R v May (No 2)

[2016] NSWSC 1070

Supreme Court

New South Wales

Medium Neutral Citation:	R v May (No 2) [2016] NSWSC 1070
Hearing dates:	28 July 2016
Date of orders:	03 August 2016
Decision date:	03 August 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	The offender is sentenced to imprisonment comprising a non-parole period of 14 years and 10 months and a balance of term of sentence of 5 years. The total term of imprisonment is one of 19 years and 10 months.  The sentence will date from 11 April 2014. The offender will be eligible for release on parole upon the expiration of the non-parole period on 10 February 2029. The total term of the sentence will expire on 10 February 2034.
Catchwords:	CRIMINAL LAW – sentence – murder – trial by judge alone – self-induced intoxication – intention to kill – extremely violent offence – discount for utilitarian manner in which trial conducted – moral culpability – mental health considerations
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v Dodd (1991) 57 A Crim R 349 R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252 R v May [2016] NSWSC 820 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category:	Sentence
Parties:	Crown Jamie Edward May
Representation:	Counsel: Mr T McCarthy (Crown) Mr I Todd (Accused)   Solicitors: Solicitor of Public Prosecutions (Crown) Catherine Hunter Solicitor (Accused)
File Number(s):	2014/113483
Publication restriction:	None

Judgment

1. Daubed in white paint on the foundational brick work of a residential apartment block in Redfern is a personal memorial to Judith Townsend from her husband, Ralph Townsend. It records Mrs Townsend’s death, and the loss and grief caused by that loss to those who loved her.

2. Mrs Townsend was killed by her nephew Jamie May in what was an act of extraordinary violence. Having been found guilty of the murder of Mrs Townsend (R v May [2016] NSWSC 820), the offender now stands to be sentenced for that crime.

3. The offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) carries a maximum penalty of life imprisonment: s 19A of the Crimes Act. A standard non-parole period of 20 years imprisonment is specified by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. Section 61 of that same Act provides for the imposition of a life sentence to be imposed on an offender for a murder "…if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." Properly, the Crown does not submit that this is such a case.

The Facts of the Crime

5. This was a crime which I have no doubt would not have been committed if not for the offender’s state of extreme drug induced intoxication.

6. The offence probably had its genesis in the offender’s desire, upon being released from prison on 10 April 2014, to have a big night out (Exhibit M), an expression which I infer referred to the acquisition and use of drugs in a social context. Although there is no direct evidence capable of establishing precisely what drugs the offender consumed and exactly when he consumed them, a blood sample taken from the offender following these terrible events proves that he had consumed cannabis and methylamphetamine in the period leading up to Mrs Townsend’s murder (Exhibits B51 and B52).

7. The offender was in the Redfern and Surry Hills area on the afternoon and evening of 11 April 2014 (Exhibit R). It is likely that he obtained illicit drugs during the afternoon and early evening of that day, and used them. It is also likely that the drugs had an adverse effect on his behaviour by the late evening of that day. I have concluded that it was the offender’s drug disordered behaviour which was at the heart of his crime.

8. When the offender visited his aunt, Mrs Townsend, in the early afternoon of 11 April 2014 there was nothing unusual about his behaviour, and his brief interaction with Mrs Townsend at around 1pm was cordial.

9. At around 7 o’clock that evening, the offender returned to the apartment block at 6 Redfern Street at Redfern, to the unit of Margaret Williams, a neighbour of Mr and Mrs Townsend. When he arrived he was observed to be calm and he did not seem to be affected by any drug. Soon after, he was complaining of feeling “funny” and his behaviour became odd and troubling to those around him (Exhibit B4).

10. From the observations of witnesses who saw him at that time, coupled with the toxicology evidence, it is tolerably clear that the offender had become intoxicated, and his conduct was, as a consequence, increasingly aggressive. There is evidence of an incident in which the offender, armed with a knife, behaved in a threatening way to two women, and that incident is demonstrative of the effect upon him of the drugs he had consumed.

11. At some time between 9pm and 9.30pm, the offender went downstairs to his aunt’s unit and kicked on the door, demanding entry. By that stage, he was naked apart from footwear, and must have been well affected by illicit drugs. His conduct was such that Mr Townsend, looking at the offender through the security peep hole at his front door, was not prepared to let his wife’s nephew in.

