R v Naden
[2013] NSWSC 759
•14 June 2013
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Naden [2013] NSWSC 759 Hearing dates: 22 April 2013, 2 May 2013, 9 May 2013 Decision date: 14 June 2013 Before: Price J Decision: See paragraph 155
Catchwords: CRIMINAL LAW - sentencing - two murders - shooting with intent to murder - whether worst category - aggravated indecent assault - break enter and commit serious indictable offences - utilitarian discount for guilty plea - whether mental disorder - no remorse - future dangerousness - whether life sentence should be imposed - totality Legislation Cited: Crimes Act 1900 s 19A, s 29, s 61M(1), s 112(1)(a)
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999 s 21(1), s 21A(2)(k), s 21A(2)(ea), s 21A(2)(eb), s 21A(2)(m), s 21A(3)(b), s 23(1), s 23(2)(e), s 23(3), s 21A(3)(i), s 61(1)Cases Cited: Aslett v R [2006] NSWCCA 360
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
DS v R [2012] NSWCCA 159
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126
Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Baker (NSWCCA, 20 Sep 1995, unreported)
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Engert (1995) 84 A Crim R 67
R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409
R v Harrison (1997) 93 A Crim R 314
R v King [2003] NSWCCA 352
R v Lewis [2001] NSWCCA 448
R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Penisini [2004] NSWCCA 339
R v Phuong Canh Ngo (No 3) [2001] NSWSC 1021; (2001) 125 A Crim R 495
R v Ponfield [1999] NSWCCA; (1999) 48 NSWLR 327
R v Previtera (1997) 94 A Crim R 76
R v Robinson [2002] NSWCCA 359
R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Yeo [2003] NSWSC 315
Suleman v R [2009] NSWCCA 70
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465Category: Sentence Parties: Crown
Malcolm John NadenRepresentation: Counsel:
Mr M Tedeschi QC (Crown)
Mr Ierace SC (Accused)
Mr R Wilson
Solicitors:
Office of Director of Public Prosecutions
File Number(s): 2012/91386 2012/91612 Publication restriction: This judgment has been amended in accordance with non-publication orders made on 22 April 2013.
remarks on sentence
HIS HONOUR: Malcolm John Naden (the offender) pleads guilty to 18 counts on the indictment upon which he was arraigned on 22 March 2013.
Counts 2 and 3 are offences of murder. The maximum penalty for the crime of murder is imprisonment for life. A standard non-parole period of 20 years imprisonment has been prescribed.
Count 12 is an offence of shooting with intent to murder contrary to s 29 Crimes Act 1900. The maximum penalty for this offence is 25 years imprisonment with a standard non-parole period of 10 years.
Count 1 is an offence of aggravated indecent assault contrary to s 61M(1) Crimes Act. The maximum penalty for this offence is 7 years imprisonment with a standard non-parole period of 5 years imprisonment.
Counts 4 to 11 and 13 to 18 are offences of break, enter and commit a serious indictable offence, namely larceny, contrary to s 112(1)(a) Crimes Act. The maximum penalty for this offence is 14 years. No standard non-parole period has been prescribed.
The maximum penalty and standard non-parole period for an offence are legislative guideposts that are to be born in mind when the court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the offender: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The standard non-parole period does not have determinative significance in sentencing the offender: Muldrock at [31], nor is it a "starting point" for the sentence, nor does it directly apply as the offender has pleaded guilty.
The findings of fact I make against the offender must be arrived at beyond reasonable doubt. Matters of mitigation may be proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.
During the proceedings on sentence, Mr M Tedeschi QC appeared for the Crown and Mr M Ierace SC with Mr R Wilson for the offender.
A statement of agreed facts has been tendered. As the agreed facts consist of 32 pages, I shall refer to them as succinctly as possible. Although I adopt this convenient approach, I have had regard to all of the agreed facts in sentencing the offender.
Agreed Facts
Count 2 - The murder of Lateesha Nolan
Lateesha Nolan, the deceased, is the grandchild of Florence and Jack Nolan and on occasions stayed at the Nolan house.
At about 9:30pm on 4 January 2005, the deceased drove her vehicle to the home of her grandparents. It was also the home of her cousin, the offender.
Her grandmother had been babysitting two of the deceased's children. The deceased asked her grandmother to babysit her other two children for a short time, while she went out. Her grandmother agreed. The deceased left the house and returned to her vehicle.
The deceased saw the offender sitting on the front steps of the Nolan house and asked the offender what he was doing. He told her he was going to go fishing at Sandy Beach. She offered to give him a lift. The offender accepted the offer and got in the backseat of her vehicle. They went to Sandy Beach. When they arrived at that location the deceased mentioned the allegation that the offender indecently assaulted XY. The offender became enraged, prompting him to manually strangle the deceased from his position in the back seat.
At about 9:20pm to 10pm, several young persons saw a vehicle fitting the general description of the deceased's vehicle parked at Sandy Beach. Elizabeth Doyle saw movement inside the car. She reported that the driver's side window was down and the remaining windows looked foggy.
The offender moved the deceased's body to the passenger seat of her vehicle and drove to Butlers Falls. The offender removed the deceased's body from the vehicle and moved it to an area near the Macquarie River. The offender dug a hole beside the river, and then dismembered the deceased's body.
The offender disposed of the surface covers in the car, such as the car seat covers, to minimise the chance that a forensic examination would identify him. He drove the car to the western end of Tamworth Street, alongside a footbridge spanning the Macquarie River and abandoned it. The car was discovered around 5:50am.
On 17 October 2011 several boys fishing along the Macquarie River located a pink wallet containing the Driver's Licence and Medicare card belonging to the deceased. This is approximately ten to twelve kilometres down stream from Butler's Falls.
Admissions made by the offender in relation to Ms Nolan's murder are detailed in par 52 of the agreed facts.
Findings
Mr Crown relies in each offence of murder upon the same aggravating features to place the murders in the worst category. Mr Crown identified the aggravating features as being:
(i) Multiple murders;
(ii) The offender's motives (or lack of a rational motive) for committing each murder;
(iii) Defiling of bodies after death;
(iv) Abuse of trust by the offender: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999; and
(v) Substantial suffering and harm.
Mr Crown submitted that it is permissible to take into account the fact that there are multiple murders in determining whether an offence falls into the worst category and cited R v Baker (NSWCCA, 20 Sep 95, unreported) and R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409. However, in Aslett v R [2006] NSWCCA 360, McClellan CJ at CL (with whom James and Hoeben JJ agreed) recognised that such an approach did not stand happily with R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 and Veen v The Queen(No 2) [1988] HCA 14; (1988) 164 CLR 465. McClellan CJ at CL said at [25]:
"To my mind there is some difficulty reconciling the result in Harris with the principle defined in Veen (No 2). If a prior offence, including a prior killing, is not capable of informing the objective criminality of the instant offence, even if it be another killing, the imposition of a life sentence for the latest killing, as was done on appeal in Harris requires that the latest offence qualifies as an offence of extreme culpability justifying a life sentence (s 61(1)). Be that as it may, as I have said, the approach to the issue of prior offending has been authoritatively determined in so far as this Court is concerned in McNaughton."
