R v Stacey Lea-Caton

[2007] NSWSC 1294

CITATION:	R v Stacey Lea-Caton [2007] NSWSC 1294
HEARING DATE(S):	05/11/2007, 06/11/2007, 09/11/2007, 12/11/2007, 13/11/2007
JUDGMENT DATE :	19 November 2007
JUDGMENT OF:	Buddin J
DECISION:	For the offence of detaining Gregory Hosa in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of 5 years imprisonment to commence on 29 January 2006 and to expire on 28 January 2011. I decline to impose a non-parole period because of the sentence which I am about to impose. For the offence of murder of Gregory Hosa the offender is sentenced to a total term of imprisonment of 18 years consisting of a non-parole period of 12 years 6 months with the balance of the term being 5 years 6 months. Each term will commence on 29 January 2006. The total term will expire on 28 January 2024 and the non-parole period will expire on 28 July 2018. For the offence of detaining Kathryn McKay in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of 5 years imprisonment to commence on 29 January 2010 and to expire on 28 January 2015. I decline to impose a non-parole period because of the sentence which I am about to impose. For the offence of murder of Kathryn McKay the offender is sentenced to a total term of imprisonment of 18 years consisting of a non-parole period of 12 years 6 months with the balance of the term being 5 years 6 months. Each term will commence on 29 January 2010. The total term will expire on 28 January 2028 and the non-parole period will expire on 28 July 2022 on which date the offender will be eligible for release on parole. The total effective sentence is thus one of 22 years imprisonment with a total effective non-parole period of 16 years 6 months.
CATCHWORDS:	Murder - specially aggravated kidnapping - two victims - principal in the second degree - pleas of guilty - assistance to the authorities - standard non-parole period - question of totality
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Adanguidi v R (2006) 167 A Crim R 295 Andrews v R (2006) 160 A Crim R 505 Cameron v the Queen (2002) 209 CLR 339 GAS v The Queen; SJK v The Queen (2004) 217 CLR 198 Imnetu v R [2006] NSWCCA 203 Johnson v R (2004) 205 ALR 346 MAH v R [2006] NSWCCA 226 Pearce v The Queen (1998) 194 CLR 610 York v R (2005) 225 CLR 466 R v AJP (2004) 150 A Crim R 575 R v Durocher-Yvon (2003) 58 NSWLR 581 R v FD & JD (2006) 160 A Crim R 392 R v Hammoud (2000) 118 A Crim R 66 R v MA (2004) 145 A Crim R 434 R v Markarian (2005) 228 CLR 357 R v MLP (2006) 164 A Crim R 93 R v Mostyn (2004) 145 A Crim R 304 R v McNaughton (2006) 66 NSWLR 566 R v NP [2003] NSWCCA 195 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v SZ (2007) 168 A Crim R 249 R v Tangye (1997) 92 A Crim R 545 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Trevenna (2004) 149 A Crim R 505 R v Way (2004) 60 NSWLR 168 R v Weldon and Carberry (2002) 136 A Crim R 55 R v Yildiz (2006) 160 A Crim R 218
PARTIES:	Regina Stacey Lea-Caton
FILE NUMBER(S):	SC 2007/240
COUNSEL:	P Leask (Crown) W Terracini SC/J Trevallion (Offender)
SOLICITORS:	S Kavanagh - Solicitor for Public Prosecutions

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 19 NOVEMBER 2007

2007/240 – R v STACEY LEA-CATON

REMARKS ON SENTENCE

Introduction

1 HIS HONOUR: Stacey Lea-Caton (the offender) stands for sentence in respect of four offences. In addition to pleading guilty to the murders of Gregory Hosa and his wife Kathryn McKay on 28 January 2006 at Nowra, he also pleaded guilty to two counts of the specially aggravated form of kidnapping. Those offences arose from the detention of the same two victims during the course of the incident in which they met their deaths. Each of those latter two counts alleged that at the time the offender committed the offence of kidnapping he was in the company of others and that actual bodily harm was occasioned to the particular victim.

2 The maximum penalty for the offence of murder is life imprisonment. Pursuant to s 54 A of the Crimes (Sentencing Procedure) Act 1999 (the Act) a standard non-parole period of 20 years applies to that offence. The maximum penalty for the specially aggravated form of the offence of kidnapping is 25 years imprisonment. The legislature has not specified a standard non-parole period in relation to that offence.

3 It is necessary to refer briefly to the chronology of events which culminated in the offender entering pleas of guilty. He was arrested on 29 January 2006 and has remained in custody since that date. Accordingly it is appropriate to commence the sentences which he will serve from that date. On 23 January 2007 he was committed to stand trial. He was arraigned before Barr J on 2 March 2007 and a trial date of 22 October was then fixed.

