R v Rhodes

[2017] NSWSC 694

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Rhodes [2017] NSWSC 694
Hearing dates:	12 May 2017
Date of orders:	02 June 2017
Decision date:	02 June 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The offender is sentenced to an aggregate term of imprisonment of 40 years with a non-parole period of 30 years. The sentence will date from 8 September 2015. The non-parole period will expire on 7 September 2045, at which time the offender will first become eligible for release on parole. The total term will expire on 7 September 2055.
Catchwords:	CRIMINAL LAW – sentence – multiple serious offences in single episode of criminality – double murder – murder of a child – drug-induced psychosis – where offender denies any recollection of the offending – consideration of whether offender suffered from a mild intellectual disability – consideration of the offender’s deprived background and drug addiction
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DL v R [2017] NSWCCA 57 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Fang (No 4) [2017] NSWSC 323 R v Henry (1999) 48 NSWLR 346; [1999] NSWCCA 111 R v Maybir (No 8) [2016] NSWSC 166 R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Category:	Sentence
Parties:	Regina (Crown) Rhodes (Offender)
Representation:	Counsel: T. Thorpe (Crown) C. Bruce SC (Offender)     Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)
File Number(s):	2015/264492
Publication restriction:	Section 15A Children (Criminal Proceedings) Act 1987 (NSW)

Judgment

1. The offender has pleaded guilty to, and is to be sentenced for, a series of offences which occurred on 8 September 2015. On the evening of that day he murdered his mother and a young close-relative in the home they shared with other young relatives; he then assaulted a passer-by, damaging her car; and when police arrived to arrest him he assaulted one of them while resisting arrest. The four crimes of personal violence are separate counts on the indictment on which he was arraigned. The offender has asked that the property damage and other resist arrest offending be taken into account on a Form 1 when he is dealt with on the first murder charge.

2. The second murder victim was a child of 8 years. Two other residents of the home in and about which the offending occurred were, and are, also children. Both have made family victim impact statements. Both were witnesses to and affected by the extreme violence inflicted upon the murder victims.

3. Under s 15A Children (Criminal Proceedings) Act 1987 (NSW) the names of the children must not be published or broadcast in a way that connects them with these proceedings. This prohibition does not apply to an official report of court proceedings: s 15B. As has been done in other proceedings (see, for example, R v Maybir (No 8) [2016] NSWSC 166 and DL v R [2017] NSWCCA 57) out of respect for his memory and to accord him appropriate dignity, I will refer to the young murder victim by his given name Braydon. For similar reasons, that is to say, respecting them as persons and properly acknowledging what they have suffered, I will refer to the other children involved by their given names, Taylor and Ireland.

Circumstances

4. Around the time of the offending, the offender had been residing in his mother’s home. She was then 63 years of age. Without disrespect, I will refer to her by her given name of Linda. Linda had the full-time care of three young relatives: Braydon, Taylor and Ireland. Another young relative, Hayley, who was 19, also resided in the home.

5. It is relevant to record that the offender had spent a good part of the day, though it is difficult to be precise, drinking, playing poker machines and smoking the illegal drugs cannabis and methylamphetamine, better known as ice. Some of this took place at the home of his brother where he had been just before returning to his mother’s home at around 11:00pm. Hayley first saw the offender that night when she was leaving the bathroom after a shower. He said to her, “we’re going to have some fun tonight”. Hayley dismissed that observation with the teenager’s “whatever”. She went to her bedroom.

The death of Linda

6. About five minutes later she heard Linda screaming “Hayley”. Hayley left her room and hurried to the lounge room which she found to be in darkness. When she turned on the light she saw Linda on the lounge cowering from the offender who was standing over her with a knife in his right hand. Hayley screamed the offender’s name and said, “What’s wrong?” He replied “They’re in the house, they’re in the house”. Hayley said, “Who’s in the house?” The offender said, “Don’t worry; I’ll get rid of them.” Hayley ran from the house to find help.

7. Ireland came out of her bedroom and saw Linda standing at the front door in fear. The offender was pacing “back and forth” saying, “This is it … you’re a goner”. Ireland’s recollection is that the offender then went to the kitchen, removed a large cook’s knife from a drawer and took it to Ireland’s bedroom. He then emerged from the bedroom, walking to the door and swinging the knife saying, apparently to Linda, “If you come in the house you’ll cop it”. He was swearing at Linda, denigrating her. Linda said, “Please don’t”.

8. When Hayley arrived at the neighbour’s home where she went for help, she stopped and turned. Looking back at her home she saw Linda standing at the foot of the front steps. The offender was at the top with the knife, and looking down at Linda. The neighbours took Hayley into their home, from which they immediately telephoned the police on triple-0.

9. Ireland had followed the offender out of the house screaming “get off her, get away from her”, trying to protect Linda. The offender turned and looked at Ireland. I have no doubt his look was menacing for Ireland then attempted to hide in the bushes in the garden. Linda had been saying to the offender, “What’s wrong, what’s wrong”. I infer she was receiving no answer. She attempted to flee to the neighbour’s home. As she did so, the offender gave chase. He overtook her just as she was entering the neighbour’s yard and stabbed her initially in the back. Swinging her around, he stabbed her again. Linda continued to try to get away, but collapsed. The offender continued his attack, repeatedly striking her, while she was on the ground.

10. As Linda lay helpless on the ground, the offender picked up a concrete statue, which was found to weigh around 28 kilograms. He repeatedly threw the statue down on Linda’s head, smashing her skull.

11. Linda died as a result of the massive head injuries inflicted by the offender with the concrete statue. One of the stab wounds also perforated the right ventricle of her heart.

The death of Braydon

12. Having murdered his mother in this way, the offender re-entered the family home.

13. Taylor, who had been asleep, was awakened by the sounds of Linda’s screams. She woke Braydon and they looked for somewhere to hide in the bedroom. There was nowhere to hide so they sat on a couch in the lounge room, I infer hoping not to be noticed by the offender.

14. After re-entering the home, the offender went to the kitchen. Taylor heard the sound of him rummaging through drawers. He re-entered the lounge room, carrying what she described as a two-pronged knife. He approached the children saying, “If you move, talk or speak, I am going to stab you with this knife”. He held the knife up for them to see. He then grabbed Braydon by the neck of his T-shirt and stabbed him in the chest with the tip of the knife. Braydon cried out pleading with the offender “please … please, don’t hurt me”. The offender repeatedly smashed Braydon’s head against the wall. Braydon managed to escape the offender’s clutches, fleeing the home with the offender in pursuit.