James J said at [50] that it is not permissible to use other offences as warranting the imposition of a life sentence for an offence which standing by itself would not warrant the imposition of a life sentence.
Accordingly, the murder of Ms Nolan cannot be used to increase the offender's sentence for Ms Scholes' murder to imprisonment for life and vice versa. Before a life sentence can be imposed, an offence standing by itself, must warrant the imposition of a life sentence.
The murder of Ms Nolan was not planned or premeditated which is a mitigating factor: s 21A(3)(b) Crimes (Sentencing Procedure) Act. The offender had met Ms Nolan by chance that night at the front of their grandparent's house. Ms Nolan had dropped off two of her children and generously offered to give the offender a lift to Sandy Beach, to enable him to go fishing. The offender sat in the back seat as there were items in the front passenger seat.
When they reached Sandy Beach the offender manually strangled Ms Nolan from his position in the back seat as he became enraged when she raised the subject of XY's complaint of indecent assault. In his handwritten statement (ex B T3d p4), the offender recounts that he was annoyed by "any mention of that family" and "the fact that people were talking about it." The offender discloses the violent and prolonged struggle that followed after he gripped Ms Nolan's neck. It is evident that Ms Nolan fought hard to remove the offender's hands to save her life. He acknowledges that he could have stopped and extended mercy to Ms Nolan, but he was determined to kill her.
The offender's chilling account in his handwritten statement reveals that Ms Nolan suffered a prolonged period of pain and terror before she died. The offender's actions were extraordinarily cruel and brutal. I am satisfied beyond reasonable doubt that the offender intended to kill Ms Nolan.
Ms Nolan was the mother of four children aged 5, 4, 3 and 1 at the time of the offence. The offender was aware that she had young children. Indeed, in his handwritten statement he ruminates about the child seats in Ms Nolan's vehicle. It is plainly the case that the offender knew that Ms Nolan's death would deprive these young children of their mother. This is a matter that increases the objective seriousness of the offence: R v Lewis [2001] NSWCCA 448 at [67].
Mr Ierace submitted that the dismemberment of Ms Nolan's body that followed the murder should not be taken into account as an aggravating factor as it was done to enable the body to be placed in the hole that the offender had dug and did not reveal a contempt for the deceased. I reject that submission. Although the offender may have dismembered the deceased's body so that he could hide it, what he did in severing the body and disposing of the body parts was appalling and showed no regard whatsoever for the deceased and her family, who have been denied the opportunity of laying their loved one to rest. The result of the offender's actions is that her remains have never been found. In my view, the dismemberment of Ms Nolan's body increases the objective seriousness of the murder: R v Yeo [2003] NSWSC 315; Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126.
Mr Crown invites me to find that the offender's familial relationship with Ms Nolan was a position of trust which the offender abused: s 21A(2)(k) Crimes (Sentencing Procedure) Act. In determining whether the offender stood in a position of trust, the relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to "a position of trust": Suleman v R [2009] NSWCCA 90 at [22]. The relationship between Ms Nolan and the offender was that they were cousins and it was because of that relationship, she could feel confident to drive the offender to Sandy Beach even though it was night-time. The offender abused his position of trust which is an aggravating factor.
Although the offender became a suspect in the disappearance of Lateesha Nolan when Ms Scholes' body was discovered, there was no forensic or eyewitness evidence to connect him with the murder. Indeed, police had been given an account by a witness of a person who had long blonde hair in the back seat of a vehicle at Sandy Beach that matched Ms Nolan's vehicle, which was far removed from the offender's description. The detailed admissions made by the offender in the records of interview and handwritten statements that are set out in the agreed facts were fundamental to solving the murder. Furthermore, the offender endeavoured to assist the police in locating the burial site, but it seems that the Macquarie River has flooded on two occasions and has risen about five metres since the murder.
The significance and usefulness of the assistance; its nature and extent and its reliability entitle the offender to a lesser sentence than would otherwise be imposed: s 23(1) Crimes (Sentencing Procedure) Act. One of the matters that the court is obliged to consider is "the timeliness" of the assistance: s 23(2)(e) Crimes (Sentencing Procedure) Act. Whilst the offender provided the assistance to police shortly after his capture, he had known for some 7 years how Ms Nolan died, but had made no disclosure of what he had done. The offender's lengthy delay in assisting police moderates the discount on sentence.
Any reduction in penalty must not be unreasonably disproportionate to the nature and circumstances of the offence: s 23(3) Crimes (Sentencing Procedure) Act. Although a separate quantified discount is not usually given on sentence for assistance: Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40, I propose to do so in this case for the sake of transparency. I assess the reduction in sentence for assistance to be 5 per cent.
The offender is an Aboriginal man who was born on 5 November 1973 and was 31 years old at the time of Ms Nolan's murder. His prior criminal history as an adult at that time, reveals two high range PCA offences and an offence of offensive language. However, he has pleaded guilty to the aggravated indecent assault on 12 May 2004. The offender's prior criminal history does not entitle him to leniency, but it is not a matter of aggravation.
As the offender did not give evidence during the proceedings on sentence, his subjective circumstances are mainly drawn from the psychiatrists' reports. The offender was raised in Dubbo by his father and mother. He is the second oldest of four siblings. He described his father as being mentally abusive towards him as a child and reported that there was domestic violence in the home by his father towards his mother. He attended Dubbo Primary School and Dubbo South High School. He stated that "he never got much out of it" (ex B T6 p5).
The offender reported that he initially worked as a rouseabout, shedhand and shearer after he left school. At the age of 18 years, he left the family home to live with his grandparents in Dubbo. Between the ages of 22 and 26 years old, he worked in the abattoirs. His last job was as a shearer when he was 28 years old. Save for some seasonal work, the offender was on the dole. He explained to Professor Greenberg that "he couldn't be bothered about getting up each day and didn't see the point of it"(ex B T6 p5).
Various witness statements (ex 1 TB 1-5) were tendered on behalf of the offender that provide insight into his background. It is evident that after the offender stopped shearing, he began to confine himself to his room. His social isolation worsened following the complaint of indecent assault.
An issue that emerged during the proceedings was whether the offender has a major depressive disorder and whether the offender's mental disorder played a role in the commission of the offences. An offender's mental condition can have the effect of reducing an offender's moral culpability and matters such as specific and general deterrence, retribution and denunciation may have less weight. It may also mean that a custodial sentence may weigh more heavily on an offender. On the other hand, the offender may present more of a danger to the community: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177].