4 Originally the offender was jointly charged with these offences with two other persons named Andrew Flentjar and Kim Snibson. Applications for separate trials were foreshadowed on behalf of the accused Flentjar and Snibson. In due course, the Crown elected to put the offender on trial separately from the other two accused. On 24 October the offender pleaded not guilty to the four counts to which I earlier referred. A jury was duly empanelled and I was informed that the trial was likely to occupy at least 3 weeks of hearing time. As it transpired the commencement of the trial was delayed on several occasions to enable various preliminary matters to be resolved. One such matter was a notice of motion filed on behalf of the accused Flentjar and Snibson seeking orders prohibiting the publication of evidence given at the trial of the offender upon the basis that the publicity given to that material would inevitably prejudice their right to a fair trial. As events transpired, the Crown had still not opened its case when the accused entered his pleas of guilty on 5 November.

The facts

5 An agreed statement of facts was tendered. It provides some background details of the offences. A much more comprehensive version of the relevant events however emerged when the offender gave evidence on oath during the course of the sentence proceedings. In addition to that material, I have also had regard in determining the factual basis upon which the offender is to be sentenced, to the contents of two ERISP interviews conducted with the offender by police on 29 January 2006, to two statements provided to police by the offender’s sister, Sherrie Lillia dated the 29 and 31 January 2006 respectively, to two statements of her husband, Peter Lillia, dated 29 January and 1 February 2006 respectively and to a series of photographs. Ms Lillia also gave evidence before me. I accept the offender’s evidence as being a credible account of the events which he described. Not only is there support for it in other parts of the material which has been placed before me, but there is no evidence before me to contradict it or to even cast doubt upon it. Moreover the Crown accepts that I should proceed upon that basis. Having said that, I should record that it will be necessary to describe the alleged participation in the events of other persons in order that the offender’s complicity in these offences can be placed in context. It goes without saying that the alleged culpability of those other persons remains to be determined.

6 The deceased couple lived on a property at 133 Albatross Road, Nowra with their young son. Mr Hosa was aged 56 and his wife was aged 44. They bred and agisted horses at the property. Ms Snibson, who was 36 at the time, knew the deceased couple through having agisted horses with them. She had an interest in animals and for some years she had been involved in dog sled racing. Indeed she kept dogs as well as horses. She was married to a serviceman and together they had two daughters who were aged 14 and 11.

7 The Snibson family moved to Nowra in 2001 and took up residence in Calymea Street, Nowra Hill. In early 2003 they moved into the premises at 14 Calymea Street. Those premises are about a kilometre from the deceased’s property.

8 At the time of these events, the marriage was under strain. Ms Snibson’s husband took a posting in Wodonga and on 10 December 2005 he left the property with the children. Ms Snibson also left the Nowra area at that time.

9 Ms Snibson also knew Mr Flentjar who was then aged 32 years. He lived with his de facto wife and children at 97 Kalandar Street Nowra, a distance of about 5 kilometres from Ms Snibson’s house. Their daughter was best friends with one of Ms Snibson’s daughters.

10 Ms Snibson also knew the offender. The offender’s sister, Sherrie, and her husband lived next door to the Snibson residence at 12 Calymea Street. The offender became friendly with Ms Snibson after he began living in a caravan at the back of his sister’s property some time in 2003. He socialised with Ms Snibson and frequently went water skiing with her and other friends. The offender remained friendly with Ms Snibson even after he moved out of 12 Calymea Street in mid to late 2004.

11 When the Snibson family vacated the premises at 14 Calymea Street in December 2005, Ms Snibson offered to rent the house to the offender for $50 per week. In return he was to look after it and her animals. The offender moved into the house only days before the murders. His intention was to set up house and remain in the Nowra area until such time as his girlfriend could join him from Sydney. Although he had moved in most of his possessions, he was still in the process of unpacking at the time of the offences.

12 A young man named Josh Gowers, who was a mutual friend of both Ms Snibson and the offender, frequently went waterskiing with them. After one such waterskiing excursion in early 2005, he, together with Ms Snibson, the offender and another friend went back to Ms Snibson’s house. Mr Gowers said that Ms Snibson started telling them about some people who lived down the street. Although he did not learn the names of these people, he recalled Ms Snibson asking him and the offender if they would help her bash the man who apparently lived nearby. Mr Gowers said that the offender had agreed to help her. The offender confirmed, in general terms whilst giving evidence, that such a request had been made.

13 The offender also told his sister, about 12 months before the fatal incident, that Ms Snibson had requested his assistance in dealing with these unidentified persons. He told her that the plan also involved tying the people up. The offender also mentioned the matter to his brother-in-law on a number of occasions. The offender told his brother-in-law that Ms Snibson wanted his help to “belt up a couple”. She had apparently told him that they had videoed themselves performing sexual acts upon her whilst she was in a drugged state. The offender told his brother-in-law that Ms Snibson had said that she wanted to get back at the couple for having taken advantage of her. In evidence the offender said that Ms Snibson told him that her intention was to get them “to sign over the house”. Although it is common ground in these proceedings that the allegations, so far as the deceased couple are concerned are quite false, that is not to suggest that the offender knew that to be the case.

