 2012 Mathew Dean Aquilina ("the offender") was indicted for the murder of Adrian John Trevett ("the deceased"). The offender pleaded guilty to manslaughter but not guilty to murder. The Crown did not accept the plea of manslaughter and the offender was tried on the count of murder jointly with his mother, Karen Dawson ("Dawson"). In the course of the trial, and in the circumstances which are more fully set out below, the offender raised the issue of provocation.

1. A third offender, David Comber ("Comber") pleaded guilty to the deceased's murder shortly before the trial commenced. Two other offenders, Deborah Grant ("Grant") and Kristine Weston ("Weston") previously pleaded guilty to offences of hindering the discovery of evidence, and hindering the apprehension of Comber, respectively.

1. On 26 September 2012 the jury found both Dawson and the offender guilty of the deceased's murder.

1. The maximum penalty for the offence of murder is one of life imprisonment pursuant to s 19A of the Crimes Act 1900 ("the Act"). A standard non-parole period of 20 years is prescribed for the offence pursuant to s 54A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). The Crown has not sought the imposition of a life sentence upon the offender.

1. In determining the appropriate sentence, I am not required to assess whether or not, having regard to the standard non-parole period, the offence is within the middle range of objective seriousness. Similarly, I am not required to commence by asking whether there are reasons for not imposing the standard non-parole period (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions, particularly ss 21A, 54B(2) and 54B(3) of the Sentencing Act require an approach to sentencing in which all of the relevant factors are identified and, having regard to all such factors, a determination reached as to the appropriate sentence (see Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]).

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

1. I received, in the sentencing proceedings of the offender, a victim impact statement from Lee Ostler, the deceased's niece. Ms Ostler chose not to read that statement to the court, however I have read it in its entirety. The statement sets out the effect and impact of the deceased's death upon his family, and particularly upon Ms Ostler's father who is the deceased's brother.

1. I express my sympathy to the members of the deceased's family. It is to be hoped that the opportunity which Ms Ostler has been given to provide her statement will assist her family's process of grieving. The authorities make clear the approach which is to be taken by a sentencing judge in relation to statements of that kind in a case such as the present (see R v Previtera (1997) 94 A Crim R 76).

THE SENTENCE PROCEEDINGS

1. As previously noted, the jury returned a verdict on 26 September 2012, more than 7 months ago. It is necessary for me to set out the circumstances which have given rise to the significant delay which has been occasioned in finalising the matter.

1. Following the verdict, and bearing in mind that there were a total of five persons charged with offences arising out of the deceased's murder, I listed the matters involving the present offender, Dawson, Comber and Weston on 30 November 2012, for the purposes of hearing submissions on sentence. The matter involving Grant had been listed, for the same purpose, on the previous day. I took these steps intending to hand down sentence in respect of all five offenders prior to the conclusion of the 2012 law term.

1. On 30 November 2012, the jury's verdict having been returned more than two months previously, counsel for the offender sought an adjournment of the sentence proceedings for the purposes of obtaining medical evidence. On that occasion, I was informed by counsel that:

(a) the offender was under "psychiatric care" within the prison system, a fact of which counsel was not previously aware;

(b) the offender had recently been assaulted in custody; and

(c) a report of a psychologist, Kate Siedler, had only recently been received which indicated some "serious concerns" (although the precise nature of those concerns was not further articulated).

1. Counsel for the offender informed me that in these circumstances an adjournment was sought in order to obtain a psychiatric assessment. Counsel further informed me that to this end, it was proposed to issue a subpoena for the production of material (I inferred, from Justice Health) and then provide that material to the psychiatrist who was to be engaged to provide a report.

1. In the circumstances, and in fairness to the offender, the Crown did not object to the matter being adjourned. Given the time of year, along with the fact that as things stood at that time no psychiatrist had been engaged, and also having regard to my own commitments at the commencement of this year, I was forced to adjourn the matter until 1 March 2013 to hear submissions on sentence.

1. When the matter came before me on 1 March 2013:

(a) no report of Ms Siedler, to which reference had previously been made and which was said to have indicated "serious concerns", was tendered on behalf of the offender;

(b) to the best of my knowledge, and contrary to what I was informed was proposed, no subpoena had ever been issued for the production of any material to assist in the preparation of a report by a psychiatrist;

(c) no material setting out the nature and extent of any medical treatment which I was informed had been undergone by the offender whilst in custody, was tendered; and

(d) the report of Dr Kasinathan, Psychiatrist, which was tendered in the offender's case, contained no reference to the provision of material from Justice Health, be it material produced under Subpoena or otherwise. The only reference in the entire report to the offender receiving treatment whilst in custody related to the prescription of medication.

1. Bearing in mind those matters which were advanced by counsel on 30 November 2012 in support of the application for an adjournment, the circumstances in [14] above are best described as curious.

1. When the matter proceeded on 1 March 2013, and in the course of submissions, counsel for the offender made reference to evidence of conversations recorded by listening device which were tendered in the trial and which, it was submitted, supported a conclusion that the offender had been provoked into killing the deceased. When I asked to be taken to those conversations which it was said specifically supported that submission, counsel indicated that she was not in a position to do so. The submissions were completed on that day, and the matter was adjourned for sentence until 5 April 2013. I gave counsel for the offender the opportunity to provide me with the references to the evidence to which she referred in her submissions. Subject to the provision of that material, the sentence proceedings were completed.

1. On 8 March 2013 my associate received an e-mail from counsel for the offender, attached to which were a number of transcripts of recorded conversations. In that same correspondence, counsel for the offender sought to make further submissions and indicated an intention to rely upon a transcript of an interview between the police and Dawson. There followed various communications between counsel for the offender and the Crown, copies of which have been provided to me.

1. A number of observations should be made in relation to these various communications.

1. Firstly, when counsel for the offender made reference, in her submissions on 1 March 2013, to the significance of recorded conversations, I understood her to be referring to the evidence of those conversations which had been tendered in the trial. Some of the transcripts provided under cover of the e-mail of 8 March were additional to those tendered before the jury. I accept that when sentencing an offender following a trial, the court is not necessarily restricted to evidence tendered in the trial, and that it is open to a party to tender further material. However, if further material was to be relied upon in the offender's case, it should have been tendered when the matter was before the court.

1. Secondly, the submission as advanced to me orally in the proceedings on 1 March 2013 (at T 14 line 30 to T 15 line 6), was limited to the proposition that the transcripts of the recorded conversations were relevant to the question of whether or not words attributed to the deceased, and which were said to constitute provocation, were in fact said. The transcripts provided under cover of the e-mail of 8 March were unaccompanied by any specific submission(s) as to what findings were said to be open on the basis of their contents. Moreover, they bore various handwritten notations such as "relevant to psychiatric opinion" and "comparative culpability". Leaving aside the form in which this material was provided, it was never suggested when the submission was originally made that the transcripts went to any issue other than that of provocation.

1. Thirdly, and as I have set out in more detail below, a report from Dr Kasinathan, Psychiatrist, was tendered in the offender's case on sentence. To the extent that some of the transcripts with which I was provided were endorsed with the handwritten notation "relevant to psychiatric opinion" it should be observed that no such transcripts were ever provided to Dr Kasinathan for his evaluation.