There are four reports from Dr Bruce Westmore, a psychiatrist, who saw the offender at the request of the Legal Aid Commission (ex 1 TA). In a report dated 5 June 2012, Dr Westmore's diagnosis was that the offender was suffering from a "Major Depressive Disorder - Chronic course". Dr Westmore states at p 9:
"It is my view that [the offender] was suffering a Major Depressive Disorder, certainly a very severe and significant Depressive Disorder leading up to the matters now before the court. He said he was depressed prior to the alleged incident involving the under aged child but, following that, his depression worsened. There was then the incident with Latisha [sic] which further aggravated his depression and then the incident involving Kristy."
As to Axis II, Dr Westmore considered that the offender was likely to have some avoidant personality traits. He thought it was unlikely that the offender suffered an Antisocial Personality Disorder.
Dr Westmore was satisfied on the balance of probabilities that there was "a direct and positive relationship between his Depressive Disorder and the incidents involving Latisha [sic], Kristy and the shooting of the police officer." Dr Westmore considered that the sexual offence was "less attributable to [the offender's] depressed mood and the break and enter offences appear to have occurred as a matter of his own personal survival" (ex 1 TA 05/06/12 p9).
In his further reports, Dr Westmore adhered to his diagnosis of a Major Depressive Disorder. In a report dated 19 April 2013, Dr Westmore observed at p 5 that the offender's case "is extremely complex, not only in terms of the multiple, serious and diverse nature of his offending behaviour... but also in terms of his complex psychology and because of the nature and extent of his personality pathology" (ex 1 TA 05/06/12 p9).
During his evidence, Dr Westmore was asked to briefly explain the relationship between the depressive disorder, the two murders and the attempted murder. He said (TOS 02/05/13 T80 L49-50, T81 L1-16):
A. It is in my mind more clear and obvious with the first homicide in that I think Mr Naden was already depressed having allegations raised against him in relation to an alleged sexual assault at that time. I think his behaviour was becoming increasingly abnormal in that he was becoming isolated, withdrawn, staying in his room, food was being delivered to his door. So there were quite significant behavioural changes. I think what we saw leading up to the first homicide was these allegations against him being raised by the first woman and Mr Naden becoming angry in response to that.
There is, in my view, a close connection between anger and depression, particularly in men. In other words, men who are angry are often depressed. Not universally, but there is a connection in my mind. I think therefore that Mr Naden was on the edge of anger probably quite commonly after these allegations were raised, and that is likely to have arisen because of the depression arising from the allegations. And that there is therefore a connection between what was said by the deceased, Mr Naden's depression, his acute anger and his subsequent behaviour.
In cross-examination by Mr Crown, Dr Westmore agreed that the offender might have some psychopathic tendencies. Of particular concern was "his stated lack of empathy and lack of obvious remorse for what occurred" (TOS 02/05/13 T84 L5-6).
Professor David Greenberg, a psychiatrist, interviewed the offender at the request of the Crown. In a report dated 4 February 2013, Professor Greenberg's provisional diagnosis included "Axis I: 1. Depression: (query - Chronic Dysthymia Disorder)" and "Axis II: Personality Disorder with Cluster A and Cluster B features (Mixed features of Antisocial, Schizoid and Psychopathic traits)" (ex B T6 04/02/13 p2). He expressed the opinion that the offender had a long-standing history of a depressive disorder. Professor Greenberg noted that the "[p]ossibility of a Sexual Deviant Disorder" could not be excluded (ex B T6 04/02/13 p7). Although he did not assess the offender on the Psychopathy Checklist Scale, Professor Greenberg considered that the offender had many features of this syndrome.
In a report dated 20 April 2013, Professor Greenberg stated at p 2 that the offender "has no history of any major mental illness such as schizophrenia or mania." Professor Greenberg was of the opinion that the offender "likely has a chronic history of low grade depression (dysthymia)." In a report dated 29 April 2013, Professor Greenberg opined at p 7 that the offender's depression did not play a significant role in the commission of the offences. In his opinion, the offender's "depressive disorder is not the primary motivation for committing the murders."
Professor Greenberg writes at p7:
"He currently presents as a man with no evidence of meeting the DSM-IV-TR criteria for a Major Depressive Disorder. I am of the opinion that his current mood status presentation whilst attending court, is likely to have been very similar to his degree of depression whilst he had been living in the community at the time of the offences."
Professor Greenberg explained that the offender's depression does not arise because he has delved into what he had done, but mainly because of how it affected him. He said that the offender "sees the world as the problem, in other words society or people in society as the problem rather than himself" (TOS 02/05/13 T58 L21-23). Professor Greenberg expressed his concern that there may be an underlying sexual motivation to the murders of Ms Nolan and Ms Scholes. He remained of the view that the offender had many features of a psychopath and remarked that further psychiatric assessment over time will likely clarify this diagnosis.
Mr Ierace cross-examined Professor Greenberg on the opinions of Dr O'Dea and Dr Roberts who examined the offender in prison. Professor Greenberg pointed out that neither psychiatrist had made a definite diagnosis of a major depressive disorder.
I note that on 25 September 2012 Dr Roberts provided a differential diagnosis of a major depressive disorder with psychosis and bipolar disorder. However, in a report dated 23 October 2012, Dr Robert's opined (at p2) that the offender's mood state and associated symptoms were "reflective of the presence of a mood disorder probably on the bipolar spectrum" (ex B T5).
The principal difference between Dr Westmore and Professor Greenberg is that Professor Greenberg does not consider the offender's depression to be a major disorder, whereas Dr Westmore does. Dr Westmore found a causal connection between the offender's depression and the commission of the murders and the shooting with intent to murder whereas Professor Greenberg considered that the offender's depression did not play a significant role in the offending. When Professor Greenberg was cross-examined on the offender's reference in the handwritten statement of 12 April 2012 that all he could say [about killing Ms Nolan] was that he was "severely depressed" (ex B T3e p5), Professor Greenberg pointed out that the documents must be read in their entirety. Professor Greenberg said (TOS 02/05/13 T69 L47-50, T70 L1):
"You are talking about depression being a motivating factor for the offence and on the one hand he is saying depression was a motivating factor, on the other hand he is saying "I felt calm, I felt nothing, I had no feelings". I mean there's two reasons or two feelings at the same point in time."
Mr Ierace submitted that less weight should be given to the opinions of Professor Greenberg as he did not have the opportunity of examining the offender before his mental state deteriorated significantly around May 2012. I am not persuaded that Professor Greenberg's assessment of the offender's depression is undermined by the fact that he interviewed him in 2013. Professor Greenberg noted that the offender had no active symptoms of mental illness and that his depressive symptoms were considered to be mild. This assessment is supported by Dr Reznik's opinion which is referred to at [55] below.
