R v Wilkinson (No. 5)

[2009] NSWSC 432

CITATION:	R v Wilkinson (No. 5) [2009] NSWSC 432
HEARING DATE(S):	12 November 2008, 21 November 2008, 2 December 2008, 21 April 2009, 22 April 2009
JUDGMENT DATE :	22 May 2009
JUDGMENT OF:	Johnson J
DECISION:	1. For the crime of murder, the Offender is sentenced to a non-parole period of 21 years commencing on 17 April 2007 and expiring on 16 April 2028 with a balance of term of seven years commencing on 17 April 2028 and expiring on 16 April 2035. 2. For the crime of arson, the Offender is sentenced to a non-parole period of four years and six months commencing on 17 October 2026 and expiring on 16 April 2031 with a balance of term of one year and six months commencing on 17 April 2031 and expiring on 16 October 2032. 3. The earliest date on which the Offender will be eligible to be released on parole is 16 April 2031.
CATCHWORDS:	CRIMINAL LAW - sentence - offences of murder and arson - offender conceals body of victim - offender sets fire to dwelling house 18 days after murder - blames victim for fire - motive for arson to deflect police from investigation of offender for disappearance of victim - objective seriousness of offences - whether worst case of murder - absence of remorse and contrition - determinate sentences of imprisonment imposed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	R v Wilkinson (No.4) [2009] NSWSC 323 The Queen v Olbrich [1999] 199 CLR 270 R v White [2005] NSWSC 667 Nguyen v R [2007] NSWCCA 363 R v Merritt (2004) 59 NSWLR 557 Director of Public Prosecutions v England [1999] 2 VR 258 Bell v R [2003] WASCA 216 Colledge v State of Western Australia [2007] WASCA 211 R v Cavkic (No. 2) [2009] VSCA 43 Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 Douar v R (2005) 159 A Crim R 154 Weininger v The Queen [2003] 212 CLR 629 R v Way (2004) 60 NSWLR 168 Porter v R [2008] NSWCCA 145 R v Previtera (1997) 94 A Crim R 76 R v FD and JD (2006) 160 A Crim R 392 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Borkowski [2009] NSWCCA 102 R v Kellisar [2001] VSCA 224 Peacock v The King (1911) 13 CLR 619 Keir v R [2007] NSWCCA 149 De Gruchy v The Queen [2002] 211 CLR 85 R v MAK and MSK [2006] NSWCCA 381 R v Gilham [2009] NSWSC 138 Power v The Queen (1974) 131 CLR 623 R v Simpson (2001) 53 NSWLR 704
PARTIES:	Regina (Crown) Paul James Wilkinson (Offender)
FILE NUMBER(S):	SC 2008/2802
COUNSEL:	Mr JP Kiely SC (Crown) MR TM Healey (Offender) (12 November 2008, 21 November 2008 and 2 December 2008) Mr RF Sutherland SC (Offender) (21 April 2009, 22 April 2009)
SOLICITORS:	Director of Public Prosecutions (Crown) McGowan Lawyers (Offender) (12 November 2008, 21 November 2008 and 2 December 2008) Donnelly Lawyers (Offender) (21 April 2009, 22 April 2009)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

22 May 2009

2008/2802 Regina v Paul James Wilkinson (No. 5)

REMARKS ON SENTENCE

1 JOHNSON J: On 28 April 2004, Kylie Labouchardiere set off on a journey to meet with the Offender, Paul James Wilkinson. Ms Labouchardiere and the Offender had been in a relationship for some months and she was pregnant with the Offender’s child. She looked forward to a life together with the Offender. Instead, the Offender killed her and disposed of her body, which has never been found.

2 On 12 November 2008, the Offender pleaded guilty to the murder of Ms Labouchardiere. Thereafter, he sought leave to withdraw his plea of guilty to murder, an application which I refused on 21 April 2009: R v Wilkinson (No.4) [2009] NSWSC 323. In addition, on 17 October 2008, the Offender pleaded guilty to a charge of arson, an offence committed on 16 May 2004.

3 The maximum sentence for murder is imprisonment for life: s.19A Crimes Act 1900. There is a standard non-parole period of 20 years for this crime. The maximum penalty for arson is imprisonment for 10 years: s.195(b) Crimes Act 1900. No standard non-parole period applies to this offence.