1. Fourthly, and in circumstances where the evidence and submissions on sentence had been completed on 1 March (subject only to the provision of transcript references which were said to go to a discreet issue) the e-mail of 8 March was used as an opportunity to indicate that the offender now sought to rely upon excerpts from an interview between Dawson and the police. That material had not previously been tendered, and no submissions had been made in relation to it. Indeed, there had been no reference to it at all.

1. Fifthly, in the correspondence which followed between the parties (copies of which were provided to me) counsel for the offender sought to qualify an earlier submission regarding the offender's criminality.

1. A combination of these circumstances left me with no option other than to re-list the sentence proceedings on 27 March 2013.

1. When the matter came before me on that day, counsel for the offender confirmed that she now wished to rely upon the additional material to which I have previously referred. No satisfactory explanation was provided as to why it was that the material was not tendered when the matter was before me on 1 March. The Crown did not object to the tender of the additional transcripts of the recorded conversations to which the offender was a party. Although the Crown's position was less clear in relation to the transcript of Dawson's interview, I did not understand the Crown to ultimately object to it, bearing in mind that no order had been made, pursuant to s. 4 of the Evidence Act 1995 that the provisions of that Act would apply to the proceedings. However, the Crown submitted that the assertions made by Dawson in that interview were untested and that in these circumstances, little weight should be attached to them. The Crown also drew my attention to the fact that there was evidence in the trial that Dawson had provided inconsistent accounts of the relevant events to police, including one account which was completely exculpatory of the offender. This, the Crown submitted, provided a further reason why little weight should be afforded to anything said by her in her interviews with police.

1. As a result of these matters, I was required to set a further timetable for the provision of submissions. This, in turn, necessitated the vacation of the proposed sentence date of 5 April 2013.

1. When this matter came before me on 1 March 2013, a period of more than 5 months had elapsed since the jury's verdict was returned. Evidence and submissions should have been completed on that day. What followed after that time caused the sentence date to be vacated, such that it is now approximately 8 months since the jury's verdict, and almost 5 months since all of the co-offenders were sentenced.

1. For a variety of reasons which will be obvious, it is preferable in cases of multiple accused that, wherever possible, all persons are sentenced together. It is also in the interests of any offender, for equally obvious reasons, that he be sentenced as soon as possible following a jury's verdict. Because of the circumstances I have outlined, it has not been possible to achieve either of those outcomes in the present case.

1. As events transpired, the transcripts of the conversations relied upon by the offender are as follows:

(a)   Disc 10, tracks 37 - 44;

(b)   Disc 14, tracks 2 and 18;

(c)   Disc 21, tracks 57, and 58 - 69;

(d)   Disc 24, tracks 46 - 50; 55 and 61;

(e)   Disc 30, tracks 37, 38 and 46;

(f)   Disc 32, tracks 54 - 63;

(g)   Disc 49, tracks 57 and 58; and

(h)   Disc 50, tracks 16 and 17.

1. The excerpts from the interview between Dawson and the police on 11 January 2011 relied upon are as follows:

(a) page 8, lines 1 to 5;

(b) page 10, lines 1 to 18;

(c) page 14, lines 12 to 17;

(d) page 16, lines 8 to 18.

1. I have made further reference to parts of this evidence below.

THE OBJECTIVE CIRCUMSTANCES OF THE OFFENDING

1. For the purposes of determining the appropriate sentence, I am required to make findings of fact in relation to the circumstances of the offending. Any factual findings I make must be consistent with the verdict returned by the jury. In particular, I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is inconsistent with it (see R v Isaacs (1997) 41 NSWLR 374).

1. The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation on the balance of probabilities. Further, the practical effect of the requirement that findings of fact against an offender be established beyond reasonable doubt is that I am obliged to sentence, consistent with the jury's verdict, upon a view of the facts which is most favourable to the offender (see Cheung v R [2001] HCA 67; (2001) 209 CLR 201.

1. The Crown case against the offender was that he was part of an extended joint criminal enterprise with Dawson and Comber, amounting to an agreement, that the deceased would be assaulted by the application of physical force. The Crown further alleged, and it was not disputed at trial, that it was the offender who was primarily responsible for committing the act of strangulation which caused the death of the deceased. Leaving aside specific issues which have arisen on sentence, with which I have dealt separately below, I find that the circumstances of the offending were as follows.

1. At the time of his death the deceased was aged 62. He resided alone in a caravan which was located on a vacant block of land at Red Range, a small village situated east of the township of Glen Innes in northern New South Wales. The deceased was well known in the local area. An avid cycling enthusiast who used his bicycle as his principal mode of transportation, he operated a small business selling fruit and vegetables from a cart in Glen Innes as a means of supplementing his income.

1. At the time of the deceased's death Dawson resided, with her 12 year old son Brandon, on a property adjacent to that of the deceased. As a consequence, she and the deceased became friends. They would socialise together, and were in the habit of drinking heavily in each other's presence.

1. At some time in or about the middle of 2010, the relationship between the Dawson and the deceased became strained. In particular, Dawson made allegations to other persons that the deceased had sexually harassed her. Importantly, Dawson had also complained to a friend that whilst minding her grandchildren, she had seen the deceased inappropriately touch one of them. The child said to have been touched inappropriately was the offender's son.

1. On 28 October 2010 Dawson drove the deceased to the Jackadgery Caravan Park which was located on the Gwydir Highway, 120 kilometres east of Glen Innes. It was the intention of the deceased to stay the night at that location, before undertaking a cycling trip across the Gibraltar Range on the following day. Dawson left the deceased at the caravan park and arranged to collect him on the following day from a location known as Ranger's Hut, which was on the eastern side of the Gibraltar Range, further towards Glen Innes. When taken to the caravan park by the offender, the deceased had in his possession an "Apollo" road bike, along with a black backpack and a bicycle helmet. He was in possession of approximately $1,000.00 when he checked into the caravan park.

1. On the morning of 29 October 2010 Dawson drove to Casino to see the offender. I am satisfied that the purpose of doing so was to discuss, with the offender, the behaviour of the deceased which Dawson had reported to other persons in the period leading up to that time. I am also satisfied that at the instigation of Dawson, the offender agreed to travel with her to Red Range for the purpose of confronting the deceased about his alleged behaviour. The offender asked Comber to accompany them.

1. On that same day, Dawson drove the offender and Comber from Casino to Red Range, stopping at Glen Innes to purchase alcohol. When he left Casino, the offender was in possession of an iron bar and a knife.

1. Upon arrival at Red Range, Dawson left the offender and Comber in an area known as the "Old Butter Factory" which was adjacent to her premises. That area housed an open shed with a cement floor and some items of furniture. Dawson then collected the deceased and returned to Red Range. Dawson left the deceased near the area of the Old Butter Factory, where the offender and Comber were waiting. When the deceased entered that area, the offender struck him from behind with the iron bar which he had brought with him. The blow was sufficiently severe to draw blood. The offender then called Dawson to join himself, the deceased, and Comber. Dawson then left her premises and made her way down to the Old Butter Factory. Following her arrival, various allegations were put to the deceased about his behaviour. During this period, the deceased was subject to a number of acts of violence. This included him being punched by Dawson and the offender.