Mr Ierace referred to the repeated assertions by the offender that something happened in his mind when he murdered Ms Nolan, that he went numb, that there was in effect a dissociation between his mind, his feelings and emotions and the offender's belief that it is unlikely that they will ever reconnect.
In his handwritten account of Ms Nolan's murder, the offender's statements include being "very robotic" in his actions (ex B T3d p10), feeling "nothing at all for this" (ex B T3d p19) and "I felt nothing about what had taken place" (ex B T3d p23). Any suggestion that the offender was not fully aware of what he had done is blown away by his graphic and olfactory description of the dismemberment of the deceased's body. In my view, the offender's reports of lack of feeling supports Professor Greenberg's opinion that he has psychopathic tendencies and a severe personality disorder.
Dr Westmore referred to the offender's description of the shooting of the police officer being "in a similar way" to how he described Ms Nolan's death (report dated 5 June 2012 p9). It seems that Dr Westmore was referring to the offender's ability "to disassociate himself emotionally from his actions." I do not accept that the offender was dissociated in any way when he shot at Senior Constable MacFayden. He shot to kill the police officer so as to avoid being captured.
The offender's social isolation before the murder reflects, in my opinion, his personality disorder. Professor Greenberg opined (ex B T6 29/04/13 p7):
"His isolation and schizoid lifestyle where he spent long periods in his bedroom are in keeping with his personality dysfunction."
Dr Reznik and Dr Farrar saw the offender a number of times in December 2012 and January 2013. The clinical notes dated 11 December 2012 disclose their assessment of the offender as being a "highly psychopathic individual" but there was "[n]o evidence of psychotic illness or affective illness" (ex B T5). They concluded the offender had an "[a]ntisocial personality disorder with narcisstic traits." On 18 December 2013, Dr Reznik noted that there is "no evidence currently [of] depression or psychosis although [the offender] remains hypervigilant" (ex B T5).
I am not satisfied on the balance of probabilities that the offender suffers from a Major Depressive Disorder. I prefer and accept Professor Greenberg's opinion that he has a long standing low-grade depression and a severe personality disorder. His low-grade depression played an insignificant part in Ms Nolan's murder. He was not overwhelmed by a Major Depressive Disorder. In these circumstances, I do not think that the offender's moral culpability is moderated nor should less weight be given to specific and general deterrence. His psychopathic tendencies and severe personality disorder increase the danger that the offender presents to the community. These characteristics do not make him "an unpersuasive vehicle for the deterrence of others": R v Engert (1995) 84 A Crim R 67 at 72.
Mr Ierace did not submit that a custodial sentence may way more heavily on the offender because of a mental disorder. There is no evidence as to how the offender is to serve his sentence, but it is likely to be served in isolation. I take this into account, but note Dr Westmore's opinion that the prison environment with its security, isolation and predictability suits the offender's personality.
Remorse as a mitigating factor is qualified by s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury loss or damage caused by them. By his plea of guilty and the admissions that he has made, the offender has accepted responsibility for the murder of Ms Nolan. However, the material on sentence taken as a whole does not establish that the offender is remorseful for taking Ms Nolan's life. There are times in the offender's answers to questions by Detective Hennessy and in his handwritten statements, that the offender appears to express some regret for the murder, but any such indication is overwhelmed by many other statements that demonstrate a lack of remorse for the killing. For the sake of brevity, I do not propose to detail them here, but mention that some of the statements are canvassed in Professor Greenberg's report dated 29 April 2013, at pages 4 to 6.
In his report dated 19 April 2013, Dr Westmore agreed at p3 "that there has been a clear lack of remorse and a lack of empathy expressed by and demonstrated by [the offender]." During his oral testimony, Dr Westmore described the offender's lack of remorse and lack of a sense of guilt for his offending behaviour as being the major concern that he had in his last interview with the offender.
During his assessment on 11 December 2012, Dr Reznik noted that the offender had no empathy or remorse.
Professor Greenberg in his report dated 29 April 2013 writes at p6:
"...[the offender] expressed contempt for the victims and their families, and showed a lack of empathy and a lack of remorse for his actions. He also attributed (projected) blame onto the victims..."
In his oral evidence, Professor Greenberg said that he did not think that the offender had accepted moral responsibility for his actions. He noted a lack of depth of remorse and empathy.
None of the psychiatrists expressed an opinion that the offender's stated desire to get a life sentence was an expression of remorse or contrition. Dr Westmore referred to the offender's "rational" decision to plead guilty to all the charges as he does not wish to be released from prison. Dr Westmore observed that "[l]ife outside of prison is not an option for him. As noted, he wants to be in custody. He is more comfortable in prison with its security, isolation and predictability" (report 25 February 2013 p6). Professor Greenberg pointed to the inconsistencies in the offender's statements which the offender could not explain. Professor Greenberg expressed the opinion that "[the offender] presents with a feature of individuals with psychopathy where the lying seems to have no motivation other than what is termed by some experts as "duping delight" in causing confusion to the listener or writer of this report" (report 29 April 2013 p3).
One of the submissions made by Mr Ierace was that having regard to the offender's post-arrest behaviour, it would be unjust for him to miss out on the mitigatory effect of remorse. Mr Ierace asked what more could he have done to make amends? The short answer is the offender could have recognised the huge loss that he has caused, but he has not. His assistance to police has been acknowledged by a reduction in sentence: see [31] above.
I am not satisfied on the balance of probabilities that the offender is remorseful. His sentence is not to be increased for that, but no allowance in mitigation can be made for remorse.
Mr Crown invited me to find that the offender's prospects of rehabilitation are minimal and there is a very high risk of future dangerousness by his committing serious offences including murder. Mr Ierace accepted that the offender asserted that he will kill again, but submitted that would, if Dr Westmore's diagnosis was accepted, have to be taken into account with his untreated mental illness.
The offender has made extraordinary threats against certain persons and made it clear that his killing days are not over and he will kill again. I do not think that these threats have been made by him predominantly or wholly for the purpose of securing a life sentence. Dr Westmore expressed the opinion that the offender must be considered to be a high risk, both to himself and to others. Professor Greenberg regarded the offender as falling in the highest risk category for future violence. He noted the offender's lack of insight, empathy and remorse and his unresponsiveness to treatment.
I consider that the offender's prospects of rehabilitation are very poor.
A finding of future dangerousness does not need to be established beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. It is sufficient if the Crown establishes that there is a risk of re-offending: R v Harrison (1997) 93 A Crim R 314. The evidence in this case compels a conclusion that there is a real risk that the offender will re-offend by killing others, particular those who are the subjects of his threats. I find that there is a high risk of future violent offending.
