R v Reid

[2005] NSWSC 230

CITATION:	R v REID [2005] NSWSC 230
HEARING DATE(S):	1/11/04; 3/11/04; 12/11/04
JUDGMENT DATE :	1 April 2005
JUDGMENT OF:	Hulme J at 1
DECISION:	Imprisonment for a non-parole period of 17 years to date from 23 May 2003 and a balance of sentence of 5 years and 6 months to commence on 23 May 2020. I specify as the date upon which he will become eligible for release on parole to be 23 May 2020.

PARTIES:	Regina Craig Anthony Reid
FILE NUMBER(S):	SC 70083/03
COUNSEL:	Crown: M Hobart Prisoner: D Dalton
SOLICITORS:	S Kavanagh SE O'Connor

LOWER COURT JURISDICTION:

- 31 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No: 70083/03
HULME J
1 April 2005

R v Craig Anthony REID


SENTENCE

1 HULME J: On 5 July 2004 the abovenamed pleaded guilty to a charge that on or about 7 August 2002 at Lavington in the State of New South Wales he did murder Samantha Meredith. He was convicted, he applied for me to disqualify myself because I had sentenced one Sharon Ward for being an accessory after the fact to the murder and in those proceedings had made findings about her and, at least implicitly, him. I reserved my decision to consider some additional documentation and the Prisoner’s matter adjourned. On 23 July 2004 I rejected the disqualification application (and another made that day) and most of the documents relied on by the Crown were then tendered. On 25 August 2004 the Court of Criminal Appeal rejected an appeal from my refusal to disqualify myself – see R v Reid [2004] NSWCCA 301 - and on Monday 1 November the sentencing proceedings resumed. Although 3 days had been set aside in fact the proceedings occupied short periods on 1 and 3 November and some further time on 12 November. I then reserved my decision.

2 It is appropriate that I acknowledge at the outset that apart from such matters as are implicit in the Prisoner’s plea, before I can use any matters of fact adversely to the Prisoner, I must be satisfied of such matters to the criminal standard of proof. It is sufficient that I be satisfied of matters which go in mitigation on the balance of probabilities.

3 An autopsy report by Dr Sugo, supplemented by a further expert certificate of 21 July 2004, states that the cause of death was the existence of multiple incised (and, the photographs would indicate, to a substantial degree overlapping) wounds to the neck. In totality, the wound extended for a distance of approximately 220mm from near the left ear to behind the right ear. There was incomplete incision of the left sternomastoid muscle, division of all anterior strap muscles of the neck below the level of the hyoid bone and transection of the right sternomastoid muscle, three of the carotid arteries, the right internal jugular vein and of the posterior pharyngeal wall. The front of bones in the upper cervical spine show a number of defects where a sharp implement has impacted with sufficient force to cut into the outer surface of the bone.

4 There were also two or three incised wounds on the right hand and fingers, four such wounds on the fingers of the left hand, two wounds to the left cheek and three 15 or 16mm wounds to the deceased’s scalp. The cause of these latter wounds was the subject of debate and to them I will return.

5 On 19 August 2002 the deceased was reported by her parents to be missing. On 21 November 2002 police executed a search warrant at a rural property “Greg Greg” which was occupied by the Prisoner’s mother. There the deceased’s body was found wrapped up and in the boot of a Falcon motor vehicle parked in the garage. The body showed signs of decomposition. The motor vehicle in which the deceased was found had been driven to Greg Greg on 17 August by the Prisoner and Sharon Ward. It had not left the property between then and 21 November.

6 On 23 November during the course of execution of another search warrant at Ms Ward’s home at 11 Glenelg Drive, Lavington, the Prisoner was found in a storage cupboard and arrested.

7 The evidence establishes that the deceased was killed in the house situate at 14 Gardenia Street, Lavington where she lived with her two children, aged, in June 2004, 7 and 3. The Prisoner and the deceased had been in an intermittent de facto relationship for approximately 6 years and he was the father of the deceased’s eldest child.

8 After the deceased’s death the Prisoner returned to the house of Ms Ward and spoke to her. Later both returned to the premises at 14 Gardenia Street, Lavington where extensive efforts were made to clean up those premises. Despite those efforts, forensic examination of the scene established the presence of blood on numerous surfaces of the house. These included numerous spots or spatter marks in the kitchen and on the ceiling of what was referred to as the dining room, an area at the end of the kitchen. There were also blood marks in the bathroom, laundry and main bedroom.

9 The Statement of Facts tendered without objection during the sentencing proceedings records that when the Prisoner went to 14 Gardenia Street, Lavington on 7 August 2002 he took with him a hammer and had a fishing knife taped to his back. He entered the house, spoke briefly to the deceased, she turned away from him and he hit her on the back of the head with the hammer. … (the) blows did not render the deceased unconscious and a struggle ensued with the Prisoner producing the knife. The Prisoner stabbed the deceased twice to the neck. After stabbing the deceased to the neck the Prisoner inflicted multiple cuts to the neck of the deceased the effect of which is described in paragraph 3 above.

10 I said that I would return to the topic of the wounds to the deceased’s scalp. They were the subject of the original and a supplementary autopsy report by Dr Sugo, a report by Dr Ellis another forensic pathologist obtained on behalf of the Prisoner and the subject of cross-examination of these witnesses. Dr Sugo was of the opinion that a hammer head, photographs of which she was shown, and which had been found in a bag in the room occupied by the Prisoner at Ms Ward’s premises could have caused these wounds. However, Dr Sugo also accepted that they could have been caused by the deceased hitting her head while falling backwards – an event which the Prisoner told 2 psychiatrists, Drs Carne and Allnutt, had occurred. Dr Ellis expressed similar views to those of Dr Sugo.

11 There was no fracture of the deceased’s skull and Dr Sugo detected no effect of any blow on the surface of the skull. Both pathologists were of the view that “the apparent lack of any deeper injury suggests either that the hammer was used with little force or that an alternative object struck the skin with relatively little impact”. Dr Sugo also agreed that had the head of the hammer impacted squarely on the deceased’s scull she would have expected to see more of a circumference in the head wounds than she observed.

12 On the other hand, the relative position of the wounds on the deceased’s skull was such that I remain unpersuaded that the wounds were caused by the deceased falling. I can summarise the effect of the evidence as to these wounds by saying that I do not regard it as indicating one way or another whether the deceased was hit by a hammer.

13 Included in the material tendered during the sentencing proceedings were statements from a number of persons who assert that the Prisoner spoke to them concerning the death of the deceased. Not all of the accounts attributed to the Prisoner were consistent.