1. At a time when the deceased was lying helpless on the ground, the offender fashioned a noose from a length of rope which had been found nearby. The offender then placed the rope around the deceased's neck and killed him by pulling on it. Although there was some evidence that Dawson and Comber also pulled on the rope, the offender conceded in his evidence at the trial (particularly at T 468 lines 30 to 45) that he was the person primarily responsible for pulling on the rope. Importantly, the offender told the jury (commencing at T 468 line 24) that in doing so he wanted to kill the deceased. He also told the jury (commencing at T 549 line 40) that he pulled on the rope for 15 to 20 minutes, during which period the deceased was gurgling and gasping for breath. In a conversation recorded by way of listening device (exhibit L 44) the offender made reference to the fact that in pulling on the rope, he stood on the deceased's shoulder, a manoeuvre which was obviously designed to ensure maximum leverage.

1. Following the deceased's death, his body was loaded into the rear of the Dawson's vehicle with the aid of a wheelbarrow by the offender, Dawson and Comber. The area where the deceased was killed was cleaned, following which Dawson drove, with the offender and Comber, to Sandy Hill, a location approximately 27 kilometres east of Tenterfield. Upon arrival, the deceased's body was disposed of in the bush and barely covered. Dawson then drove the offender and Comber back to Glen Innes.

1. Two days later, on 31 October 2010, Dawson, the offender and Comber returned to Sandy Hill. The purpose of doing so was to take steps to further conceal the deceased's body in the hope that it would not be discovered. Upon the arrival of Dawson, the offender and Comber, the deceased's body was dragged by the offender and Comber through a fence line and then rolled down a steep slope until such time as it hit a fallen tree. Sticks and branches were used to cover the body.

1. Evidence was given at the trial by Professor Timothy Lyons, a Forensic Pathologist, who conducted an autopsy of the remains of the deceased on 4 January 2011. Whilst there was extensive decomposition and some early skeletalisation, Professor Lyons was able to observe that there was a noose around the neck of the deceased which had been constructed from what he described as heavy duty twisted hemp rope, which had been tied with a bow line.

1. Professor Lyons described the noose as being 40 centimetres in circumference, and found that it had been wrapped twice around the deceased's body. Leaving aside detected defects in the soft tissues of the clavicle, Professor Lyons also observed that there was a defect in the deceased's body consistent with his genitalia being absent. However, he was not able to come to a definitive conclusion as to whether the deceased's genitals had been removed by a person, or whether they had been removed as a consequence of animal predation or heavy maggot infestation.

1. The ultimate opinion of Professor Lyons was that the noose around the deceased's neck gave rise to neck compression and asphyxia, causing his death. He said that when pressure is applied to the neck area, there are three common mechanisms which can be associated with resultant death, namely:

(a)   restriction of the airway;

(b)   obstruction of the blood supply;

(c)   the application of pressure to nerves of the neck.

1. Professor Lyons explained that the deceased's death could have occurred due to any one of those methods, or alternatively a combination of more than one.

Matters the subject of agreement between the parties

1. The Crown submitted that there were a number of specific conclusions which I should reach which were relevant to the assessment of the objective seriousness of the offending. But for one particular matter (namely, whether the offender's actions in fashioning the noose, applying it to the deceased's body, and killing him, evidenced some degree of planning on his part - an issue I have dealt with more fully below) counsel for the offender expressly stated that she took no issue with the Crown's submission. I am satisfied that the offending included the following specific aspects:

(a)   the deceased's killing occurred in the context of an agreement in which it was at the very least contemplated, if not intended, that violence would be perpetrated upon him;

(b)   to that end, the offender made preparations which included recruiting Comber, and taking a knife and an iron bar with him to Red Range;

(c)   the offender and Comber lay in wait for the deceased;

(d)   the offender ambushed the deceased, striking him with the iron bar from behind as he entered the shed;

(e)   the deceased was subjected to violence by the offender, Dawson and Comber;

(f)   the offender observed Comber to torment the deceased with a knife which he (the offender) had brought with him;

(g)   the offender was aware that in so acting, Comber was intending to steal from the deceased;

(h)   the deceased was detained over a period of several hours;

(i)   before the noose had been placed around his neck, the deceased was rendered, through his consumption of alcohol and the violence perpetrated upon him, incapable of fending for himself;

(j)   the act of strangling the deceased extended over a period of time, for the majority of which the offender was actively involved in pulling on the rope;

(k)   the offender derived a personal gain from the crime, both in terms of cash taken from the deceased's wallet as well as the money raised from his sale of the deceased's bicycle;

(l)   the offender was party to disposal of the deceased's remains;

(m)   the offender was motivated by vengeance, acting as an "executioner" in circumstances where he himself had expressed doubt about Dawson's allegations concerning the deceased's behaviour;

(n)   the offence was committed in company;

(o)   at the time of the deceased's death, the offender intended to kill him.

1. Whilst the matters in [49] were not the subject of any dispute, counsel for the offender took issue with the Crown's submission that the actions of the offender in fashioning the noose, placing it around the deceased's neck, and pulling on it until he was dead, demonstrated a degree of planning. Although the Crown did not suggest that the offender had gone to Red Range with the strangulation of the deceased specifically in mind, it was submitted that his actions in this regard involved a number of separate and deliberate acts which were inconsistent with the offender's assertion in evidence that he had suddenly "lost it".

1. Counsel for the offender submitted that the offender's actions in this regard should be viewed as being essentially spontaneous. Counsel submitted that such conclusion was consistent with the fact that the offender had brought other weapons to the scene but had not used them. Counsel also submitted that the offender's ability to fashion the noose as he did was explicable on the basis of his previous experience with ropes.

1. On the offender's own evidence, he located the rope, made it into a noose, and then used it to kill the deceased. In my view, and irrespective of what previous experience the offender may have had in the use of ropes, the fashioning of a length of rope into a noose of sufficient strength to kill the deceased required dexterity, concentration, and a conscious application of thought. Those actions, and those which followed, bespeak of deliberate and controlled steps having been taken by the offender to bring about the death of the deceased with the use of a ligature. This resulted, on the offender's own evidence, in the deceased gargling and gasping for air as the offender stood on his shoulder and pulled on the rope over a period of between 15 to 20 minutes. That, on any view, was a horrifying manner in which to die.

Aggravating factors

1. The offending had a number of aggravating features. The use of a ligature has been treated as a form of weapon (as to which see Versluys v R [2008] NSWCCA 76) and accordingly that is an aggravating feature pursuant to s. 21A(2)(c) of the Sentencing Act. Further, the offence was committed in company (s. 21A(2)(e) of the Sentencing Act) and it involved a series of criminal acts (s. 21A(2)(m) of the Sentencing Act).

1. The offender's participation, on two separate occasions, in the treatment of the deceased's body following his death is also an aggravating factor (see for example Knight v R [2006] NSWCCA 292; R v Yeo [2003] NSWSC 315). However, I am not satisfied that the deceased's body had been mutilated by the removal of his genitalia. Even if I were in a position to be satisfied of that fact, there is no evidence at all which would link that mutilation to any conduct on the part of the offender. In any event, the general principle that the treatment of the body of the deceased is capable of amounting to an aggravating factor has been extended to cases where such treatment did not involve any form of mutilation: R v Goundar [2010] NSWSC 1170; R v Dong [2010] NSWSC 1242.

