R v Reay (No 2)

Case •

[2021] NSWSC 901

•

28 July 2021

Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v Reay (No 2) [2021] NSWSC 901
Hearing dates: 20 July 2021
Decision date: 28 July 2021
Jurisdiction:Common Law - Criminal
Before: R A Hulme J
Decision:

Imprisonment for 30 years with a non-parole period of 22 years 6 months

Catchwords:

SENTENCING – murder – in gaol – strangulation of cell mate – intent to kill – objective seriousness very grave – severe antisocial personality disorder – extensive and violent criminal history – tendency for unprovoked violence – long term of imprisonment – principle of totality – Crimes (Sentencing Procedure) Act 1999 (NSW), s 56(3) discretion to backdate sentence exercised

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 56

Cases Cited:

R v Dong [2021] NSWCCA 82

R v Lawrence [2005] NSWCCA 91

R v Reay [2021] NSWSC 311

State of New South Wales v Reay [2014] NSWSC 1813

Veen v The Queen (No 2) (1988) 164 CLR 465

Category:Sentence
Parties: Regina
Richard Jason Reay
Representation:

Counsel:
Mr J Stanhope (Crown)
Mr A Webb (Offender)

Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW
File Number(s): 2019/197995

Judgment

  1. HIS HONOUR: Richard Jason Reay is to be sentenced for the murder of Geoffrey John Fardell at the Mid North Coast Correctional Centre (MNCCC) on the night of 10 June 2019.

  2. Mr Reay was found guilty of this murder at the conclusion of a judge-alone trial before me at Port Macquarie in March this year. His case had been that he should be found guilty of manslaughter, either on the basis that there was a reasonable doubt he intended to cause grievous bodily harm or death, or that he acted in self-defence, albeit excessively.

Victim impact statements

  1. Impact statements were provided by Mr Fardell’s mother, father and sister. I am grateful to them for having done so. They each provided a poignant account of the terrible loss and grief they have suffered as a result of this terrible crime. I acknowledge their loss and reiterate the condolences I extended at the hearing last week.

The offence

  1. The circumstances of the murder may be stated quite succinctly but doing so is not to understate its seriousness.

  2. Mr Reay and Mr Fardell were inmates who coincidentally had both been transferred to the MNCCC on 31 May 2019. They both came to be assigned to Cell 234 in F Pod at the gaol, Mr Reay on 2 June and Mr Fardell the following day. F Pod was divided into an A side and a B side, the latter being for inmates who were engaged in employment. As both Mr Reay and Mr Fardell were engaged in employment, they were assigned to the B side of F Pod. How they came to be put in the same cell is not otherwise explained. (In the written submissions by Mr Webb, counsel for Mr Reay, there was an implied suggestion of blameworthiness in the correctional authorities for this placement. It is not a matter that was developed and there is scant evidence to enable me to resolve it. In any event, it does not bear upon Mr Reay’s blameworthiness.)

  3. Mr Fardell was described by a Justice Health nurse who saw him as recently as 8 June 2019 for his fortnightly mental health depot injection, and by a correctional officer who supervised him in his work in the gaol “buy-up” section, as behaving in a completely unremarkable way. Indeed, when RN Sarah George was asked whether there was any concern about his behaviour on 8 June she said, “no, he was lovely”.

  4. Mr Reay and Mr Fardell were secured in Cell 234 at 3.19pm on 10 June during the mid-afternoon lock-in of inmates in F Pod. They were to remain locked in the cell until the following morning. At some stage, for a reason that is unknown, Mr Reay placed something around Mr Fardell’s neck and strangled him.

  5. When the sweeper, Daniel Vincent, came around with the morning milk just after 6.00am, Mr Reay told him, “my celly is dead”. Mr Vincent could see the shape of a body on the cell floor. He alerted officers and they, together with RN George, attended the cell. It was immediately apparent that Mr Fardell was deceased. This was confirmed by ambulance officers who attended soon after.

  6. Police were summoned and commenced what was thought to be a routine investigation, it being a requirement that all deaths in custody be reported to the Coroner. It became a criminal investigation later in the morning, when a crime scene examiner moved the body and found a ligature mark around Mr Fardell’s neck.

