R v Thompson

[2008] NSWSC 109

CITATION:	R v Thompson [2008] NSWSC 109
HEARING DATE(S):	08/11/2007, 12/11/2007, 14/11/2007, 08/02/2008
JUDGMENT DATE :	14 March 2008
JUDGMENT OF:	Hoeben J
DECISION:	Sentenced to a non-parole period of 15 years to commence on 28 February 2006 and to expire on 27 February 2021 with a balance of term of 5 years to expire on 27 February 2026, that is a total sentence of 20 years. The earliest date eligible for release on parole 28 February 2021.
CATCHWORDS:	CRIMINAL LAW - sentence for murder - murder of partner after night of drinking - application of standard non-parole period - aggravating and mitigating factors.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	Channon v The Queen (1978) 33 FLR 433 R v AJP (2004) 150 A Crim R 575 at [122] R v Berg [2004] NSWCCA 300 at [43] R v Engert (1995) 84 A Crim R 67 R v Hearne (2001) 124 A Crim R 451 at [34] R v King [2004] NSWCCA 444 at [171] R v Previtera (1977) 94 A Crim R 76 R v Robinson [2007] NSWSC 460 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton [(2000) 49 NSWLR 383 R v Vu [2005] NSWSC 271 R v Way [2004] 60 NSWLR 168 R v White [2005] NSWSC 667
PARTIES:	Regina John Frederick Thompson - Offender
FILE NUMBER(S):	SC 342/2007
COUNSEL:	Mr Paul Lynch - Crown Ms Anita Betts - Offender
SOLICITORS:	Solicitor for Public Prosecutions - Crown Solicitor for Legal Aid Commission of NSW - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 14 March 2008

342/2007 - REGINA v John Frederick THOMPSON

REMARKS ON SENTENCE

1 HIS HONOUR: John Frederick Thompson (hereinafter called “the offender”) pleaded guilty to the offence that on 28 January 2006 at Airds in the State of New South Wales he did murder Fallon Baker contrary to s 18 of the Crimes Act 1900.

2 The offender advised the Court on 8 November 2007 that he intended to plead guilty to the charge on the basis that his intention at the time was to inflict grievous bodily harm on the deceased. The Crown advised the Court that it accepted the offender’s plea on that basis. His trial was due to commence on 12 November 2007 and his plea of guilty was formally entered on that day.

3 It is now my responsibility to sentence the offender for that crime, having heard submissions on sentence from both the Crown and Ms Betts, counsel for the offender, on 14 November 2007 and 8 February 2008.

Background facts

4 At the time of the offence the deceased (aged 18) and the offender (aged 22) lived together at 20 Dangar Way, Airds. They had been in a de facto relationship for about three years. They had one child from the relationship, Dylan, who was 19 months old.

5 There was a history of domestic discord in the relationship. Before the offence the deceased’s family and friends had observed on occasions a number of injuries to the deceased, including black eyes, fat lips and bruising to her arms, neck and face.

6 On 24 August 2005 the offender punched the deceased in the face. This assault was reported to the police and the offender was convicted and placed on a 12 month s 9 good behaviour bond. An apprehended violence order was also granted to protect the deceased. In addition to the general conditions of the order, the offender was subject to a condition which prohibited him from approaching the deceased within 12 hours of consuming intoxicating liquor.

7 The present offence was committed during the term of the bond and also during the period during which the apprehended violence order was in force.

8 On Friday, 27 January 2006 at about 10 pm the offender went to the car-park area of the Riverside Inn at Airds where he commenced drinking alcohol with a group of friends. At about 11 pm the deceased and her sister drove to where the offender was drinking with his friends. The offender and the deceased spoke for a short time. According to the deceased’s sister, the deceased and the offender were getting on very well at the time.

9 After leaving the offender, the deceased picked up their son, Dylan, and arrived home at about 11.30 pm. The offender stayed in the car-park area drinking with his friends. During that time the offender consumed about half a cask of wine and about six bottles of full strength beer.

