R v Rumsby (No 6)

Case •

[2023] NSWSC 916

•

07 August 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v Rumsby (No 6) [2023] NSWSC 916
Hearing dates: 4 and 7 August 2023
Date of orders: 7 August 2023
Decision date: 07 August 2023
Jurisdiction:Common Law
Before: R A Hulme AJ
Decision:

Sentenced to imprisonment for 32 years with a non-parole period of 24 years.

Catchwords:

CRIME – sentencing – after trial – attempt to choke with intent to have sexual intercourse without consent – victim an 18-year old female attacked on the street outside her home in early hours of morning – offence aggravated by physical violence, injuries and threats of death – high objective gravity

CRIME – sentencing – after trial – murder – victim a 17-year old girl walking home at night from a party – attacked for sexual purposes and killed by suffocation – high objective gravity conceded

CRIME – sentencing – offences committed in 1998 and 1999 – necessary to have regard to sentencing patterns at the time of offending as recent legislation does not apply – offender with limited subjective case – Bugmy factors reduce moral culpability but conceded only to a limited extent – age, ill-health and reduced life expectancy but need to impose sentence proportionate to gravity of offending

Legislation Cited:

Crimes Act 1900 (NSW), s 37

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Life Sentences) Amendment Act 1989 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Justice Act 1902 (NSW), s 125B

Cases Cited:

Geraghty v R [2023] NSWCCA 47

Hordern v R [2019] NSWCCA 210

R v Obeid (No 12) [2016] NSWSC 1815

Ryan v R; Coulter v R [2013] NSWCCA 175

Texts Cited:

Keane and Poletti, Sentenced Homicides in New South Wales 1994-2001, Judicial Commission of New South Wales, Monograph 23, January 2004

Category:Principal judgment
Parties: Rex (Crown)
Craig Henry Rumsby (Offender)
Representation:

Counsel:
L Carr SC (Crown)
N Broadbent with Z Alderton (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)
File Number(s): 234445/2020

JUDGMENT

  1. Craig Henry Rumsby was found guilty by a jury at Dubbo on 30 June 2023 of crimes against young women that occurred in Gulgong in January 1998 and February 1999.

  2. The crimes are the attempted choking of an 18-year old woman (who will be referred to as “LS”) with intent to have sexual intercourse without her consent and the murder of Michelle Bright. [1]

Circumstances of the offending

1. Ms Bright was aged 17 at the time but there has been consent by her family to her being publicly identified.

Gulgong

  1. Gulgong is an historic town on the western side of the Central Tablelands of the State, some 300km north-west of Sydney and 30km north of Mudgee. In the late 1990s it had population of about 2000.

How these crimes from long ago were solved

  1. It may be useful first to say something about how crimes committed so long ago were solved by an investigation which culminated with the arrest of the offender on 11 August 2020. [2]

    2. This largely adopts the content of the Crown’s “Post-Trial Factual Summary” at [42]ff

  2. The offence concerning LS was reported to police on 1 January 1998 immediately after it happened but for a reason I will soon mention, an investigation was not pursued. The initial investigation of the murder of Ms Bright commenced when her body was found on 2 March 1999. It focussed upon the murder and paid no real attention to LS and the possible nexus between the two incidents.

  3. The first investigation of the murder was extensive but it was hampered by rumour and gossip in the town. It was also complicated by the fact that the last known sighting of Ms Bright was in the middle of the township around 1-2am on the night of 25/26 February 1999 when all of the hotels were closed and many persons who might have been in a position to have seen something of relevance were intoxicated.

  4. Persons of interest were identified, including the offender, but each was eliminated. A number of people provided DNA samples but no scientific evidence linked anyone to the murder. That remained the case throughout subsequent investigations.

  5. A coronial inquest was held in 2009 at which a number of persons of interest, but not the offender, were called to give evidence.

  6. In 2018 the Unsolved Homicide team reviewed the matter and isolated persons they considered to be of interest. The offender came to be the person upon whom a further investigation should focus, essentially because of a link between the offender and the attack upon LS; the similarities, timing and location of the attacks upon both LS and Ms Bright; the fact he lived in close proximity to Gulgong at the time; and that he had given false information to police during the initial investigation about his whereabouts at the time of the murder. [3] Strike Force Mitcham II was formed in January 2019.

    3. T1361-2

  7. Permission was granted for police to utilise the costly and resource intensive Unsolved Serious Crime Undercover Technique. This elaborate operation commenced in November 2019 and concluded with the arrest of the offender on 11 August 2020.

  8. The offender became involved with undercover operatives posing as members of a fictitious crime gang. He was exposed to simulated criminal activity which escalated in seriousness. His roles and responsibilities within the “gang” increased over time. He was led to believe that the gang was powerful and influential and could make problems “go away” by illegitimate means, including by the gang’s association with a supposedly corrupt detective. The possibility of financial gain through performing work for the gang was also an incentive for involvement. Virtues of honesty and loyalty within the “family” were stressed as integral to being a part of the gang.