14 The offender’s sister gave evidence that she was instrumental in arranging for the offender to rent Ms Snibson’s premises. It would appear that he had some misgivings about taking up the offer but his sister told him that there was no reason for him to be concerned because Ms Snibson had told her that she would not be there. The offender told his brother-in-law that he was worried that Ms Snibson would want him to “follow through” on assisting her to get back at the couple. I am prepared, in those circumstances, to accept that the offender remained reluctant at that stage to provide the assistance which Ms Snibson had earlier sought.

15 On the morning of Saturday 28 January 2006 Ms Snibson drove her vehicle, a green commodore station wagon, from Wodonga to Nowra. She had her two daughters with her. She dropped her younger daughter off at the home of Mr Flentjar, and her older daughter off at another friend’s house in Nowra. That afternoon she drove to 14 Calymea Street where she met up with the offender who had been there all day. She then briefly left the house, before returning shortly thereafter with Mr Flentjar. The offender and Mr Flentjar did not know each other. The offender described Mr Flentjar to police and said that he was wearing a beanie. At some stage of the afternoon, Ms Snibson informed the offender that the plan involving the attack upon the couple was to take place that weekend.

16 Telephone records reveal that Ms Snibson called Mr Hosa’s mobile telephone number at 4.59 pm. A short time later Mr Hosa arrived at 14 Calymea Street in his Hilux 4WD. He was alone. According to the offender, he was set upon as he entered the premises. The offender said that Mr Flentjar struck a blow to the victim’s head with a piece of wood which he estimated to be about 60 cm in length. He said that the victim was then wrestled to the ground by Mr Flentjar and Ms Snibson. He said that prior to the arrival of Mr Hosa, Mr Flentjar had been hiding in the spare bedroom. When he came out of the room, he proceeded to pull the beanie down in order to conceal his face. According to the offender, Mr Flentjar said “something about touching kids” to Mr Hosa whilst he was attacking him. He took that to be a reference to information which Ms Snibson had conveyed to Mr Flentjar. Mr Hosa was then tied up with a piece of rope which was placed around his wrists and ankles. The rope was then pulled tightly behind his back. This had the effect of drawing his legs up so that his feet and hands were bound closely together. A person who finds himself in that position is referred to as being “hog-tied”. A sock was stuffed into his mouth and tape was applied to his face. Once bound and gagged, he was dragged into the bathroom of the house where he was then left.

17 Telephone records show that Ms Snibson rang Ms McKay at 5.26 pm. The offender said that he overheard Ms Snibson tell her that she needed to come to the premises in order to settle her husband down. He told police that Ms Snibson had also told him that Ms McKay knew that her husband had gone to the premises and would, accordingly, be able to inform the police of that fact. The offender said that he knew that Ms McKay was asked to come to the premises so that they could “shut her up”. Shortly after that call, Ms McKay arrived at the premises in her Magna sedan. Her husband’s 4WD was still parked at the house. According to the offender, she too was set upon by Mr Flentjar and Ms Snibson when she entered the house. She was forced to the floor and then “hog-tied” in the same fashion as her husband had been. A sock was stuffed in her mouth and her face was bound with tape. She was dragged into the dining room of the house where she was then left.

18 The offender gave evidence that he had no involvement in the attacks upon the victims and their subsequent tying up. He said that he had not known either of the victims. He gave evidence that Ms Snibson and Mr Flentjar then left the premises and that he was left to guard the two victims. Mr Flentjar and Ms Snibson went to the deceased couple’s property in order to return Ms McKay’s vehicle. Whilst they were there, they retrieved two green 44 gallon drums from the feed shed of the deceased’s property which they then took back to Calymea Street. At around 5.45 pm, Ms Snibson and Mr Flentjar were observed leaving the deceased’s premises and heading towards Mr Flentjar’s house in Kalandar Street. At 5.55 pm Ms Snibson was filmed by a security camera purchasing bleach and domestos from a Caltex service station at South Nowra. The offender gave evidence that Mr Hosa had bled after being struck. He said that those products had been purchased in order to remove the blood. The offender said that whilst Mr Flentjar and Ms Snibson were away, which was a period of about half an hour, Mr Hosa tried to break free. The offender gave evidence that he responded by tying him up more securely. He also admitted to having punched Mr Hosa in the head.