Findings of Fact

4 The Offender appears today for sentence with respect to the offences of murder and arson. For that purpose, it is necessary to make findings of fact with respect to the offences. There is no agreed statement of facts. The Crown tendered a statement of facts, and a substantial volume of supporting material, which I have considered for the purpose of fact finding on sentence.

5 The Court may not take facts into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the Offender relies upon in mitigation of penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich [1999] 199 CLR 270 at 281 [27]-[28].

6 The Offender was born in 1975. In 1997, he commenced employment as an Aboriginal Community Liaison Officer with the New South Wales Police. In October 2001, the Offender was hit and bitten by a person arrested by police. He took 12 months’ stress leave from work.

7 In February 2003, the Offender married Julie Thurecht and, in November 2003, a son was born to the marriage.

8 Some insight into the Offender, which is relevant for the purposes of sentencing, may be obtained from the statement of a young female police officer whom he met in 2003. By that time, the Offender had returned to work from stress leave and was attached to Redfern Police Station as an Aboriginal Community Liaison Officer. A younger female probationary constable was stationed at Redfern and met the Offender. The Offender flirted with her from the outset. According to the female officer, the Offender was “funny, charming, attractive and intelligent”. He was “very friendly and supportive” and she gravitated towards him as a result. In about September 2003, the Offender made sexual advances to the officer. She was aware that he was married at the time and that his wife was pregnant, but was attracted to him and did not discourage him. The Offender began to send sexually explicit SMS messages to her mobile phone several times a day and sometimes late at night. She sought to discourage the Offender from sending messages with a sexual element to her during her working shift as she found it “inappropriate and unsettling”. She met with the Offender in September and October 2003 and they discussed their relationship. The officer made it clear that she did not want a sexual relationship with a married man. The Offender wished to have a sexual relationship with the officer, but did not wish to leave his wife. By October 2003, the Offender’s text messages to the officer were becoming very frequent, about 30-40 times a day and usually with sexually explicit language. Later in October 2003, they met and the officer told the Offender that she did not want a relationship with a married man. He expressed his disappointment and suggested that a relationship between them could occur despite his intention to maintain his marriage. Thereafter, the frequency of the Offender’s text messaging to the female officer reduced.

9 In November 2003, Ms Labouchardiere and her husband moved from Melbourne to Sydney. According to the Offender, he had met Ms Labouchardiere in 1999, and they met again by accident at a shopping centre in Sydney in November 2003 and exchanged telephone numbers.

10 In December 2003, the Offender was admitted to Sutherland Hospital where he remained as a patient for about four days. Ms Labouchardiere was working as a nurse at the hospital. The Offender commenced a sexual relationship with Ms Labouchardiere. At that time, she was experiencing difficulties with her own marriage which broke down. Although Ms Labouchardiere was somewhat depressed in January 2004 as a result of the breakdown of her marriage, and sought psychiatric assistance as a result, I am satisfied that she responded positively, enthusiastically and happily to the developing relationship which she had with the Offender. Her general practitioner saw her on several occasions up to March 2004 and observed that she was happy and did not seem depressed.

11 The intensity of the relationship between the Offender and Ms Labouchardiere is evidenced by the frequency of telephone and text message contact between them in the period December 2003 to April 2004. During the period from 21 December 2003 to 28 April 2004, there were 23,836 known contacts between the telephones used by the Offender and Ms Labouchardiere. Broken down, this figure equates to 184 contacts per day, or seven contacts per hour on a 24-hour per day basis.

12 On 14 February 2004, Thomas James Hickey was killed in an incident involving police at Redfern, which sparked the Redfern riots of 15 and 16 February 2004. It is apparent from the evidence that this incident was a topic of interest to both the Offender and Ms Labouchardiere, with her mentioning it in discussions with her family. The Offender came to give evidence on 24 September 2004 to the NSW Legislative Council Inquiry into Issues Relating to Redfern-Waterloo.

13 On 13 April 2004, Ms Labouchardiere learned that she was about five weeks’ pregnant. I am satisfied that the Offender was the father of the child and that he was informed of the pregnancy, and his paternity, soon after Ms Labouchardiere had been so informed. The volume of mobile phone contact between the two persons on 13 April 2004 is powerful evidence supporting such an inference. On that day, Ms Labouchardiere made two telephone calls to the Offender and sent him 119 text messages. The Offender sent 91 text messages to her on that day.