  9. The culmination of the operation came on 11 August 2020 when the offender was summoned to a meeting with the “big boss” of the gang. This was preceded by the offender being led to believe that he was the primary suspect of police for the attack upon LS and the murder of Ms Bright. It was stressed to him both before and during the meeting that the only way the problem would “go away” was to be truthful in providing information about both incidents. The alternative was the gang would have to sever ties with the offender in order to take the “heat” off themselves.

  10. The offender initially denied responsibility in respect of both crimes but then commenced to make partial admissions. He was then driven to the Gulgong area where he and the undercover officers visited various locations of interest and he made more detailed admissions.

  11. The offender’s case at trial was not to dispute the making of the admissions but to contend that they were unreliable. It was claimed that he said what he did because of a desire to stay with the gang and for potential financial reward. He exercised his right to silence and did not give evidence to substantiate these claims.

Attempted choking of LS with intent to have sexual intercourse without consent

  1. LS lived in Herbert Street on the northern outskirts of the township of Gulgong. On the night of 31 December 1997 (when she had only just turned 18) she went with friends into the middle of town where the streets were closed off for New Years’ Eve celebrations.

  2. She walked home with a group of people at around 3am. They all went inside and turned on some music. She called a friend who agreed to bring some cannabis and she went out the front to wait for the friend’s arrival. It was dark; there were no streetlights and a lot of trees.

  3. The offender (then aged 30) approached her on foot. She described him as grubby and dirty looking; he had no shoes on and his pants were rolled up over his knees. She felt uncomfortable and did not want to engage with him so she turned away. This is consistent with the offender remembering, and telling the undercover officers, that he approached her from behind. [4]

    4. LS’ evidence at T60-61; Ex AW p244

  4. The offender punched LS on the side of the face and grabbed the front of her throat with his hand. The punch was hard and nearly knocked her out. He placed a lot of pressure on her throat and she could not breathe properly.

  5. The offender pulled her to the ground and got on top of her using his whole body weight. He still had his hand around her throat and he repeatedly punched her in the head. She was screaming out for help. He said, “Shut up or I’ll kill you” and “Wouldn’t you prefer to be awake for this?” He lifted up her dress to the waist, spread her legs with his legs and pulled her underpants off one of her legs. He kept punching her and telling her to be quiet. He attempted to kiss her.

  6. LS said she could feel what she thought was her attacker’s penis pressing against her vagina. [5] The defence contended that, because LS did not later tell police about this, it might not have happened. I am satisfied that she did perceive this; it is consistent with the offence for which the offender was found guilty. It does not make the offence any more serious than it otherwise is so the dispute between the parties about it is of no significance.

    5. LS’s evidence at 63.33

  7. LS attempted to struggle but the offender was too strong. However, her boyfriend and others came out from the house when they heard her screams. The offender got up and ran off. He was pursued but jumped over fences and escaped. It was discovered the next day that he left his wallet, thongs, and a can of drink behind, across the road from where the attack occurred. The wallet contained his identification.

  8. Police were called and two male uniformed officers attended. LS was taken to the police station. Some brief notes were made of what she told them in summary form had happened. Photographs were taken of her but not with any expertise or with quality equipment. There was no detailed interview or medical examination as LS did not want there to be a prosecution; she was not prepared to endure the court process. (She provided a more detailed and compelling explanation for this in her victim impact statement.)

  9. LS sustained injuries: the left side of her face was swollen; a black eye developed; there were red marks all around her neck; and there was bruising up the inside of her legs.

  10. The offender did not contest the fact that there had been an altercation between himself and LS. His case was that the Crown had not proved that there was an attempted choking with intent to have sexual intercourse without consent. The jury found otherwise.

  11. LS was an impressive witness. It would have been well open to the jury to return a verdict of guilty based upon the evidence I have just summarised, particularly given there was no dispute that the offender had attacked her. However, the Crown case was significantly enhanced by the admissions made by the offender to the undercover police officers on 11 August 2020. He initially denied that he had anything to do with an attack upon LS but eventually admitted that he did. He admitted in rather basic colloquial terms that he had seen her enter the home in Herbert Street with the others and then emerge alone. He thought she was a “good sort”, she was 18 and he thought she had a “good body”. He wanted to “have a bit of a crack” and that’s why he “tackled” her. However, he did not have enough time to do what he wanted because she was making too much noise and people came out of the house. [6]

    6. Exh AW, pp 273-5

Murder of Michelle Bright

  1. Michelle Bright was born at Belmont near Newcastle in 1981. Her family moved to Cooks Gap in the Gulgong district when she was about 12 months’ old. They became acquainted with the Rumsby family as they lived on a nearby property. They used to buy fresh milk from the Rumsby farm and the offender’s father used to drive the bus upon which Ms Bright’s older brothers travelled to and from school in Ulan.