10 At about 1 am the offender walked with a group of people to 6 Woolwash Place, Airds where he continued drinking in a backyard. The offender drank a premixed can of Johnny Walker and then began drinking Jim Beam bourbon and coke which he mixed himself.

11 At about 2.15 am a Mr Shaun Presdee joined the offender and his group. A short time later Mr Presdee was assaulted by some of the persons in the group including the offender. The other males eventually stopped assaulting Mr Presdee, but the offender continued. Eventually it was necessary for the offender to be restrained and the fight ended. The offender stayed in the rear of the yard with a small group of people.

12 Between 4 and 5 am the offender left the party. At this time Mr Mark Siaa and some of his friends were sitting in front of premises at 154 Riverside Drive, Airds. The offender walked along Riverside Drive and when he saw these persons he stopped to speak to them.

13 The offender knew Mr Siaa because the deceased had been in an on-and-off again intimate relationship with him until the deceased started seeing the offender in about 2003. The deceased and Mr Siaa had remained close friends. According to Mr Siaa and the deceased’s family the offender was jealous of this friendship.

14 Whilst the offender was speaking to these persons a dispute arose about something that the offender had allegedly said about Mr Siaa. The offender denied having said anything derogatory about Mr Siaa. The comment was then made “Well it would have had to have come from your woman. I don’t know who else would say it. Why don’t you go home when you’re straight and sort it out with her”. A short time later the offender left these persons and continued walking home.

The offence

15 The offender arrived home some time between 5 and 6 am. The offender entered the house through the back door, which the deceased had left open for him. The offender walked up the stairs to the master bedroom where the deceased was sleeping. As the offender approached the deceased he was yelling in a loud voice calling the deceased a “fucking slut”. This woke the deceased and she said something like “What’s wrong?” The offender then punched the deceased in the face and at the same time was saying, “Why do you have to talk shit behind my back?”

16 The offender’s recollection of what thereafter occurred is variable. On occasions he said that he had no further recollection and on other occasions he appeared to remember isolated events which occurred. I am satisfied that these islands of recollection accurately record what happened.

17 The offender recalled the deceased getting up and he continued to yell at her, repeatedly calling her a “slut”. At some point in time the offender recalled seeing the deceased on the floor of the bedroom. When the offender left the room he saw the deceased sitting up hunched over on the floor “crying or making some noise”. Witnesses in neighbouring duplexes heard the offender yelling and heard a lot of banging.

18 At some stage during the assault on the deceased, Dylan woke up and climbed out of his cot. The offender recalled putting him back in his cot and going downstairs. The offender turned the television on and lay on the lounge from where he continued to yell at the deceased. At some stage the offender fell asleep.

19 I accept what the offender said in his electronically recorded interview with the police that after seeing the deceased’s ex boyfriend, Mr Siaa, he became angry with the deceased because he believed that the deceased was still involved with Mr Siaa.

20 The precise sequence of events during the course of the offender’s attack on the deceased will never be known. The report of Dr Ellis, who conducted the post mortem on the deceased, gave the cause of death as due to the effects of head injury (blunt force trauma).

21 When police attended 20 Dangar Way, the following objects were located near, on or around the deceased’s body:

Neck and glass fragments from a Jack Daniels Tennessee whisky bottle.
Half a metal television stand fitted with wheels (the glass base of the stand had been smashed and glass fragments located).
Broken television casing.
Broken television screen.
Pedestal fan with dented white metal pipe.
Metal candelabra (tangled in the deceased’s hair).

22 Investigations carried out by Constable Lambousis, an expert in blood spatter analysis, reached the following conclusions.

(a) The extent of the blood spatter deposited throughout the main bedroom indicated a prolonged assault.

(b) The concentration of bloodstains low on the wall suggested that the victim was lying on the floor during part of the assault.

(c) The presence of six separate bloodlines of travel suggests a minimum of seven blows.

(d) The extent of the damage to items, the facial and head injuries on the deceased and the amount of impact spatter and transfer stains suggested a sustained assault.

23 I find beyond reasonable doubt that the assault was prolonged and sustained and that not only did the offender punch the deceased on a number of occasions, but he also kicked her whilst she was lying on the floor against the wall.