12. At 9.39pm Mr and Mrs Townsend left their apartment block to go for a walk.

13. It was probably between that time and around 10pm that the offender was violently assaulted in the apartment of Ms Williams in Redfern Street, sustaining serious facial injuries.

14. At 10.06pm the offender walked out of the apartment block and onto Redfern Street. By chance, his aunt was in the immediate vicinity at exactly that time, and the offender, in his drug-induced haze, saw her, and followed her as she walked away from her unit, probably to avoid contact with the offender.

15. The two had enjoyed a close relationship and, on the evidence, nothing had occurred between them to disrupt or darken that relationship. It seems most likely that Mrs Townsend was aware that the offender had been using drugs, from the ruckus he had created earlier at her front door, from information she had been given by both her husband and Margaret Williams, and from what must have been her own observations of his nakedness, and she simply wished to avoid him when he was in such a state.

16. Having seen his aunt, and moved to follow her, the offender was observed by Lydia Clarke to stoop down to pick up an object which I am satisfied beyond reasonable doubt was the half brick he would use minutes later to kill her.

17. The evidence establishes no motive for the intention the offender formed at that time to attack his aunt. There seems to be no objective cause for him to wish to do so. It can only be because of some illusory grudge, born of amphetamine intoxication.

18. Despite her efforts to walk away from the offender, he quickly caught up with her, and the two turned the corner into Morehead Street. What followed was both rapid, and terrible. As the pair reached the front of 36 Morehead Street, only metres from the corner with Redfern Street, the offender said “You’re not my fucking aunty, you’re not my aunty” (Exhibits B12, B13). He took hold of her by her throat and shoulder and he began to strike her in the face, holding the half brick in his hand and using it as a weapon. The blows were sufficiently forceful to push Mrs Townsend’s head back into the security grate of a ground floor window of the building with each blow, and to injure her, probably very seriously.

19. Some minor injuries to her right shoulder, left forearm, and a finger suggest that Mrs Townsend made some attempt to defend herself (Exhibit B54).

20. Lolli Daniels saw the offender strike in excess of six blows to Mrs Townsend’s face as the two stood near the apartment block, and saw that her face was covered in blood.

21. The offender was so intent on what he was doing that he did not stop even when Ms Daniels yelled at him and swung her handbag at him.

22. When the offender released his hold on his aunt, she crumpled to the ground without making any motion to break her fall.

23. The offender moved away from Mrs Townsend briefly, before returning to her prone body and, getting down on first one and then both knees, returning to his attack upon her, with the half brick still in his hand. The offender was seen by Staci Harmer and Thomas Kinross to strike multiple blows when kneeling in this way; Ms Harmer, who could see Mrs Townsend lying on the ground, saw that the offender was aiming the blows at her head.

24. Soon after, the offender walked off, entering an apartment block at 38 Morehead Street, where he was later arrested.

25. The injuries to Mrs Townsend were catastrophic. Whilst I do not propose to detail the full extent of those injuries, the horror of them is clear from the evidence of Constable Zan Lockyer who arrived at the scene soon after the offender entered the apartment block at 38 Morehead Street.

26. After having assisted other officers to arrest the offender, Constable Lockyer returned to the street to aid Constable Matthews and Senior Constable Diaviolitis, who were doing what they could to help Mrs Townsend. The three officers were confronted with what must have been an extraordinarily distressing scene. Mrs Townsend was so grievously injured that the officers were not able to establish the location of an airway through which to try to resuscitate her. Instead, chest compressions were commenced in an attempt to save her life.

27. Those efforts, for which the officers should be commended, proved to be in vain.

28. Ambulance officers took over from the police officers soon after, and took Mrs Townsend to St Vincent’s Hospital. She was declared dead on arrival.

29. The offender was arrested on an upper level of 38 Morehead Street. On arrest, he was noted to have facial injuries, which required medical attention. On examination by Dr Claire Nicholls (Exhibit B53), the offender was found to have sustained multiple complex facial fractures. His face was badly swollen. How and when those injuries were received is not established on the evidence, save that the offender had his injuries when he attacked Mrs Townsend.