14 One of the persons who asserts that the Prisoner spoke to her on the topic was a Ms Sharon Blackmore who had married the Prisoner in July of 1999 and whose relationship, according to her, ended in October 2001. In a statement of 1 February 2003, she said that on an occasion when she had visited the Prisoner in December 2002 at the Junee Gaol he had said he wanted to tell her what happened. Ms Blackmore’s account of the conversation includes the following (I set it out as recorded):-

“I had been praying to God for a month to tell me what to do with her and every time the same answer kept coming back. Kill her. Kill her. After Skye told me what she told me I knew she had to go. She rang me up and asked me for some money and went around to give her some money. I took the hammer and I taped the knife to my back.
It was late because I wanted to make sure the girls were asleep. The front door was open and I walked through the front door and I waited in the kitchen because I knew that’s where I wanted to do it so the blood wouldn’t splatter on the carpet. She had been out the back and she was in her nightie and she came into the kitchen and she said, “oh you’re here”. She was washing her hands at the sink and I hit her on the back of the head with the hammer. I hit her that hard it should have killed her. As she went down she groaned “Craig” but the dirty filthy evil cunt didn’t die she got back up and she grabbed the hammer out of my hand like it was a lollypop. I’ve fought three men before and she had more strength that them put together. I heard her skull crack.
I was struggling with her and then she was screaming, “Nicole, Nicole” (the next door neighbour).
And that’s when I stabbed her twice in the neck. She still wouldn’t die so I slit her throat. I pushed the knife right back until I felt the backbone. And the cunt was still trying to breathe you should have heard the noise. I went and grabbed the doona off her bed and wrapped her in the doona and put her in the laundry. I took off all my clothes because I knew I had clean ones there in the house to change into. I got dressed and woke both the girls up and put them in the car…
You know I didn’t feel a thing, I didn’t feel a thing and I still don’t feel a thing, because I did what I did to protect my angels. She was evil mate.”

15 Ms Blackmore said that shortly before the statements of the Prisoner which I have just recounted he had made statements to her which may be fairly described as allegations that the deceased had been sexually assaulting her daughters or at least not discouraging them from inappropriate sexual activity.

16 Ms Blackmore also deposed to other statements by the Prisoner to the effect that he proposed to say the deceased commenced to attack him with the hammer and there was a struggle which got out of hand.

17 In her statement Ms Blackmore also said that her visit to the Prisoner occurred because she did not believe he could have murdered the deceased and wanted to see him to see what she could do to help him. Correspondence from Ms Blackmore which became Exhibit 6 tends to show strongly that she was not antipathetic towards the Prisoner.

18 On 1 November 2004 the sentencing proceedings were adjourned so that, inter alia, Ms Blackmore could come to Court to be cross-examined. When the proceedings resumed on 3 November, counsel for the Prisoner announced that the Crown Prosecutor had agreed to withdraw from evidence a second statement of Ms Blackmore and that he no longer required Ms Blackmore for cross-examination. The second statement was withdrawn.

Dr Carne

19 The Prisoner also gave an account of events to Dr Carne, a consultant forensic psychiatrist whose reports indicate that he was engaged by lawyers acting for the Prisoner to prepare a psychiatric assessment of him. Dr Carne produced 3 reports which came into evidence dated, respectively, 22 September 2003, 13 April 2004 and 26 July 2004. As has been said, the Prisoner pleaded guilty on 5 July 2004.

20 In Dr Carne’s first report, he records that during an interview with the Prisoner on 17 September 2003, the latter had described a 2 year history of auditory hallucinations associated with the belief that others were saying things to him when there appeared to be no real source for these voices and informed the doctor that he began to feel persecuted and anxious and began carrying a knife in early 2003. The Prisoner said that in the 24 hours prior to the offence, he consumed at least 12 cans of mixed spirits (24 standard units of alcohol), approximately 1 gram of amphetamines and smoked 3 or 4 grams (more than 30 cones) of marijuana.

21 The Prisoner’s account as detailed by Dr Carne was that on the morning of 6 August the deceased asked him for amphetamines. He refused but offered to provide her with food or household needs but not money. The deceased became angry, started to make inappropriate and obscene comments in the presence of the children and threw him out of the house. He left offering to provide food or household needs but not money. The deceased rang on 7 August and asked him to visit. He went, again refused to give her money, they argued and he left. She rang at 11.00am that day asking him to return. He refused but offered to buy her anything that was needed. There was another argument and the Prisoner spent the rest of the day drinking, taking amphetamines and smoking marijuana. Between about 5 and 7pm he visited Sharon Ward and borrowed her car to go and see the deceased to “try to talk to some sense to her” but they had an argument. The deceased told him to leave but he refused unless she agreed to have counselling for her drug use. Dr Carne’s report continues:-

“Mr Reid told me that she then grabbed a hammer and went to attack him with it. He told me that he grabbed the hammer and angularly struck her on the side of the face, in a reflex action, without thinking. He told me that the blow struck her on the left cheek below the eye and that she fell back against the stove, banging her head and striking her back against the stove. She then jumped up and starting abusing him angrily, grabbed the hammer and started screaming that she was going to kill him.
Mr Reid told me that she was waving the hammer around and that he was wrestling with her. She held the hammer with one hand and he held the wrist of that hand so that she did not strike him.
Mr Reid told me that he does not clearly remember having pulled out his knife. He remembers that he lost his temper and stabbed Samantha in the throat, they fell to the ground and Mr Reid remembers repeated slashing Samantha’s throat with the knife until he panicked and realised that he had killed her.
Mr Reid told me that, when he realised what he had done, he took a blanket or a quilt from the bed, wrapped her body and dragged the body into the laundry. He then went to check on the children. He put his clothes in a bag, with the hammer and the knife, took a shower, got dressed, collected the children, put them in the back of Sharon’s car and drove them to Sharon’s house.”

Dr Allnutt

22 The Crown, no doubt inspired by Dr Carne’s report(s) or some indication that the Prisoner might take some course involving his mental state, engaged Dr Stephen Allnutt, another specialist in forensic psychiatry, who interviewed the Prisoner on 3 occasions in June 2004.

23 Dr Allnutt recounts that the Prisoner told him of hearing voices. The Prisoner also said that he had been to see the deceased at her request on the morning of 7 August. He refused a request she made for speed. They argued after the 7 year old daughter made some remarks about possible sexual activity on the part of the deceased and he left. During the day he smoked cannabis, took speed and drank bourbon. The deceased rang him on a few occasions arguing and demanding money. He went to Sharon Ward’s place late in the afternoon and indulged in more speed and marijuana and alcohol. At about 9pm he asked Ms Ward if he could borrow her car to see the deceased and try to talk sense into her, talk her into going into rehabilitation and tell her he was going to take the children off her. He said that when he arrived at the deceased’s premises she wanted amphetamines. He refused. An argument developed and the deceased then grabbed a hammer and attacked him. A fight ensued in the course of which he took possession of the hammer and hit her on the side of the face. She fell, hitting against the stove, but got up again. He had a knife which he had been carrying around for months for protection in the front of his pants. The deceased grabbed that, he tried to take the knife from her and then started attacking her by stabbing her in the throat and then cutting her throat.

24 After wrapping the deceased and moving her to the laundry he showered and changed and took the children from the house to Sharon Ward’s place.

25 The Prisoner told Dr Allnutt that he had had no intention of harming the deceased with the knife when he arrived at her house. He denied hearing any voices or having any other perceptual experiences at the time of arrival or during the incident. He denied being angry at the time he arrived.

26 The Prisoner also told Dr Allnutt that he carried the knife to chop up speed and that he was having arguments with the person he was buying amphetamines from and was concerned that person might harm him.

27 Asked by Dr Allnutt about reports that he had prayed to God and God had told him to kill the deceased, the Prisoner said he had no recollection of that. He denied thinking he was on a mission for God when he went to the deceased’s house on 7 August and asserted that at that time he had no thoughts of attacking the victim or of hearing voices at that time.