14 On 13 April 2004, Ms Labouchardiere arranged to have her furniture transferred to Dubbo on 28 April 2004, where she intended to live with the Offender from 29 April 2004 onwards. Direct evidence of the Offender’s expressed plans with Ms Labouchardiere exists in the form of a text message from the Offender to her at 15:28 hours on 19 April 2004 which read “2day and Wednesday then its DB u and I are 2getha 4eva” - “2day and Wednesday then it’s Dubbo you and I are together forever”.

15 As it happened, in early 2004, the Offender told his wife that he had assaulted a police officer and that he had been given five places west of Dubbo where he could move for employment. Ms Thurecht refused to leave Sydney to live in the country.

16 In the period between 13 and 28 April 2004, Ms Labouchardiere appeared positive and happy to those who knew her well. These included her grandmother, Louisa Windeyer, who had played a pivotal role in her upbringing and was a close confidante. I am satisfied that Ms Labouchardiere and the Offender made plans that he would leave his wife and child and move to Dubbo to take up a new life with Ms Labouchardiere. I am likewise satisfied that the Offender had no such intention himself. He wished to remain with his wife and son.

17 Ms Labouchardiere arranged a family dinner at her grandmother’s home on the Central Coast, where she was staying at the time. Ms Labouchardiere had told her mother, Carol Windeyer, that she was invited to a family dinner as she had decided what to do with her life and would make a formal announcement about it at the dinner on 22 April 2004. While preparing for the dinner on the evening of 22 April 2004, Ms Labouchardiere said to her grandmother “I’ll let you know in half an hour whether anyone else is coming”. Soon after, Ms Labouchardiere received a text message and she told those present that the person she expected was not coming, and that there would not be any announcement. I am satisfied that this person was the Offender.

18 I am satisfied that the proposed announcement to the family was that Ms Labouchardiere was pregnant to the Offender and that they intended to create a life together, initially settling in Dubbo from 29 April 2004.

19 On 23 April 2004, Ms Labouchardiere informed her grandmother that the announcement she was going to make was that she was pregnant, but because not everyone had turned up at the dinner, she did not make the announcement. She declined to identify the father at that time.

20 On Wednesday, 28 April 2004, Ms Labouchardiere left her grandmother’s home on the Central Coast and travelled to Central Railway Station. She had packed two bags, which she took with her. She rang her grandmother at 8.30 pm and told her that she had arrived at Central and that she was waiting for her friends. She told her grandmother that she would be home either the following Wednesday or Thursday.

21 Mobile phone records show that on 28 April 2004, Ms Labouchardiere’s phone was activated from the Central Coast all the way to Sutherland. The majority of messages were to and from the Offender. At 9.11 pm, the phones of Ms Labouchardiere and the Offender were both activated from the Sutherland tower. There were no further calls between the Offender and her after this time.

22 I am satisfied beyond reasonable doubt that, when the Offender set out to meet Ms Labouchardiere on 28 April 2004, he had no intention of leaving his wife and son to set up a new life with the victim. As with his approach to the female police officer in 2003, the Offender was content to maintain a sexual relationship with Ms Labouchardiere while maintaining his marriage. However, he had lied to Ms Labouchardiere that he was prepared to leave his wife. The position was further complicated by the victim’s pregnancy to him.

23 Although I do not think that the evidence permits a finding beyond reasonable doubt that the Offender set out to meet the victim with the intention of killing her and disposing of her body, I am satisfied on the criminal standard that the Offender realised that stern action would need to be taken by him to ensure that the victim did not cause him harm by informing others, and especially his wife, of the relationship which had resulted in pregnancy.

24 The Offender has given an account on 14 October 2008 of what happened on the evening of 28 April 2004, which includes an admission that he strangled Ms Labouchardiere and disposed of her body. I accept the Crown submission that very great caution is required before accepting the Offender’s account in any respect. He has demonstrated an extensive history of deception, motivated by self-interest, over a number of years. Since April 2004, the Offender has sought to deceive police, his own lawyers, psychiatrists and others in respects which will be mentioned further in these remarks. Although the Court may ordinarily be prepared to more readily accept admissions against interest made by a person in the position of the Offender, the Offender’s lengthy track record of deception requires great care in this case.