  7. Mr Reay indicated to Daniel Vincent, to correctional officers who first attended the cell, and to Detective Senior Constable Rutledge who took charge of the investigation, that he had discovered Mr Fardell’s body on the floor of the cell and that he had nothing to do with how that came about. However, in his evidence at the trial, Mr Reay gave a version of Mr Fardell having attacked him during the night after becoming annoyed at the volume of the television. He claimed that Mr Fardell had delivered multiple punches to his face; he said there were “a fair few” and they were delivered with force he described as “medium” and “enough to rattle you”. I indicated in my judgment that Mr Reay’s account was completely implausible, and I rejected that he had acted in self-defence: R v Reay [2021] NSWSC 311.

  8. The forensic pathologist found the cause of death was “neck compression”. In addition to the ligature mark around the neck, she noted a number of other injuries. They included multiple abrasions, bruises and split lacerations to areas of the face and abrasions or scrape marks to the upper limbs. In contrast to Mr Fardell’s injuries, Det Rutledge gave evidence of seeing no apparently fresh injury to Mr Reay. Mr Reay repeatedly denied to Det Rutledge that he had any injuries, and none are discernible in photographs taken in the evening of 11 June 2019. However, Mr Reay gave evidence in the trial that he had sustained injuries to his upper and lower lips, and he gave an implausible explanation for why he had not told Det Rutledge about them.

  9. The absence of a credible account from Mr Reay leaves the offence as involving an unexplained but extreme act of the most brutal violence directed to ending a man’s life. In finding the elements of murder proved I said in my judgment at the trial that I was satisfied Mr Reay acted with an intent to kill or at least cause grievous bodily harm. That was sufficient for the purpose at trial as to whether the Crown had proved guilt beyond reasonable doubt. In the sentencing context in which more precision may be important, I can say I am satisfied beyond reasonable doubt that Mr Reay acted with an intent to kill. I cannot conceive of it being possible he could have strangled Mr Fardell to the point of causing death without having intended that result.

  10. To kill a person by manual ligature strangulation involves an effort that is at least as deliberate but is more sustained than most other forms of killing a living being. The perpetrator has the choice of desisting at any point but must choose to continue until the victim is lifeless. That is what I am satisfied Mr Reay chose to do. One can only think he must have had absolutely no respect for the sanctity of human life to kill a person in such a callous and sadistic way.

The offender’s background and personal circumstances

  1. The following information about Mr Reay has largely been drawn from reports by Dr Andrew Ellis, forensic psychiatrist, dated 29 October 2014 and 18 July 2021. Mr Reay did not give evidence at the sentence hearing.

  2. Mr Reay was born in Newcastle in 1974 and is now aged 47. His parents were both alcoholic and were physically violent to each other. Mr Reay said his father used to cane him for bad behaviour. His parents separated when he was a teenager. I accept this was not a background that moulded Mr Reay for a peaceful and law-abiding life. It may explain, at least in part, his subsequent adult life of substance abuse, conflict and disrespect for people and property.

  3. He attended school until the beginning of Year 8. He engaged in truancy, stealing, fights with weapons, setting fires in bins and bushland, and killing animals with slingshots, watching them die slowly.

  4. His employment has been confined to a variety of unskilled jobs; the longest period of employment lasted for only a few months. He reported that he left jobs because he preferred taking drugs. He began smoking cannabis and drinking alcohol at age 9 and ceased both in his mid-late 20s. At various periods in his life he has used heroin, amphetamine, LSD, benzodiazepines and sedative antidepressants. He has had one outpatient experience of counselling for drugs as a juvenile. He also had a referral for drug treatment as an adult but did not attend. He was prescribed buprenorphine and methadone for about five years but stopped some years ago. He told Dr Ellis he was diverting and selling his medication. He denied drug use whilst in custody and reported having cravings and withdrawal symptoms.

  5. Mr Reay has had one significant relationship, although he described it in 2014 as having been “on and off”. He has four sons from that relationship now aged in their late teens to twenties. He corresponds with a new female partner who he met when out of custody between 2015 and 2018 but is unsure if that relationship will continue.

  6. Mr Reay is a violent man with an entrenched attitude of disobedience of the law. [1] I was aware of this from having to consider some aspects of his prior criminal and custodial history that was relied upon by the Crown in the trial to establish that Mr Reay had a tendency to carry out acts of unprovoked violence. I am satisfied beyond reasonable doubt such a tendency had been proved.