19 The offender said that when Mr Flentjar and Ms Snibson returned, he assisted them in the process of cleaning up the premises. The offender said that it was only when he saw the drums being produced that he realised that the couple were going to die. According to the offender, the deceased couple were then killed. He said that Ms Snibson put tape over Ms McKay’s nose and mouth in order to stop her breathing. He said that he saw that she turned blue. It is apparent that she died from being suffocated. The offender then observed Ms Snibson strangle Mr Hosa with a piece of “electrical wire”. Plainly enough neither victim was in a position to offer any resistance. The offender said that he then assisted the other two accused bundle the bodies of Mr Hosa and Ms McKay into the drums. Ms McKay had originally struggled and the offender said that it was at that stage that she was killed. The offender also assisted as the bodies were then placed in the rear of Ms Snibson’s station wagon. According to the offender, Ms Snibson decided to transport the bodies out to Tomerong State Forest, which is a distance of some 18 kms from her premises. The offender gave evidence that Ms Snibson’s purpose in undertaking that trip was to destroy evidence of Mr Hosa’s vehicle as well as the bodies of the victims.

20 The offender and his co-accused then waited for darkness to descend whereupon Mr Hosa’s 4WD was then driven out to Braidwood Road. The offender said that it was there that he set it alight. To do so he used petrol, some of which he had purchased with money supplied to him by Ms Snibson. Security camera footage taken from the Caltex Service Station at South Nowra at 9.13 pm reveals that the offender purchased petrol in cans. Those cans were later found in Ms Snibson’s car. The offender said that that purchase was made on the way to Tomerong State Forest. Ms Snibson’s car can also be seen on the security footage. Fingerprints lifted from one of those cans have been identified as coming from the left thumb of the offender. A DNA profile consistent with that of the offender was located on the front passenger’s seat belt of Ms Snibson’s car. The offender was later filmed at the same service station purchasing a bottle of coca-cola at 9.53 pm.

21 The drums, with the bodies of the victims in them, were transported to Tomerong State Forest where they were set alight by Ms Snibson. Once more petrol was used as the accelerant. The locations at which the drums and the vehicle were set alight, were both places which Ms Snibson used to frequent in order to train her dogs.

22 Post-mortem examinations were performed upon the deceased couple. In neither case could the cause of death be determined because of the extensive damage which the fire had occasioned to the bodies. The remains of Mr Hosa were charred. Lengths of rope were located around his wrists and fragments of brown tape were around his ankles. The rope matched rope found at 14 Calymea Street. Thin wire was found looped around his neck. The remains of Ms McKay consisted of multiple fragments of charred bone. Lengths of rope were located around her feet. The offender gave evidence that the mobile phones belonging to the couple, as well as the block of wood which Mr Flentjar had used to strike Mr Hosa, had also been thrown into the drums.

23 Shortly after Ms Snibson dropped the offender home, he went next door and spoke to his sister and her husband. He told them that he had witnessed Ms Snibson, and a man whom he did not then know, attack and kill the deceased couple. He maintained that he had had nothing to do with the assaults upon them. Whilst he was speaking to them, Ms Snibson returned to the premises. The offender then accompanied her back to Braidwood Road, a distance of some 13 kms. He gave evidence that he did so because Ms Snibson wanted him to go with her to see if Mr Hosa’s vehicle had burnt out.

24 After discussing the matter with his sister and her husband, the offender decided to go to Nowra Police Station to report the incident. At about 2.30 am the following morning he was interviewed by way of ERISP, although he was not then a suspect. During the course of that interview, he directly implicated Mr Flentjar and Ms Snibson in the murders of the deceased couple, whilst at the same time denying that he had played any part in their demise.

25 It was then very early in the investigation and the offender was released without charge. However, some time later that morning after they had had an opportunity to make some preliminary enquiries, police requested that he return to the police station. The offender was then re-interviewed over a period of many hours. On this occasion, he provided some limited details concerning his own involvement in the matter. Following that second interview, he was then charged with the murders of the deceased couple.

26 In due course, police located both the burnt out vehicle and the drums. They arrested Ms Snibson when she arrived at the Calymea Street premises at 8.10 am the following morning. She declined to be interviewed. Traces of green paint similar to that on the drums were found in her vehicle and also on a trolley located at the premises.

27 Police located two drum lids at Mr Flentjar’s premises. He denied any knowledge of the murders and claimed not to have left his house on the day in question. Subsequently however, police obtained material from a listening device installed in his house which clearly indicated that Mr Flentjar had in fact been at the premises whilst the incident had taken place and that he had participated in the detention of the two victims. Nevertheless what he said during the course of those intercepted conversations falls short of an admission that he was responsible for killing the deceased couple. A DNA profile consistent with the profile of Ms McKay was located upon a handbag found at Mr Flentjar’s home. Blankets belonging to Ms Snibson were also located by police at his premises which is where, the evidence reveals, she spent the night following the murders of the deceased couple.