The Objective Gravity of the Offence

30. As that recitation of the facts demonstrates, this was a very serious crime.

31. The Court is obliged to determine to the objective gravity of an offence as part of the sentencing process: R v Dodd(1991) 57 A Crim R 349. At [354] of that decision it was noted that:

“… Each crime […] has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category.”

32. The offence was one of great violence, by a much larger man, upon a small woman, who weighed about 53 kilograms and was aged 61 years, and had little or no chance of defending herself, utilising a makeshift but nevertheless lethal weapon, and affected by numerous blows directed at the head. The injuries inflicted were severe. The attack was entirely unprovoked, and it continued despite the efforts of a witness to stop it.

33. Professor Johan Duflou (Exhibit B54), who conducted the post-mortem examination, noted palpable facial fractures. There was very extensive depressed comminuted fracturing of the upper jaw, and associated fracturing to the left eye socket, nose, and cheek. There was a hinge fracture which passed through the middle of the base of the cranium. The right side of the lower jaw was fractured. There was evidence of multifocal subarachnoid haemorrhage. There were multiple facial lacerations and bruises.

34. Rib fractures were present, but, since it is possible that those fractures were caused by attempts to resuscitate Mrs Townsend, I have not considered them further.

35. The offence was largely a spontaneous one, although there was some very limited planning, to the extent of selecting and picking up an object for use as a weapon once the offender had resolved upon attacking Mrs Townsend.

36. The deliberate selection and use of a weapon, the ferocity of the attack, the number of blows, and the fact that they were all directed to the head, have led me to conclude, beyond reasonable doubt, that the offender’s intention was to kill Mrs Townsend.

37. It may be that the intention was formed as a consequence of some delusional belief arising from a drug-induced psychosis, but the evidence does not allow more than that possibility. Certainly, the offender’s thinking was impaired due to his drug use, and that impairment contributed to the impulsive decision to kill Mrs Townsend.

38. Killing with the intention to kill is ordinarily, although not definitively, regarded as more serious than killing without such an intention. In this case, it does make the crime more serious although, as the Crown observed, in the circumstances of this case, even were the offender’s intent one of doing grievous bodily harm, that could not have reduced the gravity of the crime, or the offender’s culpability for it, to any great extent: R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252, at [16] – [17].

39. It is a very grave offence.

The Crown Case on Sentence

40. A victim impact statement from Mrs Townsend’s daughter, Sancha Osei, was received by the Court, pursuant to s 28 of the Crimes (Sentencing Procedure) Act. In her statement, which Ms Osei read to the Court, she spoke of her great sadness at the loss of her mother and of the peace that she has now found in accepting her mother’s death.

41. The balance of the Crown case consisted of the offender’s criminal and corrections histories. Read together, those documents establish the following (not exhaustive) criminal history.

42. The offender’s first experience of the criminal courts was in 1990 when he appeared before the Wellington Children’s Court. He was before that same court in 1992, 1993, and 1994, for various offences, including an offence of violence.

43. In 1995 and 1999, the offender was dealt with in the Local Court for drug offences, and again in 2003 for an offence of supplying a prohibited drug, for which he received a bond, pursuant to s 9 of the Crimes (Sentencing Procedure) Act. In 2004 he was sentenced for a similar offence by the District Court, being ordered to perform 200 hours of community service work.

44. The following year the offender was again before the District Court for supplying a prohibited drug on an ongoing basis, for which he received a term of 3 years imprisonment. A non-parole period was specified, and the offender’s release to parole was made subject to supervision directed to grief counselling and drug rehabilitation. Parole was later revoked, and the offender served 5 or so months of the balance of parole.

45. In June 2009 the offender received his first convictions for offences of violence, being sentenced in Wellington Local Court to concurrent terms of imprisonment for 6 months for offences of assault occasioning actual bodily harm and stalking.

46. The offender was again dealt with for a drugs offence, supplying a prohibited drug on an ongoing basis, in February 2009. A sentence of imprisonment for 3 years was imposed upon him, with a non-parole period of 2 years. There was an order for the offender to accept the supervision of the Probation and Parole Service when released to parole, particularly in relation to drug and alcohol counselling and rehabilitation. That parole, once entered, was later revoked, and the offender served just over 2 months of the balance of parole.