Subsequent events

24 At some time that morning, before midday, Dylan climbed out of his cot and went downstairs and woke the offender. The offender went upstairs and saw the deceased lying naked on the bedroom floor. The offender saw that the deceased was covered in blood, was badly bruised and had a swollen eye. He saw that there was a large amount of blood on the floor and walls. Situated around the deceased were broken glass fragments and the other objects previously described. The offender attempted to wake the deceased but could feel that she was cold. The offender’s trousers, shoes and socks had blood on them.

25 The offender collected Dylan from downstairs and walked to the house of Maria Brown at 24 Teeswater Place, Airds. The offender left Dylan with one of Ms Brown’s sons. At the time Dylan was only wearing a nappy and he had blood on his left leg, right arm and jaw line. Dylan did not have any signs of injury.

26 The offender took Ms Brown to 20 Dangar Way and showed her the deceased. Ms Brown touched the deceased’s chest which felt cold. Ms Brown made arrangements for the offender to attend Campbelltown Police Station.

27 At about 12.05 pm the offender, Ms Brown and a Mr Nasser Rajab went to Campbelltown Police Station. As they were speaking to police about the offender’s son, Detective Napier noticed that the offender had blood on his shoes. The offender was questioned about the blood. As a result of that questioning Detective Napier arranged for other police to attend the offender’s premises to check on the welfare of the deceased.

28 The offender was given a general caution. Detective Napier said to the offender “Is there anything you want to tell me?” The offender said, “That’s why I came in here. If anything happened I’ve come to give myself up”. Detective Napier said, “If anything happened to your girlfriend who would have done it?” The offender said “Me”.

29 A short time later Detective Napier was informed that police had located the deceased at 20 Dangar Way. The offender was placed under arrest for the murder of the deceased. The offender has been in custody since 28 January 2006.

Subjective matters

30 The offender was born in New Zealand on 8 June 1983 and is of Samoan origin. He was raised by his mother and maternal grandmother. His parents separated before he was born and he is the only child from that union. The offender says that from the age of five, he grew up with a stepfather who was a violent alcoholic. He has two half siblings on his father’s side and four half siblings on his mother’s side.

31 The offender lived in New Zealand until 1994 when he was sent back to Samoa where he remained until 2001. It seems the move to Samoa took place because of early behavioural problems in New Zealand. The offender says that between the ages of 11 and 12 while in Samoa a maternal uncle sexually interfered with him.

32 The offender was educated in Samoa until 2001. He returned to New Zealand in 2001 and came to Australia in June of that year. He met his father for the first time and lived with him in Queensland for a few months. He moved to Sydney in late 2001. Between that date and the date of his arrest he worked as a truckie’s offsider with two different councils where he did landscaping. He was employed in the demolition industry and has washed trucks. He also did some security work. In 2004 he started working as a car-park attendant and was doing that type of work on and off until the date of his arrest.

33 His first significant relationship occurred in 2002 and lasted for about four months. His second significant relationship was with the deceased and that commenced on 26 June 2003. Dylan his son from this relationship is his only child.

34 This is the first time that the offender has been in custody. He is in the main section of the prison and says that he gets on with the officers and other inmates. In the past he received visits from friends and from some family members but these have ceased in more recent times. His father is aware of this offence and there has been some contact. He has lost contact with his mother who remains in New Zealand.

35 The offender was referred to Dr Bruce Westmore, psychiatrist, by his legal advisers. He saw Dr Westmore on three occasions: 1 September 2006, 29 August 2007 and 15 January 2008.

36 It is clear from what the offender told Dr Westmore and from his police interviews that before the offence he was abusing drugs and alcohol. Before the offence he was using heroin, amphetamines and ice. He often combined cannabis with alcoholic consumption. He used cannabis on a daily basis. His pattern of drinking was of a binge kind. He did not drink every day but when he did drink, the quantities involved were large and he usually had little or no recollection of what he had been doing. He engaged in episodes of violence which were usually associated with alcohol abuse.