    1. Veen v The Queen (No 2) (1988) 164 CLR 465 at 477

  7. In general, Mr Reay has an extensive history of offending in New South Wales and Queensland. His first contact with the criminal justice system was with the Children’s Court in New South Wales. He was dealt with in that court at the ages of 16 and 17 for multiple offences of stealing and break, enter and steal, as well as for drug use. His first custodial experience came with a three-month control order imposed in mid-1992. Violent offending began in 1997 when Mr Reay was aged 23 and soon became a regular occurrence.

  8. The following table provides details of Mr Reay’s personal violence or similar offences. There are a multitude of other offences, many involving the damage or destruction of property.

Date

Offence

Imprisonment (or other)

29.08.97

Assault/obstruct police officer in performance of duty (x 2)

Fine

13.11.98

Assault occasioning actual bodily harm

3 months, suspended

13.11.98

Assault police officer

Fine

17.09.00

Assault

3 months

22.12.00

Assault occasioning actual bodily harm (AOABH)

4 months

10.01.01

Assault (x 3)

3 months

22.01.01

Assault

4 months

28.11.01

Assault

6 months

26.03.02

Assault officer in execution of duty (x 5);

Assault person w/i to resist/prevent apprehension; AOABH

12 months

13.04.03

Malicious inflict grievous bodily harm with intent to do so

4 years 2 months

27.04.03

Enter/in dwelling with intent to commit indictable offence while armed

5 years 6 months

27.04.03

Deprivation of liberty – unlawfully detain/confine (x 2)

12 months

29.04.03

AOABH while armed

5 years 6 months

28 - 29.04.03

AOABH (x 2)

4 years

30.04.03

Serious assault

12 months

30.04.03

Assault and obstruct police officer

Convicted, no punishment

07.05.03; 10.06.03; 10.10.03

AOABH (x 4)

2 years

10.10.03

Obstruct corrective services officer

Convicted, no punishment

22.01.04

AOABH

6 months

29 & 31.03.04

AOABH;

Assault

Fine

22.02.07

Serious assault of corrective services officer (x 2)

3 months cumulative

20.06.09

AOABH

4 months

26.03.16

AOABH

12 months

31.03.16

AOABH

18 months

11.07.16

Assault

12 months

11.07.16

Affray

18 months

18.04.18

Affray

18 months

31.03.19

Assault law officer (not police officer)

12 months

14.07.20

AOABH

12 months

  1. There are few offences in the period from when Mr Reay went into custody in Queensland in 2003 until 2016. That would appear to be explicable because he was in custody in Queensland serving various sentences and then, almost seamlessly went into custody in New South Wales in 2010 for the offence of maliciously inflicting grievous bodily harm with intent that he committed just prior to going to Queensland.

  2. The facts in relation to some of these past offences were referred to in my judgment on verdict: R v Reay [2021] NSWSC 311 at [36]-[42]. I also briefly summarised (at [43]) Mr Reay’s substantial history of acts of violence in gaol for which he has received various disciplinary sanctions. For convenience I extract those passages below:

“The criminal charges span a period of 2003 to 2019. The first episode was in April 2003 when the accused struck a man in the head with a baseball bat without warning. The judge’s sentencing remarks include that the incident occurred while the accused was affected by alcohol and possibly by drugs. The sentence imposed was 4 years, 2 months.

Shortly after the above incident the accused travelled to Toowoomba where he went to the home of his former partner. He committed a number of offences from 27 to 30 April 2003. There were acts of intimidation, including with a baseball bat, towards his former partner and the deprivation of liberty of two of their children. On three separate occasions he punched men in the street for no apparent reason. The series of offences culminated with him punching a police officer in the face.

The accused was thereafter in custody and on 7 May, 10 June and 10 October 2003 and 22 January 2004 he assaulted correctional officers causing each of them actual bodily harm. He was dealt with for all of those matters together and received an overall term of 5 years, 6 months’ imprisonment.

On 22 February 2007 he was provided with hot water at breakfast time upon his request. He threw the hot water at two correctional officers hitting one in the face and the other in the arm. For these assault offences he received concurrent terms of 3 months’ imprisonment.