Ms Ward

28 Ms Ward was interviewed by the Police on a number of occasions. Electronically recorded interviews between police officers and Ms Ward occurred on 23 November 2002, 22 January 2003 and 16 May 2003. She also made statements to the police on 22 January 2003 and 16 September 2003.

29 In the interview of 23 November, Ms Ward said she was fairly positive she had seen the deceased around about 11 September and denied she had been in the premises at 14 Gardenia Street since 7 August.

30 In the interview of 22 January she said she had nothing to do with the murder of Samantha Meredith and did not assist afterwards. She said she did not know who killed Samantha Meredith. Asked whether there was any information that she knew in relation to the death of Samantha Meredith that she was frightened to come forward about, she said she would rather not answer that. Later she again denied assisting any person in relation to the cleaning of the house in Gardenia Street. She said it was probably on the 14th or 15th, only a few days before the Prisoner’s birthday that he came to her place one morning with the children. There were other indications in her answers on that occasion that she may have been fearful of the Prisoner. Later she again said she had not seen Samantha Meredith after the latter had been killed and did not want to answer the question “are you aware who killed Samantha Meredith”.

31 In the statement of 22 January 2003 given after the electronically recorded interview (and in which Ms Ward had been informed of the existence of witness protection programs) she said that she wished to make a statement to provide information about the death of Samantha Meredith and that “one Thursday morning Craig turned up at my place with Skye and Hayley and said that Sam had rang him the night before and told him she was sick to death of looking after his kids…” and asked if they could stay with Ms Ward. Ms Ward agreed that the children could stay but after some time the Prisoner stayed also. Ms Ward said that -

“After he signed the kids over to me I heard stories going around. I confronted him with the story that I had heard about him knocking Samantha. And he smashed my front window, spat in my face and grabbed me by the throat and smashed my head through the laundry door. I told him to get out because I was going to call the police. He called me all the dogs under the sun. He threatened me and my son, and went and laid down and went to sleep on the lounge room floor on the mattress.
The only time I was allowed to leave the house was to take Skye to school and he would time me. He kept telling me how he bashed her in the head with a hammer and that she kept screaming so he had to slit her throat and that he would do it to me and no one would hear and so you just pull your head in cunt.”

32 In this statement Ms Ward said also that she had both looked and placed items in the boot of her car before driving to “Greg Greg” on the week-end it was left there. She also said that she had last seen the deceased about the end of August.

33 In the ERISP of 16 May 2003 she said that the Prisoner had forced her to clean up the premises at 14 Gardenia Street and on a number of occasions said that this had occurred after his birthday weekend, i.e. after 16 August and it was at that time she became aware of the deceased’s death i.e. on about 19 or 20 August. She said that she was not aware of when the Prisoner had killed Samantha but reiterated that “he just said he’d smashed her head in with a hammer and cut her throat cause she wouldn’t shut up.” In this ERISP she also said that the Prisoner had been carrying a knife around for some months because of threats he had received.

34 In this ERISP, Ms Ward also said that she took to “Greg Greg” on the occasion of the Prisoner’s birthday a number of items in the boot of her car. She gave an account of other innocent items being also in the boot.

35 In her statement of 16 September 2003 – a statement which records that it was made after a promise its contents would not be used against her - Ms Ward refers to a Wednesday afternoon the Prisoner came to her place. Ms Ward refers to the Prisoner apparently having received some phone calls from the deceased requesting amphetamine, the use of some by the Prisoner and later him saying that he was going to see the deceased to sort things out. Ms Ward said that before he left she handed the Prisoner a foil of speed to give to the deceased.

36 Ms Ward said that she went to bed before midnight and next awoke in the early hours of the morning when the Prisoner returned, informed Ms Ward that he had “knocked” the deceased and demanded Ms Ward help him and get up to the deceased’s house. There, by threatening her, he induced her to partly clean up the place. Ms Ward said that later she drove her car to the premises where the Prisoner placed his children in it and Ms Ward drove the children and the Prisoner away.

37 Ms Ward said that either later that day or on the next, the Prisoner drove Ms Ward back to the premises in a car he had borrowed and the two put the deceased’s body in the boot of that vehicle. Ms Ward said that on that occasion while rolling the deceased on to her side, the deceased’s jacket started to come open near her head and the Prisoner said “don’t open, don’t open it. I smashed her in the head with a hammer and she wouldn’t shut up screaming for Nicole.” And later, “she wouldn’t shut up screaming for Nicole, so I cut her throat, she kept on screaming so I kept on cutting until I hit bone. The only things holding her head on is her spine.”

38 Ms Ward said that on Saturday prior to the Prisoner’s birthday on Sunday 18 August that she, the Prisoner and her children drove out in Ms Ward’s car to “Greg Greg”, that in the course of preparation for that trip she noticed the key to her car boot was missing and the Prisoner declined her suggestion to put various items in the boot. They were put in the body of the car. Ms Ward said also that this trip was a week later than the cleaning up, thus fixing the Wednesday to which she referred as 7 August 2002.

39 As I have said, Ms Ward was sentenced by me and in the course of doing so I made various findings based on the evidence then before me. Appreciably more material emanating from or relating to Ms Ward, in particular the induced statement of 16 September 2003, has been put before me during the course of these proceedings and I make it clear that I approach the reliability of what she has had to say de novo and by reference to what is now before me without any preconceptions arising from her sentencing proceedings.

40 It is possible to explain at least a number of the inconsistencies between Ms Ward’s early statements and her later ones upon the basis that at the early stages she did not want to incriminate herself and/or she was fearful of the Prisoner. However, such explanations lose much of their force in relation to the inconsistencies between the versions commencing with and following the statement of 22 January. I have said enough to indicate that those inconsistencies are substantial.

41 While on the topic of Ms Ward’s reliability, I should refer to some further evidence upon which counsel for the Prisoner relied. In part this consisted of phone records. Ms Ward is shown to have been the subscriber to phone number 0403 891 513. There were calls from that number to 0438 244 356 at the following times and of the duration indicated:-

7 August 2002 23.28 31 seconds
8 August 2002 00.38 1 second
8 August 2002 00.39 38 seconds
8 August 2002 07.59 22 seconds
8 August 2002 09.00 22 seconds
8 August 2002 10.41 30 seconds

42 Calls from 0438 244 356 to 0403 891 513 seem to have included the following:-

? August 2002 23.40 24 seconds
8 August 2002 00.50 12 seconds
8 August 2002 08.08 39 seconds

43 (The photocopy call records which were provided were very indistinct as to the date. I am disposed to infer from the little portion of the date which is apparent that the figure 8 is correct and it may be that the first of these calls occurred on the 7th. However, it is really a matter of guesswork whether that is so.)

44 The records of phone number 0438 244 356 were attached to a certificate from Megan Foster who described herself as an Administrative Officer in the Law Enforcement Liaison Section of Telstra. In that Certificate it was said that 0438 244 356 was leased by “Mr David Smith of 55 Hage Street, Albury” during the period 1 July to 5 December 2002. In a letter from Legal Aid which accompanied the Certificate, the records were said to be those of the Prisoner. They were also so described by counsel appearing for the Prisoner and there was no dissent from that proposition by the Crown. In these circumstances it seems to me that I should accept that he was the user of number 0438 244 356.