15. The offender overtook Braydon, causing him to fall to the ground. He then repeatedly bludgeoned Braydon’s head with a sandstone flagstone he lifted from the garden.

16. Braydon died as a result of this massive blunt force trauma. He suffered multiple fractures of his skull and facial bones, and a really serious traumatic brain injury. The other stab wounds were relatively superficial and did not contribute to death. There can be no doubt that he suffered multiple forceful traumatic injuries to his head. The offender was heard to say “Die, just fucking die. I don’t care.”

17. While the offender chased Braydon, Taylor was able to escape from the house. Jumping the fence she was able to enter the neighbour’s yard from where Hayley quickly pulled her inside.

18. After his ferocious attack on Braydon the offender was seen to be pacing “back and forth” at the front of the home. Around this time another neighbour also rang triple-0.

The assault on Annabelle Saludo

19. Annabelle Saludo had been visiting a nearby home. Leaving, she walked to her car parked in its driveway. She noticed the offender two doors away. He began running towards her in a menacing fashion, and she became afraid. She quickly entered her car, locked the door and turned on the ignition.

20. When the offender arrived she could see that he had blood on his hands. He was hitting the window of the driver’s door yelling “fuck you, fucking open up”. He walked around the car trying the doors. Ms Saludo blew the horn, trying to attract help. The offender walked to the front of the car, putting his hands on the bonnet, screaming and swearing at Ms Saludo. She reversed the car out of the driveway with the offender running after her. As she halted to put the car into drive, the offender stood in her way attempting to lift the car. He moved away and she was able to drive off with the offender giving chase.

21. Ms Saludo saw an approaching police car which stopped and she reported what had happened to Senior Constable Steve Lewis. Apart from the fear the offender had instilled in Ms Saludo, she suffered chest pain and shortness of breath, I infer due to her anxiety.

Snr. Const. Lewis

22. When Snr. Const. Lewis arrived at the home, he saw the offender standing in the street. Doubtless Snr. Const. Lewis had information that had been provided through the triple-0 operators. He got out of his car and approached the offender asking, “Where’s the knife, have you still got it?” The offender strode towards the police officer saying, “Yeah I do”. Snr. Const. Lewis yelled, “Put the knife down, get rid of the knife”. The offender continued his advance, picking up a fibro-cement meter cover. He challenged Snr. Const. Lewis by saying, “Let’s go”.

23. Snr. Const. Lewis drew his Taser and pointed it at the now shirtless offender, who was “covered in blood”. Snr. Const. Lewis commanded the offender to halt, but the offender continued his advance holding the meter cover out like a shield. The officer fired at him, but the Taser misfired. The offender continued to advance and the officer backed away, drawing the offender towards him. The officer fired again and again the Taser misfired.

24. Snr. Const. Lewis could hear approaching police sirens. Prudently, in the circumstances, he continued to avoid engaging with the offender. Just as police back-up arrived, the offender lunged at the officer. As Snr. Const. Lewis sought to fend him off, they both fell to the ground, grappling with each other. The back-up officers arriving on the scene were pulling the offender away from Snr. Const. Lewis. It was necessary to spray the offender with oleoresin capsicum spray to subdue him. The offender continued resisting arrest by struggling with the officers. It was only after he had been handcuffed that it became apparent that he was then unarmed.

25. Investigating police scoured the area and came across Linda’s body only two metres from the front door of her neighbour’s home. She was lying face up. Braydon’s body was found near a tree in the front yard of Linda’s home, a short distance from the front steps.

26. The offender was arrested and taken to Blacktown Police Station where after speaking with lawyers he participated to some extent in an electronically recorded interview. He asserted he was “insane” and in need of help. He said his memory was a complete blank between leaving his brother’s place and being handcuffed by police.

Relative maximum sentences

27. In determining the appropriate sentence for an offence, the Court is required to bear in mind, where applicable, two legislative guideposts. The first, which applies to all offences, is the maximum penalty fixed by Parliament. The second, which applies only to offences for which Parliament has prescribed a standard non-parole period, is that standard non-parole period. Murder is a standard non-parole period offence.

28. The maximum penalty for murder is imprisonment for life (s 19A Crimes Act 1900 (NSW) (Crimes Act)), but the court is empowered to impose a sentence of imprisonment for a specified term instead where appropriate: s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). Under s 61 Sentencing Act, it will not be appropriate “if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition” of a life sentence. Accepting that this is a decision for me alone, the Crown have submitted that, bad as this case is, it is not such a case.

29. For the murder of a child under 18 years of age, like Braydon, the standard non-parole period is 25 years. In other cases, like Linda’s case, it is 20 years: see Part 4, Div 1A Table Sentencing Act.

30. For the offending against Ms Saludo, the offender has pleaded guilty to the offence of common assault, carrying a maximum penalty of 2 years’ imprisonment: s 61 Crimes Act. For assaulting Snr. Const. Lewis in the execution of his duty the maximum penalty is 5 years’ imprisonment: s 60(1) Crimes Act.

Objective seriousness

31. As part of the consideration of the full range of facts, matters and circumstances which bear upon a decision about the appropriate sentence, it is necessary to make an assessment of the objective seriousness of the offending. This is especially so for the offence of murder, and for other standard non-parole period offences. The standard non-parole period represents the non-parole period for an offence that is in the middle of the range of objective seriousness for offending of that type. Of this assessment, the High Court of Australia in Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27] said:

“Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

This passage is to be read in conjunction with s 54A Sentencing Act.

32. Objective seriousness is not the same as moral culpability which, necessarily, takes into account personal characteristics of the offender. Bearing in mind that there are four offences and that for the murder of Linda there are two other offences to be taken into account on the Form 1, there are clearly objective factors common to each offence. Indeed, this offending involves a quite shocking sequence of events occurring within the confines of an overall episode of grave criminality.

The murder of Linda

33. Dealing first with the murder of Linda, the circumstances are clearly very grave. They include the sustained infliction of extreme violence involving the use of weapons; a knife with which to stab her, and an improvised bludgeon with which to shatter her skull. There can be no doubt, it is not disputed, and I infer from the level of violence involved, that the offender intended by his actions to kill.