On 20 June 2009 the accused punched a correctional officer in the face causing a hairline fracture to the cheek as well as swelling and bruising. He was dealt with for an offence of assault occasioning actual bodily harm and received a sentence of 4 months’ imprisonment. The matter is notable for the explanation the accused gave when giving evidence in the present trial. He said that correctional officers came to search his cell one morning and he asked them to come back at a reasonable time because he had just woken up. They insisted upon entering his cell and he warned them, ‘if you enter this cell, force will be used upon you’. He said that they still opened the door and came into his cell uninvited, ‘so force was used upon them’.

On 18 April 2018 there was an offence of affray which involved the accused assaulting another inmate causing a bleeding lip and dental injuries. He received a 12-month term of imprisonment for affray.

On 31 March 2019 he hit the arms and chest of a correctional officer causing injury. He received a sentence of 12 months’ imprisonment for this offence. The accused said in his evidence this matter involved retaliation out of frustration because of tardiness in having his phone privileges restored to him.

The accused’s history of infractions in custody further supports the Crown’s assertion as to his tendency to violence. From 22 April 2018 to 27 May 2019 there were seven instances of him assaulting other inmates. He had a fight with a cellmate who he said ‘had religious views which I didn’t agree with’. He assaulted a man who had refused to turn down the volume of a television the night before. He ‘squared up’ with an inmate who had been involved in a joint assault upon him the week before. When an inmate offered to shake hands, he punched the inmate in the face as retribution for an incident that occurred in another gaol about 4 or 5 years earlier. He punched an inmate for being one of a number who were telling tales about him. He put up with an inmate behaving annoyingly in a holding cell for 10 or 15 minutes before punching him in the jaw. The seventh incident involved retribution for something another inmate had done to him in another gaol 5 or 6 years earlier.”

  1. Mr Reay’s violent propensity was further recognised when Button J found in 2014 that he was a “high-risk violent offender”: State of New South Wales v Reay [2014] NSWSC 1813. His Honour made a one-year continuing detention order from 19 December 2014 to be followed by a two-year extended supervision order (ESO) expiring on 17 December 2017.

  2. Button J usefully summarised Mr Reay’s violent offending history as follows:

“The defendant has committed many acts of violence over many years. They have involved attacks upon people to whom he is close, and people with whom he has no connection whatsoever. They have involved attacks upon people in authority (such as police officers and prison officers), and upon civilians. They have featured the use of weapons to the head. They have occurred whilst the defendant has been at liberty, and whilst he has been incarcerated. Some of the attacks have been random, in the sense of seeming to be motiveless, unprovoked attacks upon strangers. Although it is true that some of them are towards the less serious end of the spectrum in terms of consequences, in more than one case that has been the result of good fortune rather than any restraint on the part of the defendant. The "index offence" of inflicting grievous bodily harm with intent, and which was constituted by a motiveless attack with a baseball bat to the head of another man, could easily have been fatal. Indeed, on that occasion, there is evidence that the defendant himself said to a witness that, if she had not intervened, that could very well have been the result.”

  1. His Honour found there to be scope for optimism in that in the weeks preceding his determination of the high-risk offender application by the State, Mr Reay had enrolled in a 12-month rehabilitation program called the Violent Offenders’ Therapeutic Program (VOTP).

  2. The legislation governing such orders provides that an ESO is automatically suspended when an offender is in lawful custody for some reason. Mr Reay’s 2-year order commencing in December 2015 still has about 17 months left to run. He has been in custody for substantial periods for further offending which has involved more instances of violence as well as breaches of the conditions of the ESO. A report of Ms Fiona Mason, Senior Psychologist, Violent Offender Therapeutic Program – Maintenance and Outreach, dated 3 June 2021 includes that the breaches were constituted by such things as substance use, affray, assault, and deviation and tampering with the electronic monitoring tag. He removed the tag on 17 April 2018 and attempted to travel to Newcastle. However, he was arrested at Wyong and returned to custody where he has remained since.

  3. In his 2021 report, Dr Ellis wrote that the VOTP had shown reductions in general offending but not violent offending. Dr Ellis added, “Mr Reay is an example of completion of the program not leading to reducing violence” (emphasis added).