45 If that be so, and whatever conclusion be reached so far as doubtful dates are concerned, the phone calls and particularly the number of them between the Prisoner and Ms Ward during the night and early morning of 7 to 8 August are impossible to reconcile with the account in her statement of 16 September 2003 of him leaving on the 7th to sort things out with the deceased, of Ms Ward then going to bed and being woken in the early hours of the morning when he returned.

46 Reliance was also placed on the terms of an intercepted telephone conversation between Ms Ward and one Shane Mills which occurred on 3 December 2002. As summarised in the evidence tendered, the call was in terms:-

“Talking about Reid. Ward called him a “dog” and said after everything that I did for him and his kids. Said that she thought he was going to say he was the accessory and that she did it. She then said that he is inside and that she knew enough people… He will want to pull his fuckin head in and start telling – like I’ve already sent the message inside right… Pull your fuckin head in and change it back to the fuckin truth or you’re a dead man walking. A bit later she says no wonder they wanted me so bad… cos it’s all premeditated he’s told them. Ward believes REID has betrayed her to police and states and states “I’m just so angry and disappointed in like you know what I thought was a friendship was nothing.” (sic)

47 It was submitted that the terms of this conversation were inconsistent with Ms Ward being in fear of the Prisoner. If one makes the assumption that the terms of the conversation reflect accurately events which occurred, that is probably so. But Mr Reid was in prison at the time. Involvement with him had been at some cost to Ms Ward, other evidence shows that she was not always truthful, and it is by no means self evident that the assumption should be made.

Mental History and State

48 In September 1994 the Prisoner was referred by his general practitioner to a consultant psychiatrist Dr England. Dr England diagnosed the Prisoner as suffering from major depression although he also recorded that the Prisoner gave a history consistent with alcohol abuse. The history also indicates that the precipitating event seems to have been the Prisoner’s loss of his eye leading to an inability to play football despite having been the “best player” in the 1992 first grade premiership, loss of work in his trade as a shearer and loss of interest even in fishing because, without 2 eyes, even threading a hook had become an arduous and frustrating task. Dr England recorded that depression is generally responsive to appropriate treatment but the Prisoner did not return to allow reassessment, thus making any prognosis difficult. Reference was also made to the fact that the referring general practitioner had found the Prisoner resistant to medication.

49 In consequence of some charge he was then facing the Prisoner also consulted a Mr Bernard Healey psychologist on 27 July 2001. Mr Healey’s report records that intellectual testing placed the Prisoner at the fifty second percentile, personality testing indicated vulnerability to substance abuse, anxiety and a paranoid trend and that he showed signs of frank alcoholism. Mr Healey records that, apparently in compliance with bail conditions, the Prisoner had been abstinent since some time in the previous month.

50 The history recorded by Mr Healey included that both parents of the Prisoner drank to excess and his father was violent. There was mention also that when the Prisoner was 7 his younger brother was accidentally fatally shot by an older brother of the Prisoner.

51 There were also in evidence the 3 reports of Dr Carne to which reference has been made. It is not necessary that I set out in detail the Prisoner’s personal history recorded by Dr Carne although mention should be made of the fact that Dr Carne recorded as the 2 most significant experiences in the Prisoner’s life, the death of his brother and, in 1993, the loss of his eye. The Prisoner had become depressed after this and although he was prescribed anti-depressants by Dr England he stopped taking these and turned to alcohol, amphetamines and marijuana to the extent that prior to the deceased’s death, he was almost continuously affected by them. The Prisoner’s mother told Dr Carne that the drugs changed the Prisoner who became increasingly aggressive and irritable. Based on what the Prisoner told him, Dr Carne recorded that at the time of the offence the Prisoner was probably affected by:-

“Alcohol – at least 24 standard units.
Amphetamines – approximately 1 gram.
Marijuana – 3-4 grams.

52 Dr Carne recorded that in his opinion it is likely the Prisoner was also suffering from a drug induced psychotic state with symptoms of persecutory delusions and increased irritability at the time of the offence and that:-

“It is likely… that at the time of the alleged offence, Mr Reid’s mood was affected by alcohol, amphetamines and marijuana to the extent that he was irritable, angry and irrational. In my opinion his ability to reason and his behaviour at the time of the alleged offence were therefore substantially impaired due to an abnormality of mind, a paranoid psychosis, the probable cause of which was his regular heavy consumption of alcohol, marijuana and amphetamines.”

53 In his next report, Dr Carne expressed the opinion that the Prisoner suffered a significant depressive illness following the loss of his eye, an illness which led to significant changes in his life. He recounted also that the Prisoner had told him that “at the time of the alleged offence he could sometimes hear his voice calling out aloud when there was no obvious source and that he was feeling persecuted and threatened. The doctor went on:-

“Such a description is consistent with that of the experience of auditory hallucinations and persecutory delusions and is probably due, in the circumstances, to a drug induced psychosis.
In addition such a combination of drugs could have the following effects:-
1. Disinhibition – behaviour out of character for the individual and usually repressed and inhibited by moral social conditioning.
2. Irrational thoughts – due to psychosis as above and including inappropriate anger, delusions of persecution, grandeur or infallibility.
3. Irrational behaviour – due to irrational thoughts, disinhibition, poor planning or impaired judgment.
In my opinion, at the time the alleged offence, Mr Reid’s thinking, judgment and behaviour were adversely affected by these factors. In my opinion, it is likely that he may have behaved unintentionally violently at the time of the alleged offence as a result of the disinhibition, irrational thoughts and irrational behaviour processes described above.”

54 Prior to the preparation his final report Dr Carne was provided with reports of other persons including one of Dr Allnutt. However, Dr Carne said that he had seen no evidence to change his opinion as set forth in the earlier documents.

55 In his report Dr Allnutt seems to accept that following the Prisoner’s loss of his eye in 1993 he went through a period of depression and then indulged in substance abuse the consequences of which could well have been to perpetuate the underlying symptoms of a depressive disorder. Dr Allnutt recorded the Prisoner having told him of substantial alcohol, amphetamines and marijuana use since 1993. Dr Allnutt’s view was that the auditory hallucinations experienced by the Prisoner were due to his substance misuse and it was significant that the Prisoner maintained insight into these experiences. The Prisoner’s account of events leading to the death of the deceased indicated his thoughts were rational. If the Prisoner did hear a voice at the time – as he told Dr Carne but denied to Dr Allnutt – this would be consistent with hallucinations due to intoxication not a drug induced psychosis and not severe enough to cause significant impairment in the capacities relevant to that defence. In Dr Allnutt’s words, “The most significant psychiatric factor contributing to his mental state at the material time was intoxication due to a combination of substances causing disinhibition.”

56 The Prisoner had also told Dr Allnutt that over some appreciable period – the doctor’s report is not clear – he had heard voices from music and somebody calling out his name. When he looked around nobody would be there and the Prisoner concluded he had been taking too many drugs or too much alcohol.