I accept Mr Ierace's submission that the offender's pleas of guilty would have been entered at an earlier stage than upon arraignment before me. He had indicated to police shortly after his capture that he intended pleading guilty to all the charges. The question of his fitness to be tried delayed the entry of the plea. A discount for the utilitarian value of a plea is determined largely by the timing of the plea: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. But for his being on the run for almost seven years, I would have found that the utilitarian value of the plea entitled the offender to a sentencing discount of 20 per cent. I am unable to find that the plea was entered at the first available opportunity as he did his best to elude police and thereby avoid admitting his guilt for the murder. In my view, the offender's flight erodes the utilitarian value of the plea. I assess the utilitarian value of the plea in all the circumstances to be 15 per cent.
The spontaneity of the accused's attack on Ms Nolan brings the offence slightly below the worst category of murder. Furthermore, a factor militating against a life sentence is that without the detailed admissions that he made, the offender could not have been convicted of Ms Nolan's murder. A determinant sentence will be imposed for this offence.
Count 3 - The murder of Kristy Scholes
Agreed Facts
Kristy Scholes, resided next door to the residence of the grandparents of Lateesha Nolan and the offender. At this time the offender was still living with his grandparents.
In early June 2005, Ms Scholes told Alissa See that she was getting sexually explicit notes. Ms Scholes said that one of the notes asked her to guess who it was and she had done so. Ms Scholes received a reply that it was none of them. Ms Scholes then told Ms See that she suspected the offender was sending the notes. The offender had sent the notes.
On 10 June 2005 Ms Scholes told her half sister, Samantha Toomey that she was getting letters that were sexual in nature from the offender. She also told Ms Toomey that she had written back asking him to stop writing to her but he continued to write the notes.
Ms Scholes also told Roslyn Toomey, Lisa Ann Asper and Kelly Griffin about the notes she had received from the offender.
The residents of the Nolan house, except for the offender, were absent from the house from about 15 June 2005. They were in Sydney as Jack Nolan was having surgery.
Since the Nolan house was available and Ms Scholes' residence was being painted it was decided that Ms Scholes and her two children would stay at the Nolan house to avoid the paint fumes.
On 20 June 2005, Ms Scholes and her children spent some time with Ms See. Ms See states that Ms Scholes asked her to stay with her at the Nolan house. When Ms See asked why, Ms Scholes replied that the offender was there and she was afraid of him.
At about 9pm on 21 June 2005, Ian Walker saw Ms Scholes and her children at the Nolan house. This was the last sighting of Ms Scholes alive, apart from by her children.
On 21 June 2005 the offender confronted Ms Scholes in the bathroom of the Nolan house. The offender strangled her to death and then took her body into his bedroom. The offender then had sexual intercourse with Ms Scholes body. The offender dressed the body, covered it and fled from the house. Ms Scholes' two children were in another bedroom of the house.
At about 10am on 22 June 2005, Ian Walker went to open Ms Scholes' house. While he was doing this he heard a tapping on the front window and saw Libby Scholes, the deceased's daughter. He told her to go back next door. The child left but returned a short time later. Ian Walker went to the Nolan house. He saw Libby Scholes climbing in the bedroom window. He also found Johnny Scholes, the deceased's son in the house. Ian Walker couldn't locate the deceased.
Ian Walker, Larissa Rutley and Christopher Nolan looked after the children throughout the day. Numerous attempts were made to locate the deceased.
Leanne Nolan, the deceased's sister in law, reported the deceased missing at 8.30pm on 22 June 2005.
At about 1.30am on 23 June 2005, the deceased's body was located by police inside the bedroom occupied by the offender at the Nolan house. The deceased was lying on the floor on top of a couple of blankets, and was covered by a sleeping bag and a pillow. There were two pillows under her back. The deceased was dressed, wearing cream pants, a sleeveless turtleneck top and a black bra. A pair of tracksuit pants had been rolled and placed at the base of the door to the offender's bedroom.
Crime scene officers attended and examined the house. They located a number of holes in some of the ceilings which allowed a person in the ceiling space to observe two of the bedrooms, the bathroom and the toilet. The crime scene officer noted there was no dust in the vicinity of these holes.
An autopsy was performed on Ms Scholes' body. Dr Duflou, the forensic pathologist, identified the cause of death as manual strangulation. The following results were obtained from swabs taken during the autopsy:
a. The offender cannot be excluded as a contributor to the sample obtained from under Kristy Scholes' fingernail.
b. DNA from the vaginal swab taken from Ms Scholes' body has been identified as being consistent with the offender's DNA.
c. The offender cannot be excluded as a contributor to the sample obtained from the right side of Ms Scholes' neck.
d. The minor component of a swab taken from the right side of Ms Scholes' neck has been identified as the offender's DNA.
e. The offender's semen was located on Ms Scholes' underpants.
Admissions made by the offender in relation to Ms Schole's murder are detailed in paragraphs 53 and 54 of the agreed facts. During the conversation with police on 27 April 2012, Detective Hennessy expressed disbelief that the offender had sexual intercourse with Ms Scholes' body based on his understanding at that time of the results of the forensic examination, but the offender remained adamant that he had done so. However, Detective Hennessy informed the offender during the interview of 8 May 2012 that forensic tests established the presence of DNA on vaginal swabs from Ms Scholes' body that "matched" his.
Findings
The offender heard Ms Scholes using the bathroom and could hear that her children were awake in the house. He waited for her to finish washing her hands, then walked up behind Ms Scholes. The offender intended to kill her. The offender by placing both hands around her throat strangled Kristy Scholes to death. The facts do not reveal how long it took the offender to bring her life to an end or if she struggled, but the offender in the ERISP of 26 July 2012, told Detective Senior Constable Hennessy that "[i]t wasn't much of a struggle" (ex B T3g Q & A 436). The offender had taken Ms Scholes completely by surprise and overpowered her.
Mr Ierace submitted that the murder of Ms Scholes appears to be a crime committed without any motive or catalytic event. Mr Ierace drew my attention to the offender's explanation to Dr Westmore that "[a]fter Latisha [sic] [he] was on auto pilot... very numb, just very robotic... just going through the motions" (report of Dr Westmore 05/06/12 p3). The offender told Dr Westmore that Ms Scholes "was a neighbour and he had not had problems with her before either" (report of Dr Westmore 05/06/12 p3). Mr Ierace referred to the offender's statement that his sexual involvement with the body of the deceased was an afterthought.
I do not accept the offender's attribution of his motivation for the murder to his robotic-like existence at that time. The offender was not being honest when he told the psychiatrist that he had not had problems with Ms Scholes before. He had been sending sexually explicit notes to Ms Scholes who had written back to him asking him to stop.