  4. In addition to the 2014 and 2021 reports by Dr Ellis, there are also reports by Dr Richard Furst, another eminent forensic psychiatrist. Both agreed Mr Reay has a severe antisocial personality disorder and substance use disorder. Dr Ellis thought there were also indications of attention-deficit hyperactivity disorder. Dr Furst also diagnosed a borderline intellectual function, falling short of a diagnosis of an intellectual disability or other childhood developmental disability.

  1. The diagnosis by Drs Ellis and Furst of antisocial personality disorder is amply supported by consistent diagnoses having been made in the past, including by a Professor Sachdev in 2001 and assessments made in Queensland prisons to which Dr Ellis referred.

  2. Dr Ellis’ recent report was informed in part by a clinical interview with Mr Reay on 16 July 2021. Mr Reay provided Dr Ellis with an account of his offending that was similar to that which he gave in evidence at his trial. It is an account which I rejected in the verdict judgment as completely lacking in credibility. Specifically, I rejected his claim that he was attacked by Mr Fardell. It was in the light of that history, and the diagnosis of antisocial personality disorder, that Dr Ellis opined that if Mr Reay were attacked by another person, he was more likely to return violence, and if he was emotionally unstable then persist with violence. Dr Ellis also considered Mr Reay appreciated the gravity and consequences of his conduct.

  3. Mr Reay was kept at the MNCCC after the murder of Mr Fardell until he was transferred to Shortland (Cessnock) Correctional Centre on 12 July 2019. He was transferred to the Segregated Housing Unit (SHU) at Malabar on 3 August 2020 and last month he was transferred to the High Risk Management Correctional Centre (HRMCC) at Goulburn.

  4. The SHU is a high security unit where offenders are housed in individual cells. They do not mix with other offenders and are strictly supervised. Ms Mason explained that he was transferred to the SHU “due to the recent death of his cellmate and ongoing threats and violence towards staff and other inmates. Mr Reay also has a history of sexually inappropriate behaviour, exposing himself and masturbating in front of female officers and Justice Health staff”. There is no direct explanation for the recent transfer to the centre colloquially known as “Supermax”, but it may be assumed it was thought necessary for there to be even greater security in relation to Mr Reay’s confinement.

  5. Mr Reay was receiving fortnightly or monthly risk management sessions with a psychologist with the Personality and Behavioural Disorders Service. An Interim Management Plan was developed by custodial staff in the SHU on 1 March 2021. Some of its specific conditions are listed in Ms Mason’s report. They are directed towards minimising the risk of violent or sexualised conduct by Mr Reay (e.g. “inmate is not to be left alone with female staff”; “inmate to be handcuffed as per … procedures”; and “inmate to be escorted by three officers”). This was described as an opportunity for Mr Reay to have time out of the segregation unit and to access exercise equipment in another area. However, on 14 May 2021 this plan was abandoned after he attempted to swing his arms at an officer during a movement between cells. It may be no coincidence that Mr Reay was transferred to the HRMCC soon after.

  6. As for the future, Dr Ellis suggested psychotherapy targeting personality disorder specifically, in an individual rather than a group setting, might be a more promising approach than something like the VOTP program which Mr Reay had completed in the past. He recommended general education and vocational training. He suggested there was modest evidence for the use of psychotropic medication in the reduction of violence and in Mr Reay’s case a supervised trial was warranted as it “may improve inattentive and impulsive symptoms generally and could have an effect on violence”. (The words I have emphasised indicate there is nothing certain about this proposal.) It was also recommended that there be psychosocial substance use treatment and monitoring.

  7. Finally, Dr Ellis cautioned:

“Careful consideration of cell placement and movements will be required, as his violence is typically in response to interpersonal conflict.”

  1. Ms Mason concluded her report by advising that eligibility for programs, education and work for Mr Reay is dependent on him demonstrating changes in his behaviour in order for him to be moved to a less restrictive environment. It is difficult to foresee when that might be possible.

Objective seriousness of the offence

  1. I have earlier referred to some aspects pertinent to the objective gravity of the offence. I have referred to the brutality and callousness of his act. Mr Reay acted with an intention to kill, not just an intention to inflict really serious harm. I note Mr Webb’s submission that this may be a case in which whether it was one intention or the other does not really have any bearing upon the objective seriousness of the offence. That may be right, although as I have said, it is difficult to conceive how Mr Reay’s intention may have been other than to kill.