Conclusion as to the objective circumstances of the offending

1. Both counsel made submissions as to where, within the relevant range, the objective seriousness of the offending fell. Whether I am required to quantify the distance between the offending before the court, and the conduct involved in a putative offence in the middle of the range, is open to debate. For example, it has been observed that a sentencing judge need not, and arguably should not, engage in such an exercise (see PK v R [2012] NSWCCA 263 per McCallum J at [25] with whom Macfarlan JA and Price J agreed). However, the assessment of objective seriousness of the offending nevertheless remains an important part of the sentencing process.

1. One can only imagine the anguish and the helplessness which would have been experienced by the deceased in the final moments of his life. He lay on the ground, gargling and gasping for air, whilst the offender pulled on the rope, standing on the deceased's shoulder as he did so to ensure maximum leverage was achieved. The deceased endured this for a period of between 15 and 20 minutes.

1. The offender then played a part in disposing of the deceased's body in bushland, only to return to it some days later in an apparent effort to take further steps to conceal it. He then profited from the deceased's death by (inter alia) selling his bicycle.

1. Initially, in oral submissions, counsel for the offender expressly conceded that the role played by the offender was greater than that played by each of Dawson and Comber. Later, in further written submissions, counsel qualified that position somewhat and submitted that although the physical acts committed by the offender were greater, his moral culpability was less than that of Comber. This, it was submitted, was because Comber had participated in the killing for personal gain only, as opposed to the offender, who, it was said, had become involved because it had been reported to him that the deceased had acted inappropriately towards his child and his mother. Counsel submitted that these considerations led to the conclusion that the offender's overall criminality was less than that of Comber.

1. I do not accept the submission that the offender's overall criminality is less than that of Comber. In my view, it is greater. The evidence before me in these proceedings does not enable any definitive conclusion to be reached as to why it was that Comber participated in the agreement which led to the deceased's killing. What is clear, is that it was the offender who recruited Comber, it was the offender who took weapons with him, and it was the offender who assembled the murder weapon. It is also clear that it was the offender's actions which were primarily responsible for bringing about the deceased's death. For reasons to which I will come, the fact that the offender's involvement may have been sparked by what Dawson had told him about the deceased's alleged behaviour assists him only to a limited degree, and certainly does not provide an excuse for what ultimately transpired.

1. Were I required to do so, I would conclude that in all of the circumstances, the offending is above the mid range of objective seriousness.

THE OFFENDER'S SUBJECTIVE CASE

1. Material concerning the offender's personal background is essentially limited to that contained in the report of Dr Kasinathan, Psychiatrist, which was tendered before me. The offender is now 27 years of age. At the time of his commission of the offence he resided in Casino with Grant and six children. The offender was the biological father to two of those children, aged 3 and 4. His daughter died in a motor vehicle accident when the offender was 21 years of age.

1. Dr Kasinathan recorded that the offender has a history of depressive illness, and had attempted suicide on more than one occasion. He also reported that the offender has been treated whilst in custody for depression and is presently taking anti-depressant medication. As I have noted, those medical records were not tendered before me on sentence.

1. The offender left school in Year 10 and completed two thirds of an apprenticeship as a butcher. Beyond that, his employment history is vague.

1. Dr Kasinathan concluded that the offender did not have a mental illness but qualified for the psychiatric diagnoses of Dysthymia, Alcohol abuse, Cannabis dependence disorder and Amphetamine dependence disorder.

1. I have taken all of these matters into account. However, it was not submitted that any of the diagnoses made by Dr Kasinathan, or the depressive illness for which the offender is apparently receiving treatment whilst in custody, would render a term of imprisonment more onerous than might otherwise be the case.

1. Having regard to the submissions made on behalf of the offender, the following issues of mitigation arise:

(a)   whether the offender's history of alleged sexual abuse, and his "insecure attachment" to Dawson as diagnosed by Dr Kasinathan, were causally related to his offending;

(b)   whether the offender was provoked (s. 21A(3)(c) of the Sentencing Act);

(c)   whether the offender has no, or no significant, record of previous convictions (s. 21A(3)(e) of the Sentencing Act);

(d)   whether the offender is unlikely to re-offend and has good prospects of rehabilitation (s. 21A(3)(g) and (h) of the Sentencing Act); and

(e)   whether the offender has shown remorse (s. 21A(3)(i) of the Sentencing Act).

The offender's history of sexual abuse

1. Counsel for the offender submitted that the offender's history of sexual abuse, as well as an "insecure attachment" to Dawson which was diagnosed by Dr Kasinathan, were causally related to the offending. In order to consider this submission it is necessary to make reference to a number of aspects of the evidence.

1. In the course of his evidence in chief, the offender said that he had served a sentence of three months imprisonment in 2007 during which he was sexually assaulted. In particular he gave the following evidence (commencing at T 452 line 52):

Q. When you say forced to do sexual things, could you be a little bit more explicit?

A There was two older inmates that made me have sex with them and stuff like that.

Q Was that anal sex with you?

A Yes

Q And were you forced to also have sex with them?

A Yes.

1. As I have noted, a report of Dr John Kasinathan, Psychiatrist, was tendered on sentence. Because of the reliance placed on that report, it is necessary for me to make a number of observations in relation to it.

1. Firstly, amongst the material which was provided to Dr Kasinathan for the purposes of furnishing his report was a copy of a statement of facts, along with copies of transcripts of two interviews between Dawson and the police. The statement of facts is not before me in evidence. Of the two transcripts, only one is before me. Dr Kasinathan expressly stated that this material had been reviewed and the contents "incorporated into (his) final opinion". It would therefore seem clear that material which has not been tendered before me has formed part of the basis upon which Dr Kasinathan reached his opinions.

1. Secondly, in terms of the offender's history of alleged sexual abuse, the history taken by Dr Kasinathan included the following (at p. 7):

"Whilst in Grafton jail, Mr Aquilina reported three Aboriginal inmates raped him, he was forced to perform oral sex and he said that he was anally raped".

1. It is noted that this history is, at least in part, at odds with the offender's sworn evidence before the jury as set out in [68] above.

1. Thirdly, Dr Kasinathan under the heading "Personal History" (at p. 7) stated:

"You reported that Ms Grant informed you that Mr Aquilina was totally under his mother's control and continued to try to please her despite her malicious behaviour and indifference towards him".

1. The reference to "Ms Grant" is a reference to the offender's former partner who, as I previously noted, had pleaded guilty to an offence of hindering the discovery of evidence. I infer that this passage of the report is based upon something allegedly said by Grant to the offender's solicitor, which was in turn conveyed by the offender's solicitor to Dr Kasinathan in a letter of instructions. There was no evidence before me of any such assertion made by Grant.