  2. The Bright family had nothing more to do with the Rumsby family after they moved into a house in the Gulgong township when Michelle was about 2 years’ old. They stayed there for several years and then in 1989 moved to a home and small cattle farm on Barneys Reef Road on the northern side of the town, about 3km from its centre.

  3. Ms Bright attended Gulgong Primary School and then Gulgong High School. In February 1999 she was in Year 11 and was 17 years’ of age.

  4. The offender was aged 31 at this time and he was living at a place now named Yarrawonga, about 15km or 12 minutes’ drive to the east of Gulgong.

  5. On the night of Friday, 26 February 1999 Ms Bright went to a 15th birthday party at a home in the southern part of the Gulgong township. Her mother understood she intended to stay the night in town at the home of her good friend, Lauren Ryan, which was a common occurrence.

  6. When Ms Bright left the party, she was given a lift for the short distance to the centre of town. She was dropped off outside the Commercial Hotel between 12.15am and 1am. She was seen to walk up Mayne Street and turn left (north) into Herbert Street which was consistent with the direction she would go if walking home. It was also in the direction she would go if she intended to go to her friend’s home, or to the RSL Club where she would sometimes meet up with her mother who worked there. This was the last known sighting of her.

  7. It was the usual practice if Ms Bright stayed in town overnight that she would drop into the RSL Club to say hello to her mother the following day. That did not happen on Saturday 27 February, and this caused Mrs Bright to become concerned. There followed a lot of inquiring and searching.

  8. Herbert Street joins Medley Street and then becomes Barneys Reef Road just outside the northern outskirt of the town. Ms Bright’s body was found by chance in the long grass beside Barneys Reef Road, about 1½ km from her home in the mid-afternoon of Tuesday 2 March 1999.

  9. Areas of the body were significantly decomposed. The top she had been wearing was pushed up over her face and her long pants and underwear were down to the ankles. Her bra was in disarray; part of it had been cut or torn and a clip at the back was bent or distorted. A bracelet worn on the left wrist was down over the mid part of her hand and her necklace was broken and found on the ground nearby.

  10. Dr Paul Botterill, the forensic pathologist, was of the opinion that the cause of death was “homicidal violence of undetermined aetiology”. He was unable to be more precise because of the state of advanced decomposition. He took into account the lack of evidence of any natural cause of death, the peri-mortem (before or at the time of death) injuries (grazes and bruising) as well as the way the semi-naked body was found. Dr Botterill was unable to exclude the possibility of sexual intercourse having occurred.

  11. Possible ways in which the killing may have occurred were strangulation with a broad ligature and suffocation, either of which could happen without leaving a mark on the surface, or underlying bruising. Use of a hand, a cloth or similar, to cover the mouth and nose were given as examples of such an action of suffocation.

  12. The offender made admissions to having killed Ms Bright when speaking to the undercover police officers on 11 August 2020. He said a number of things that conflicted with the known facts but the Crown contended there were things the offender told the undercover police that, in effect, only the killer could have known. The Crown suggested the explanation for the conflicts with the known facts was the time that had elapsed since the event and the offender’s alcohol consumption on the night. (The jury could also have considered that his memory of the crime scenes was impaired by having left Gulgong soon after the murder and never having returned.)

  13. The errors in the admissions were a focus of the defence case concerning this issue. That was a distraction from the more critical question which was whether there was any viable explanation for the offender having told the undercover officers things that only the killer could have known.

  14. The matters that fell into the category of facts only the killer would have known included the offender’s admission that Ms Bright’s pubic area was “shaved”, that she was wearing G-string style underwear, and that when he was asked about the attempted removal of the bra and whether, for example, he unclipped it, he said, “I think it broke … because when pulled it forward and pulled it up … I think the clips came off the back”. [7] The objective fact is that the bra was pulled up, and a clip at the back had been bent or distorted. While there was some controversy about the first matter, the second and third matters were largely irrefutable.

    7. Exh AW, p267

  15. The jury may have reasoned that another matter that bolstered the reliability of the admissions made about the murder was that they were made at the same time as admissions were made as to being the perpetrator of the attack upon LS, the correctness of which the offender conceded.

  16. The offender had no reason to be out on Barneys Reef Road at around 1am that morning. It was not the way he would leave Gulgong if he was going home. It must be the case that he went there for a reason. The only rational possibility is because he was following a young woman who was walking in that direction. I am satisfied beyond reasonable doubt that he saw her somewhere in the township as she was walking home. He followed her until she was sufficiently out of town in a remote and dark location where he attacked her.

  17. Counsel for the offender took issue with this at the sentence hearing. It was said to conflict with what the offender told the undercover officers. However, there were quite a number of things he told them which were incorrect and they are explicable for the reasons above. The fact that the Crown did not contend before the jury that the offender must have followed Ms Bright is of no moment; there was no need to when it was not an essential matter for the Crown to prove.