47. In May 2009 the offender received a further term of imprisonment, for 6 months, for offences of damaging property, and resisting a police officer. A month later he was sentenced to terms of imprisonment for offences of common assault and entering premises with intent to commit an indictable offence.

48. The offender was before the courts in 2013 for drug and minor property offences.

49. On 31 January 2014 the offender was sentenced to a term of 3 months imprisonment for a goods in custody offence, backdated to commence on 27 December 2013. The sentence expired on 26 March 2014 but, in the interim, the offender had been charged with further offences of goods in custody and take and drive conveyance, and refused bail.

50. He appeared before the Orange Local Court on 10 April 2014, the day before Mrs Townsend was murdered, and was sentenced, receiving a fine for the goods in custody and, for the s 154A Crimes Act offence, imprisonment for 12 months suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. The offender entered the s 12 bond and was released from custody at court on that day.

51. Needless to say, this crime is a breach of that bond. The fact that the offender was subject to conditional liberty is an aggravating feature.

The Offender’s Personal Circumstances

52. The offender was born on 30 November 1975 and was aged 38 at the time of the offence. He is now 40 years of age.

53. The offender tendered and relied upon a report from Ms Caroline Hare, forensic psychologist, dated 21 July 2016. Ms Hare met with the offender on 11 July 2016 for two hours and 15 minutes, for the purposes of preparing a report for use during sentence.

54. The offender gave Ms Hare an account of his background and life experience, and what follows is derived from Ms Hare’s report of that account. Although it is open to a sentencing judge to give little or no weight to a history of this nature, unsupported as here by evidence from the offender, there is no reason in the circumstances of this case not to accept what Mr May told Ms Hare. It is not inherently improbable or incredible; to the contrary, it is broadly consistent with what is known by the courts of the deprivation and disadvantage that many Aboriginal offenders have had to contend with.

55. The offender is the only child of his parents, although he has four paternal half-siblings. His mother is currently very ill. He is an Aboriginal man who was raised in Wellington and Dubbo in New South Wales, and in Queensland. At the age of 16 years he moved to Redfern.

56. Drug and alcohol abuse and violence were commonplace in the communities in which the offender grew up, and in his own family life. Both Mr May’s parents were drug users, and he reported instances of domestic violence from his father to his mother. The offender’s father both taught and expected his son to be able to fight, and to do so from time to time. Violence was regarded as an acceptable means of addressing disputes.

57. The offender’s parents were each incarcerated at times during his childhood and the offender was moved about frequently to be cared for by other family members at these times. The offender reported that members of his broader family consistently predicted that he would end up in prison.

58. The offender’s education was disrupted by the frequent moves between family members, and marked by physical fights at school and frequent suspensions. Despite this instability, he completed his Year 10 School Certificate and continued part way into Year 11.

59. He also participated in sports in his youth, showing promise as both a rugby league and basketball player, but gave up athletic pursuits after moving to Redfern.

60. In Redfern, he came under the influence of older cousins, who committed crime as a way of life and inculcated the offender into that lifestyle.

61. In 1999 the offender’s father died of an accidental drug overdose, to the offender’s great distress. He turned increasingly to drug use to help him to cope with his grief. That is supported by the outcome of the 2005 supply conviction.

62. The offender’s use of illicit drugs began at a very early age. The offender reported that he began using cannabis when he was 12 years old. By 15 the offender was using cocaine, a drug that he told Ms Hare was his favourite, frequently used by him prior to committing crime. After the death of his father, the offender turned to heroin. About 5 years ago the offender began to replace what seems to have been significant cocaine usage (of up to seven grams daily) with methylamphetamine, or “ice.” He said that he had a large ice habit and was aware that the use of ice heightened his aggression.

52. The offender also reported problematic use of alcohol, commencing at about 14 years of age with binge drinking.

53. The offender has undertaken some rehabilitative courses in custody over the years, but without achieving change, something he attributes to his past lack of motivation. Orders for supervised parole directed to drug rehabilitation have clearly not facilitated change.

54. The offender is abstinent of drugs in custody, but feels that he requires a heroin replacement such as Buprenorphine if he is to remain drug free.