28 There is compelling evidence that the offender was significantly affected by the entire episode. He gave evidence that he was shocked by what he had observed and that he felt “sick to the stomach”. He said that that is what prompted him to inform his sister and her husband about what had happened. It was clear to them that he was very distraught. His sister said the offender was very fearful of Ms Snibson’s reaction were she to find out that he (the offender) had told her about what had occurred. She said that the offender had told her that Ms Snibson had threatened to burn down the house. The first police officer to whom the offender spoke, said he observed that “he appeared to be crying and holding his head in his hands…[and that he] had become speechless and stopped talking”. The offender said that he wanted to tell police about what had happened because, as he said, “I can’t live with that on my conscience”.

29 He gave evidence that he regretted having had any involvement in the offences. He was clearly emotionally affected by the reading of the victim impact statements and told the Court that it “just made me feel very low”.

30 The offender gave evidence that Ms Snibson told him that for his assistance “she was going to sign me something from the house”. He said that on the trip out to Tomerong State Forest he had observed papers in Ms Snibson’s car which, she told him, had come from the deceased couple’s house. She also offered to have sex with him, an offer which he said he declined. The offender sought to explain in various ways his failure to act when confronted with the circumstances which I have described. He said that initially he was in shock. He then said that he feared that, if he did not co-operate with his co-accused, he would meet the same fate as the deceased couple. He also feared that, as a person with a criminal record, he would not be believed if the others decided to blame him for the offences. In this context he was particularly concerned that the offences had occurred in the premises in which he was then living. Finally, he said that he had no means of leaving the premises because he had neither money nor any means of transport. I take his evidence to mean that he felt that he had no alternative other than to assist his co-accused in the commission of these offences.

31 I have received victim impact statements from the sisters of the deceased, Kathryn McKay. The feelings which they have so eloquently expressed and the grief which they and their families have suffered is entirely understandable. They refer, in particular, to the devastating effect which the deaths of his parents have had upon their young son. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased persons my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.

Subjective features

32 The offender was born on 16 January 1979 and is now 28 years of age. He grew up in Sydney in a family of Jehovah’s Witnesses. He apparently found it difficult to adhere to the tenets of his parents’ faith. He also had developed a “very significant learning difficulty at school”. As a consequence of those difficulties he moved out of home when he was only 14. He went to live with his sister, Sherrie and her husband, for whom he worked as a labourer, on the South Coast. In due course he returned to Sydney but there was still friction in the family home and he moved out again and went to live with friends in the Penrith area.

33 In 1996 he bought a motor cycle but within a day or so he was involved in a very serious accident. As a result of the accident, his best friend died. Neither he nor the offender were wearing helmets at the time. The offender himself sustained severe injuries including a depressed fracture of the left frontal skull and fractures to both of his arms and his legs. He remained unconscious for one or two days and he has still not fully recovered from all of his injuries, including significant ligament damage to his knee which restricts his movements. He still bears scars from the accident and as a result is unable to work.

34 The offender was charged with dangerous driving occasioning death as a result of the accident. I was informed that he originally received a community service order in respect of that charge. That order was subsequently revoked and in 1998 the offender was sentenced to a control order for a period of nine months. He also received fines for other less serious traffic offences associated with the fatal incident.

35 The offender’s sister gave evidence that he reacted adversely to the accident and that he underwent significant changes to both his personality and his mood in the period which followed it. She said that their mother also constantly placed pressure upon him to return to her religion. The fact that his parents constantly reminded him of his responsibility for the death of his friend did nothing to improve his mood. He is presently medicated with Epilim which controls his mood swings and helps him to concentrate.

36 A clinicial psychologist, Terry Smith, gave evidence on the offender’s behalf. After having viewed an MRI scan, Mr Smith diagnosed the offender as suffering from frontal lobe syndrome as a consequence of the accident. The evidence reveals that in the aftermath of the accident the offender descended into a cycle of depression and that he was unable to perform even the most basic of everyday tasks. His sister said that he frequently suffered from headaches. During this period he also attempted to commit suicide by hanging himself. Over the next few years he developed a dependency upon amphetamines and marijuana. He also had a series of disastrous personal relationships.

37 The offender frequently found himself before the courts in the years that followed the accident. In 1998 in the District Court he received a minimum term of 2 years imprisonment with an additional term of 1 year for an offence of robbery in company. He also received a concurrent sentence of 8 months for an offence of break and enter with intent to steal. In 2000 the offender was sentenced to 12 months imprisonment for taking and driving a conveyance and shorter concurrent sentences for driving in a manner dangerous and goods in custody. Other minor offences of dishonesty, as well as driving matters committed in that year, attracted pecuniary penalties. In 2001 he received sentences of imprisonment for six months for offences of goods in custody and driving in a manner dangerous.

38 In January 2002 the offender was sentenced to 6 months imprisonment for offences of driving whilst disqualified, driving in a manner dangerous, goods in custody and possession of implements to break into a conveyance. In May 2002 offences of affray and malicious damage to property attracted terms of imprisonment of 3 months whilst in October and December of that year the offender was fined for drug offences and offensive language. In March 2003 he was sentenced in the Local Court to 6 months imprisonment in respect of offences of common assault and stalking and intimidation. At the same time he was also placed upon a bond for a period of 2 years in respect of an offence of having custody of an offensive weapon in a public place.