  18. Counsel also argued that such a finding would conflict with the evidence, such as no-one having seen the offender in the northern part of the township. That is true but it is also the case that no-one saw Ms Bright after she commenced walking north in Herbert Street after being dropped off outside the Commercial Hotel.

  19. The attack was clearly sexually motivated; the state of Ms Bright’s clothing cannot be explained otherwise. How far the offender progressed in his aberrant and violent pursuit of sexual gratification is not clear. He said he pulled her bra up because he wanted to “play with her tits … she had a nice set”. He admitted that he initially wanted to “root her” but then decided he had to kill her “cause I didn’t want to get pinned for it”. [8] This sexual motivation was the same in his attack upon LS a little over a year before and only about 600 hundred metres away.

    8. Exh AW, p280

  20. The jury were satisfied that the offender killed Ms Bright. I am satisfied beyond reasonable doubt that the mechanism by which he did so was as deduced by Dr Botterill and as the offender admitted to police on 11 August 2020: he suffocated her by putting a hand over her nose and mouth until she stopped breathing. He did so because he did not want her to be able to identify him.

Objective seriousness of the crimes

  1. Neither crime was premeditated. It seems both occurred in circumstances where the offender became aware of the victim, who attracted his aberrant inclination to forced sexual activity with young women.

  2. The sexual motivation, the brutal violence and the age of the victims are all significant factors relevant to the objective seriousness of both offences.

  3. Further matters specific to each offence are as follows.

Count 1

  1. The attack upon LS was opportunistic rather than the product of any planning.

  2. I am not satisfied that the offender waited to see if LS would come outside after having seen her enter the home. There was no reason why he would think she would. He may have just lingered in the area. But when he saw her emerge from the home, alone, I am satisfied that it was a deliberate act to leave his wallet, shoes and drink on the opposite side of the road so they did not hinder his attack. He attacked her because he thought she was a “good sort” and had decided to have, as he said, a “bit of a crack”. That is not “planning” within the terms of the statutory aggravating factor.

  1. The description of the attack has been provided earlier. Matters that make this offence worse than others of its type include that the offender inflicted acts of physical violence by the heavy blows he delivered and by taking LS to the ground. He exerted pressure with his whole body weight on top of her which made it even harder for her to breathe. Further, LS sustained physical injuries and she was threatened with death; she would be killed if she did not “shut up”.

  2. The incident must have been utterly terrifying for LS. The Crown correctly described the attack as “ferocious” and contended that the offence fell in the “upper bracket of objective seriousness” for an offence of its type. I agree.

Count 2

  1. It is uncertain whether the offender recognised Ms Bright when he followed her. Further, it is not apparent that he knew where she was going, let alone that it was through an area that would be dark and deserted. Accordingly, there is doubt about whether he had decided from the very first sighting of this young woman that he would sexually assault her, let alone kill her. He certainly formed those intentions when Ms Bright became vulnerable in the isolation and darkness of Barneys Reef Road.

  2. The attack must have been one of some savagery. The sexual motivation for it was evident by the removal of clothing and the body being left in a semi-naked state. The extent to which the offender progressed in sexual violation is uncertain but it can be readily accepted that Ms Bright met her death in what must have been the most horrific and terrifying circumstances. She was killed by extinguishing her ability to breathe. The offender said this took about 10 minutes but however long it was, it must have taken enough time for Ms Bright to realise she was helpless to prevent her life being taken from her.

  3. There can be no doubt the offender acted with an intention to kill Ms Bright. He did so to avoid responsibility for what he had done to her.

  4. Killing a person by suffocation or strangulation requires a significant degree of effort, more so than in many of the other ways in which a person may be killed. It takes time and the victim will usually be struggling with all their might to survive. The perpetrator must realise that the victim’s life is in their hands and thereby has a choice of desisting at any point. In this case, brutally and callously, the offender chose to continue until Ms Bright’s young body was lifeless.

  5. This is a very grave example of the crime of murder.

Maximum penalties for the crimes

  1. It is necessary to have regard to the maximum penalties prescribed by Parliament for each of the offences. They are the statutory guideposts.

  2. Section 37 of the Crimes Act 1900 (NSW) provided for the offence of attempting to choke a person with intent to have sexual intercourse without consent. As of 1 January 1998 the maximum penalty was 25 years.

  3. The crime of murder has always had a maximum penalty of life. A standard non-parole period introduced in 2003 does not have retrospective effect.

  4. It is currently the law that for an offence committed many years ago the court is to assess the sentence in accordance with the sentencing patterns and practices current at the time of sentencing and not as they prevailed at the time the offence was committed. [9] However, this requirement only applies to proceedings commenced after this requirement became law, namely on 18 October 2022. [10] Proceedings in this matter commenced when the offender was arraigned before me and entered a plea of not guilty on 3 June 2022. It is the agreed position of the parties (which I accept is correct) that I am required to proceed in accordance with sentencing patterns (insofar as a pattern may be discerned) as they existed in 1998 and 1999. I will return to this.