37 The offender told Dr Westmore that he had been hearing voices since he was about 17. He described the voices as female and internal. They spoke to him in his own language. They told him to hurt people and to do specific things. Sometimes he could not understand what the voices were saying. He did not tell anyone about these voices until after he was placed in custody. He said “No, I kept it to myself. I didn’t want people to know”. The voices were not present all the time, but only sometimes. He said that he used drugs and alcohol to get rid of the voices.

38 The offender commenced receiving treatment for those voices at the end of 2006 and the voices had stopped by May or June 2007. Those hallucinations have continued to be under control. Dr Westmore diagnosed a psychotic illness such as schizophrenia or a drug related induced psychosis.

39 The circumstances of the offence as described to Dr Westmore by the offender are set out in his report of 21 January 2008 as follows:

“I then asked him why did he think this tragedy occurred. He stated “I was just bottling up too much, emotions and excess use of alcohol. It wasn’t a good mix. I snapped on the wrong person and the voices were bothering me too much.”
I asked Mr Thompson to confirm that he had been concerned that his girlfriend had been having an affair with her ex boyfriend. He nodded in the affirmative. He then spoke spontaneously and stated “Not only that, but a lot of other things were on my mind”. I asked him about those other things and he said he was stressed at work and “stressed from life”. He confirmed on the night of the incident he had had a fight with his girlfriend’s ex boyfriend, he said it was an argument rather than a fight. I asked him what they’d argued about and he said “He thought I was going around talking shit about him”.”

40 The offender told Dr Westmore that he had used illicit drugs in prison including heroin, cocaine and “bupe”. He had been taking those drugs intravenously and had used them about twenty times between August 2006 and August 2007. He said that he had stopped drug use when he commenced a methadone program in 2007.

41 In January 2008 when Dr Westmore asked about his drug abuse in prison the offender said he had taken cannabis, heroin and buprenorphrine. He said that he had last used drugs a few months before. The offender told Dr Westmore that he had attended about six drug and alcohol courses while in prison and that he wanted to do more courses to help with his drug problem. In relation to his drug behaviour generally he said:

“At present there is nothing in the world that can take away the pain except drugs. I know if I get out I will use drugs again to get away from the pain. I used to use a lot of ice on the outside.”

42 When Dr Westmore asked the offender did he feel sorry for what he had done he said “Yes”. He said: “Sometimes I wish I was dead so I could be with her”. Dr Westmore asked him to confirm that he had no active thoughts of harming himself despite that last statement and the offender said: “No, because I have to live for my son”.

43 Dr Westmore expressed his conclusion in relation to the offender as follows:

“This tragic incident has occurred as a result of a combination of factors. It would seem that Mr Thompson had a belief that his girlfriend was being unfaithful, he was heavily intoxicated at the time of the incident. While he describes the presence of auditory perceptual disturbances on the day of the incident, he could not remember whether he heard voices during the night leading up to when the offence occurred. He was not able to give a detailed or specific account about the presence of auditory hallucinations or their possible impact on him and his behaviour. I offered the view previously that it was not possible to determine whether his act of aggression occurred as a result of alcohol abuse and jealousy as opposed to an act of aggression which may have arisen as a result of mental illness. I thought that if he had a past history of alcohol generated violence towards the deceased or others, then on the balance of probability his actions towards the deceased were generated primarily by alcohol. I did not think he had a psychiatric defence to the charges.
As can be seen from this report, Mr Thompson continues to struggle with his drug abuse problems. His risk of re-offending will be significantly reduced if he can enter into and maintain sobriety from drugs and alcohol. He has some insight into his continuing vulnerability regarding drug use and any long-term treatment plan necessarily will include an extended period of community based drug rehabilitation. He also needs to attend further drug and alcohol rehabilitation courses in custody. This man probably does not have an antisocial personality disorder and the offending behaviour is unlikely to have arisen from personality traits of that type either. As in most homicides, a combination of factors were involved leading up to the tragedy with alcohol and/or drug abuse playing a principal role in this particular case.”