39 Upon his release from custody in 2003, he again moved to the South Coast and was able, in time, to overcome his dependency upon drugs. It seems that he continued to move fairly frequently between Sydney and the South Coast.

40 The offender’s sister gave evidence that the offender is seemingly incapable of making decisions when he is under pressure. She described him as being almost child-like in such situations. Mr Smith, who administered a number of psychological tests to the offender, gave evidence that the results of those tests confirmed the observations made of him by his sister. He said that the offender’s account of his professed inability to see a way of extricating himself from the situation in which he found himself at the time of the offences, was entirely credible in light of his assessment of the offender’s psychological makeup.

Relevant sentencing principles

41 I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Act. See also R v MA (2004) 145 A Crim R 434.

42 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that two lives have been quite needlessly taken.

43 The Crown did not submit however that the present offences fell within the worst category of case. I accept that serious as they are, they do not warrant a sentence of imprisonment for life as provided for in s 61 of the Act. That being so, s 21 of the Act, which provides for the imposition of a “sentence of imprisonment for a specified term” in circumstances such as the present, has application.

44 In determining the appropriate sentence for the offender, I must also have regard to the various aggravating factors which are set out in s 21A of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3). As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: Andrews v R (2006) 160 A Crim R 505. I will make specific reference to those matters which I regard as being of particular relevance to the sentencing exercise. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element of the offence or if it is an “inherent characteristic” of the offence charged: see R v Yildiz (2006) 160 A Crim R 218.

45 On any analysis of the matter, each of the murders was an extremely serious crime. Having said that, I am mindful of the fact that the offender is to be sentenced as a principal in the second degree and not as the person who actually inflicted the fatal injuries. Indeed, in pleading guilty the offender indicated that he was doing so upon the basis that he had aided and abetted the commission of the various offences. The evidence supports the proposition that he was present at the time when the deceased couple were murdered and that he stood ready, willing and able to assist the actual perpetrator in the commission of the offences if required to do so: see R v Tangye (1997) 92 A Crim R 545 at 556-7. It is apparent upon the material before me that the other two persons accused of these offences were significantly more involved in them than was the offender. It is clear that an aider and abettor is not necessarily less culpable than a principal offender: see GAS v The Queen; SJK v The Queen (2004) 217 CLR 198. I am satisfied however in the present circumstances that his culpability is reduced because of his lesser role. I am fortified in that view by the attitude adopted by the Crown Prosecutor. I also approach the matter upon the basis that the offender had a somewhat diminished capacity, because of his frontal lobe condition, to have extricated himself from the situation in which he found himself on that fateful day.

46 Although the offender played a subsidiary role, it was nonetheless an important one. His mere presence enabled the resistance of the victims to be overcome and it is an aggravating feature that the offences were committed in company: s 21A(2)(e); Imnetu v R [2006] NSWCCA 203. In reaching that conclusion I recognise of course that the fact that the offender was in the company of others in the circumstances that I have described, also gave rise to his liability for the offences in the first place. There was a measure of premeditation at least so far as the kidnapping offences are concerned. Each of the victims was lured to the premises in circumstances in which the offender knew that they were to be tied up and assaulted. Viewed in that sense, the offences of murder could be said to have been “part of a planned or organised activity”: s21A(2)(n). Nonetheless the offender’s participation in the kidnapping of the victims represents an “inherent characteristic” of the offences of murder. Although there is no evidence to suggest that either of the murders was originally within the contemplation of this offender at least, it is tolerably clear that at some stage during the course of the entire episode (which lasted for several hours) the offender realised that the victims were to be killed. It is also clear that the offender performed a critical role in guarding the victims whilst they were still alive but after they had been tied up, and then in assisting in the attempt to dispose of the bodies and Mr Hosa’s vehicle. Moreover, it is to be borne in mind that the offender did not know either of the victims and accordingly he had no reason to bear them any ill-will. Each of the victims would inevitably have experienced a slow and painful death. I am unable to determine for how long they remained alive after being tied up but it was a span of time which lasted considerably longer than a matter of minutes.

47 On the other hand, there are a number of mitigating factors upon which the offender is entitled to rely. A significant factor to be weighed in the offender’s favour are his pleas of guilty: see s 21A(3)(k) and s 22. I referred at the outset to the circumstances in which he entered his pleas. They were clearly not entered at the first available opportunity and nor could they be described as being timely. Nevertheless there was still some saving of the resources of both the State and the Court. Moreover, it is no small matter to plead guilty to the most serious offence in the criminal calendar. Furthermore, a number of witnesses, including the offender’s sister and her husband were spared from the ordeal of having to give evidence.