34. The offending occurred in Linda’s home where she was entitled to feel secure. It matters not that the final fatal blows were struck in the yard of the adjoining premises. The offender killed Linda in the presence of Ireland and Taylor, who were children. The offending involved the abuse of a position of trust in relation to Linda. The offender is her son and a member of her household. Although she was not old, one would expect a mother could rely upon her adult son to provide protection from harm. She was also vulnerable, especially in her prone position when the final blows were struck.

35. As the facts I have recounted also show, death was inflicted in a sustained persistent attack. I accept that there was little or no premeditation and that the offending commenced impulsively. But the offender persisted with it. Even if one characterises the attack as the product of a sudden explosion of rage, or as very largely spontaneous, it was accompanied by a determination to go on with it. I accept that given the ongoing nature of the attack, Linda would have been conscious of the offender’s determination to kill her. I accept the submission that while still conscious she is very likely to have been terrified and full of the apprehension of impending death.

36. The consideration that Linda’s death was inflicted as part of what the Crown correctly describe as a violent rampage in which more than one victim was killed and others were harmed is a factor which greatly aggravates each individual offence: s 21A(2)(m) Sentencing Act.

37. It is also necessary to take account of the consideration that the offender has a history of domestic violence offending against his mother. On 5 October 2007, he was convicted of the offence of destroying or damaging her property. The facts involved an attempt to obtain prescription drugs from his mother. When she refused there was a dispute during which he punched and damaged the laundry door. He threw a chair at his mother which she had to duck to avoid, but it damaged the gyprock wall. He also threw a bottle at her.

38. Following that offending, an apprehended violence order was put in place for his mother’s protection. On 31 August 2011, he threw a telephone at his mother in the course of a dispute. On 1 October 2011, in the course of an argument involving the offender’s then girlfriend and his mother, the offender grabbed his mother and threw her forcibly to the ground, winding her. On 30 May 2013, again during the course of a domestic argument he pushed her into a wall. When Linda left the house to get away from him, the offender commenced to smash Linda’s crockery. These matters are relevant because they bespeak an ongoing degree of aggression directed at Linda by the offender.

39. As I have said, I am satisfied that this is grave offending. To the extent to which it is necessary to specify, I accept the Crown’s submission that the offending involved is well above the middle of the range of objective seriousness.

The murder of Braydon

40. Without in any way eliding the separate offending involved in the murder of Linda with the murder of Braydon, many of the factors to which I have referred in relation to Linda’s murder apply equally to Braydon’s murder. By briefly recapping them I should not be taken as indicating that they are any less serious in his case. Indeed, it should be said at the outset that the murder of a child is always treated as an offence of gravity, which Mr Bruce SC who appears for the offender accepts. He did, however, seek to distinguish this case from those involving ongoing violence perpetrated on a victim over a period of time. I acknowledge that distinction.

41. However, as with Linda, Braydon was a victim of extreme violence motivated by an intention to kill. The killing was perpetrated in a sustained attack as part of a series of offending carried out in Braydon’s own home. There was an element of cruelty to this offending, in as much as the offender used the double pronged knife to inflict pain of a non-fatal kind and he beat Braydon’s head against the wall. Braydon would have known that the offender was intending to kill him and like Linda, he would have been terrified in his final moments of life. As I have said, bludgeoning him with flagstone involved extreme violence. It should not be overlooked that the crime was perpetrated in the face of Braydon’s plaintive pleas for mercy. Once again, the objective seriousness of this offending is very high and well above the mid-range.

Ms Saludo

42. Ms Saludo was obviously terrified by the offender’s attack. The assault against her consisted of deliberate actions which engendered great apprehension of injury in her. She was an entirely innocent passer-by and the offending against her occurred at least partially in a public place, illustrating the risk that the offender then posed to public safety. This is an objectively significant case of common assault.

Assault of Snr. Const. Lewis

43. It needs to be borne in mind that it is an element of this offence that Snr. Const. Lewis is a police officer acting in the execution of his duty. In other offences that would be an aggravating consideration, but it cannot be treated as such in this case.

44. However, the objective circumstances are obviously serious for this offence. The offender advanced on an officer who was keeping his distance and attempting to contain him until back-up arrived. The offender armed himself with the meter cover. The offender continued to advance even as Snr. Const. Lewis tactically withdrew. When back-up was imminent, the offender lunged at Snr. Const. Lewis causing them both to fall to the ground. The offender continued to grapple with Snr. Const. Lewis even as other officers attempted to remove and restrain him. Again, the offence against Snr. Const. Lewis was part of a series of serious criminal offending. Objectively, I would regard this as a significant example of this kind of offending.

Victim impact statements

45. A relevant factor informing the objective seriousness of the offending I have so far not referred to is the extent of the injury, emotional harm, loss or damage caused by the offence: s 21A(2)(g) Sentencing Act. It is trite to say that in a murder case, it is an element of the offence that the actions of the offender caused the victim’s death. However, in every case of murder, as in this case, the harm extends beyond the death of the immediate victim to the losses suffered by the victim’s family as a result of the victim’s death. In this case also, as my findings of fact illustrate, other occupants of Linda’s home who were related to her were witnesses to the extreme violence perpetrated by the offender. I refer to Hayley, Ireland and Taylor.

46. It must be taken and acknowledged that they have been greatly traumatised not only by the death of Linda and of Braydon, but also by their direct exposure to the violence and the peril they were placed in during the offender’s rampage.

47. I have received victim impact statements from each of them and also from Linda’s other son William and her daughter Tina. I have also received a victim impact statement from Linda’s neighbours, Jeffrey and Shanye-Marie who were friends of the family. They were also exposed to the “horror” of the events of that night. They gave sanctuary to Hayley and Taylor and it was in their home that Linda had sought refuge before being overtaken by the offender, as I have recounted.

48. I listened attentively to each of the statements as they were read in court and I have re-read them during the time taken for consideration of the case. Each of them is very moving and the suffering of each of the authors was not lost on me. I consider it appropriate to accede to the prosecutor’s application that I take their content into account in connection with the determination of the punishment of the offender on the basis that the loss suffered by the family is an aspect of the harm done to the community by the offender’s offending.