    9. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21B.

    10. Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)

  5. Both parties proposed that this is not a case that warrants imposition of the maximum penalty for murder and gave reasons for this in their written submissions. I accept these submissions and also that made by the Crown that while this case does not fall into the category warranting a life sentence, it is not far from it. As the defence submissions put it in relation to the murder, “a lengthy determinate sentence would satisfy all of the principles of sentencing” and the Crown submitted in relation to both offences there should be “a lengthy sentence”. [11]

    11. Defence submissions [81]; Crown submissions [73]

Victim and family victim impact statements

  1. Victim and family victim impact statements were provided by LS, Lorraine, Gregory, Leslie and Philip Bright, and Lauren Ryan. (Although Ms Ryan is not a member of the Bright family, she had such a close relationship with Michelle Bright that she was like a sister.) I described these statements at the hearing last Friday as dignified and eloquent descriptions of the harm the offender’s crimes had caused.

  2. The harm done to LS has been enduring and well beyond that which might have been apparent to anyone listening to her calm and careful evidence in the trial. It serves as a reminder that there should never be assumptions made about the impact a crime of the type committed against her can have, because the reality may well be worse.

  3. The harm suffered by the Bright family and Ms Ryan is beyond description. The offender’s actions have taken from them so many aspects of a good life that are beyond replacement or replication. It is little wonder that grief continues to this day, 24½ years later and a little over a month after what would have been Michelle’s 42nd birthday. Today marks the closure of their pursuit for justice, but as Lorraine Bright said, there can never be “closure” in any other sense. I reiterate the condolences I expressed last Friday.

  4. One of the purposes of sentencing is to recognise the harm done to the victim of a crime and to the community. [12] I have had regard to the harm done to LS. In relation to the murder, it is true that every unlawful taking of a human life harms the community in some way, but none more than is the case with the tragedy that is the murder of Michelle Bright.

    12. Crimes (Sentencing Procedure) Act, s 3A(g)

The offender’s background and personal circumstances

  1. Counsel provided an overarching description of the offender as “a relatively unsophisticated, unreflective individual, whose social supports are quite limited, and who was exposed to violence at a young age”. [13] I accept this.

    13. Defence submissions [62]

  2. The offender was born in 1967. He was aged 30 and 31 at the time of committing these crimes.

  3. He did not give evidence in the sentence proceedings and so his subjective case is based upon what can be reliably gleaned from various documents tendered at the hearing.

  4. A report of Dr Katie Seidler, clinical and forensic psychologist, of 7 November 2022 followed a consultation with him on 29 August 2022 and the administration of psychometric testing on 24 October 2022. Dr Seidler found that personality and mental health testing were inconsistent with the offender’s account at interview. She considered he was “impression managing and it was difficult to form a coherent view on the basis of his account at interview”. [14]

    14. Dr Seidler’s report at [4]

  5. In a pre-trial judgment I expressed concern about accepting matters of history provided by the offender to Dr Seidler. [15] In the different context of sentencing I am prepared to accept that which I will refer to below.

    15. R v Rumsby [2023] NSWCCA 229 at [91]-[97]

  6. The offender told Dr Seidler that his father was a farmer until about 1978 when he hurt his back and did not work again. His mother was engaged in full-time domestic duties. Finances were difficult for the family but his basic care needs were reliably met.

  7. He described his childhood and family experience as “difficult”. He was the “black sheep” of the family and he was “bashed and belted” by his father and brothers on a regular basis. He was punched with fists and his older brother had shot at him and pulled knives on him. His father, a chronic alcoholic, used a whip or a belt to exact punishment. He was also violent towards the offender’s mother and the children were witness to this on a regular basis.

  8. Despite all of this he worked hard to win his father’s approval which was not forthcoming. In contrast, he felt loved and supported by his mother and was close to her throughout his life. He had a closer relationship with his father as he got older but his father died in 1995. His mother died while the offender was in custody in 2021. He had not been able to attend the funeral and had been unable to grieve. The offender’s older brother died in about 2005. He has no contact with his younger brother or sister.

  9. He had a positive experience at school which he left at the end of Year 10. He was then employed in a bakery and in intrastate truck driving until he was injured as a pedestrian in a motor accident on 5 February 2016 and has not worked since. He was on workers’ compensation until his arrest on 11 August 2020.

  10. The offender has had a number of relationships, the longest lasting almost 20 years until his partner left in 2016, the reason for which he is unaware. It may have had something to do with his drug use as he was smoking ice on a daily basis. He has since ceased using drugs and ceased using alcohol some years before.

  11. He has four children and he believes he has four or five grandchildren but he does not have any contact with them. He does not have any support in the community but says he is unconcerned about this.