  2. There is nothing to suggest the murder was premeditated, let alone planned. Mr Reay’s violence is usually spontaneous and impulsive and that is likely what it was on this occasion.

  3. In written submissions, Mr Webb contended that Mr Reay’s antisocial personality disorder, his previous extended incarceration including isolation, and his deprived background were causative of what took place on 10 June 2019. I accept that they might reduce to some extent his moral culpability, but I do not accept that they materially contributed to the commission of the offence. That is particularly so given Dr Ellis’ opinion that:

“None of his mental disorders at the time would have impaired his ability to appreciate the seriousness or consequences of his actions. They are likely to have impacted his decision-making in terms of impulsive opportunity.”

  1. The Crown submitted Mr Fardell was “vulnerable” within the meaning of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [2] Mr Webb described Mr Fardell as “mentally ill, older, frailer, and vulnerable”. [3] I accept these submissions. The statutory provision provides an example of victim vulnerability as “because of the geographical isolation of the victim”. Isolated is what an inmate is when they are locked in a cell for 15 hours a day with another inmate, not necessarily of their choosing and with a prospect of that inmate having a violent disposition. There is little an inmate can do to fend off let alone escape from an attack.  It is the criminal law that is responsible for inmates being held in correctional facilities and it is the criminal law that should serve to protect them as far as it can. To this end, the fact that the victim of an act of violence is an inmate confined in a cell with no practical means of escape should be regarded as a seriously aggravating factor.

    2. Crown written submissions at p3.5 (‘CWS’)

    3. Defence written submissions at [15] (‘DWS’)

  2. It is difficult to identify precisely the level of objective seriousness of the offence relative to the broad range of circumstances that can attend the crime of murder. The difficulty arises largely because of the paucity of reliable information about why Mr Reay did what he did. I am certainly not satisfied he was provoked and have rejected that he was defending himself.

  3. Both parties contended that the offence is slightly above the mid-range of objective seriousness. I am hesitant about accepting the adverb. I am satisfied this is a very grave instance of the crime of murder.

Extent of backdating the sentence

  1. The question of when the sentence I impose should be specified to have commenced is a little complicated.

  2. At the time of the murder on 11 June 2019 and when he was charged on 26 June 2019, Mr Reay was subject to sentences for two matters and he was later sentenced for another. The details, including the non-parole periods (NPPs) of the sentences are as follows:

Wyong Local Court

30 July 2018

2 years with NPP of 15 months (17.4.18 – 16.7.19)

Lithgow Local Court

23 May 2019

12 months with NPP of 9 months (16.7.19 – 15.4.20)

Cessnock Local Court

24 February 2021

12 months with NPP of 6 months (24.2.21 – 23.8.21)

  1. Section 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) applies, but only in respect of the last of the three sentences just mentioned. It is concerned with sentencing “an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre”. If the offender is currently serving the non-parole period of another sentence (as Mr Reay is), the new sentence must be ordered to be served consecutively upon the existing non-parole period unless the court exercises a discretion to allow it to be served wholly or partly concurrently.

  2. In addition to this, since being charged with the murder, Mr Reay has served the non-parole period of other sentences from 26 June 2019 until 15 April 2020 and then from 24 February 2021 until now. Putting it another way, only the period of about 10 months from April 2020 to February 2021 has been solely referable to being on remand for the murder. It is necessary to have regard to that pre-sentence custody but also to the sentencing principle referred to as “totality”.

  3. The policy reflected in s 56 is a sound one. It reflects the common law that there is a need to deter prisoners committing offences while in gaol; they should have no expectation of immunity from further punishment as a result. Mr Webb cited cases that confirm this approach. However, there is a need to allow credit for the 10 month or so period of exclusive pre-sentence custody and the principle of totality also applies. I propose to strike a balance by ordering that the sentence to be imposed today be backdated to 1 June 2020.