57 Ms Ward also indicated that the Prisoner used speed habitually and that his moods were affected by it.

Findings

58 One issue which arises is whether the Prisoner’s killing of the deceased was premeditated or not, in particular something which occurred spontaneously in the heat of a disagreement or as a reaction to some attack on him by the deceased. In light of the evidence, particularly from Ms Ward, as to its being carried for other purposes, I do not regard the fact that the Prisoner took a knife with him as arguing in favour of the view that when he went to see the deceased, the Prisoner intended to kill her.

59 Nor, in light of the Prisoner’s statements to Drs Carne and Allnutt and the way in which the proceedings before me were conducted, do I think that I should regard the assertions contained in the Statement of Facts and bearing on this topic as having any evidentiary weight except to the extent they may have appeared elsewhere in the evidence. Nevertheless the conclusion at which I have arrived – beyond reasonable doubt - is that the killing of the deceased was premeditated and that the Prisoner’s visit to her home on the night she died was with the intention of killing her. In this regard, I am impressed with the evidence emanating from Ms Blackmore, particularly considered against the background of Exhibit 6 and the election of the Prisoner’s counsel not to cross-examine her. Ms Blackmore’s account derives support from Ms Ward’s account of what the Prisoner told her as to the circumstances of the deceased’s death although I would have reached the same conclusion without Ms Ward’s account.

60 Ms Blackmore’s account, the injuries to the deceased’s neck area and the injuries, clearly defensive in nature, to her hands also satisfy me that the Prisoner first hit the deceased with the hammer and then when, in his words, the “cunt didn’t die” he carried out a sustained attack by stabbing and slitting the deceased’s throat with many blows of a knife. I am satisfied that Ms Blackmore’s account provides also an accurate, and thus chilling, account of the Prisoner’s attitude to the deceased’s life.

61 Ms Blackmore’s account is, of course, at great variance with the accounts given by the Prisoner to Drs Carne and Allnutt but those accounts suffer not only from the fact that they were later than that given to Ms Blackmore and given in the context of responding to the charge against the Prisoner, but, at least in part, anticipated by what the Prisoner had advised Ms Blackmore he would say and which was recorded months before the Prisoner saw either of the doctors,

62 I acknowledge that it is not simply a case of preferring one account over another but, as I have said, the evidence of and relating to Ms Blackmore impressed me.

63 It was submitted that having regard to the extent to which the Prisoner was affected by alcohol and illegal drugs, I should not find that he had an intent to kill. Reference was made to remarks I had made in R v Smit & Ors [2003] NSWSC 893 at [53]. However I do not find remarks I made concerning the facts in that case of assistance here. Any doubt one might have had after considering the injuries to the deceased are more than put to rest by the Prisoner’s statements to Ms Blackmore whose evidence (albeit in the form of a statement) I accept. I have no doubt that at the time the Prisoner’s intent was to kill.

64 There is, I think, no evidence which could satisfy one beyond reasonable doubt as to the motive or reasons for the Prisoner’s killing of the deceased. Information provided by Ms Ward suggests the Prisoner may have become fed up with the deceased or with demands, particularly for drugs, she made upon him, including during the course of the day on which she died. It may be that he had some concerns arising from her conduct vis-à-vis the children as Ms Blackmore’s account of what he told her suggests. Both accounts derive some support from what Drs Carne and Allnutt record the Prisoner told them. However, given their ultimate source, I am not satisfied of these matters, even as a matter of probability. I do accept on the probabilities that contributing factors included substantial quantities of alcohol, amphetamines and marijuana and consequent disinhibition, irritability and irrationality. That said, it must also be recognised that within a short time of the deceased’s death, the Prisoner was rational enough to take steps to conceal the event and to protect his children from knowledge of it.

65 I should record also that I am not persuaded that at the time of the deceased’s death the Prisoner was suffering from any abnormality of mind, not drug induced. It may be that the depression for which he saw Dr England in 1994 had continued but if so it was probably because the Prisoner had chosen not to deal with it appropriately. Thus I do not regard any depression from which he may have then been suffering as a matter of mitigation.

Antecedents

66 Although some of these occurred when the Prisoner was still fairly young, he has a substantial record for committing offences which, although not in the upper range of seriousness, were sufficiently frequent to demonstrate a wilful disregard of the law. This record includes 3 offences of possession of a firearm or of a prohibited weapon, 7 of malicious damage, and 4 for driving with an excess concentration of alcohol in his blood. On 4 occasions he has been convicted of driving while unlicensed or while his licensed was cancelled and on two of those occasions he was convicted also of driving an unregistered vehicle.

67 Perhaps of more significance in the current context are offences of malicious injury and assault (January 1983), assault and assault occasioning actual bodily harm (July 1983), assault occasioning actual bodily harm (September 1990) assault occasioning actual bodily harm (October 2001). However it should be noted that the Prisoner told Dr Carne that the January 1983 incident was the result of the Prisoner getting drunk and firing a shotgun into the wall of a house of a man who had assaulted his mother and the July incident occurred under similar circumstances and that the other offences were the result of behaviour which took place while he was affected by alcohol (or possibly other drugs). Certainly it should be acknowledged that in respect of all of these matters except the last, probation or a recognisance was imposed. In respect of the last, the Prisoner was convicted on 5 September 2002 and a warrant directed to be issued. On 8 July 2003 he was sentenced to imprisonment for 8 months, including a non-parole period of 6 months for that offence, both periods to date from 8 July 2003. On the same date the Prisoner was sentenced in respect of a number of other offences to similar or lesser concurrent terms.

68 It should also be acknowledged that prior to the murder of Ms Meredith the Prisoner had not been sentenced to full time imprisonment. He was born on 18 August 1967 and is thus now 37.

Violence

69 There is other evidence contained in the documents tendered indicating that the Prisoner was disposed towards violence.

70 One such statement was one by a Patsy Anne McKinnon who apparently knew the deceased and the Prisoner on a social basis commencing in about 1994. It would seem that she visited premises in which they were living with some frequency. She says that on many occasions the Prisoner would punch into the deceased and this seems to have occurred over a substantial period albeit Mrs McKinnon said that the last time she had seen the deceased and Prisoner together was prior to her pregnancy with her youngest child. Ms McKinnon recounts that on one occasion when she was at the house where the Prisoner and the deceased were living she saw the Prisoner grab the deceased and ram her head into a cement wall. She says she saw the Prisoner hit the deceased on, it would seem, more than one occasion with such force that the deceased would fall backwards and hit her head on objects. On another occasion the Prisoner had his hands around the deceased’s throat.

71 There was some challenge to Ms McKinnon’s evidence during the committal proceedings but a reading of the transcript of that would indicate that Ms McKinnon, except in minor respects, held firmly to the contents of her statement. I was informed that Ms McKinnon’s health did not permit her to attend to give evidence before me.

72 On the other hand there was tendered on behalf of the Prisoner a complaint dated 26 February 1999 by the Prisoner’s mother seeking an apprehended domestic violence order against the deceased in consequence of an altercation over access to one of the deceased’s children, such complaint apparently being returnable on 3 March 1999.

73 Furthermore, on 1 March 1999 the Albury Local Court apparently made an apprehended violence order in favour of the Prisoner against the deceased. That order was revoked on 20 December 1999.