I am satisfied beyond reasonable doubt that the murder was motivated by his sexual desire for the deceased, who had not displayed any interest in him. There was a degree of premeditation in the murder. When he had sexual intercourse with the deceased's body, he was so aroused that he ejaculated inside her. The immediacy of the sexual intercourse and the offender's arousal do not speak of an afterthought. The offender gave various explanations to Professor Greenberg for the act of necrophilia. I reject the offender's account that he thought he'd have "one (sexual coitus) for the road" or that it was an afterthought (ex B T6 29/04/13 p5).
Whilst the offender waited for Ms Scholes to finish in the bathroom, he had the opportunity to consider the enormity of his actions before he killed her. He took advantage of there being no other adults in the house.
The necrophilic violation of Ms Scholes body immediately after her death enhances the objective seriousness of the offence.
Ms Scholes was the mother of two children aged 4 and 2 at the time of offence. The offender well knew that by killing Ms Scholes, these young children would be deprived of their mother. This is a matter that increases the objective seriousness of the offence: R v Lewis.
Mr Crown submitted that other factors that aggravated the offence were that the offence was committed in the presence of a child under 18 years of age and the offence was committed in the house of the victim: s 21A(2)(ea), s 21A(2)(eb) Crimes (Sentencing Procedure) Act. These aggravating factors commenced on 1 January 2008 and do not apply to a crime committed before that time. In any event, as the offender was lawfully in the home, s 21(2)(eb) does not apply: DS v R [2012] NSWCCA 159 at [145].
Ms Scholes and her children had been residing in the house for some nights before she was killed. The offender was the only adult in the home. In these circumstances, I am satisfied that the relationship between the offender and Ms Scholes amounted to a position of trust which the offender abused. This is another factor which aggravates the offence: s 21A(2)(k) Crimes (Sentencing Procedure) Act.
For the reasons expressed at [36] - [56] above I am not satisfied on the balance of probabilities that the offender suffered from a Major Depressive Disorder at the time Ms Scholes was murdered. His low-grade depression played an insignificant part in her murder.
The second murder plainly demonstrates the danger that the offender's psychopathic tendencies and severe personality disorder present to the community.
I have referred at [32] above to the offender's prior criminal history. However, he has not only pleaded guilty to the aggravated indecent assault but to the murder of Ms Nolan some 6 months before Ms Scholes' murder. The offender's criminal history does not increase the objective seriousness of the murder of Ms Scholes, nor is it an objective circumstance for the purpose of the application of the proportionality principle and it does not determine the upper boundary of a proportionate sentence: R v McNaughton. In view of the fact that this is a second murder, the weight I give to personal deterrence and protection of society is substantially increased: Veen v The Queen (No 2).
The offender has accepted responsibility for the murder of Ms Scholes by his plea of guilty and his admissions. The indication of regret in the four page document dated 17 April 2012 is subordinated by many other statements that demonstrate a lack of remorse for Ms Scholes murder. Once again for brevity's sake, I do not propose to detail these statements, but mention that I found the offender's attempt to blame Ms Scholes for her own murder to be particularly insensitive. I am not satisfied on the balance of probabilities that the offender is remorseful.
The offender's disclosure of his necrophilic conduct to Detective Hennessy did not provide significant assistance to the police as the results of the autopsy indicated that the offender had sexually interfered with Ms Scholes.
The commission of the second murder reinforces the assessment that the offender's prospects of rehabilitation are very poor and that there is a high risk of future violent offending.
I am conscious that a sentence otherwise appropriate to the seriousness of an offence cannot be extended merely to protect society. On the other hand, the court must have regard to the protection of society as a factor in determining a proportionate sentence. In Veen v The Queen (No 2), the majority (Mason CJ, Brennan, Dawson and Toohey JJ) said at 474:
"...It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment."
The Court of Criminal Appeal in R v Robinson [2002] NSWCCA 359 observed at [41]:
"...That judgment is necessarily founded on a finding as to the offender's future conduct".
The offender's plea of guilty would have entitled him in the normal course of events to a utilitarian discount. However, in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, Spigelman CJ observed at [157] that:
"There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate..."
In my opinion, the grave circumstances of Ms Scholes' murder and the high danger that the offender represents to society do not justify any utilitarian discount being applied to the sentence.
The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) Crimes Act. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (Sentencing Procedure) Act (which authorises the passing of a lesser sentence than imprisonment for life).
Section 61(1) of the Crimes (Sentencing Procedure) Act is as follows:
"A court is to impose a sentence of imprisonment for life on a person who is convicted of 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".
The maximum penalty of life imprisonment is intended for cases falling within the worst category of murder: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-452. The level of culpability of the offender in the commission of the offence and whether the case is one calling for a life sentence in the terms of s 61(1), is first to be considered, and if so, whether in the exercise of the discretion conferred by s 21(1), the subjective features relating to the offender justify a lesser sentence of imprisonment for a specified term: R v Harris, R v Phuong Canh Ngo (No 3) [2001] NSWSC 1021; (2001) 125 A Crim R 495. The primary focus of s 61(1) is an assessment of how extreme the offender's culpability is: R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 at [52]. The combined effect of the community interest in retribution, punishment, community protection, and deterrence is critical to a conclusion that a life sentence is required. The absence of any one or more of the four indicia may make it more difficult for the conclusion that a life sentence is required, but will not be determinative: Knight v R at [23].
All four of the indicia in s 61(1) are present. There is nothing in the subjective circumstances of the offender that justifies a sentence less than life imprisonment. This was a cold-blooded merciless killing that was sexually motivated. I am satisfied that the level of the offender's culpability in murdering Ms Scholes is so extreme that the community interest in retribution, punishment, community protection and deterrence can be only met by a sentence of life imprisonment.
Count 12 - The shooting with intent to murder
Agreed Facts
On 18 November 2011, police left a sleeping bag containing a tracking device at "Alkira", a property situated at Nowendoc. When the offender broke into that property on 24 November 2011, he stole the sleeping bag (see count 11). The police used this device to track the offender.
At 6:45am on 7 December 2011 police approached a campsite in Nowendoc. Senior Constable MacFadyen saw the sleeping bag and told Senior Constable Mahoney to take cover. They did not identify themselves as police at the time.
As Senior Constable MacFadyen moved to cover Sergeant McDowell, the offender discharged one round from a .22 calibre rifle at Senior Constable MacFadyen with the intention of killing him. The round struck the police officer and travelled through his right shoulder. Senior Constable Mahoney and Sergeant McDowell then both called "police, don't shoot."
The tactical police took evasive action and remained alert until further police arrived. In that time the offender fled the area.