49. I offer the Court’s condolences to the family. I appreciate that all will be permanently affected by these crimes.

Mitigating circumstances

50. There are four disputed issues among the offender’s personal circumstances said to operate as mitigating factors which I am required to decide. They are as follows:

1. Whether the offender was suffering from an intellectual disability such that his moral culpability is reduced and the need for specific and general deterrence is lessened;

2. Whether the evidence establishes, on the balance of probabilities, that the offender’s childhood was one of profound deprivation such as to engage the principles discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;

3. The extent to which he was intoxicated at the time and its relevance for sentencing purposes. In particular, did he act in the grip of a drug-induced psychosis?

4. Whether a discount should be allowed for the early plea, and if so, the extent of it;

51. These matters of course are interrelated and they are not the only potentially mitigating matters which may be relevant in the present case.

The offender’s upbringing

52. As I have previously stated, the offender was 35 years of age at the date of the offending and is now 36. He is a man of Aboriginal heritage. He does not appear to have been in a stable ongoing domestic relationship at the time of the offending and he has no children.

53. He is the son of Linda and William who met at high school and remained together until the offender reached 14 years of age. It is not in issue that William was a drunken and abusive father. His physical abuse was mostly directed towards Linda, but his children, including the offender, were also primary victims. The offender recalls witnessing domestic violence in the home from about the age of 6. Police were sometimes called. This violence continued until William left the family when the offender was about 14 years old. This was precipitated by the offender standing up to his father, confronting him, fighting him, and getting the better of him in that fight, breaking two of his ribs.

54. The offender did not give this evidence, but it is part of the account he gave to his solicitor who affirmed an affidavit in the proceedings. I am prepared to accept the account is probably true. The offender said that his mother did not use alcohol or drugs and did her best to shield him and his siblings from their father, including sending the offender away to live with his grandmother from time to time.

55. He attended public schools in Sydney’s north-west region until year 9. He apparently struggled at school, having difficulty learning and was suspected of suffering from attention deficit hyperactivity disorder. This diagnosis was not made in his childhood and he was not prescribed stimulant medication when at school. He reports being illiterate, and I note his sister says she suffers the same disadvantage. The offender’s learning difficulties may be related to his dyslexia of which there is apparently a family history.

56. The offender’s account of the difficulties of his upbringing were largely corroborated by an account given to a neuropsychologist, Dr Hepner, by the offender’s maternal aunt and for that reason it may be more readily accepted. I record here, however, that I would not regard the aunt’s answer to Dr Hepner’s question about whether the offender had ever been diagnosed with an intellectual disability as being answered affirmatively by the response “Yes, he was diagnosed with everything”. His aunt confirmed that there was a family history of dyslexia apparently.

57. My impression from the histories given to the various experts who examined the offender for the purpose of these proceedings is that he had, at best, a chequered employment history. He most recently worked as a glazier’s assistant, perhaps on a casual basis, from about 2008 to about 2015. He was unemployed and living at home again at the time of the offending.

Substance abuse

58. The offender’s history of substance abuse seems to start with smoking cannabis from the age of 15 years and has continued up until the time of the offending. From his late teens he used speed on a daily basis, continuing into his twenties and thirties. He dabbled with heroin in his late twenties and commenced to use the dangerous and destructive drug ice, according to his account, only in the nine months prior to the offending. He believes that ice had a deleterious effect upon him and described himself to Dr Furst, a forensic psychiatrist whose reports of 14 January 2016 and 15 November 2016 are in evidence, as “a paranoid schizophrenic now” as a result of his ice use.

Previous medical history

59. He was also seen by Dr Ilana Hepner, the clinical neuropsychologist whose report of 6 June 2016 is in evidence. Dr Hepner conducted neuro-psychometric testing, to which I will return. She also reviewed the available previous medical records of the offender, at least so far as they were relevant to her task. The records do not contain any evidence of any diagnosis of ADHD as a child, but that condition does seem to have been diagnosed in his adult years by Dr Pickering, a psychiatrist, in September 2008.

60. There are a number of entries related to poly-substance abuse or dependence. Again, these relate to his adult years. There is a history of a head injury in January 2000 after he was assaulted, but a CT scan provided no evidence of acquired brain injury as a result. He was admitted to Blacktown Hospital in 2006 and 2012 for accidental drug overdoses. For the 2006 admission he was found unconscious at home. His score on the Glasgow Coma Scale was 3 out of 15. In August 2013 he apparently completed a detoxification program for alcohol and amphetamines at Concord Hospital. It seems he relapsed.

61. As I have said, Dr Pickering diagnosed ADHD in 2008. Apparently there was a suggestion of cyclothymia or bipolar spectrum disorder at the time, but no definite diagnosis of such a condition then or since. He was referred to a Dr Donna Clarke, psychiatrist, in June 2009 complaining of anxiety and mood swings for which he was self-medicating with substance abuse. His symptoms included periods of feeling out of control and an inability to manage frustration and irritability. Dr Clarke discounted bipolar disorder, favouring a diagnosis of depressive disorder complicated by his substance abuse.

62. I interpolate that since he has been in custody, he has seen psychiatrists with Justice Health a number of times who have concluded that there is insufficient evidence to justify a diagnosis of mood or psychotic disorder.

63. Notwithstanding his learning difficulties, there was nothing in the pre-existing and contemporaneous clinical records to suggest that the offender had ever been diagnosed with a psychotic illness, or as suffering from an intellectual disability, prior to September 2015. I accept that the absence of prior diagnosis does not conclusively prove the negative.

Defence expert evidence about mental state

64. For the purpose of his report, Dr Furst received the personal and clinical history consistent with that which I have summarised above. He also had access to the Justice Health medical record from which it is apparent to me that at least initially after his arrest the offender was trying to present himself as someone who was “going insane”. He made the same complaint to the police during his interview after his arrest. And to Dr Furst (see [58] above).

65. From Dr Furst’s review of Justice Health’s file, the offender complained of symptoms which may be associated with psychosis such as auditory hallucination including hearing voices, and paranoia or “people talking about him”. He proffered the possibility that he was a paranoid schizophrenic. He was very upset and denied, as he has steadfastly done, any recollection of the offences or any detail of them. Indeed he denied knowledge of being drug-affected which was inconsistent with his account to the police and to others.