1. Fourthly, part of the history recorded by Dr Kasinathan included the following (at p. 3):

"Mr Aquilina reported consuming significant amounts of alcohol and other drugs prior to and at the material time. He reported consuming $100 worth of cannabis and intravenous amphetamine (speed) .05 grams on the day prior. He reported drinking alcohol on the morning of the offence and at the material time reported consuming two cans of Jack Daniels and two litres of cask wine" (my emphasis).

1. There was certainly evidence before the jury to support the conclusion that the offender had consumed alcohol during the period leading up to the killing of the deceased. However, unlike the history which was recorded by Dr Kasinathan, the offender did not give any specific evidence of how much (or what kind) of alcohol he consumed. Accordingly, on the evidence which was before the jury, the extent to which the offender may have been intoxicated or disinhibited was far from clear.

1. Further, and perhaps even more significantly, at no stage in the course of his evidence before the jury did the offender ever assert that he had consumed any drug "prior to and at the material time" as was reported by Dr Kasinathan. The offender gave no evidence on sentence.

1. Counsel for the offender, as I understood it, sought to rely upon the contents of lines 1 to 18 on page 10 of Dawson's interview as evidence which supported a conclusion that the offender had consumed drugs at or about the time of the murder of the deceased. That portion of the interview (which follows on from questions directed to alcohol consumption on the day of the deceased's death) includes an assertion by Dawson that the offender and Comber consumed "two bongs", along with a further assertion that they "might have been on pills but (she) wasn't sure". According to Dawson, the offender "was talking about something having something out of like out of some sachet or something". She went on to describe the offender as having "a lot of energy".

1. In my view, the untested assertions of Dawson, particularly in the absence of any evidence from the offender, provide no reliable support for the conclusion that the offender had consumed, or was affected by, drugs at or about the time that the deceased was killed. In terms of any marijuana use, the basis of Dawson's assertion is not clear. She certainly did not tell the police that she made any such observation herself. In terms of any use of other drugs, it is apparent that Dawson's assertions were based upon what she was told by the offender. As I have set out below, the Court of Criminal Appeal has, for some time, been critical of reliance being placed upon untested hearsay assertions of the nature of those contained in Dawson's interview.

1. The conclusions reached by Dr Kasinathan, upon which counsel for the offender relied, included the following (at p. 9 - 10):

" ... due to his own experience of being sexually assaulted and of having previously lost a child, this anger, combined with past unresolved grief, was likely to be overpowering and uncontained, particularly when he was disinhibited by alcohol and other drugs. His insecure attachment left him aligned to protect his mother, despite her inconsistencies, and reduced his ability to weigh up the 'evidence' of the victim "being a paedophile" in an objective and rational manner. The combination and synergistic interaction of the above developmental, personality and attachment factors helps us understand why Mr Aquilina felt provoked to contribute to the killing of the victim" (my emphasis in each case).

1. The issue of provocation to which Dr Kasinathan referred is dealt with below. At this juncture, it is appropriate to make a number of further observations in relation to Dr Kasinathan's report, and the conclusions he expressed.

1. Firstly, Counsel for the offender explained that the provision of (inter alia) the statement of facts was because of "financial constraints" and that the purpose in providing the statement of facts was to furnish Dr Kasinathan with "an overview" and "a little bit of background". Counsel emphasised that Dr Kasinathan was not "invited to make any findings as a result of that". Be that as it may, the fact remains that material was provided to Dr Kasinathan which he took into account in forming his opinion, but which is not in evidence before me.

1. Secondly, and even though the letter of instructions is not before me, it is apparent that such instructions included observations made to the offender's solicitor by the offender's former partner, Grant. In the form in which they were conveyed to Dr Kasinathan, those observations are in the nature of untested second hand hearsay. Significantly, they related to the relationship between the offender and Dawson, and formed part of the material upon which Dr Kasinathan based his ultimate opinion.

1. Thirdly, the opinion of Dr Kasinathan was clearly based, at least in part, upon the history provided by the offender. That history included assertions regarding his use of drugs at the relevant time. As I have noted the offender gave no such evidence before the jury, and gave no such evidence before me on sentence.

1. There have been repeated statements by the Court of Criminal Appeal regarding the caution with which unsubstantiated, and untested, assertions recorded in medical (and similar) reports tendered in sentence proceedings should be treated (see for example Butters v R [2010] NSWCCA 1 at [18]). Leaving aside the fact that Dr Kasinathan was provided with material which is not before the court on sentence, his report contained a considerable amount of material in the nature of unsubstantiated and untested assertions. The contents of Dawson's interview fall into the same category.

1. None of these observations should be construed, in any way, as a criticism of Dr Kasinathan. He was obviously left to express his opinions on the basis of the material provided to him. However in the circumstances that I have outlined, his report, and the opinions which are expressed in it, are in my view deserving of little or no weight.

1. Further, and in any event, I am not satisfied of the truthfulness of the offender's account of being sexually assaulted in gaol. Leaving aside the inconsistency between his evidence to the jury and his account to Dr Kasinathan, the offender admitted in the course of his evidence before the jury that when he first spoke to the police he had told various untruths in order to minimise his role in the deceased's killing (see for example his evidence at T 527 lines 10 to 15).

1. The offender also agreed that he had omitted to tell the police about matters which he asserted in evidence and which were, on any view, material. For example, and as I have referred to further below, the offender gave evidence that the deceased was "smirking" at him which made him (i.e. the offender) believe that the deceased had in fact interfered with his son and caused him to act as he did in killing the deceased. Notwithstanding the obvious significance of this, the offender made no mention of it at all to the police when they interviewed him. His explanation was that "he didn't think it would matter" (see his evidence at T 530 line to T 531 line 20).

1. Having heard the offender's evidence, and having viewed him carefully as he gave it, it is my view that much of what he said was unreliable. For these reasons, I do not accept his evidence regarding the sexual assault said to have been committed on him whilst in custody.

1. For all of these reasons I do not accept the submission that there exists any causal relationship between the offender's history of alleged sexual abuse, and his offending. Further, in the circumstances, I do not accept the opinion of Dr Kasinathan regarding the offender's "insecure attachment" to Dawson.

Provocation

1. As previously noted, the offender raised provocation at his trial. This was obviously rejected by the jury. However, that does not preclude a finding that provocation is a mitigating actor (see R v Fahada [2013] NSWCCA 86 at [18] per Fullerton J).

1. Following the decision of the High Court in Muldrock (supra) differing views have been expressed concerning the range of factors to be taken into account in determining the objective seriousness of the offence. On one view, where provocation is established such that it is a mitigating factor under s. 21A(3)(c) of the Sentencing Act it is a fundamental quality of the offending which may reduce its objective seriousness (see R v Willmott [2012] NSWSC 824 at [9]). In any event provocation, if found, is a factor relevant to the sentence to be imposed (see Markarian (supra)).

1. At the close of the evidence in the trial, and before counsel addressed the jury, an issue arose as to the evidence which was available to be considered by the jury in relation to provocation. In the course of submissions at that time, counsel for the offender conceded that what might be described as the direct evidence of provocation (or, in other words, the evidence of statements made or acts done by the deceased towards the offender) was limited to the following passage from the offender's evidence (at T 463 lines 32-46):

Q And so what happened then?

A For a while we were just talking calmly and then he turned to me and said that he loved them little boys more than you'll ever know and that is when I lost it and I hit him myself.