The admissions made by the offender in relation to this offence are detailed at par 109 of the agreed facts. These admissions include that he was aware that a reward had been offered for his re-capture and he was concerned about "cowboys" trying to track him down (Agreed Facts, par 109b). They were dressed in camouflage and he was unaware that police did sometimes dress in camouflage. He thought "it would just be army blokes or something" (Agreed Facts, par 109d). He didn't recall whether they had identified themselves as police before he fired and in firing at Senior Constable MacFayden, he thought they could have been civilians after the reward. During the interview on 3 April 2012, the offender admitted that he intended to kill the police officer when he shot him. He explained he went for a body shot aiming for the "chest and heart" (Agreed Facts, par 109f).
Findings
Although the offender did not specifically know that he was shooting at a police officer, he assumed correctly that the people who were approaching him intended to apprehend him. He shot to kill in order to avoid capture. I do not think it matters that the offender did not know that the person he shot was a police officer. As members of the police force are required to put themselves in danger for the benefit of the community, "the courts have always accepted that the fact that the victim was a police officer is a substantially aggravating factor": R v Penisini [2004] NSWCCA 339 at [20].
Although the offender said in the 26 July 2012 interview that he aimed for the chest and heart of Senior Constable MacFadyen, the agreed facts reveal that the police officers were close to one another when the offender discharged his rifle. The offender recounted that "[he] moved [the rifle] from the first, the bloke that [he] did shoot to the one behind him, that was kneeling behind him, so you know, I was debating which one to shoot, you know, I didn't know how many there were" (ex B T3g Q & A 693). By shooting at Senior Constable MacFayden, the offender put the other police officers at a grave risk of death. This is a factor that enhances the objective seriousness of the offence.
Another matter advanced by Mr Crown was that the offence was one offence in a series of criminal acts which was an aggravating factor under s 21A(2)(m) Crimes (Sentencing Procedure) Act. However, this aggravating factor does not apply. In R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740, Howie J explained at [29]:
"...the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct."
In my opinion, this is objectively a very serious offence of shooting with intent to murder.
By the time this offence was committed, the offender had murdered two people and indecently assaulted a 12 year-old child. I give weight to personal deterrence and protection of society. I also give weight to general deterrence as shooting to avoid lawful capture must be firmly discouraged.
It is an agreed fact that when arrested, the offender accepted responsibility for having shot Senior Constable MacFayden, enquired after his welfare and expressed regret for the shooting. However, Professor Greenberg found that, as in the offences of murder, the offender admitted to the offence of shooting a police officer "in a matter of fact manner and without any empathy, guilt or remorse towards his victims or their loved ones and a sense of indifference to the gravity of his admissions." Professor Greenberg opined that "there is callousness in his self report of his alleged offences" (report 4 February 2013 p11). Notwithstanding Professor Greenberg's opinion, I accept in this case that the offender has expressed some remorse for shooting Senior Constable MacFayden.
The offender's plea of guilty was entered at an early opportunity and the utilitarian value of the plea is not eroded by flight to the extent that the utilitarian value of the plea to the murder of Ms Nolan has been. In all the circumstances, his plea of guilty entitles him to a utilitarian discount of 20 per cent.
Count 1 - Aggravated indecent assault
Agreed Facts
XY, the victim, has known the offender for about 6 years.
On Wednesday 12 May 2004, the mother of the victim called her grandmother and asked if the offender could come over as she was frightened of some local boys.
The offender arrived at the house at about 10:10pm. The adults watched a movie and then the mother prepared the offender a bed in the lounge room. The mother then went to her bedroom to sleep.
In the night the victim woke to find that the offender had his hand down her pyjamas pants, inside her underpants and was touching her vagina with his hand. The offender then touched the victim on both breasts on the outside of her clothing. The victim moved away from the offender. The offender told the victim he would put her younger sister in the bed with her. The offender then left the room. The victim was 12 years of age.
The next morning the victim waited until the offender left and went into her Aunt's room. She climbed into bed with her Aunt. Her Aunt noticed the victim was shivering and asked her what was wrong. The victim told her that that the offender had touched her vagina on the outside of her clothes. Her Aunt then asked if he touched her anywhere else and the victim said that the offender tried to touch her on the back but she jumped up.
The Aunt told the victim's mother who reported the incident to the Department of Community Services. The victim was interviewed by police on 14 May 2004.
Findings
The offender had stayed the night in the victim's home at the request of her mother because she was afraid of some local youths. In these circumstances, the relationship between the offender and the victim, amounted to a position of trust which the offender abused by indecently assaulting her. This is an aggravating factor: s 21A(2)(k) Crimes (Sentencing Procedure) Act. I take into account as a mitigating factor that the offence was opportunistic, rather than pre-planned: s 21A(3)(b) Crimes (Sentencing Procedure) Act.
At the time of the commission of this offence, the offender's record as an adult was confined to the convictions that have been identified at [32] above. Although high range PCA offences cannot be described as minor, there were no matters of violence or of a sexual nature on his record. The offender's prior criminal history does not disentitle him to considerations of leniency.
But for the fact that the offender absconded after a warrant was issued for his arrest, his plea of guilty would have attracted a utilitarian discount of 20 per cent. In all the circumstances, I assess the utilitarian value of the plea to be 15 per cent.
The offender has neither expressed nor demonstrated remorse for having indecently assaulted XY who was 12 years old at the time. This is a serious offence.
The offences of break enter and commit serious indictable offences contrary to s 112(1)(a) Crimes Act
Agreed Facts
Count 4: In November/December 2005, the offender resided in the roof cavity of the guesthouse inside the grounds of the Western Plains Zoo. He stole food from the guesthouse to sustain himself.
Count 5: On 7 February 2007, the offender broke into and stole food and other items including a solar powered radio, two cushions, a plastic water jug, various cooking utensils, various towels, table cloths and cans of food from the property "Old Castle" in Stewarts Brook.
Count 6: On 14 October 2008, the offender broke into and stole food supplies from the Misty Mountain Health retreat in Bellbrook.
Count 7: Between 10 and 20 June 2011, the offender broke into and stole food, a pair of grey track pants, a pair of binoculars, a rope and garden brush hook from a Birdwood property.
Counts 8 and 11: Between 18 and 23 September 2011, the offender broke into and stole food and butane gas cartridges from "Alkira" situated at Nowendoc. He broke into "Alkira" for a second time between 18 November 2011 and 24 November 2011 stealing food stuffs, a raincoat, a rifle scope and a sleeping bag. Police had left the sleeping bag containing a tracking device at "Alkira".
Counts 9 and 10: Between 22 September and 27 September 2011, the offender broke into and stole clothing, an oven dish, food items, two pairs of binoculars, and a suitcase from the property "Boraning" near Nowendoc. He broke into "Boraning" a second time between 11 and 16 November 2011, stealing food, socks, and a DVD player.
Count 13: Between 7 December 2011 and 15 December 2011 the offender broke into Bloxoms Hut and stole food and clothing items, a poncho, a pair of binoculars and beer.