55. The offender also has a problem with gambling, commencing at about the age of 8 or 9 years, although it is not an addiction that he feels he is unable to control.

56. The offender has had three major relationships, and has four children from those relationships. A son and a daughter were born to him and his first long-term partner; both those children are now in their late teens and the offender maintains a close relationship with them. Mr May has another son who is now in his early teens to his second significant partner, and he maintains contact with his son. He also has a young daughter of four years of age, to his last partner, but he has no contact with that child.

57. Each of his former partners were also drug users, and the relationships were volatile.

58. The offender has been involved for some nine months in his current relationship, with a young woman who does not use illicit drugs. He considers her a positive influence in his life, and hopes to eventually move away from Redfern to the country, and start a new life with her.

59. The offender has never held paid employment, telling Ms Hare that criminal endeavours and the Newstart allowance had provided his only income over the years. Whilst in the past the offender appears to have regarded supplying drugs as a preferred means of generating income, he told Ms Hare that he wishes to make positive change for the future, so as to be able to engage in legitimate employment.

60. As to the offence, the offender told Ms Hare that he had no recollection of it; amnesia he attributed to his intoxicated state. He described his aunt as a good person with whom he had shared a positive relationship, and expressed his remorse for what he had done, stating that when he awoke in hospital on the day after Mrs Townsend’s death he felt like killing himself. Ms Hare was doubtful as to the level of any remorse the offender feels, regarding his insight as superficial, and his principal concern as for himself (Report of Ms Hare, [26]).

61. Whilst the offender may see his crime principally through the prism of his own suffering, I accept that he does suffer, as demonstrated by his thoughts on the morning following the crime and subsequently, of suicide. In that way I accept that the offender does feel sorrow and remorse for what he did to his aunt.

62. The offender speculated to Ms Hare that, in his intoxicated state and after having been violently assaulted, he may have thought that his aunt was someone else.

63. Since the commission of the offence the offender said that his mental health had deteriorated. He sleeps badly and suffers from nightmares, thinks about suicide, experiences feelings of worthlessness and hopelessness, and takes no pleasure in things around him. Despite the impact of these feelings on him the offender has not sought assistance, as he believes that to do so would mark him out as weak and thus make him vulnerable in the prison environment. He believes that he needs to maintain standing as someone who will not back down to survive the custodial environment.

64. In addition to taking a history from the offender Ms Hare undertook a psychological assessment of him.

65. The offender described symptoms indicative of depression, and also described his increasing anxiety when in a confined space, resulting in feelings of panic, difficulty in breathing, chest pains and sweatiness. Ms Hare concluded that the offender presented with the combined features of a depressive episode, anxiety, and possibly a panic disorder.

66. Other features of the offender’s account of his history and beliefs were consistent with an individual who lacks insight into socially acceptable behaviours, and who sees physical aggression as an acceptable means of resolving disputes.

67. Psychometric tests administered to the offender by Ms Hare revealed responses that placed the offender at a high risk of re-offending, absent considerable intervention and support. Ms Hare concluded:

“Mr May presents before the Court as an Aboriginal man who experienced a chronically dysfunctional upbringing. He was consistently exposed to negative role modeling [sic] that served to normalise and reinforce aggressive, antisocial, and criminal behaviours. Disruptions in his attachments to his primary caregivers (his parents) through their reinforced absences (custodial sentences) and emotional unavailability (through substance dependence) meant that he was not provided a safe and secure base from which to explore the world and develop skills to manage his emotions and successfully learn to navigate the challenges of life. Instead, use of violence and aggression was championed for Mr May and he was raised to believe that backing down in confrontations indicates weakness. He was not modelled appropriate ways to manage his negative emotions, such as anger, and he consequently engaged in a pattern of acting-out that has persisted as he matured, including engaging in physical altercations and misusing drugs.” (Report of Ms Hare, [34])

79. As to the circumstances surrounding Mrs Townsend’s murder, Ms Hare speculated that:

“Given his core beliefs relating to violence and the importance of not being perceived as weak, it is possible that Mr May engaged in aggressive acting-out during the offence in response to the elevated emotions he was feeling, whilst under the influences of substances (particularly “ice”, which he acknowledged makes him more susceptible to aggression).” (Report of Ms Hare, [35])

80. Ms Hare concluded that the offender likely has “…entrenched anti-social attitudes and behaviours” (Report of Ms Hare, [24]) and is in need of intervention to address his lack of emotional control and ready resort to violence, together with assistance with his drug addiction including access to a Buprenorphine program in custody.