48 In the circumstances the offender has “facilitated the course of justice”: Cameron v the Queen (2002) 209 CLR 339. Accordingly, and because his pleas of guilty have utilitarian value, he is entitled to an appropriate discount in accordance with the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383.

49 I am prepared to allow a further reduction of sentence to the offender on account of the contrition, which I regard as genuine, that he expressed in his interviews with police and in his evidence: s 21A(3)(i).

50 The offender is also entitled to a significant additional discount for his assistance to the authorities: s 21A(3)(m); York v R (2005) 225 CLR 466. As well as entering into the very comprehensive ERISPs with police to which I earlier referred, the offender elaborated upon various important aspects of the matter in his sworn evidence. Of particular significance in the present context is the fact that he has signed an undertaking to give evidence against his co-accused.

51 In assessing the weight to be given to this feature of the case I have had regard to the various factors identified in s 23(2) of the Act. Whilst it is true that the disclosure by the offender of his own involvement in the offences was somewhat belated, he did give a detailed account of his co-accused’s complicity in them right from the outset. Moreover, he did so at a time when the police were not even aware that the offences had been committed and his assistance thus provided police with a focus for their investigation.

52 Since indicating his preparedness to give evidence, the offender has been transferred from a low-level form of protection into the most stringent form of protective custody which is available. He is presently a remand inmate in respect of whom there is a non-association order. As a consequence, he occupies a single cell and has no association with other inmates. He has an enclosed exercise yard attached to his cell which he can use for up to an hour a day. Nor, as I understand the situation, is he permitted to have access to the oval or to education or other programs. Dominic Pezzano, who is employed as the Manager of Classifications for the metropolitan and southern regions of the Department of Corrective Services, gave evidence before me. He was unable to say precisely where the offender will be housed after he is sentenced. He indicated however that the offender’s options will be very limited should he remain a non-association inmate, as I understand he wishes to. The authorities make it plain that the circumstances in which an offender who is on protection is serving, and is likely to serve, his or her sentence should be carefully scrutinised by a sentencing court: see R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168 at 199-200.

53 It is reasonable, in the circumstances, to assume that the offender entertains reasonable fears for his physical well-being as a consequence of his decision to assist the authorities. His life may well continue to be at risk even after he is released from custody. In any event, he is almost certain to remain in some form of protective custody for the remainder of his sentence, a period of time which will, of necessity, be very lengthy. Those factors will mean that his time in gaol will be much more burdensome than would be the case for a mainstream prisoner: see generally Durocher-Yvon (supra) at 587.

54 The significance of the evidence which the offender has undertaken to give can be gauged from the fact that he can directly implicate his co-accused in the commission of what are clearly extremely serious crimes indeed. The Crown Prosecutor characterised the offender’s assistance as being “in the highest category”. He described the Crown case against the other accused, absent the offender’s evidence, as being “largely circumstantial in nature”. For that reason, his evidence is critical to the Crown case against them. It is clear from what I have said earlier that the offender provided information of which authorities had not previously been aware. The Crown Prosecutor also pointed to a number of features of the evidence in support of a submission that the offender’s version of events “is corroborated by independent evidence in many significant respects” and thus credible.

55 In R v SZ (2007) 168 A Crim R 249 the Court of Criminal Appeal held that it would only be in a truly exceptional case that an aggregate discount exceeding 50% should be extended to an offender for a plea of guilty and assistance to the authorities.

56 Whilst the assistance is of a very high order, the full extent of it was not realised until the offender belatedly acknowledged his own guilt and then revealed the nature of the role which he played in these offences. In those circumstances it is common ground that an aggregate discount of 50% would exceed what is properly to be called for. In assessing this aspect of the case I have been astute to ensure, as the Court in SZ (supra) emphasised, that full effect is given to the statutory mandate contained in s 23(3) of the Act: see also R v NP [2003] NSWCCA 195 per Simpson J at pars 49-50. For the foregoing reasons, I will allow an aggregate discount of 40% from the sentences which I would otherwise have imposed for the offender’s plea of guilty and his assistance to the authorities. I specify that a discount of 20% will be extended to the offender for the future assistance which he has promised to provide to authorities.

57 The offender does not have the benefit of a clear criminal record. In approaching this issue, I have borne steadily in mind the principles enunciated in R v McNaughton (2006) 66 NSWLR 566. He has a number of convictions, including offences of violence, although none of them of course even remotely approach the seriousness of the present offences. Nevertheless, in the circumstances it is appropriate to have some limited regard to the need for personal deterrence. His prior record, and more particularly the present offences, also suggest that the offender’s prospects of rehabilitation must, at first blush, be regarded as somewhat bleak. However, there remains some room for optimism, particularly in view of his acceptance of responsibility for his role in these offences and his assistance to authorities. Moreover, by reason of the sentences which I shall impose, the offender will, by the time he is released into the community, have reached an age at which it can be reasonably anticipated that he will have attained a measure of maturity.