Count 14: Between 24 November 2011 and 22 December 2011 the offender broke into the homestead on "Part Myra" and stole food items, beer, soft drink, milk, a gas lighter and metal cup.
Count 15: On 20 December 2011, the offender broke into "the Willows" and took from inside the house a large quantity of goods placing them on the verandah. During the course of the evening the offender consumed a large quantity of beer and used the laptop computer in the living room to browse the internet. When police arrived, the offender fled the home and escaped into surrounding bushland.
Count 16: Between 3 and 29 December 2011, the offender broke into "Snow's Hut" and stole many items that included a hammock, camp stretcher, gumboots, knife scissors and fire starters. Ms Snow located a number of items (tent, swag, raincoat and pants) that appeared to have been slashed and damaged. Furthermore, there were remnants of clothing that appeared to have been burned.
Counts 17 and 18: Between 10 and 24 February 2012, the offender broke into "The Kerripit" and stole a .22 calibre self loading Browning brand rifle and a quantity of ammunition from the firearms safe, two knives, food, a fishing rod and binoculars. The offender broke into the homestead again on 22 March 2012, collecting a loaded .22 calibre rifle and other items including a pair of binoculars, a knife, tools and food items.
Police had observed the offender entering the homestead and after he attempted to flee, he was captured a short distance from the homestead.
Findings
The offender broke into and stole from these premises so that he could avoid capture by police. He was on the run for almost seven years and the stolen food items, clothing and firearms allowed him to survive in wilderness areas. As to property that he damaged in "Snow's Hut", he made a "slight parallel" to depriving his "enemy" of things he couldn't have, but explained that he wasn't sure why he damaged the property (Agreed Facts, par 144).
I do not agree with Mr Ierace's submission that this is another aspect of the offender's mental condition. Dr Westmore was of the opinion that the offender's break and entering offences had little to do with the offender's depressed mood. I am satisfied that he damaged the property in "Snow's Hut" to deprive others of items that he could not take with him. This is a factor that increases the objective seriousness of count 16: R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327.
A factor that increases the objective seriousness of counts 10, 11 and 18 is that these offences were the second time that the offender had entered into "Boraning", "Alkira" and "The Kerripit" and stole from those premises: R v Ponfield.
The offender's stealing to avoid capture does not mitigate the seriousness of the offences, but enhances their seriousness: R v King [2003] NSWCCA 352. I take into account the items that were stolen when each offence was committed.
I assess the utilitarian value of the pleas of guilty to be 20 per cent. I am not satisfied on the balance of probabilities that the offender is remorseful for any of these offences.
Victim impact statements of Joan Nolan and Michael Peet, the parents of Lateesha Nolan and of the deceased's children have been read to the court. Victim impact statements of David Scholes, the father of Kristy Scholes, Alison Morris, Kristy Scholes' aunt and of the deceased's children have been read to the court. The court also heard the victim impact statement of the grandmother of XY and received into evidence, the victim impact statement of Pamela Morris, the aunt of Kristy Scholes. I acknowledge the grief and distress of the families of Lateesha Nolan and Kristy Scholes and express on the community's behalf its sympathy and compassion for them.
As a matter of the law, the contents of the statements cannot be used by me to increase the offender's sentences for murder: R v Previtera (1997) 94 A Crim R 76.
In structuring the sentences to be imposed, I have fixed an appropriate sentence for each offence and then have considered questions of cumulation or concurrence as well as totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. The imposition of a life sentence for count 3 does not make these considerations irrelevant for the remaining counts.
The undiscounted starting point of the sentence for the murder of Ms Nolan is 35 years and 20 years for the offence of shooting with intent to murder. Special circumstances have been found in some of the individual sentences in order to apply the totality principle.
The agreed date for the commencement of the sentences is 22 March 2012.
Malcolm John Naden I sentence you as follows:
Count 1: The offence of aggravated indecent assault. I convict you. I sentence you to a term of 4 years imprisonment consisting of a non-parole period of 2 years which is to commence on 22 March 2012 and is to expire on 21 March 2014 with a balance of term of 2 years which is to commence on 22 March 2014 and will expire on 21 March 2016.
Count 16: An offence of break, enter and steal. I convict you. I sentence you to a term of 3 years 6 months imprisonment consisting of a non-parole period of 1 year which is to commence on 21 March 2014 and is to expire on 20 March 2015 with a balance of term of 2 years 6 months which is to commence on 21 March 2015 and will expire on 20 September 2017.
Count 2: The murder of Lateesha Nolan. I convict you. I sentence you to a term of 28 years imprisonment with a non-parole period of 21 years which is to commence on 20 March 2015 and is to expire on 19 March 2036 with a balance of term of 7 years which is to commence on 20 March 2036 and is to expire on 19 March 2043.
Count 3: The murder of Kristy Scholes. I convict you. I sentence you to mprisonment for life. The sentence is to commence on 22 March 2012.
Count 12: The shooting with intent to murder. I convict you. I sentence you to a term of 16 years imprisonment consisting of a non-parole period of 6 years commencing on 19 March 2036 and is to expire on 18 March 2042 with a balance of term of 10 years commencing on 19 March 2042 and expiring on 18 March 2052.
Count 4: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years which is to commence on 22 March 2012 and is to expire on 21 March 2014.
Count 5: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years 6 months which is to commence on 22 March 2012 and is to expire on 21 September 2014.
Count 6: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years which is to commence on 22 March 2012 and is to expire on 21 March 2014.
Count 7: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years which is to commence on 22 March 2012 and is to expire on 21 March 2014.
Count 8: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years 6 months which is to commence on 22 March 2012 and is to expire on 21 September 2014.
Count 9: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years 6 months which is to commence on 22 March 2012 and is to expire on 21 September 2014.
Count 10: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 3 years 6 months which is to commence on 22 March 2012 and is to expire on 21 September 2015.
Count 11: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 3 years which is to commence on 22 March 2012 and is to expire on 21 March 2015.
Count 13: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years 6 months which is to commence on 22 March 2012 and is to expire on 21 September 2014.
Count 14: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 2 years 6 months which is to commence on 22 March 2012 and is to expire on 21 September 2014.
Count 15: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 3 years which is to commence on 22 March 2012 and is to expire on 21 March 2015.
Count 17: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 3 years which is to commence on 22 March 2012 and is to expire on 21 March 2015.
Count 18: An offence of break, enter, and steal. I convict you. I sentence you to a fixed term of imprisonment of 3 years 6 months which is to commence on 22 March 2012 and is to expire on 21 September 2015.
Mr Naden you have been sentenced to life imprisonment. You will not be released on parole at any time during your life sentence.
I ask Mr Ierace to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offences for which he has been sentenced.
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Amendments
17 June 2013 - added representation and publication restriction details
Amended paragraphs: coversheet
Decision last updated: 17 June 2013
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