66. Having reviewed this material, Dr Furst expressed the following opinion (report dated 14 January 2016 at page 6):

“[The offender] has a history of substance abuse dating back to the age of 15 years, unstable temperament, and apparent mood-swings. However, having regard to all of the available history and medical records, there was no convincing evidence that he suffers from a major mental illness such as schizophrenia or bipolar disorder”.

67. Dr Furst did diagnose substance abuse disorder and attention deficit hyperactivity disorder. He suspected that the offender may suffer from a personality disorder. That last diagnosis has never been confirmed. In the first report there is no mention of the possibility of Mild Intellectual Disability.

68. Dr Hepner administered what might be called the usual battery of psychometric tests. As I understand her report, many of the test results evinced an overall level of intellectual function in the Extremely Low range. The offender’s overall memory for spoken information was rated in the Borderline-Impaired range and his verbal and non-verbal reasoning skills fell into the Impaired range. However, I do not understand all of the results to have been entirely consistent. For instance, some of the results including those for “speed and flexibility of thinking” were unimpaired, even though rated in the Low Average to Average band within the range of normality. Also, for memory testing, upon repetition of some of the tests, he demonstrated improvement in the ability to retain “lengthy, unstructured spoken material”. Dr Hepner noted “there was no significant loss of information after a distraction or a 20 – 30 minute time delay” (report dated 6 June 2016 at page 8 [15.3]). Although Dr Hepner found that his verbal and non-verbal reasoning skills were in the Impaired range, his approach was reasonably planned and organised. She said (at page 8 [15.4]):

“No deficits were evident on measures of visuo-constructional problem solving and speed and flexibility of thinking”.

The offender’s performance on a test of single word reading fell in the Extremely Low range. This is undoubtedly because of his illiteracy.

69. Dr Hepner assessed the offender’s overall level of intellectual function in the Extremely Low range. This is consistent with a Mild Intellectual Disability. But Dr. Hepner was aware of the history of illiteracy and dyslexia, expressing this opinion:

“The impairments detected on testing would be considered consistent with the chronic effects of ADHD, the neurochemical changes associated with the long-term polysubstance abuse and possible hypoxic brain damage due to drug overdose, with some contribution also likely from Mr Rhodes' limited educational attainment. The reported history of multiple brain insults sustained during childhood (i.e., likely repeated traumatic brain injuries sustained at the hands of his father) would lead to poorer overall outcome.” [My emphasis.]

70. Dr Hepner was of the view that the difficulties in cognition she identified would have affected the offender at the time of the offending. She pointed out that individuals with a history of ADHD and/or acquired brain injury have such deficits in cognition, and behavioural issues including anger management and proneness to impulsivity.

71. Dr Furst prepared his second report of 15 November 2016 with the benefit of Dr Hepner’s report and pharmacological reports about the likely state of the offender’s intoxication at the time of the offending. I will deal with those reports below. Dr Furst confirmed his previous diagnoses of substance abuse disorder and attention deficit hyperactivity disorder. He also said that Mr Rhodes met the criteria for the diagnosis of acute intoxication (presumably at the time of the offending) and Mild Intellectual Disability. He maintained the opinion that Mr Rhodes did not suffer from a major mental illness. Dr Furst said (at page 6):

In my opinion, his cognitive deficits, observed several months after his arrest, are consistent with a mild intellectual disability, equating to severe cognitive deficits seen in the lowest 1st Percentile of the community, and a mental condition/disorder that constitutes an abnormality of mind.

72. Dr Furst also noted the anecdotal link between intoxication and paranoia. Dr Furst’s conclusion was expressed as follows (at page 7):

“In my opinion, [the offender’s] acute intoxication with alcohol and drugs was the primary reason for his paranoid thinking and extreme aggression; however, his underlying cognitive deficits probably made him more vulnerable to paranoia, emotional dysregulation and possible hallucinations, mitigating to some degree against the seriousness of his actions”.

73. He regarded the offender’s apparent amnesia as consistent with the cumulative effects of intoxication by alcohol, cannabis and ice, inducing a “black out” (at page 7).

Pharmacological evidence

74. Before making findings relevant to the offender’s mental state generally, and at the time of the offending, it is perhaps convenient to review the pharmacological evidence which is in dispute. It is necessary first to set out more of the events of 8 September 2015.

75. As I have indicated, the offender was interviewed by police, after his arrest, at Blacktown Police Station at 3:00am on 9 September 2015. As I have indicated he repeatedly referred to his mental state in that interview. I will not quote at length from the transcript which is in evidence before me, however, among the repeated self-references to his “insanity” are the following:

1. (Page 2 Q and A 15) “I’m just trying to comprehend what … I’m going through … and that’s why I’m pleading insane. That’s … what I wish to say on the matter”;

2. (Page 2 Q and A 18) “I know I’ve clicked it …I’m insane. I need real professional help”;

3. (Page 3 Q and A 19) “I’ve always suffered as a young fellow with mental health”;

4. (Page 3 Q and A 27) “I was in a different world”;

5. (Page 3 Q and A 28) “I clicked it. I’m insane … I need locking away. I need help”;

6. (Page 4 Q and A 29) “Everything was spacey … it was like being in a dark cloud”;

7. (Page 8 Q and A 83) [When asked what he meant by “he clicked it”, he said:] “I lost it. I lost everything. I lost me sanity. I lost, yeah, I lost it. I can’t remember. I shouldn’t drink and take drugs”;

8. (Page 15 Q and A 168) “I went to my brother’s. I blanked out. I was arrested on the footpath and here I am”;

9. (Page 23 Q and A 268) [When asked how ice made him feel, he said:] “Well, it’s never blanked me out before, so I don’t … they say all the ice is different which it is. Depends what chemicals are in it so, yeah, I might have got a bad batch”;

10. (Page 25 Q and A 269) [When asked where the blood on his face came from, he said:] “No … I can’t remember. That’s it. That’s all I wish to say on the matter and I reckon I done pretty good there because I can’t remember and I’m not gunna (sic) incriminate myself”.

76. During the course of the interview he said that he’d arrived at the Lalor Park Hotel by himself around the middle of the day and remained there for two hours or so. He had bought a $50 deal of ice and smoked half of it before going to the hotel. Whilst at the hotel, he drank three or four schooners. He smoked the rest of his ice when he left. He bought a six pack of beer from a bottleshop to take to his brother’s place, which I infer he drank. Whilst at his brother’s place, he smoked “a cone or two” (page 6 Q and A 68) of “pot”. He would normally smoke “eight [or] nine” (page 13 Q and A 136).