44 The Probation and Parole Service presentence report prepared by Ms Bentham is to similar effect to the reports of Dr Westmore. She identified the need to deal with the offender’s poly-substance abuse if re-offending was to be avoided. She also recommended participation in a Violent Offenders’ Therapeutic Program and ongoing psychiatric treatment.

45 Exhibit 2 comprised a handwritten letter from the offender to the court expressing his remorse and sorrow at the offence and his hope that one day Dylan would forgive him.

Victim Impact Statements

46 A victim impact statement from the deceased’s mother Raema Baker was read to the Court by a support person and victim impact statements from the deceased’s brothers Todd, Caine, Aaron, Owen and Steven Baker were read to the Court. Those statements provide eloquent testimony to the love which her family had for the deceased. Despite her young age, it is clear that the deceased had a calming and restraining influence upon her brothers and provided support for her mother. She had a strong relationship and bond with her brothers’ children and those children have suffered deeply as a result of her death. The statements refer to the loss which Dylan has experienced in having lost a loving mother and being forced to live his life without ever knowing her.

47 These statements afford clear evidence of the value of the life of the deceased and the grief her death has occasioned to all her loved ones. It is appropriate that the loss of the deceased and its consequences for the family and for the community is here acknowledged.

48 Nevertheless I must heed the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions in R v Previtera (1977) 94 A Crim R 76; R v Berg [2004] NSWCCA 300 at [43] and R v King [2004] NSWCCA 444 at [171] and approach my sentencing task objectively and dispassionately. It is not appropriate, following the authorities mentioned, that I take those victim impact statements into account in determining an appropriate sentence.

Objective seriousness

49 The maximum penalty for the crime of murder under s 19A of the CrimesAct is imprisonment for life. The maximum penalty is intended for cases falling within the worst category for which that penalty has been prescribed (s 61 Crimes (Sentencing Procedure) Act 1999) (the Act). It was submitted on behalf of the Crown and the offender that this offence did not fall within the worst category. I agree. Accordingly a specified term of imprisonment in accordance with s 21(1) of the Act should be imposed.

50 That does not end the matter. The offence was committed after 1 February 2003. Accordingly the provisions of s 54A and 54B of the Act apply. The standard non-parole period for the offence of murder is 20 years.

51 Those sections relevantly provide:

“54A (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.
(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.
54B (1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.
(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
…”.

52 There are difficulties in interpreting these sections. They were identified by Studdert J in R v White [2005] NSWSC 667 where his Honour said:

“32 What then is an offence of murder in the middle range of objective seriousness, to which the standard non parole period relates?

33 There is no statutory definition to assist in determining this. Whilst all murders are, of course, to be regarded as extremely serious, the range of circumstances which may bear upon the objective gravity of this category of crime is widely variable.
34 I find it extremely difficult to determine where the boundaries of the middle range of objective seriousness of the crime of murder are to be set, but proper consideration of the significance of s 54A and s 54B requires that I endeavour to assess where the offender’s crime would lie in relation to the middle of the range, heeding what was said in Way , particularly at paras [72] –[102]. How else can I use the middle of the range as a guidepost as I endeavour to arrive at an appropriate sentence?

35 Section 54B(2) requires the Court to set the standard non parole sentence in a case to which the section applies “unless the court determines that there are reasons for setting a non parole period that is longer or shorter” than that standard period.

36 It was determined in Way (see para [118]) that whether there are reasons for departing from the standard period will depend upon consideration of:


“(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).””

53 In this case my task has been made somewhat easier in that the offender entered a plea of guilty before the commencement of his trial. In accordance with the guidance in R v Way [2004] 60 NSWLR 168, that of itself provides a reason for departing from the standard non-parole period. Nevertheless, as R v Way made clear and as Studdert J remarked in R v White, the existence of the standard non-parole period remains as a guidepost and reference point to assist the Court in formulating an appropriate sentence.

54 As a start point in the process of reasoning recommended in R v Way, it needs to be remembered that murder is a crime which can be committed under a wide range of circumstances. There are always significant differences in the subjective circumstances. Generally an offence involving an intent to kill is more serious than one where the intention is to inflict grievous bodily harm (R v Hearne (2001) 124 A Crim R 451 at [34]). Similarly, a murder which is not premeditated is usually regarded as less serious than one which involves planning.