Q When you say you hit him yourself, what did you actually do?

A I punched him four times in the head.

Q Why did you do that?

A Because I was angry and by him saying what he did I though he was telling me that it was true about what he'd done (my emphasis).

1. Counsel for the offender had further submitted at the close of the evidence in the trial that statements made by Dawson to the offender concerning the deceased's behaviour amounted to "hearsay provocation" which the jury could properly consider. By reference to the decisions in R v Quartly (1986) 11 NSWLR 332 and R v Clarke [2008] NSWCCA 36, and particularly having regard to the judgment of Lee J in the former decision, I rejected counsel's submission. It followed that the evidence of provocation by the deceased which was available to be considered by the jury was limited.

1. It is evident from the jury's verdict that they were satisfied beyond reasonable doubt that the offender was not acting under provocation when the deceased was killed. However, it has been submitted on behalf of the offender that I should conclude, for the purposes of sentence, that there was some provocation on the part of the deceased which was directed to the offender, and which mitigates the severity of the offence. It is therefore necessary to set out, in some detail, the evidence which bears upon this issue.

The offender's evidence at trial

1. The offender gave evidence at trial and was cross examined by senior counsel for Dawson and by the Crown. Having told the jury that he had gone to Dawson's premises "in order to find out (himself) if it was true about someone touching (his) boys" (at T 457 line 37) he gave the following evidence in chief (commencing at T 457 line 45):

Q. Did you discuss killing Adrian Trevett with anyone before you went over there?

A. Because of how angry and upset I was, I do believe that I said it to David, but I did not mean it.

Q. What did you say to David?

A. I believe I said that I wanted to kill the person.

Q. And you say you didn't mean it?

A. No. I was angry and upset.

Q. Did you have any discussion with your mother at all?

A. I believe I may have said it to her once also as well.

1. Having told the jury that the deceased was struck by Dawson, the offender then said (commencing at T 463 line 31):

Q. And so what happened then?

A. For a while we were just talking calmly and then he turned to me and said that he loved them little boys more than you'll ever know and that is when I lost it and I hit him myself.

Q. When you say you hit him yourself, what did you actually do?

A. I punched him four times in the head.

Q. Why did you do that?

A. Because I was angry and by him saying what he did I thought he was telling me that it was true about what he'd done.

Q. And how was he talking at that stage?

A. Because of the alcohol he was slurring his words a little bit but he was also smiling a lot at me and laughing about the things that I was asking him.

Q. Now, you said you started punching him?

A. Yes.

Q. And what happened then?

A. At one stage he had fallen over onto - landing onto the round table, which I believe he hit his chest and also his head.

Q. What happened then?

A. He was laying on the ground, that was when I noticed that his glasses had broken and he had a few cuts on his face from the glasses.

Q. And what happened then?

A. That was when I was - the three of us were standing there just talking.

Q. When you say "just talking", what were you saying?

A. I was telling my mother that what sort of a bad person he was for doing what he done and I was quite angry at that stage and that was when I seen the piece of rope and tied a slip knot in it and put it around his neck.

Q. So you did that?

A. Yes.

Q. And you were the one who put around his neck?

A. Yes.

1. The offender then gave the following further evidence (commencing at T 468 line 24):

Q. You said, just before the adjournment, that you took the rope?

A. Yes.

Q. Do you know where the rope had come from?

A. It was just laying there on the floor inside the shed area.

Q. You didn't bring it to the property?

A. No.

Q. Why did you take the rope?

A. Because at that stage I was quite angry and I wanted him to feel my pain.

Q. You said you're the one who put the rope around his neck?

A. Yes.

Q. And you said you pulled it at the end?

A. Yes.

Q. What were you doing at the time? What was your intention?

A. Because I lost it and snapped, I wanted to kill him.

Q. And is it correct that you said in one of the interviews that you were the main person who did it. Is that true?

A. Yes.

1. The offender admitted that when spoken to by police he told a number of untruths about his involvement in the deceased's death. They included telling police that it was Comber who placed the noose around the deceased's neck (Exhibit N2 at Q 201; T 503 line 31). He further admitted (at T 473 line 26) that he told untruths because he was trying to minimise his role in what had occurred.

1. In the course of cross-examination by senior counsel for Dawson, the offender gave the following further evidence about the circumstances of the deceased's death (commencing at T 494 line 30):

Q. In terms of the actual events leading up to Mr Trevett's death, you had lost it, as you say?

A. Yes, that's right.

Q. And you were the one who punched him to the head, is that right?

A. I did, about four times, yes.

Q. And that was when he was still sitting on a chair in that shed area?

A. Yes, he was.

Q. And he fell to the ground after you were punching him?

A. He did.

Q. And you then picked up the rope?

A. Yes, that is correct.

Q. Put it into the knot and put around his neck?

A. Yes.

Q. And you pulled on it?

A. Yes.

1. The offender asserted, at the conclusion of cross-examination by senior counsel for Dawson, that he had pulled on the rope until the deceased was dead "because (he) was angry" (at T 523 line 24). Significantly, the Crown's cross-examination commenced with the following (at T 523 line 27):

Q. You were angry because of what your mother had told you, weren't you?

A. Yes.

1. The Crown further cross-examined the offender (commencing at T 530 line 1) as follows:

Q. What do you mean by 'I lost it'?

A. Him saying the things he'd done and me being told the things I was told about what he done, it made me snap.

Q. He never said he'd done the things, did he?

A. Well by him saying that he loves them little boys more than I'll ever know, I took that as he was saying that he did do it.

Q. So somebody's denying that he touched three little boys or two little boys, correct?

A. Yes.

Q. And that person continually denies that he touched those boys, correct?

A. Yes.

Q. And eventually in the course of denying, he attempts to reinforce that by saying, "You don't know how much I love those little boys", correct?

A. Yes.

Q. And because of his denials, and his attempt to emphasise the reason or a support for those denials, it means he did it?

A. Well when he was laughing and smirking at me, I took it as the way I took it, which was he done it.

Q. When did you remember that he was laughing and smirking at you?

A. When I was asking the questions, he was.

Q. No, when did you first remember that after the event, that he was laughing and smirking at you?

A. Straight away.

Q. Well that must have been something very important, was it?

A. In a way it was, yeah.

Q. Must have been one of the - well he was denying everything, wasn't he?

A. Yes, he was.

Q. But he was laughing and smirking you say?

A. Yes.

Q. And that was what caused you to take the answer he gave as being an admission?

A. Yes.

Q. So that must have been very important in your mind that he was laughing and smirking?

A. It did upset me, yes.

Q. And it must have been something that stayed with you the whole time?

A. Yes.

Q. Something that would be at the forefront of your mind?

A. Yes.

Q. About these events?

A. Yes.

Q. It would be just as important in these events as the words, "You don't know how much I love those little boys", wouldn't it?

A. Yes.

Q. Can you tell the ladies and gentlemen of the jury why you've never told anyone publicly, about that. Withdraw that. Can you tell the ladies and gentlemen of the jury why you never told the police about the smirking and the laughing and the smiling in your record of interview?