  12. Dr Seidler’s report provides an account of various injuries and physical health difficulties the offender has experienced. He had heart attacks in 2000 and 2010 and has a pacemaker. He is on various medications including for his heart condition. This is supported by other medical documents.

  13. The psychometric testing was interpreted by Dr Seidler as indicating he is functioning generally in the average range with some variability in particular areas, the most notable of which was a possibility he had a specific deficit in the area of verbal intelligence. The testing did not indicate any significant neurocognitive disorder and generally there was no evidence he was suffering from a psychological condition or impairment. [16]

    16. Dr Seidler’s report at [96]

  14. Some emphasis was placed in the defence submissions on Dr Seidler’s opinion that the offender “experiences some disturbance in areas of his executive functioning”. However, she explained the significance of this as suggesting “someone who approaches problems in a rigid and inflexible manner, combined with a tendency to emotional dysregulation and dyscontrol”. [17]

    17. Dr Seidler’s report at [92]

  15. The testing administered in 2022 supersedes that which is referred to in a report by Dr Tasha Kvelde, senior clinical neuropsychologist, dated 11 May 2017 which was provided for “an opinion regarding work fitness from a cognitive perspective” following the injuries sustained in the motor accident of 5 February 2016. Dr Kvelde’s testing appears to have yielded more concerning results but she noted that there were reasonable prospects for further improvement or remediation following a moderate traumatic brain injury. [18] Dr Seidler’s review of medical records in relation to this event prompted her to opine: “it does not appear that there was a serious head injury on this occasion”. A neurosurgery registrar indicated in March 2016 that the offender sustained a minor closed head injury “consisting of small traumatic subarachnoid haemorrhage in the left frontal lobe”. [19]

    18. Dr Kvelde’s report at p6

    19. Dr Seidler’s report at [106]

  16. A report by Associate Professor Cameron Holloway of 25 July 2023 includes his opinion that the offender’s condition of arrhythmogenic right ventricular cardiomyopathy, a genetic abnormality associated with life-threatening arrhythmias (for which he has an implantable cardioverted defibrillator to manage potential arrhythmias) and his history of deep venous thrombosis and pulmonary emboli, increases his risk of death and potentially may shorten his life expectancy by up to 10 years. The report also notes a potential issue with COVID-19 and the heart condition the offender experiences, although the opinion is expressed in less than absolute terms.

  17. There are documents which indicate the offender has been fearful for his safety in custody and has been subjected to assaults. His solicitor gave evidence in the sentence hearing of having been told in conference last Friday of two further recent assaults. There is no evidence of what may have motivated these assaults but some of them, at least, may relate to his charges.

  18. The submissions also refer to the offender having been diagnosed with depression “while in custody”. This appears to be an ongoing diagnosis; there is reference to a diagnosis by a GP consequent upon the offender’s divorce in 2017. [20] There is nothing to indicate that this is something out of the ordinary for someone on remand for serious charges or that it is not being appropriately managed by the medication which is being prescribed.

    20. Justice Health records at Defence Bundle p69

  19. A Life Expectancy Table sourced from the Australian Bureau of Statistics tables for 2019-2021 indicate that a male aged 56 has a life expectancy of 28.0 years.

The offender’s previous criminal history

  1. The offender has a criminal history of some significance.

  2. He first came under notice for a minor matter in the Children’s Court in 1984 which is of no significance. He was subsequently dealt with in the Local Court for a variety of offences from 1986 to 1996. They were offences in the nature of theft, burglary and fraud, including social welfare fraud, as well as quite a few traffic matters. His first term of imprisonment was imposed in 1986 when he was sentenced to 4 months for stealing and accessory after the fact to break, enter and steal.

  3. The offender was on a recognizance to be of good behaviour at the time he committed both of the offences. A submission was made that this was not the case in respect of the murder because the recognizance may have expired. To explain, the recognizance for three years was imposed on an appeal to the District Court on 21 March 1996 after sentences of imprisonment had been imposed in the Local Court on 18 October 1995 for social security fraud offences. Counsel for the offender contended that s 125B(1) of the Justice Act 1902 (NSW) was then in force and it empowered a District Court in confirming a conviction or order (including sentence) on appeal to make an order that it take effect on and from a day specified in the order, including a day earlier than the day on which the conviction or order is confirmed. This was a power enabling the District Court when confirming a sentence imposed in the Local Court to make any adjustment to the commencement date that may be necessary as a consequence usually of whether there had been any stay of execution. Where, as here, the original sentence was imprisonment, and it was replaced with a three-year recognizance to be of good behaviour, there would be no reason for the judge to back-date it and there is no reference in the order recorded in the offender’s criminal record that he did so.

  4. It is an aggravating feature that both offences were committed while the offender was on conditional liberty. However, given the gravity of each offence, the degree by which there is aggravation is quite modest.