55 The attack on the deceased was not premeditated. Until the contact between the offender and Mr Siaa and his companions at about 4-5 am, relations between the offender and the deceased were not only cordial but they appear to have been affectionate insofar as the deceased’s sister was able to judge earlier. It was the confrontation with Mr Siaa and his friends which provoked a fit of jealous rage in the offender. I should at this point make it clear that these feelings of jealousy were entirely unjustified. That combined with the offender’s heavy intake of alcohol led to his attack on the deceased when he arrived home shortly afterwards. I find that the attack on her was not premeditated, nor was it planned.

56 There was no issue between the Crown and the defence that at the time of the attack the offender intended to cause grievous bodily harm to the deceased but did not intend to kill her.

57 The offence appears to have been committed as a result of a sudden onset of rage brought about by the confrontation between the offender and Mr Siaa. The attack on the deceased appears to have been spontaneous. The offender’s advanced state of intoxication also needs to be taken into account on the question of intent.

58 Another consideration is the behaviour of the offender after the attack on the deceased. He did not attempt to escape nor conceal his crime but went to sleep after watching television. He was surprised and shocked when he observed the results of his actions at midday when he went to the bedroom. These circumstances are inconsistent with the actions of a person who had intended to kill the deceased and who believed he had successfully carried out that intention.

59 There is simply no evidence to justify a finding beyond reasonable doubt that the offender had an intention to kill. All the available evidence indicates that the intention was to inflict grievous bodily harm upon the deceased and I so find.

60 It was submitted, on behalf of the offender, that the objective gravity of the offence was reduced because of the offender’s mental health problems and in that regard general deterrence should not be given as much weight as it normally would. I do not agree.

61 These matters were carefully considered by Dr Westmore. It is clear from his analysis that whether or not the offender suffered from some schizophrenic condition, it made no contribution to his actions on the night of the offence.

62 The offender’s actions were fuelled by an unjustified belief that the deceased had been unfaithful to him and by his resentment of Mr Siaa against a background of very heavy drinking. The offender engaged in this episode of binge drinking in circumstances where he knew from previous experience that he often acted violently when he was heavily affected by alcohol.

63 I should say something more about the offender’s advanced state of intoxication. Clearly, as the plea of guilty concedes, it was not sufficient to prevent the offender forming the necessary intent to inflict grievous bodily harm. Nevertheless it is a matter to be properly taken into account as part of the background circumstances. It is relevant to take into account that alcohol played a significant part in causing the offender to lose control and act in such a violent way. That having been said, it was well known to the offender that when heavily affected by alcohol he was prone to behave violently and that on occasion such violent behaviour was directed against the deceased.

64 In those circumstances whilst it is relevant to take into account the part that alcohol played in the offence, it does not greatly reduce the objective seriousness of it. I do not accept that any mental health problems on the part of the offender should reduce the objective seriousness of the offence and accordingly general deterrence remains a significant factor to be taken into account.

65 As required by s 54B of the Act, I need to take into account the aggravating and mitigating factors referred to in s 21A of the Act.

66 There was an issue between the parties as to whether the offender used a weapon in his attack upon the deceased (s 21A(2)(c)). On behalf of the offender it was submitted that the Court could not be so satisfied because despite the objects found near the deceased, none except the fan had blood on them. In that regard it was submitted that there was no evidence of skin or congealed blood on the fan, rather the evidence was that of blood spatter.

67 The Crown relied upon the violence of the assault per se, the blood on the fan and the position of the objects surrounding the body of the deceased. The Crown also relied upon the opinion of Dr Ellis that “some of the injuries which were present suggested the impact and fracturing of pieces of glass”.

68 While I agree with the submission put on behalf of the offender, that the Court cannot be satisfied beyond reasonable doubt that the offender did use a weapon to attack the deceased, it seems to me that the question is largely academic. The attack was clearly a violent and frenzied one. The seriousness of the offence is clear when one considers the comparative size of the deceased and the offender and the nature of her injuries, particularly those to the head, and the use by the offender of his fists and feet in the attack.