58 As I observed earlier, the offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness”. In approaching this aspect of the matter, I have had regard to the principles set out in Way (supra) especially at pars 117-124; 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v MLP (2006) 164 A Crim R 93.

59 Although it was suggested on behalf of the offender in written submissions that the offences fell below the “middle of the range of objective seriousness” the submission was not pressed in oral argument. In any event in my view, the circumstances which I have outlined demonstrate that the offence of murder should, in each case, be characterised as lying at or even slightly above the “middle of the range of objective seriousness”. In coming to that conclusion, I have not overlooked the fact that his role was a subsidiary one and that his psychological condition compromised his capacity to react appropriately to the circumstances in which he found himself. Nonetheless, it is common ground that I should impose a non-parole period which is in each case considerably shorter than the standard non-parole period. I intend to do so primarily because of the offender’s plea of guilty and his assistance to the authorities and for the contrition which he has demonstrated. I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance “as a reference point, benchmark, sounding board or guidepost”.

60 I am acutely aware of the fact that the offender is to be sentenced in respect of four separate offences, albeit that they are interconnected. In those circumstances, it is necessary to have regard to considerations of totality and also to the question of concurrency and cumulation of sentences: see Pearce v The Queen (1998) 194 CLR 610; Johnson v R (2004) 205 ALR 346; R v Hammoud (2000) 118 A Crim R 66 and R v Weldon and Carberry (2002) 136 A Crim R 55 at pars 46-48. Although it is necessary to fix an appropriate sentence in respect of each offence, the interests of justice are best served, and again this is common ground, by ordering that the sentence for the specially aggravated kidnapping in respect of each victim should run concurrently with the sentence to be imposed for the murder of each of them. I have come to that view because in each instance the circumstances of the kidnapping provide the context in which the murders were committed. However, it is also common ground that a measure of accumulation is called for in relation to the offences of murder. Although they were committed during the course of the one episode of criminality, there are nonetheless two separate crimes and two separate victims: see generally Adanguidi v R (2006) 167 A Crim R 295.

61 Whilst I have derived some assistance from a consideration of other decisions, the extent of any such assistance is necessarily limited given the inevitable differences between those cases and the facts of the present case: see R v Trevenna (2004) 149 A Crim R 505. In the final analysis, I must exercise my own sentencing discretion having had proper regard to the relevant sentencing principles to which I have referred and having considered the salient features of the present case: see R v Markarian (2005) 228 CLR 357.

62 It was submitted on behalf of the offender that I should make a finding of “special circumstances”. I shall depart from the normal statutory proportion between the non-parole period and the overall sentence in respect of each of the sentences for murder but only by reason of the partial accumulation of those sentences. In the final analysis however the relationship which the total effective non-parole period which I shall impose bears to the total effective sentence will be in accordance with the normal statutory proportion. The effect of the overall sentence which I shall impose will, in any event, enable the offender to have an extended period of supervision in the community whilst on parole.

63 Notwithstanding the circumstances in which the offender committed these offences, two human beings have lost their lives in quite horrendous circumstances. There is no escaping from the fact that the deceased couple were killed in circumstances revealing a very considerable degree of callousness. Accordingly it is necessary to impose sentences which properly reflect the objective gravity of the offences in question, and which give effect not only to the various matters referred to in s 3A of the Act but also to the maximum penalties prescribed by the legislature. In setting the effective overall non-parole period, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.

Stacey Lea-Caton

64 For the offence of detaining Gregory Hosa in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of 5 years imprisonment to commence on 29 January 2006 and to expire on 28 January 2011. I decline to impose a non-parole period because of the sentence which I am about to impose.

65 For the offence of murder of Gregory Hosa the offender is sentenced to a total term of imprisonment of 18 years consisting of a non-parole period of 12 years 6 months with the balance of the term being 5 years 6 months. Each term will commence on 29 January 2006. The total term will expire on 28 January 2024 and the non-parole period will expire on 28 July 2018.

66 For the offence of detaining Kathryn McKay in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of 5 years imprisonment to commence on 29 January 2010 and to expire on 28 January 2015. I decline to impose a non-parole period because of the sentence which I am about to impose.

67 For the offence of murder of Kathryn McKay the offender is sentenced to a total term of imprisonment of 18 years consisting of a non-parole period of 12 years 6 months with the balance of the term being 5 years 6 months. Each term will commence on 29 January 2010. The total term will expire on 28 January 2028 and the non-parole period will expire on 28 July 2022 on which date the offender will be eligible for release on parole.

68 The total effective sentence is thus one of 22 years imprisonment with a total effective non-parole period of 16 years 6 months.

69 It will be apparent from what I have said that the head sentence for each of the offences of murder before the aggregate discount for the pleas of guilty and assistance to the authorities was applied was in the order of 30 years.

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