77. In her victim impact statement, Ireland said of the offender, I stress not to exculpate him, but to describe what she saw:

I don’t really know how to put it, but that night I feel like it wasn’t him. It was like someone else. He came after me and I was looking into his eyes and it just didn’t look like him.

78. It was not until 10:40am on 9 September 2015, about 12 hours after the offending, that a blood sample was taken from the offender for forensic testing. The results were negative for alcohol and positive for cannabis, amphetamine and methylamphetamine. In his report of 28 January 2016 tendered by the Crown, Mr Farrar, a consultant forensic pharmacologist and fellow of the Australasian College of Biomedical Scientists, expressed the view that it was not possible to make any accurate estimate of the offender’s level of intoxication by alcohol at the time of the offending because by the time the blood test was taken, the alcohol had been fully metabolised and there was insufficient reliable evidence available to make any other assessment. He was of the view that the schooners drunk at the hotel in the afternoon would have metabolised by the time of the offending, but because of the absence of any accurate information about the consumption of the beers from the six pack, no credible opinion could be offered.

78. Mr Farrar was of the view that the offender’s blood-methylamphetamine concentration at the time of the incident was in the range of 0.07 mg/L to 0.15 mg/L: page 7 [37]. The toxicological results for amphetamine reflect its presence as a metabolite of methylamphetamine only. The results for cannabis were not in a range suggestive of the offender being a frequent heavy user. Mr Farrar said that blood concentration levels of THC are not well correlated with levels of cognitive impairment. The blood concentration usually dissipates within 2 to 3 hours of usage.

79. Mr Farrar said that the neurochemical effects of methylamphetamine consumption include “alertness, euphoria, perceptions of indestructability, increased risk-taking activity, enhanced sexual excitement, restlessness, increased aggression, confusion, hallucinations and tremor”: page 6 [34]. The “second phase [of intoxication] is dominated by rebound fatigue and sedation”: page 6 [35].

80. Mr Farrar was of the view that the cannabis consumed by the offender, as described by him to the police, would not have increased any propensity he may have had to commit the offences. The toxicological results suggested that if the offender’s account of when he smoked the ice was accurate, he should have been in the rebound sedative phase when the offending occurred and accordingly ought not to have had any increased propensity to offend.

81. Dr Macdonald Christie, a consultant pharmacologist whose report was tendered by the defence, expressed different opinions from Mr Farrar. Dr Christie broadly agreed with Mr Farrar’s range for blood-methylamphetamine concentration at the time of the offending; agreed it was difficult to estimate the concentration of cannabis at that time, but generally thought that the toxicological results were consistent with offender’s reported pattern of consumption; and agreed it was not possible to reliably estimate blood alcohol concentration because alcohol had been fully metabolised, but thought the account given by the accused indicated “that he was not severely intoxicated by alcohol at the time of the alleged offences”: page 6).

82. While accepting that the toxicological results suggested only possible mild to moderate intoxication by ice at the time of the offending, Dr Christie considered that the possible combination of ice, cannabis and alcohol is “associated with increased likelihood of aggressive and violent behaviour, and disinhibition”: page 6 [4.2]. The expert expressed the view that the offender’s intoxication may have impaired his reasoning and behaviour. He alluded to the possibility of an ice-induced psychosis exacerbated by cannabis use. He said that the “so-called ‘amphetamine psychosis’ [is] characterised by psychotic reactions including delusions, hallucinations and paranoia, and the risk of a psychotic episode increases with dose and duration of use”: page 11. Dr Christie thought it possible that the reported pattern of use of ice over the 9 month period “could have produced a transient psychotic episode”: page 11. He acknowledged the drug produces increased violent behaviour “independently of whether or not it has induced psychotic symptoms”: page 11. In his view the literature supported a synergy of ice and cannabis leading to an increased risk of psychotic symptoms: page 12.

83. He disagreed with Mr Farrar’s assessment that the offender would have been in the rebound-sedative phase at the time of the incident: page 12.

Findings about upbringing and mental state

85. I accept, on the balance of probabilities, that the offender had somewhat a deprived and difficult background. This includes the experience at a very young age of the resort to violence in the home as the answer to difficulties and as a salve for frustrations. I accept that he had significant difficulties at school because of his dyslexia and his undiagnosed ADHD. The former must have contributed greatly to his functional illiteracy and the latter leaves him with difficulties in anger management and prone to lash out in a violent way when frustrated. The consequences of his social deprivation probably compound the effects of his ADHD. The proneness to violent outburst, I think, is illustrated by the previous offending I have described above committed against Linda, or in her home.

86. I am not persuaded that he has an acquired brain injury due to either his father’s violent abuse or a loss of consciousness from accidental drug overdose. Leaving aside for the moment the psychometric testing results, there is simply no evidence to support such a finding. In particular, I repeat that the CT scan taken following his admission to hospital for a drug overdose in 2006 did not demonstrate any brain injury.

87. I am not persuaded on the balance of probabilities that his cognitive impairments are as gross as the psychometric testing results suggest. Nor am I persuaded that he suffers from a Mild Intellectual Disability, appreciating that such a diagnosis, if correct, bespeaks a severe handicap. I am not persuaded because of what I regard as inconsistencies in the psychometric testing that I have described above and the absence of any historic longitudinal and contemporaneous clinical material supporting such a diagnosis from childhood or early adulthood. I appreciate that Dr Hepner was well aware that the offender is functionally illiterate and that there is a family history of dyslexia. But there is nothing in her report explaining how these obvious difficulties for accurate psychometric testing were overcome in her administration of the battery of tests so that accurate, reliable and consistent results could be obtained. With respect, Dr Hepner does not explain nor reconcile the apparent inconsistencies.

88. I acknowledge that Dr Furst, in his second, but not first, report makes the diagnosis of Mild Intellectual Disability. However, it is apparent that this diagnosis is wholly based upon the results of the psychometric testing and can only be as reliable as those test results; as the saying goes, “the spring cannot rise higher than the source”. I also think it telling that there is no suggestion of such a diagnosis in Dr Furst’s first report prepared with the benefit of a mental state assessment of the offender carried out in person over a period of 60 minutes. For what it is worth, there is nothing in the accounts given of himself by the offender which I have read, including the transcript of the ERISP and the medical histories recorded by the experts, which is suggestive of a Mild Intellectual Disability. He seems to have been able to give a coherent and rational account of himself.