69 The only matter of significance in the offender’s previous criminal record relates to an assault by him against the deceased in August 2005 when he was heavily intoxicated. This of itself does not count greatly against him (s 21A(2)(d)) except that it involves the same type of conduct which brought about the death of the deceased on this occasion. The real matter of aggravation, for the purposes of s 21A(2), is that this offence was committed when the offender was on conditional liberty being subject to a bond and the offence involved a breach of the apprehended violence order which was still effective (s 21A(2)(j)).

70 I agree with the submission of the offender that the fact that the offence involved the actual or threatened use of violence (s 21A(2)(b)) and that the emotional harm, loss or damage caused by the offender was substantial

(s 21A(2)(g)) do not amount to matters of aggravation. This is because these subsections give rise to features which are elements of the offence to which the offender has pleaded. These features were present but they are the inevitable elements in any offence of murder, it being the most serious offence in the criminal calendar.

71 In relation to mitigating factors, it was submitted on behalf of the offender that he was unlikely to re-offend (s 21A(3)(g)) and that he had good prospects of rehabilitation (s 21A(3)(h)). I am not satisfied that this can be stated in such unequivocal terms. The offending was associated with poly-substance abuse which has continued. Although Dr Westmore and the Probation and Parole Service refer to the fact that the offender has some insight into his problem, neither could offer any unqualified assurance that the offender would be unlikely to re-offend. The offender would need to first bring his substance abuse under control. There remains doubt as to whether that can be achieved.

72 There was no question but that the offender is genuinely remorseful about his conduct. He voluntarily surrendered himself to the police. He has substantially co-operated with the police. His plea of guilty is consistent with this genuine remorse. His letter to the Court and behaviour while in custody support that conclusion.

73 I have regard to and I apply the principles stated by the Court of Criminal Appeal in relation to discounts for pleas of guilty in R v Thomson & Houlton (2000) 49 NSWLR 383. The Court of Criminal Appeal there explained the reasons why a plea of guilty should attract a lower sentence. The reasons identified by the Court were firstly, the plea demonstrates remorse or contrition; secondly, the plea has a utilitarian value for the efficiency of the criminal justice system and thirdly, in particular cases there can be a value in avoiding the need to call witnesses, especially victims, to give evidence. The Court of Criminal Appeal suggested a range of 10% - 25% as a discount on sentence for a plea of guilty.

74 In relation to the offender’s plea of guilty, although it was made late, I am of the opinion that he is entitled to a discount because of its utilitarian value. The reason for the delay in the offender’s plea of guilty was to enable the question of mental illness to be fully explored by Dr Westmore. From the material contained in Dr Westmore’s report this was a reasonable approach on the part of the offender’s legal advisers. The Crown agreed that this was so.

75 The utilitarian value of the plea was real because it relieved witnesses, and in particular members of the deceased’s family, having to revisit the events leading up to the deceased’s tragic death under oath in the witness box. The Crown accepted that in the circumstances of this case the offender’s plea of guilty entitled him to a discount within the range of 15%-20%. On the facts of this matter the discount I propose to apply is 15%.

76 All of the above matters are relevant in considering the relative seriousness of the offence for the purposes of sections 54A and 54B of the Act. As was said in R v Way:

“[86] Some of the relevant circumstances which can be said “objectively” to affect the “seriousness” of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its
commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example,intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.
[87] Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both, the seriousness of the offence and punishment, so far as deterrence is concerned.
[88] In an assessment of the objective seriousness of the subject offence it seems to us that attention must accordingly be given to the factors mentioned above. Some of these relevant factors will be elements of the offence itself. Others
will fall within the list of aggravating and mitigating factors referred to in s 21A(2) and (3) of the Act, so far as they relate to purely objective considerations.”