Subsequent criminal history

  1. The offender continued committing crimes after the attacks upon LS and Ms Bright. These are relevant in limited ways. They may bear upon prospects of rehabilitation, the need for specific deterrence and the likelihood of reoffending. They also act to deny any leniency it might have been possible to extend if there had been no offending in that period.

  2. In 2014 the offender was convicted and placed on a good behaviour bond for an offence of indecent assault at Richmond on 29 May 2013. He made the acquaintance of a woman who worked in a shop. When he later saw her in her lunch break in an isolated area behind the shop he approached and spoke with her and then pulled her into an embrace, grabbed her bottom, groped her breasts, licked her ear and whispered into her ear that he wanted to “fuck her”. She told him that was not going to happen and that she was married but he persisted in his advances, saying to her that it would be “alright”. In sentencing the offender to a 12-month good behaviour bond the magistrate took into account that the offender had consumed a substantial quantity of alcohol before the offence occurred.

  3. On 24 January 2020 the offender was convicted, fined and placed on a community correction order for 3 years for an offence of sexual touching (which used to be called indecent assault) committed on 18 April 2019. He was on a train sitting across from the victim, an 18-year old woman. He initiated conversation with her and she politely engaged in “small talk”. When the train arrived at his destination he stood up, placed his arm around her shoulder and kissed her twice on the cheek. He then whispered in her ear that she “had nice tits, really nice tits”.

  4. The offender has also been committed for sentence to the District Court after entering a plea of guilty to an offence of indecent assault committed in November 2007. He was in the habit of visiting a woman who was his sister-in-law and her daughter at their home in Regents Park. He would arrive early in his truck and his niece would let him in as her mother was still asleep. On one such occasion when she went to the kitchen to make him coffee he squeezed her bottom over her pyjama pants. The victim did not want to make a formal statement at the time but did in September 2020. That matter has been adjourned in the District Court at Penrith until 6 December 2023.

  5. Lastly, while not a matter of criminal history as such, there is an agreed fact (which was provided in lieu of a much larger body of evidence to which objection was to be taken) that on 8 February 2019 at Windsor the offender sat in a large public park and masturbated for 23 minutes. The Crown tendered this agreed fact for the purpose of rebutting any suggestion that the previously mentioned offending with sexual connotations might be construed as some sort of overly friendly and/or silly behaviour. Rather, it indicated a significant degree of sexual disinhibition. The Crown contends that this, and the post-offence offending, indicates a need to factor in the protection of the community in the assessment of sentence. [21] That will depend upon when the public might be in need of protection. It also might be a matter relevant to the degree to which the offender is permitted interaction with female correctional officers.

    21. 4.8.23 T8.5

Findings as to subjective mitigating factors

  1. The offender facilitated the administration of justice in connection with his trial in a number of ways. There was early resolution of many legal issues at the pre-trial stage; a number of agreed facts; co-operation in the creation of an agreed summary document which reduced the amount of time to present the evidence relating to the undercover operation; and the continuation of the trial with the offender agreeing to appear by AVL from gaol when he contracted COVID-19.

  2. There will be a modest reduction of the sentences to be imposed in recognition of this.

  3. The offender’s age, particularly having regard to his physical health and reduced life expectancy, may be relevant in a number of ways as explained in cases such as R v Obeid (No 12) [2016] NSWSC 1815 at [116]-[120] (Beech-Jones J), cited with approval by Johnson J in Hordern v R [2019] NSWCCA 210 at [42], and Geraghty v R [2023] NSWCCA 47 at [109]-[116]. The custodial experience may be more arduous than usual, his knowledge of his potentially reduced life expectancy may weigh upon him, and the need for deterrence may be reduced. However, in the circumstances of this case the extent to which the sentences might be reduced on account of these factors is very modest because the authorities make clear that the punishment must still reflect the seriousness of the crime. As was said in Geraghty v R at [114]:

It is of course a ”weighty consideration” that the appellant is likely to spend the whole, or a very substantial portion of the remainder of his life in custody: [R v Holyoak (1995) 82 A Crim R 502; R v RLP (2009) 213 A Crim R 461; [2009] VSCA 271 at [39]]. Nevertheless, the extent to which leniency is called for depends upon the circumstances of the case: “[j]ust punishment, proportionality and general and specific deterrence” must remain important sentencing considerations notwithstanding the age of the offender: RLP at [39](6). Age is but one consideration in the sentencing process and cannot justify the imposition of an erroneously lenient sentence: R v Bazley (1993) 65 A Crim R 154,158.

  1. Counsel sought to derive support for an approach to sentencing in relation to this issue that aligned with the judgment of Harrison J in Ryan v R; Coulter v R [2013] NSWCCA 175 at [85]-[88]. His Honour’s was a dissenting judgment. I am unable to accept the submission that the reference to it by Simpson J, the author of the primary judgment, involved any endorsement of his Honour’s reasons upon which counsel in the present case sought to rely. The other member of the Court, Price J, simply agreed with Simpson J.