74 A number of Ms Ward’s statements allege acts of violence towards her. It is unnecessary that I detail all of these but, for example, in her statement of 22 January 2003 she said the Prisoner used to say to her “do you want to end up like Meredith I will cut your fuckin throat too”. In her Statement of 16 September 2003 she asserts having told the Prisoner after she saw the blood at the deceased’s house, that she wanted nothing to do with it, that he grabbed her by the throat so hard she had difficulty in breathing, said “if you don’t, Ben (her son) would be dead and while still holding her throat put his face about 2 inches away from hers and said through his teeth “you’ll fuckin do it you’ll fuckin do it”. In that Statement she asserts another threat to cut her throat on the morning of the Saturday after the deceased’s death.

75 It should be mentioned that there was clear evidence by Ms Ward that she and the Prisoner had a common interest in amphetamines. She certainly dealt in them, the Prisoner used them and it may well be that he also was involved with her in supplying others. However, otherwise nothing but the threats she asserts appears that could provide any conceivable reason why Ms Ward would assist the Prisoner in cleaning up the deceased’s premises or in the other respects she did. Certainly Ms Ward seems to have taken over a great deal of the looking after of the deceased’s children after her death but I do not find – and it was not suggested – that any feelings Ms Ward may have had in that regard provided a motive for her – one may fairly say, extraordinary – assistance.

76 Detective Saunders who interviewed Ms Ward said that Ms Ward seemed fearful.

77 A summary of an intercepted telephone call on 23 November 2002 between the Prisoner and Ms Ward, contained in Exhibit 4 is in terms:-

“REID calls to check if there is any filth at the premises. Asks whether she has had any bad calls and she says no. He then says that he threatened Meredith’s parents if they came near his kids he was going to end their lives for them. Ward asks who and he says that Meredith cunt.”

78 Ms Blackmore said that the Prisoner was never violent towards her. A statement by a Mr Jago, psychologist, records that the Prisoner told him that he had never hit a woman.

79 What of this evidence should be accepted and what conclusions should be drawn from it? Firstly, there is no reason not to regard the Prisoner’s remarks in the telephone call of 23 November as indicative of his thinking. Secondly, I am disposed to accept Ms McKinnon’s evidence. Though not available for cross-examination before me, nothing appears in her cross-examination in the committal proceedings to suggest she may have had any reason to make up a very substantial lie and nor am I able to see any likelihood of this being the case. Nor was there any evidence to that effect adduced from or on behalf of the Prisoner.

80 Given the factors arguing against her credibility and to which I have referred I am far more reluctant to place any weight on what Ms Ward has said. On the other hand, there seems no other motive for the extent of her assistance and the violent nature of the Prisoner as depicted in Ms Ward’s evidence is in many respects consistent with that revealed by the phone call of 23 November, Ms McKinnon’s evidence, what the Prisoner said to Ms Blackmore and what he did to the deceased. Although there are obvious and major differences, the extent of consistency between all of these areas of evidence lends support to them individually. Accordingly I am disposed to accept the general tenor of Ms Ward’s evidence referred to in this section of these Remarks.

81 So far as the conclusions which should be drawn are concerned, it is sufficient to say that the evidence reveals in the Prisoner a significant tendency to be violent and to disregard the rights of others when they conflict with his own desires.

82 That said, I make it clear that I do not use this conclusion in any way which bears on the circumstances of the deceased’s death or the Prisoner’s involvement in it. Rather do I regard the conclusion as something to be taken into consideration of any assessment of the Prisoner’s prospects of rehabilitation, and by way of rebutting any thought that the need for personal deterrence and the protection of the community may be less than the killing of the deceased indicates.

Plea

83 As has been said the Prisoner pleaded guilty and it is common ground that he is entitled to some discount for the utilitarian value of the plea.

84 He has been in custody since 23 November 2002. He was committed for trial on 3 October 2003. The matter was first mentioned in this Court on 7 November 2003 and the Prisoner first arraigned in this Court on 7 December 2003. He pleaded not guilty and his trial fixed for 5 July 2004. An application for a change of venue, dated 5 February 2004 was dismissed on 30 April 2004. That the Prisoner would plead guilty was intimated to the Crown some time after the report of Dr Allnutt of 28 June 2004 was served.

85 The plea may therefore be fairly described as a late plea, although one should probably recognise it could have been later. My review of the evidence presented during the course of the sentencing proceedings indicates that the Crown case was not particularly complex and therefore did not justify an increase in the discount on that account – see R v Thomson & Houlton [2000] 49 NSWLR 383 at [154]. In these circumstances it seems to me that an appropriate discount for the utilitarian value of the plea is 10% or thereabouts. I do not agree with the suggestion from the Crown that it should be as high as 15%.

Remorse

86 Pleas of guilty are often taken as evidence of remorse. Certainly they are consistent with remorse but, given the discount available for pleas, they are often inspired, in whole or in part, by an accused making the best of a bad situation. Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477, that “an inference may be made only as the most probable deduction from the established facts, (and) it must at least be a deduction which may reasonably be drawn from them” and in many situations I do not believe that remorse is the most probable inference or justified from the fact of a plea standing on its own. With respect, the statement of the Chief Justice in R v Thomson & Houlton at [118] that “The bare fact of a plea is, of itself, a very simple expression of remorse.” seems to me to overstate the situation

87 As I have said, that the Prisoner would plead guilty was intimated to the Crown some time after the report of Dr Allnutt of 28 June 2004 was served. The reports of Dr Carne of 22 September 2003 and 13 April 2004 of course preceded the plea. The first of these reports is clearly directed to the topic of diminished responsibility as is that of Dr Allnutt the tenor of whose report is that such a defence was not available. In these circumstances, I am not prepared to regard the Prisoner’s plea as any evidence of contrition or remorse.

88 I might add that if one accepts Ms Blackmore as I do, the Prisoner’s account to both doctors of the deceased having attacked him with a hammer is false and while this may not necessarily be inconsistent with remorse, it does argue strongly against that quality existing.

89 The prisoner did tell Dr Carne that he was devastated by what he had done and expressed his regret to that doctor. However the tenor of his remarks to Ms Blackmore, particularly the observations:-

“You know I didn’t feel a thing. I didn’t feel a thing and I still don’t feel a thing, because I did what I did to protect my angels. She was evil mate.”

are strongly to the contrary.

90 Ms Ward’s accounts of the Prisoner’s threats to do to her what he had done to the deceased and to injure her son, if one accepts what she has said, also argue against the existence of remorse. Even if, having regard to Ms Ward’s credibility, one did not regard her evidence as establishing that such threats were made, the issue would still arise whether the Prisoner had established they were not. There is no evidence to that effect.

91 His conduct after the offence of attempting to conceal the deceased’s death and then going on to lead what was for him a more or less normal life from July until his arrest in November also does not assist his claim that he is remorseful. The onus is on the Prisoner and in the result, I am unpersuaded that he is the least remorseful for his crime (as distinct probably from the consequences to himself).

Favourable Subjective

92 A number of favourable references dealing with the Prisoner’s shearing employment and cricket and football playing were tendered. The latter indicated that the Prisoner had won several “best and fairest” player awards. There were also reports concerning his children indicating some difficulties, including developmental difficulties of a son Lachlan. In the present context these matters are of little weight although it seems that the Prisoner had some good attributes prior to 1993.