Sentencing guideposts and purposes of sentencing

  1. The maximum penalty for murder is imprisonment for life and there is a standard non-parole period of 20 years.

  2. The Crown does not submit that a life sentence should be imposed. In accordance with well-known authority it otherwise does not submit what the sentence should be. Mr Webb, on behalf of the offender, has submitted that there should be a sentence that has “a non-parole period somewhere in the range of the standard non-parole period”. That would mean that if there was a sentence in the usual statutory proportions the total term would be around 26-27 years.

  3. The purposes of sentencing in s 3A of the Act are in some respects competing. They include the need to denounce the offender’s conduct, to make him accountable for what he has done and to recognise the harm he has caused.

  4. There is a need for significant emphasis to be given to general deterrence. However, the extent by which the sentence gives effect to that will be attenuated somewhat because of the conditions of Mr Reay’s upbringing and his antisocial personality disorder. The presence of that disorder does not necessarily mean that the sentencing principle of giving less weight to general deterrence is invoked. It has been doubted (at least) that assigning a label to a mental condition is enough to attract the sentencing principle. [4] In this case, I am prepared to make a modest allowance for the combined effect of Mr Reay’s upbringing and his disorder.

    4. R v Lawrence [2005] NSWCCA 91 at [23] (Spigelman CJ)

  5. Mr Reay has long demonstrated a propensity for unprovoked and on occasion indiscriminate violence, both in custody and in the community. I consider he understands the connection between offending and punishment, and so personal deterrence can have worthwhile effect

  6. There is a countervailing aspect to the antisocial personality disorder. It creates a significant need for protection of the community to be factored into the assessment of sentence. Mr Webb accepted that this “looms very strongly”. [5] This goes beyond the emphasis given to personal deterrence. [6] All of this, of course, is within the context of imposing a sentence that remains proportionate to the objective gravity of the offence.

    5. T14.32

    6. R v Dong [2021] NSWCCA 82 at [48] (Beech-Jones J)

Statutory mitigating features

  1. None of the mitigating factors listed in s 21A(3) of the Act are present. In particular, Mr Reay is not genuinely remorseful, he does not have good prospects of rehabilitation, and he does not have an unlikelihood of reoffending. This does not mean he is to be punished more harshly. It means he has no legitimate claim to leniency for those considerations. Additionally, he cannot lay claim to any discount for pleading guilty or assisting authorities.

  2. It was submitted (in effect) that he facilitated the administration of justice by accepting at trial his responsibility for having killed the deceased. This was in contrast to his previous, incredulous, denials. That is something that is favourable to him, even though it is difficult to see what alternative was available when nobody else could have killed Mr Fardell. There was a modest saving of time required for the Crown to prove all of the essential matters. I should make clear that Mr Reay is not getting any credit for advancing an incredible claim of excessive self-defence. And the weight I am giving to his acceptance of responsibility is minimal given it is accompanied by his refusal to give an honest account of what actually happened, and why.

Special circumstances

  1. The Crown submitted and Mr Webb accepted that there was no justification for reducing the non-parole component of the sentence by way of finding special circumstances. [7] The length of the sentence will accommodate a sufficient period of potential parole to provide Mr Reay with the assistance he will need if he is to be released into the community after such a long period of incarceration.

    7. T13.1

  2. I am conscious that the sentence is being accumulated upon the approximately two years that Mr Reay had been in custody from April 2018. I am aware that when combining that with the sentence, the minimum custodial component is slightly greater than the usual proportions of a sentence. I was not asked to consider making any adjustment because of this. I have considered it nonetheless but have concluded that none should be made.

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

  1. The Crimes (High Risk Offenders) Act 2006 (NSW) applies to Mr Reay. He has past experience with it so I am sure it needs no further explanation. However, to fulfil the statutory requirement in s 25C I have asked that his solicitor ensures that Mr Reay is advised of the existence of the Act and of its application to his crime. [8]

    8. T15.33

Sentence

  1. Convicted.

  2. Sentenced to imprisonment comprising a non-parole period of 22 years and 6 months with a balance of term of the sentence of 7 years and 6 months. That is a total sentence of 30 years.

  3. The sentence is to date from 1 June 2020. The offender will become eligible for release on parole after the non-parole period expires on 30 November 2042.

**********

Endnotes

Decision last updated: 28 July 2021

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

2

R v Dong [2021] NSWCCA 82
R v Lawrence [2005] NSWCCA 91
R v Reay [2021] NSWSC 311