81. She believed that, with assistance, the offender’s risk of re-offending could be moderated.

Other Considerations Relevant to Sentence

82. It is relevant to consider the manner in which the offender conducted his trial. Although the matter proceeded as a trial, the offender has never denied his responsibility for the physical acts that led to Mrs Townsend’s death, and his trial proceeded in a way which took no issue with evidence that went to those acts. The only issue at trial was the narrow one of the offender’s intention at the time of the commission of the offence.

83. Comparatively few witnesses were required to give oral evidence and, for the most part, the statements of those who were required were admitted by consent as evidence in chief. The offender, through his Counsel, conducted his trial expeditiously.

84. The sentence imposed upon the offender should acknowledge and reflect the considerable value to the criminal justice system that such an approach constitutes. Without the extensive concessions made by the offender the trial would likely have occupied a month to six weeks of Court time, representing a significant impost on the justice system.

85. Pursuant to s 22A of the Crimes (Sentencing Procedure) Act, I propose to allow a discount on the sentence that would otherwise have been imposed to reflect the offender’s willingness to facilitate the course of justice. Whilst the reduction should not equal or exceed that which would have attached to a plea of guilty, and it cannot reduce the sentence to one disproportionate to the gravity of the crime, in the circumstances of this case, where there has always been acknowledgement of the commission of the fatal acts, a reduction of 10 per cent is appropriate.

86. I have referred already to the maximum sentence specified for an offence of murder, and to the standard non-parole period that attaches to that offence. Both operate as legislative guideposts to the Court: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, at [27].

87. Section 3A of the Crimes (Sentencing Procedure) Act sets out the purposes of sentence:

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

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

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

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

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

(f) to denounce the conduct of the offender,

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

88. Those various objectives were discussed in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, where Mason CJ, Brennan, Dawson and Toohey JJ said, at 476:

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

89. That is particularly apposite here.

Consideration

90. The Court’s task is to consider the facts and circumstances of the crime, together with the personal circumstances of the offender and, in conformity with relevant principles of sentencing law and with reference to the legislative guideposts, determine a sentence which achieves the statutory objectives of the imposition of criminal penalty upon the offender.

91. It is neither an easy nor a straightforward task, and difficulties frequently arise in endeavouring to give proper and proportionate weight to the competing and sometimes oppositional considerations.

92. The murder of Mrs Townsend was a crime of great violence. When her much larger and stronger nephew took hold of her throat and shoulders she must have been frightened; she would have known that she did not have the strength to oppose him. Mrs Townsend was thereafter subjected to the most horrendous attack, and left by the offender almost lifeless on a Redfern street.

93. As is the case with all crimes of murder, a human life has been violently taken, and others have been left with the loss and grief of the crime. The community more broadly has suffered from the wrongful death of one of its members. No sentence that can be imposed could ever make good the magnitude of that loss, or function as a reflection of the value of the life taken.

94. The Court acknowledges the enormity of the harm done.

95. Here, the crime was a savage one, committed by an individual who had been released from custody only the previous day, and who had on release signed a bond that required and commanded him to be of good behaviour.

96. The gravity of the crime is a significant consideration in assessing sentence.

97. So too are the offender’s background and personal circumstances. The offender was raised in Aboriginal communities in western New South Wales and in Redfern where drug and alcohol abuse, criminal conduct, and violence, were unremarkable features of day-to-day life. The normalisation of such a lifestyle for a child almost inevitably leads to pursuit of such a lifestyle as an adult. The frequent assurances of the adults in a child’s life that he or she will end up in gaol almost predestine that child to that outcome.

98. As the offender himself speculated to Ms Hare it seems very likely that the offender, acting in a drug-induced fog, formed some mistaken belief about his aunt, who she was or what she may have done, and, as a consequence, attacked her. His addiction and intoxication were therefore significant features of the facts of the crime, and of the offender’s personal circumstances.