93 I recognise also that the Prisoner’s upbringing in a household where, as Mr Healey records both parents drank to excess and the Prisoner’s father was violent, the loss of his brother and the loss of the Prisoner’s eye were events which, respectively probably, possibly and certainly contributed to him being in the state where he committed the offence. On the other hand, to the extent to which the effect of these matters is or may be ongoing, their impact on sentencing is not wholly favourable to the Prisoner. While the Prisoner may presently be drug free, there is no evidence which persuades me that any issues which led to the state he was in at the time of killing Ms Meredith have been, or ever will adequately be, addressed.

Crimes (Sentencing Procedure) Act, s21A

94 Section 21A of the Crimes (Sentencing Procedure) Act requires that I take into account a number of matters referred to in the section insofar as they are relevant and, in the case of aggravating factors, not an element of the offence. I have done so although I do not regard it as necessary to go through the extensive lists in the section seriatim. The presence or absence of some of the factors is obvious and some of the others are mentioned elsewhere in these Remarks. However, I would add reference to the following. While the injuries to the deceased, particularly in the context of the Prisoner’s remarks that she was screaming to her neighbour, wouldn’t die and was still trying to breath (whether consciously or unconsciously), demonstrate appalling cruelty, I would not describe the cruelty as “gratuitous” in the sense of something additional to the basic ingredients of the Prisoner’s offending in the way the offence was committed.

95 The Prisoner’s likelihood of re-offending and prospects of rehabilitation also merit specific mention. Both seem to me likely to depend at least in part upon his ability to control his alcohol and illegal drug use. One would hope that such use would be non-existent while he is in prison and there is evidence it has been but, regrettably, experience indicates that that will not necessarily remain so. Furthermore, having regard to his use and the extent of his use of these drugs from 1993 to the time of the deceased’s death, to the fact that that seems to have been a choice in preference to medication in the early stages and that, according to what he told Mr Healey in 2001, he was then abstinent, it is impossible to conclude that, as a matter of probability he will not, when released from prison, revert to abuse of one or more of them. Perhaps unsurprisingly in view of the Prisoner’s history, Mr Healey found that “Personality testing was, of course indicative of vulnerability to substance abuse, anxiety and a paranoid trend”. In his final report Dr Carne included as a treatment recommendation that there be “abstinence from all drugs and alcohol except as prescribed by a treating psychiatrist”. The Prisoner’s record also provides no indication that he is particularly disposed to conform to the norms of society.

96 Of course, there is nothing in the Prisoner’s record which exhibits the degree of violence apparent in the murder of the deceased and to that extent his record argues against any re-offending to anything like the same degree. On the other hand some of the matters to which I have referred under the heading “Violence” are very serious and the impact of drugs particularly amphetamines is often unpredictable.

97 In the result, I am unable to come to any view favourable to the Prisoner on the issues of rehabilitation and re-offending. It would be sheer speculation to suggest that the probabilities are in his favour.

98 Section 21A(2)(j) includes as an aggravating feature to which a Court must have regard that an offender was on conditional liberty at the time of offending. According to the Crown submissions on sentence, conditional bail had been granted to the Prisoner in respect of an offence committed on 25 October 2001, the bail conditions being to live at 564 Roach St, Lavington, not to enter the township of Holbrook and not to assault, molest, threaten or interfere with any alleged victim. I am not conscious of any evidence of these matters except that contained in his antecedent report which shows:-

(i) that on 25 October 2001 he was charged with:-

· assault occasioning actual bodily harm (x 2)

· resist or hinder police officer in the execution of duty

· intimidate police officer in execution of duty without actual bodily harm (x 2)

· possess/use a prohibited weapon without a permit

· wilful and obscene exposure in/near a public place/school

· use offensive language in/near a public place/school

(ii) that on 5 September 2002 he was convicted of all of those offences and warrants were directed to issue.

99 The nature of the offences charged is such that the inference is inevitable that, being at liberty, he was on bail on 8 August 2002 and that one of the terms of his bail was that he be of good behaviour.

Other matters

100 A Victim Impact Statement made on behalf of Mrs Meredith was tendered. I have read it but the use to which such statements can be put in a case such as this is limited - See Previtera (1997) 94 A Crim R 76. However, in saying that, I do not forget that the dominating feature of any conviction for murder is that the person convicted has caused the death of another human being with the sad and often traumatic consequences that commonly flow from such an event.

101 It was submitted on behalf of the Prisoner that I should find that there were special circumstances arising from the fact that this is his first time in prison and from his troubled personal history of depression resulting in his drug and alcohol addiction which is likely to require considerable assistance and supervision on release. In the circumstances of this case, and in particular the length of the sentence which must be imposed and the consequent length of a parole period fixed in the proportion envisaged by the Crimes (Sentencing Procedure) Act I am unpersuaded that these matters constitute special circumstances or, if they do, justify an adjustment of the relativity between the parole and non-parole periods.

102 In this respect I do not ignore the fact that the sentence I impose will be additional to the six months terms or non-parole periods imposed in respect of other offences. However, six months is sufficiently short compared with the overall sentence the Prisoner will have to serve and the parole period sufficiently long in any event that I do not regard the accumulation in this case as constituting special circumstances or, even if that be wrong, justifying an increase in the parole period beyond one third of the non-parole period I propose to set.

103 In light of the fact that the Prisoner has been in custody since 23 November 2002 and that six months of the time since may fairly be regarded as attributable to sentences for other offences, it is appropriate to date the Prisoner’s sentence from 23 May 2003.

Conclusion

104 Section 19A of the Crimes Act, the statutory provision presently relevant, provides that a person convicted of murder is liable to imprisonment for life. However, it is also the law that notwithstanding the effect on all murder victims is death, a sentence of life imprisonment is reserved for cases which can fairly be described as within a worst category. To those unfamiliar with the gradations that the law involves, I may point out that premeditated murders committed simply for financial gain or with great cruelty or multiple murders are liable to fall into the worst category. The Prisoner’s offence did not. It, and he, must be judged against a very imprecise scale of criminality.

105 The law also makes it clear that the purposes of punishment for offences are various. These purposes include principally deterrence of others inclined to offend, deterrence of an offender from re-offending, rehabilitation of the offender, protection of the community and retribution or, as I think is encompassed within that expression, the community’s entitlement to feel justice has been done. I have indicated that so far as rehabilitation is concerned, I am unable to come to any view favourable to the Prisoner as to his prospects. Of course I do not find that he has none.

106 Nor is there any material in the case to suggest that the other purposes should not all be afforded, at the least, their normal weight. This is not a case where it can be said that personal deterrence or the protection of the community need be given less weight than usual. Indeed, it seems to me that the case is one where more than usual weight should be given to personal deterrence, the protection of the community and retribution. (In saying that, I do not forget that general deterrence is the principal object of sentencing and nor do I forget the limits on the weight which can be given to the protection of the community – see Veen v R (No 2) [1987-1988] 164 CLR 465 at 473.)