A. Because I didn't think it would matter, that's why.

Q. This thing that convinced you that he'd touched your boys, you didn't think it would matter?

A. No, not really.

Q. This thing, that had caused you to get so upset you say, you didn't think would matter?

A. Yes.

Q. And when you got to the walk through, why didn't you tell the police about the smirking, the smiling and the laughing, when you were then denying the allegations?

A. I just didn't think of it, there was that much going through my mind.

1. The Crown's cross-examination then turned to the circumstances of the killing of the deceased (commencing at T 549 line 40):

Q. Did he start to gurgle and gargle and gasp, withdraw that, that's three questions. Did he start to gasp for breath?

A. Well yes, he did.

Q. Did he start to make a gurgling sound?

A. Yes.

Q. Did he - you describe it as sounding like he had blood in his airways, I think in one of your interviews?

A. Yes.

Q. Was that when you were pulling it the first time?

A. Yes, it was.

Q. You were pulling as hard as you could?

A. I don't believe I was pulling that hard, but I was pulling on it.

Q. The combined pulling, that's your pulling?

A. Yes.

Q. Pulling by the other two and then you taking back over, all took a fair amount of time, didn't it?

A. I believe it did, yes.

Q. Took about 20 minutes or more for him to expire?

A. Yeah, about 15, 20 minutes.

Q. And during all of that time when anyone was pulling on that rope, he was gasping for air?

A. Yes.

Q. And he was making this gurgling, gargling sound?

A. Yes.

1. The Crown's cross-examination then turned to the offender's assertion regarding the words of the deceased which were said to constitute provocation (commencing at T 550 line 24):

Q. Can I just ask you this, Blake's not your son is he?

A. No he's not.

Q. He's Deborah's son by another male?

A. Yes.

Q. And do you treat him any differently to Malachi and Israel?

A. No I don't, I love him like he's my own son.

Q. If somebody accused you that you were biased in favour of your two own sons, you'd tell them how much you loved them, wouldn't you?

A. Yes.

Q. You might even say, "You don't know how much I love that bloke", mightn't you?

A. Yes.

Q. You're not a paedophile, are you?

A. No I am not.

Q. It's a very common expression for people to use to explain their attitude to children, isn't it?

A. Yes, but when you believe something and you are angry, you don't think about that, do you?

Q. Well the point is you see, what you just said is it didn't matter what he said and what he did, you were already in that angry mood, weren't you?

A. Yes I was.

Q. Wasn't anything he did that day that made you do this, it was what you went there to do, wasn't it?

A. I was angry before I got there. (my emphasis).

1. The Crown submitted that I would not be satisfied that the words attributed by the offender to the deceased were in fact said, and that I would not be satisfied that the deceased was "smiling and smirking". Accordingly, the Crown submitted that I would conclude that the offender was not provoked. In advancing this submission, the Crown relied (inter alia) upon the fact that there was nothing said by the offender, when spoken to by police, about the fact that the deceased was "smiling and smirking" at or about the time he said the words attributed to him. The Crown further submitted that even if I concluded that the words attributed to the deceased were in fact said, a proper analysis of the evidence established that it was not these words, nor anything else said or done by the deceased, which provoked the offender.

1. Counsel for the offender, whilst obviously accepting that the jury had rejected provocation, submitted that I should conclude that "the reason that the offender was found guilty of murder was not because the jury did not accept that he was provoked and lost control, but rather that he failed the ordinary person test". Clearly, the jury rejected provocation. The precise basis on which they did so is difficult, if not impossible, to ascertain.

1. Counsel for the offender further submitted that there was specific support for the conclusion that the words attributed to the deceased were in fact said. Such support, it was submitted, was contained in the transcripts of the conversations obtained by listening device, as well as in the content of Dawson's interview.

1. Having considered all of the evidence I am not satisfied that the offender was provoked by the conduct of the deceased.

1. For the reasons I have already expressed, I formed the view that the offender was unreliable in a number of aspects of his evidence. The fact that he may have made reference, in a conversation with Grant (contained in Track 58 of Disc 49) to the words allegedly said by the deceased does not cause me to change that view. I accept that Dawson also made reference to the issue at lines 8 - 18 at page 16 of her interview with the police on 11 January 2011. Again, for the reasons I have already expressed, I attach no weight to untested assertions of that nature. For these reasons I am not satisfied that the words attributed to the deceased were in fact said.

1. In any event, and even if the evidence established that the words in question were said by the deceased, I do not accept that they provoked the offender to kill the deceased as he did.

1. In the final answer in cross-examination by counsel for Dawson, and in his answer to the Crown's very first question in cross examination, the offender admitted that he:

(a) had pulled on the rope and killed the deceased;

(b) had done so because he was angry; and

(c) was angry because of what his mother had told him about the deceased's behaviour.

1. In giving that evidence, the offender did not attribute his act of killing the deceased to anything said or done by the deceased towards him. The fact that he did not do so is completely consistent with a conversation (in Disc 21) in which he explained the reasons for killing the deceased as follows:

" I done it. I thought that cunt was, raped me mum. I thought that cunt had touched me kids. That's why I done it".

1. Once again, there was no reference to anything said or done by the deceased to the offender himself as having provoked the offender into acting as he did. On the basis of that conversation, the offender killed the deceased because of what he had been told by Dawson. That is consistent with the evidence given by the offender before the jury, and to which I have referred.

1. As previously outlined, the offender also asserted in the course of his evidence that the deceased was "smiling and smirking" as he said the words attributed to him and that he (the offender) somehow construed this as an admission by the deceased that he had acted inappropriately. This was so, notwithstanding that on the offender's evidence the deceased had spent some time, in face of being assaulted by the offender and Dawson, denying that any wrongdoing had taken place. The offender also agreed that these actions of the deceased assumed considerable importance in his (the offender's) own mind, but that he had omitted any reference to it when spoken to by the police. His explanation for that omission was that he did not think it would matter. In view of the importance which the offender himself attached to those actions on the part of the deceased, his explanation for making no reference to it when spoken to by the police is a wholly implausible one, and is one which I reject. It is a further demonstration of the offender's unreliability. I am not satisfied that the deceased smiled and smirked at the offender at any time.

1. For all of these reasons, I am not satisfied that the deceased engaged in any behaviour towards the offender which amounts to provocation.

1. Counsel for the offender submitted that the "hearsay provocation" should be regarded as provocation within the meaning of s. 23A(3)(c) of the Sentencing Act. In my view, that is not correct. Tension and general enmity between parties leading up to an offence, and which forms part of the overall circumstances in which an offence was committed, does not constitute evidence of provocation sufficient to amount to mitigation: see Shaw v R [2008] NSWCCA 58 at [26]. In my view, and in the context of a case such as the present, the provocation contemplated by s. 23A(3)(c) is provocation constituted by the conduct of a deceased towards an offender, as distinct from reports of the conduct of a deceased towards someone else which are conveyed to an offender.

1. However, counsel for the offender also relied upon the "hearsay provocation" on what I understood to be a slightly different basis. Specifically, counsel submitted that I should find that as a result of what he had been told by Dawson about the deceased's behaviour, the offender was "incited into believing that his children had been abused".