89. Dr Christie pointed out that from his viewing of the video recording of the record of interview he:

“could not discern any obvious signs of intoxication for methylamphetamine, cannabis or alcohol at that time. His responses to questions were timely and coherent although the speech may have been slightly slurred. His demeanour appeared settled or subdued, without any signs of agitation or aggression throughout the interview” (page 4).

90. Dr Furst also viewed that video and, having done so, formed the opinion in conjunction with his review of all of the material made available to him “that there were no indications [the offender] suffers from a severe mental illness such as schizophrenia or bipolar affected disorder”. This, of course, does not in terms exclude mild intellectual impairment but there is certainly no suggestion in Dr Furst’s first report of mental retardation by reference to “subaverage general intellectual functioning and significant limitations in adaptive functioning”: Muldrock v The Queen at 137 [50].

91. I fully appreciate that a court ought to be slow to reject uncontradicted expert opinion, and that there is no expert opinion contradicting Dr Furst. However, my view of the facts differs from the assumptions that Dr Furst has made about them. The results of the psychometric testing showed good cognitive functioning, in what I would regard as certain significant areas. There is no evidence of “significant limitations in adaptive functioning”. More importantly, there is no evidence of any lack of capacity in the offender to reason as an ordinary person might as to the wrongfulness of his conduct: Muldrock at 139 [54].

92. On the contrary, I am persuaded that whether or not the offender had a complete blackout of events as claimed, of which I must say I am sceptical, his repeated concern during the interview with the police and with psychiatrists for Justice Health to present himself as a paranoid schizophrenic is consistent with a full understanding of the wrongfulness of his conduct. If this is correct, presenting himself as mentally ill was a device to provide justification for his aberrant behaviour and to reduce the moral culpability otherwise implicit in it. I am not persuaded the principles relevant to sentencing persons with an intellectual disability as discussed in Muldrock have been engaged in this case.

93. At the same time, I am persuaded that the offender’s deprived background including his ADHD, to a degree, explain his recourse to violence when angry. These considerations which are not of his doing tend to, in the circumstances of the case, reduce the offender’s moral culpability somewhat but given the extremity of the violence, not substantially.

Ice-induced psychosis

94. I am also satisfied that at the time of this gross offending, the offender was in the grip of an ice-induced psychosis. I reject Mr Farrar’s evidence that he would have been in the second, rebound sedative phase of ice intoxication. This is simply entirely inconsistent with the facts I have recounted of the offender being in a rampaging rage when the murders were committed. It is much more likely, for the reasons given by Drs Furst and Christie set out above, that he was in the grip of acute intoxication involving psychotic aspects. This conclusion is consistent with what seem to be the bizarre statements the offender made, namely “we’re going to have some fun tonight” to Hayley, and his statement that “they’re in the house … I’ll get rid of them”. It is consistent with Ireland’s description of him. His difficulties with anger management due to his upbringing and ADHD no doubt make him somewhat prone to the aggressive effects of ice.

95. Although the amounts of drugs consumed do not seem great in this case, having regard to the offender’s account and the toxicology results, I accept that the compound effect of them acting on his underlying propensities were sufficient to trigger such a psychosis in this case.

96. It is, of course, fundamental to bear in mind that self-induced intoxication whether by drugs or alcohol is not a matter of mitigation: 21A Sentencing Act. The use of drugs involves personal choice for which an offender should take responsibility. Here the offender had the opportunity to rehabilitate himself from drug use in 2013 at Concord Hospital, but relapsed. An element of choice is also involved in relapsing into drug use.

97. Johnson J discussed legal principles relevant to this question in R v Fang (No 4) [2017] NSWSC 323 at [70] – [81]. I will not set out the passage in full. His Honour pointed out that where the relevant mental condition (i.e. drug-induced psychosis) was itself a transient effect of the person’s use of drugs on the occasion of his offending, as in this case, s 21A (5AA) has application. It is quite clear that an offender’s self-induced intoxication cannot operate to mitigate the circumstances of the offending. It remains, however, that the drug-induced psychosis provides a probable explanation for why the offender offended as he did: R v Henry (1999) 48 NSWLR 346; [1999] NSWCCA 111. Moreover, the circumstances of his upbringing and his condition of ADHD provide a partial explanation for his use of prohibited drugs providing a degree of mitigation, as I have said, and to some extent reducing his moral culpability.

98. I would, however, with respect quote what Johnson J said at [81]:

“I am satisfied that general deterrence remains a factor to be taken into account on sentence in this case. The sentence in this case should serve as a warning to the general community, if a further warning was really needed, of the disastrous consequences flowing from the use of Ice and the serious acts of violence which may be undertaken by persons while under its influence including, in this case, murder”.

The significance of the plea of the of guilty

99. The offender pleaded guilty at the first available opportunity, that is, in the Local Court. Section 22 Sentencing Act requires a court passing sentence on an offender to take into account the fact that the offender has pleaded guilty, as well as the timing and circumstances of the plea. The court is empowered to impose a lesser penalty than it otherwise would have imposed, provided that the penalty is not unreasonably disproportionate to the nature and the circumstances of the offence.

100. However, as the express terms of the legislation and the established practice of the Court demonstrate, there is a category of case when a court is justified in refusing a discount. The prosecution have submitted that this is such a case. Spigelman CJ referred to these matters in the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418 [157] – [158]. The Chief Justice observed:

“There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate.”

Another is where the protection of the public requires a long sentence so that no discount is appropriate.

101. Mr Bruce SC for the offender argued that this case did not fall into that exceptional category where the court was justified in withholding the usual discount.

102. The allowance of a discount involves an exercise of judicial discretion. There is no right to a discount. I accept that the categories of case in which a discount will be withheld are confined, but they are not closed.

103. It is pertinent to repeat at this time that the Crown have accepted that, bad as the objective circumstances of the offending are, this is not a case which, overall, falls into that worst category of case referred to in s 61 Sentencing Act where the public interest requires the imposition of the maximum penalty of life imprisonment, although this is a matter for me and not for the prosecution. However that may be, a discount may be withheld in an appropriate case, even though the maximum penalty is not imposed.