99. Whilst his intoxication was the product of a conscious choice to obtain and use drugs, even knowing that the use of methylamphetamine (“ice”) in particular, heightened aggression, the offender’s choice more generally to use drugs has its origins in the deprived and desperate circumstances of his childhood and life to date.

100. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act took effect on 31 January 2014 and applies to this matter. That section provides:

“

[…]

(5AA) Special rule for self-induced intoxication: In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.”

101. The provision prohibits a court from taking into account an offender’s intoxication at the time of the offence to mitigate penalty, even where it is “a reflection of the environment in which he or she was raised”: see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [38].

102. Mr May’s drug addicted past, born of the despair and hopelessness of the communities in which he was raised, remains a feature of his overall subjective case. However, in conformity with s 21A(5AA) I have not had regard to the offender’s state of self-induced intoxication as a mitigating feature in assessing sentence.

103. An offender’s history of early exposure to violence and drug use, and consequent drug addiction, can be relevant to the question of an offender’s moral culpability and capacity to regulate his emotions and conduct: Bugmy v R, at [43] – [44]. I have had regard to the offender’s drug addiction in that way, and as relevant to his future prospects.

104. Whilst the offender’s background and history could suggest that he will present an ongoing danger to the community upon his release, thus elevating considerations of protection of the community, the offender’s criminal record contains very few offences of violence, and nothing on a scale even remotely approaching the present offence. His past offences are principally drug related. On that basis, I do not conclude that the inability to control his drug befogged impulses, manifested on the night of 11 April 2014, requires community protection to be given increased weight: Bugmy v R at [44].

105. I am also mindful of the words of the High Court in Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600, per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ, at [53]:

“Mitigating factors must be given appropriate weight, but they must not be allowed to “lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence” (90). It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour (91). Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.”

106. The offender’s long standing drug addiction is something which he will have to tackle if he is to break free of the cycle of crime that has been his life to date. What his prospects may be in that regard is difficult to predict. His addiction is deeply entrenched and much determination on the offender’s part will be needed if he is to end it. In the past, and even when given the assistance of the Parole Service, the offender has not been able to free himself from drugs. His history of breaching parole does not auger well in that regard. However, the offender’s involvement with a partner not involved with drugs and crime can only be positive. He has been encouraged to dream of a future away from drugs and crime, and he asserts that he is drug free in custody.

107. The fact that the offender’s last drug related institutional offence was in October 2015 is suggestive of the positive impact his partner of nine months has had upon him. The period of that relationship, and the absence of institutional breaches evidenced by Exhibit A, correspond.

108. There is room for hope, and some guarded optimism.

109. The panic and anxiety issues referred to by Ms Hare, and particularly relevant for an individual who will face confinement, frequently in relatively small spaces, will make the offender’s experience of custody harsher and more onerous than it would otherwise be. That is a feature that should ameliorate the penalty to be imposed.

110. I have given consideration to whether a finding of special circumstances, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, should be made, as Counsel for the offender urges upon the Court. The offender’s drug addiction and his need for considerable support to achieve rehabilitation, together with his psychological difficulties, are features that could justify such a finding, but they do not dictate it.

111. Upon release to parole the offender will have to make a substantial adjustment to life in the community, and supervision will be necessary to support his rehabilitative efforts and ensure that he does not lapse into drug use and crime. However, the sentence the Court must impose is such that the application of the ordinary statutory ratio will produce a period of parole which should be adequate for those purposes. I am not persuaded that I should make a finding of special circumstances.

112. The sentence to be imposed must reflect the need for specific and general deterrence.

113. The offender has been in custody in relation to this offence since 11 April 2014 and it is appropriate to commence his sentence from that date. The calculation of the non-parole period and the balance of term involves some slight rounding down.

orders

114. Jamie May, for the offence of the murder of Judith Townsend, you are sentenced to imprisonment for 19 years and 10 months to date from 11 April 2014. That sentence comprises a non-parole period of 14 years and 10 months commencing on 11 April 2014 and expiring on 10 February 2029, with a balance of term of 5 years expiring on 10 February 2034.

115. The earliest date upon which you will be eligible for release to parole is 10 February 2029.

116. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of the Act and its application to you for this offence.

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Decision last updated: 03 August 2016