77 Taking those matters into account I am satisfied that this offence is not a matter which should be properly characterized as coming within the mid range of objective seriousness for offences of this kind. I see the offence as being close to that standard, but below it. Accordingly, I find that the standard non-parole period ought not to apply to the offence. That is not to say that I propose to ignore the standard non-parole period of 20 years. It remains, as the authorities have pointed out, an important guidepost and reference point in the sentencing process (R v AJP (2004) 150 A Crim R 575 at [122]).

Sentence

78 The Court was provided by counsel for the offender with a list of cases dealing with sentences imposed for the offence of murder in factual circumstances similar to those surrounding this offence. Those cases which predated the enactment of the standard non-parole period legislation I found of little assistance but the decisions in R v Vu [2005] NSWSC 271 and R v Robinson [2007] NSWSC 460 were helpful. Fundamentally, however, each sentence matter must depend upon its own particular facts.

79 The sentence which I propose to pass includes in it a substantial period during which the offender will be eligible for parole. Accordingly I do not propose to alter the statutory ratio between the non-parole period and the balance of term in the sentence. To extend the parole period at the expense of the non-parole period would produce a sentence which did not adequately reflect the seriousness of the offence and the purposes of s 3A of the Act. Accordingly, I decline to find special circumstances despite the fact that this will be the offender’s first time in custody (R v Simpson (2001) 53 NSWLR 704).

80 The offender has a strong subjective case. He had a disrupted and abusive childhood and lacked any positive male role model. I accept that he has some mental illness issues, although for the reasons set out above these played no part in the offence. I accept that the offender has a genuine level of remorse and bitterly regrets what he has done. His plea of guilty is not only indicative of that remorse but has a significant utilitarian value.

81 I have also had regard to the particular circumstances of the offence in that it was not premeditated and that alcohol played a significant part and that there was no intent to kill but rather an intent to inflict grievous bodily harm.

82 On the other hand there were serious aggravating circumstances. When the offender commenced his fatal assault upon the deceased he was at conditional liberty and bound by the terms of an apprehended violence order not to approach the deceased when he had consumed alcohol. Furthermore, this was not his first attack upon the deceased. This was but the latest in a series of assaults. The offender well knew from his previous conviction for assaulting the deceased and from his prior attacks upon her, that when he had been drinking heavily he would take out his violent tendencies on the deceased. Finally there are the circumstances of the offence involving as they do a brutal and violent attack upon a much smaller and defenseless woman. These matters significantly reduce his entitlement to leniency.

83 The offence of murder has always attracted the abhorrence of the community and a sentence for murder must serve the interests of punishment, including denunciation, general and personal deterrence, the protection of the community, retribution and the rehabilitation of the offender. The importance of promoting deterrence in the context of domestic violence in which females are usually subjected to a history of violence before a catastrophic event such as murder occurs, cannot be too strongly emphasized.

84 The Court in sentencing has to take account of the provisions of s 3A of the Act and the purposes therein identified in relation to sentencing, ie to ensure that the offender is adequately punished, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce the conduct of the offender and to recognize the harm done to the victim and the community.

85 In this case the elements of general deterrence and retribution have considerable relevance because of the serious criminality involved in the unlawful taking of another person’s life. I also have regard to the standard non-parole period provided by s 54A as an important reference point, even though I have declined to apply it. Accordingly, I am satisfied in this case that a lengthy term of imprisonment must necessarily be imposed to give effect to the purposes expressed in s 3A of the Act and to properly reflect the circumstances of the offence.

86 The offender has been in custody since 28 January 2006. He has been sentenced to 3 months imprisonment for the assault on Mr Presdee. I propose to allow in the offender’s favour a credit for the time which he has already served in custody, but I also need to have regard to the sentence passed on him for the assault. Accordingly, I propose to make the offender’s sentence partially concurrent with the sentence for assault and to commence from 28 February 2006. The sentence which I have determined has been arrived at with allowance being made for the 15% discount for the offender’s plea of guilty.

87 For the murder of Fallon Baker I sentence you to imprisonment for 20 years such sentence to commence on 28 February 2006 and to expire on 27 February 2026. I fix a non-parole period of 15 years to expire on 27 February 2021. The earliest date on which you will be eligible for release on parole will be 28 February 2021.

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