  2. Based upon the history provided to Dr Seidler (see above at [72]-[74]) I accept counsel’s submission that “exposure to violence, alcohol abuse and limited socioeconomic means from an early age is relevant to the offender’s subjective case and, to a limited extent, his moral culpability”. [22]

    22. Defence submissions [51]

Are sentencing patterns in the late 1990s discernible

  1. The parties gave considerable attention to the question of whether sentencing patterns for these offences at the time they occurred can be discerned.

  2. There is no controversy in the proposition that sentences for murder generally were less prior to the introduction of the standard non-parole period regime on 1 February 2003. Counsel for the offender accepted the proposition that sentencing patterns at the relevant time (1999) reflect slightly shorter sentences than those now imposed. [23]

    23. 4.8.23 T34.1

  3. Specifically, as to sentencing for murder, reference was made to a very useful resource: Keane and Poletti, Sentenced Homicides in New South Wales 1994-2001, Judicial Commission of New South Wales, Monograph 23, January 2004. It provides a useful analysis of sentences imposed in a period relevant to the present case. It indicates that while a broad view may be taken of sentencing patterns for murder and manslaughter generally, no pattern of sentencing can be discerned for the particular type of homicide here, namely the murder of a child in circumstances of abduction and/or sexual assaults or attempted sexual assaults. There were only two offenders in the period of the study and they were sentenced to head prison terms of 26 and 22 years. That does not establish a range.

  4. There has never been a standard non-parole period for the offence of attempted choking with intent to commit an indictable offence (and its successor in s 37(2) of the Crimes Act). The maximum penalty was previously life but has been 25 years imprisonment since the enactment of the Crimes (Life Sentences) Amendment Act 1989 (NSW).

  5. Both parties provided summaries of cases involving sentencing for murder; the Crown referred to two cases concerned with sentencing for the offence in Count 1; and the defence provided statistics in relation to both. The facts and circumstances vary widely as do the sentences imposed. A review of the cases referred to has been useful but only in a very broad way. My own further research yielded the same result.

  6. The maximum penalties for the offences, the determination of their objective seriousness and the application of general sentencing principles have guided the way to determining sentences that are proportionate to all of the objective and subjective circumstances.

Other matters relevant to sentencing

  1. It is necessary to bear in mind the purposes of sentencing. In this case, general deterrence is important as also is adequately punishing the offender, denouncing his conduct and making him accountable for it. Recognition of the harm caused, including harm to the community, is also a significant matter. Personal deterrence and protection of the community are less significant in the light of the offender’s age, health, life expectancy and the length of the sentence he will be required to serve.

  2. The offender has been in custody since his arrest on 11 August 2020 and so it is necessary to backdate his sentence to then.

  3. It is necessary to ensure the offender is made aware of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application to him at the time he becomes eligible for release. His solicitor will explain these matters to him.

  4. It is necessary to consider the extent to which the two sentences should be concurrent or accumulated in respect of each other. I accept the concession that there must be at least some partial accumulation to reflect the discrete nature of the two crimes and the fact they involved different victims. However, it is also necessary to have regard to the principal of totality. I believe it would be contrary to that principal in the circumstances of this case to order complete accumulation as the Crown contended.

  5. Counsel for the offender sought a finding of special circumstances on the basis of the offender’s physical health conditions. However, and as was accepted that I might, I have taken this into account in the assessment of the entire sentence, so I do not propose to double count it by reducing the non-parole period from the usual proportion of the overall term. Having said that, I do intend to make an adjustment so that the usual proportion is reflected in the total effective sentence.

  6. In setting the terms of the sentences it is necessary to apply s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in the form it took prior to 1 February 2003. [24]

    24. This is consequent upon the repeal and replacement of s 44 by the (Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) with the new s 44 not applying to offences prior to that date: see cl 45 in Sch 2 Pt 7.

Sentence

  1. In respect of both offences the offender is convicted.

  2. For the attempt to choke LS with intent to have sexual intercourse the offender is sentenced to a term of imprisonment for 10 years with a non-parole period of 7 years and 6 months. The sentence will date from 11 August 2020.

  3. For the murder of Michelle Bright, the offender is sentenced to a term of imprisonment for 27 years with a non-parole period of 19 years. The sentence will date from 11 August 2025.

  4. That is a total effective sentence of 32 years with a non-parole period of 24 years.

  5. The offender will become eligible for release on parole when the non-parole period for the murder sentence expires on 10 August 2044. The overall sentence will expire on 10 August 2052.

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Endnotes

Decision last updated: 07 August 2023

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

5

Geraghty v R [2023] NSWCCA 47
Hordern v R [2019] NSWCCA 210
R v Obeid (No 12) [2016] NSWSC 1815