107 So far as retribution is concerned, murder is always serious but both the injuries to the deceased and the Prisoner’s attitude as displayed to Ms Blackmore indicate a degree of cruelty and disregard for another human being well above average for the type of offence even if, as I have concluded, the cruelty cannot be described as “gratuitous” within the Crimes (Sentencing Procedure) Act. To adapt words used in R v Gordon (Unreported, CCA, 7 February 1994) and R v Crump (Unreported, CCA, 30 May 1994), “The community must be satisfied that the offender is given his just deserts and it is important as well that the victim, or those who are left behind, also feel that justice has been done”. “Just deserts” for the manner of the Prisoner’s killing of the deceased require a significant increase in the sentence which would otherwise be appropriate.

108 Relevant to the factors of personal deterrence and protection of the community is not only the attitude of the Prisoner displayed in the crime itself but his absence of remorse including his feelings (or lack of them) afterwards as expressed to Ms Blackmore, his disregard for the law, his tendency towards violence and his clear willingness to contemplate killing others, such as the deceased’s parents and Ms Ward.

109 I should say more in relation to my finding that, on the probabilities, contributing factors to the offence included substantial quantities of alcohol, amphetamines and marijuana and consequent disinhibition, irritability and irrationality. In that the Prisoner’s addiction to and abuse of these substances was probably in part influenced by his upbringing and matters such as the loss of his eye, I am disposed to give him some leniency. However the extent of that leniency must be small. The reports of Dr England and Mr Healey make it clear that the Prisoner’s habits in this regard were at least in substantial measure the product of choice – c.f. R v Henry (1999) 46 NSWLR 346 at [198] - and it is impossible to conclude that in the years since he commenced his abuse of these products he has not had the opportunity to change. The effect of these drugs on him must have been obvious to him but there is no evidence of any significant effort on his part to effect permanent change.

110 With commendable industry Mr Dalton, who appeared for the Prisoner drew to my attention a number of decisions of this Court, including some by myself where the impact of some matters common to those cases and this, e.g. mind altering drugs, had been considered and suggested that my findings here should echo those made in other cases. However there is an infinite degree of variation between the circumstances of one case and another and it does not seem to me profitable to attempt this sort of one to one topic comparison. Indeed, just as it has eschewed a one to one case and sentence comparison – see R v Twala (Unreported, CCA, 4 November 1994) at page 10; R v Merritt [2004] NSWCCA 19 at [62], the Court of Criminal Appeal has also eschewed this sort of one to one fact comparison – see R v Campillo Vaquere [2004] NSWCCA 271 at [77-78].

111 However, there are 2 of the authorities that Mr Dalton drew to my attention to which reference should be made. One is R v Everett (Unreported, CCA, 13 December 1995) where the Appellant had poured petrol on his wife and set her on fire and been convicted after a trial. McInerney J had sentenced the Appellant to imprisonment for 24 years but the Court of Criminal Appeal reduced it to one of 21 years upon the basis that McInerney J not having found that the Appellant had an intent to kill, the sentence was excessive. In the course of his reasons Allen J, with whom Smart and Sperling JJ agreed, referring to the sentence under appeal, said that “The sentence, however, is at or at least very close to the top of the range for sentences imposed by this Court, in practice, for what sometimes are called a ‘relationship’ murder – that is murder committed upon someone with whom the offender had some family or emotional relationship.”

112 I have no difficulty in accepting that sentences of or exceeding 24 years in the case of “relationship” murders are rare. However, given that life imprisonment is the maximum penalty prescribed for murder, and that there is no basis for concluding that normal sentencing principles do not apply, it does not seem to me possible to say that any lesser penalty is the maximum that can be imposed in such a case.

113 One case that demonstrates that is so is R v Merritt [2004] NSWCCA 19. The Applicant in that case had pleaded guilty to the murder of his 3 children aged between 11 weeks and 6 years. He had suffocated them. It was accepted, at [34], that there was not evidence “as would affirmatively establish future dangerousness” on the Applicant’s part, that he should be regarded as having pleaded guilty “at the earliest possible occasion”, and that he had manifested “a high degree of contrition and remorse”. He was sentenced upon the basis that he had intended to kill each of the children. In the Court of Criminal Appeal, Wood CJ at CL observed, at [71] that the Applicant’s criminality should be regarded as tempered by the following circumstances:-

(a) The acts were neither planned nor expected, but spontaneous and impulsive;
(b) They did not occur against a background of abuse or violence, and they were unaccompanied by any act or acts that involved the infliction of gratuitous cruelty, or that prolonged the suffering of the children.
(c) They were not carried out for the sexual gratification of the Applicant.
(d) They were committed in circumstances where the Applicant was in a state of depression, or at least in a significantly depressed mood, and they involved conduct which was dramatically different from the normal loving relationship which he had with the children, and, indeed, from his own behaviour during the preceding day.
(e) There was no attempt to conceal the offences, and the Applicant accepted his guilt from the outset.
(f) The Applicant had no prior history of similar violence towards his, or any other children, and there was no evidence that would suggest any likelihood of him re-offending in a similar manner…”

114 His Honour also observed that the case was one in which the death of the children had led “to the infliction of considerable punishment upon the Applicant, in so far as they resulted in his own loss of children for whom he had a deep and abiding affection”. Setting aside life sentences which had been imposed at first instance, but holding that a 25% reduction on account of the plea would result in an inadequate sentence, Wood CJ at CL, with the concurrence of Tobias JA and Hidden J imposed sentences of 24 years, including non-parole periods of 18 years, in respect of each of the 3 offences, structuring their commencing dates so that there was an effective sentence of 34 years including an effective non-parole period of 27 years.

115 Once recognition is given to the number and weight of the factors which operated to reduce each sentence in that case to 24 years, the decision is a demonstration that a sentence for a “relationship” murder may well exceed 24 years. In saying that I do not ignore the fact that different considerations may apply in the case of the murder of a child rather than of a spouse or partner. I seek rather to make the point that I do not see the remarks in R v Everett which I have quoted as imposing a limit on the maximum sentence which can be imposed in a case such as this.

116 There are, of course, numerous cases where sentences less, and sometimes much less, have been imposed. Such cases include R v Andrews [2003] NSWCCA 7, R v Barry [2000] NSWCCA 138, R v Brown [2004] NSWSC 194, R v Cheatham [2002] NSWCCA 360, R v Elphick [2000] NSWSC 977, R v Hunt [2002] NSWSC 66, R v Park [2003] NSWCCA 142, R v Twala (unreported CCA, 4 November 1994) to which Mr Dalton referred me and to which I have had regard. However, to obtain a fuller picture of sentences in this area, reference should also be made to cases referred to by me in R v Brown including R v Thomas Keir [2000] NSWSC 111 and R v Toki [2003] NSWCCA 125 and to R v Fraser [2004] NSWSC 53. An appeal in that last mentioned case, where the number of deaths is, of course, a distinguishing feature so far as the accumulation of sentences is concerned, was dismissed – see [2005] NSWCCA 77.

117 For reasons I have indicated, I do not propose to seek to compare the circumstances of any one of these cases with the facts here. At the end of the day my function is to determine the Prisoner’s sentence by the application of principle to the facts as I have found them.

118 I sentence the Prisoner to imprisonment for a non-parole period of 17 years to date from 23 May 2003 and a balance of sentence of 5 years and 6 months to commence on 23 May 2020. I specify as the date upon which he will become eligible for release on parole to be 23 May 2020.

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