104. It should be observed that on any view the case against the offender would have been very strong. However, given the psychiatric issues that have arisen, it could not be said that a partial defence of substantial impairment would have been bound to fail, even if it was unlikely to succeed.

105. Quite apart from the usual utilitarian considerations that are involved in allowing a discount for an early plea, the plea in this case, in my view, does involve an actual acceptance of responsibility on the part of the offender.

106. Bad as this offending is, I am not persuaded that it falls into the worst category calling for the imposition of the maximum sentence. Accepting this is not the only circumstance in which a judge would be justified in refusing a discount, I accept that the plea of guilty has served more than one purpose in the circumstances of this case. In addition to its utilitarian value, its signification of the acceptance of responsibility for very serious offending, and the consideration that young witnesses have been spared the necessity to relive the horror of the events persuade me that the usual discount for an early plea of guilty of 25% should be extended in this case.

Other relevant circumstances

107. I accept that there are other mitigating factors, including the consideration that the offence was not planned or premeditated, but arose impulsively. I also accept that the offender has shown remorse. I have accepted that the plea of guilty bespeaks the acceptance of responsibility for his actions. I am prepared to accept that the professions of love for his mother and Braydon he gave to Dr Furst were spontaneous and genuine. Doubtless, this offending would never have occurred but for the psychosis induced by his self-intoxication with a cocktail of substances, including ice. I repeat, the latter consideration does not mitigate the offending, but simply explains it.

108. The offender will of necessity serve a long sentence during which at some stage he will be given the opportunity to undertake courses of rehabilitation addressing his drug and alcohol problem and anger management issues. The length of time necessarily involved makes it difficult to assess his prospects of rehabilitation. He will need to maintain a determination to reform over a long period of time and in trying circumstances. As I have said, I am satisfied that he has accepted responsibility and shown genuine remorse. Expressions of remorse and the acceptance of responsibility together normally presage good prospects of rehabilitation and I am prepared to assume so.

109. Although I have highlighted previous offending involving Linda, there is nothing remotely like the present offending, or even suggestive of the present offending, on the offender’s prior record. This suggests that the terrible events of 8 September 2015 were an aberration. There is a need for punishment proportionate to the gravity of this offending, but I am not persuaded that the offender presents a continuing danger or that the circumstances of the present case enliven a particular need for protection of the community.

Sentence

110. Obviously, and without ignoring the offending involving Ms Saludo and Snr. Const. Lewis, the most powerful consideration relevant to sentencing in this case is the need to recognise that the offender, by his extremely violent conduct, took not one but two human lives, being the life of his mother and that of a close relative of tender years. Adapting the language from the plurality judgment in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, a just sentence must accord due recognition to the human dignity of these victims and the legitimate interests of the general community in the denunciation and punishment of the brutal drug-fuelled destruction of the lives of Linda and Braydon by an offender from whom they were entitled to expect the protection due from a close family member. It is the obligation of the Court to mete out a just punishment for this violent offending.

111. It is also clear that the offender has drug addictions which enhance the relevance of personal deterrence. I have already pointed out that given his circumstances and his ADHD, there is some reduction in his personal moral culpability. Nonetheless, as was pointed out in Munda, drug-induced violence involving death is an example of moral culpability to a very serious degree.

112. All of the facts, matters and circumstances to which I have referred must be brought together in the instinctive synthesis to reach a just sentence. This requires striking a balance of many different and conflicting features relevant to the offending and the offender.

113. In making my decision, I have had regard to the various cases referred to by counsel for my consideration. I have borne in mind, however, that no two cases are truly alike and that the purpose of considering comparative cases is to obtain a yardstick against which the sentence proposed in the case at hand can be measured. However, in no way does the yardstick provide a range within which the case at hand must fall. One matter of principle that arises out of the cases is that personal circumstances justifying a reduction in moral culpability are not inconsistent with the imposition of a stern sentence.

114. I have decided that the interests of justice in this matter will be best served by the imposition of an aggregate sentence. That sentence will reflect a marked degree of notional accumulation of the individual sentences and a degree of notional concurrency. In fixing the aggregate head sentence and non-parole period, I will take into account the principle of totality but I am satisfied that the components of the sentence I will impose are proportionate to the overall gravity of the offending.

110. In imposing an aggregate sentence, I am obliged to indicate the sentences I otherwise would have imposed for each offence taking into account the allowance I have made for the guilty pleas. In the case of the murder of Linda and the murder of Braydon, it is also incumbent upon me to indicate the non-parole period I otherwise would have imposed. This is not required in the case of the assaults on Ms Saludo or Snr. Const. Lewis.

111. In indicating the sentence I otherwise would have imposed for the murder of Linda, as requested I have taken into account the additional criminality represented by the offending on the Form 1. These offences relate to the damage to Ms Saludo’s car and resisting the back-up police at the time of arrest. Without downplaying these matters, it must be said that the criminality they imply in the circumstances of this case pales into relative insignificance.

112. The murder of Linda and the murder of Braydon are serious violence offences to which the Crimes (High Risk Offenders) Act 2006 (NSW) applies and I am required by law to warn the offender that the provisions of that Act may make him liable to extended detention or supervision after the expiration of the sentence I impose.

113. The aggregate sentence will consist of a non-parole period and an additional term. The non-parole period of a sentence is the minimum time which justice requires the offender to remain in full-time custody. However, it should not be assumed by anyone, least of all the offender, that release at the expiration of the non-parole period is automatic or a foregone conclusion. Release when first eligible for parole depends on the independent decision of the State Parole Authority.

114. The indicative sentences for each count in the indictment are as follows:

1. For the murder of Linda, a term of 24 years with a non-parole period of 18 years;

2. For the murder of Braydon, a term of 30 years with a non-parole period of 22 years and 6 months;

3. For the assault on Ms Saludo, a term of 14 months;

4. For the assault on Snr. Const. Lewis, a term of 2 years.

120. The offender has been in custody since his arrest on 8 September 2015 and his sentence will be backdated to commence then.

121. Mr Rhodes, on your plea of guilty, you are convicted of each of the four counts on the indictment. I sentence you to an aggregate term of imprisonment of 40 years with a non-parole period of 30 years. The sentence will date from 8 September 2015. The non-parole period will expire on 7 September 2045, at which time you will first become eligible for release on parole. The total term will expire on 7 September 2055.

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Decision last updated: 02 June 2017