1. The offender gave evidence that he went to Red Range "because (he) wanted to find out (himself) if it was true about someone touching (his) boys" (at T 457 line 38). He also said (at T 459 line 35 - 40) that there was a conversation between himself and Dawson on the way to Red Range about "all the stuff that (the deceased) had done". In my view, that evidence supports a conclusion that the catalyst for the offender's decision to travel to Red Range, and to become involved in the enterprise which resulted in the deceased's death, was information conveyed to him by Dawson. I did not understand the Crown to argue to the contrary.

1. However, even accepting this to be the case, it is a circumstance which assists the offender to a limited degree. The more important considerations are that, as expressly conceded by counsel for the offender, the killing of the deceased which followed occurred in circumstances where there was (inter alia):

(a)   at the very least, a contemplation on the part of the offender that violence would be visited upon the deceased; and

(b)   preparation on the part of the offender, both in terms of the recruitment of another person and the obtaining of weapons to take with him.

1. Moreover, when informed by Dawson about the deceased's alleged behaviour, the offender had more than one option open to him. He took the option of going to Red Range, in circumstances where it is accepted that in doing so, he acted in the manner set out in [49] above. He impermissibly took the law into his own hands, exacted physical revenge upon the deceased, and killed him, intending to do so. The offender's original decision to go to Red Range may be explained, to some degree, by what Dawson had told him about the deceased. However, that provides no excuse for his conduct. In all of these circumstances, personal and general deterrence both have a role to play in sentencing the offender (see R v Buddle [2005] NSWCCA 82 at [11] per Wood CJ at CL.

The offender's criminal history

1. The offender's criminal history in New South Wales is limited to two matters, the first being an offence of steal from person, and the second being an offence of having custody of a knife in a public place. Both of these offences were committed at the same time, and both were dealt with by the Local Court in 2007. The first originally resulted in the imposition of 12 months imprisonment, with a non-parole period of 6 months. That non-parole period was reduced to 3 months on appeal. The second matter resulted in the imposition of a fine, and was not the subject of an appeal.

1. The Crown tendered the statement of facts relating to these matters, from which it was clear that both arose from the one set of circumstances. In short, the incident involved the theft of a purse, by the offender, from an 83 year old lady who had just withdrawn an amount of cash from an automatic teller machine in the town of Ballina. Although the offender was in possession of a knife at the time, there was no suggestion that he used it to threaten or harm the victim, nor did he commit any other act of violence. The offender was apprehended by members of the public shortly after the theft and in a subsequent interview with the police he made full admissions. In one of the recorded conversations tendered on the offender's behalf in these proceedings (in Disc 10) the offender was recorded telling Grant that at the time of the commission of these offences he was living in his car and needed money.

1. The only remaining matter in the offender's criminal history stems from an appearance before a Children's Court in Western Australia in 2000 for a burglary offence in respect of which no conviction was recorded.

1. In my view, in these circumstances, the offender should be regarded as having no significant criminal history. That is a mitigating factor.

Prospects of rehabilitation and likelihood of re-offending

1. It was submitted that the offending on this occasion should be viewed as having arisen in particular circumstances which were unlikely to be repeated. I accept that the circumstances were somewhat unique and in the absence of any substantial criminal history, I accept the submission of counsel for the offender that there are "some" prospects of rehabilitation. The likelihood of re-offending may well be dependent upon the offender obtaining treatment for the disorders diagnosed by Dr Kasinathan, and continuing the anti-depressant treatment which he is obtaining whilst in custody.

Remorse

1. Counsel for the offender submitted that I should find that the offender had expressed remorse in a number of the conversations recorded by listening device.

1. In one of the transcripts tendered at the trial (exhibit L 34) the offender was recorded saying:

"Made me do this to the other fucking putrid maggot paedophile rapist dog. The next fucking paedophile rapist dog will get the same fucking treatment from me and the fucking next one after that too. Every paedophile should be dead. Every rapist should be dead".

1. In another conversation (exhibit L 36) the offender was recorded saying:

"I'm really going to fuck people up now. Cool hey? I can't wait till the next cunt that fucks me over. What else am I supposed to do if they get away with it?"

1. In exhibit L 44 the offender described his killing of the deceased in the following terms:

"I tied a rope. Dave was standing there like a bitch. I seen a piece of rope and tied a noose, put it straight around the cunt's neck and I stood on his fucking shoulder and pulled it".

1. In a further conversation (recorded at track 58 of Disc 49, a transcript of which was tendered by counsel for the offender) the offender is recorded as saying:

"Well, the cunt did deserve it".

1. The offender was also cross-examined in relation to correspondence which had passed between he and Dawson following the deceased's death, whilst each of them was in custody. In one letter (exhibit 1) the offender wrote to Dawson:

"I'm OK doing the time because I was the one that killed that old rotten dog".

1. In a further letter (exhibit 5) the offender wrote:

"Hey, I'm glad your legal team is helping you, but I did talk to my legal team and I'm going to be fucked. I'm getting a real good whack. It does not matter, but I'm just going to plead guilty to murder. It was all worth it to me because of what that old dirty cunt's done".

1. In a further letter to Dawson (exhibit 6) the offender wrote:

"..... I was the one who killed Adrian, so I should pay for what I have done, not anyone else".

1. Section 21A(3)(i) of the Sentencing Act permits a court to take into account, on sentence, remorse which is shown by an offender, but only if:

(a)   the offender has provided evidence that he or she has accepted responsibility for his or her actions; and

(b)   the offender has acknowledged any injury, loss or damage caused by his or her actions, or made reparation for such injury.

1. In written submissions, Counsel for the offender argued that the offender had "expressed considerable remorse in his letters to his mother following the murder". In oral submissions, counsel advanced the general proposition that the offender had expressed "very strong remorse" about what he had done.

1. The contents of exhibit 6, and the offender's reference to the fact that he should "pay" for what he had done, exhibit some degree of acceptance of responsibility. Beyond that, the submissions made on behalf of the offender concerning remorse are, in my view, fundamentally at odds with the evidence generally, and with the contents of exhibit 1, exhibit 5, and the conversation in Disc 49 in particular.

1. Statements by the offender that deceased's murder was "worth it", and that the deceased "deserved it" are, in my view, the antithesis of expressions of remorse. A similar observation may be made regarding the derogatory and offensive terms in which the offender described the deceased, both in the recorded conversations with Grant and his correspondence with his mother. For these reasons, I am not satisfied that there has been any remorse expressed by the offender.

Special circumstances

1. Finally, and although it was initially raised, counsel for the offender did not maintain the submission that I should make a finding of special circumstances. In this regard counsel, as I understood it, acknowledged that there would necessarily be a lengthy period of parole.

conclusion

1. The offender has been in custody since his arrest on 5 January 2011. It is agreed that any sentence I impose should be backdated to commence on that date.

1. The offender is sentenced to a non-parole period of 21 years imprisonment, commencing on 5 January 2011 and ending on 4 January 2032, with an additional term of 7 years imprisonment commencing on 5 January 2032 and ending on 4 January 2039.

1. The total term is one of 28 years imprisonment.

1. The offender will be eligible for parole on 5 January 2032 and his sentence will expire on 4 January 2039.

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