25 The account given by the Offender to his lawyers on 14 October 2008 involved an admission that he strangled Ms Labouchardiere in the course of a sexual act with her after she had said that Ms Thurecht, the Offender’s wife, ought be killed.

26 In the absence of independent corroborative evidence, I am not prepared to find that the Offender’s method of killing was strangulation. Of course, the body has not been located and forensic evidence which would flow from such a finding is not available. This is a type of advantage which a murderer may obtain by disposing of the victim’s body.

27 However, it is noteworthy that a SMS message from the Offender to Ms Thurecht on 13 February 2006 (to which further reference will be made at [43]) included the words “weapon they can have, her NO”. The reference by the Offender to a “weapon” points away from spontaneous manual strangulation as being the means of causing death. I am satisfied, however, that it was the Offender who killed Ms Labouchardiere, and that at that time he intended to cause her death.

28 I am satisfied beyond reasonable doubt that the killing of Ms Labouchardiere did not occur in circumstances where she herself had proposed the death of Ms Thurecht. This account is entirely implausible. It emanates from the Offender who has frequently sought to deceive others to serve his own purposes. Further, such an account is entirely inconsistent with the facts which are otherwise established. Ms Labouchardiere was approaching the future on 28 April 2004 upon the basis that the Offender had agreed to leave his marriage and take up a new life with her. In her eyes, there was not ongoing competition with Ms Thurecht, let alone any tension which would lead to the proposal by Ms Labouchardiere that Ms Thurecht be murdered. The suggestion that, in the course of a sexual act, she told the Offender that Ms Thurecht should be killed, cannot be accepted. I am satisfied beyond reasonable doubt that this part of the Offender’s admission was false and was made by him in an attempt to further his own interests in the context of a trial or sentencing hearing.

29 On 30 April 2004, Sean Labouchardiere, the victim’s husband, received a text message from Ms Labouchardiere’s phone which read “See you soon love you SL”. He regarded the message as odd, as his relationship with his wife had ended. I am satisfied that it was the Offender who sent this message, using the victim’s phone, as part of his approach to create the façade that the victim was still alive.

30 Although care must be taken in examining events after the murder for the purpose of making findings concerning the circumstances of the crime of murder itself, it is the fact that the acts of the Offender after 28 April 2004 provide considerable insight into his thought processes. I have considered the possibility of the killing taking place in panic with the hiding of the body being undertaken as a further act of panic. There was, of course, no approach by the Offender to the authorities revealing that he had killed Ms Labouchardiere in an act of panic or otherwise.

31 I am satisfied that the Offender met with Ms Labouchardiere on the evening of 28 April 2004, knowing that stern action may need to be taken to ensure her silence. The appropriate inference to be drawn, to the criminal standard, is that, at some point after meeting her that evening, the Offender formed an intention to kill the victim and that he did so. This was not an act of panic. He then disposed of her body, intending to avoid the prospect of forensic examination of her remains, which would prove that she was pregnant to him and that she had died violently by his hand. This was not an act of panic. The Offender, to this day, has not revealed the true location of the body as he does not perceive it to be in his interests to do so.

32 On 29 April 2004, the victim’s grandmother received a phone call from carriers in Dubbo, who advised that the victim had arranged to meet them in Dubbo at 11.00 am on that day to take delivery of furniture, but that she had not appeared. The family of the victim checked her phone records. Her brother, Michael Edwards, ascertained that the phone most contacted by the victim was that of the Offender. On 29 April 2004, Mr Edwards contacted the Offender and enquired as to her whereabouts. The Offender told Mr Edwards, falsely, that the last time he had seen the victim was the previous Monday, and that she was going to Adelaide.

33 The last time that the victim’s mobile phone was activated was on 3 May 2004, when the phone emitted a signal via the Menai tower. I am satisfied that the phone was in the Offender’s possession at this time.

34 On 8 May 2004, the father and brother of Ms Labouchardiere reported her missing to police. On 11 May 2004, the Offender was requested to attend Gosford Police Station to assist enquiries concerning her disappearance. The Offender did not attend on that day and arrangements were made for him to be interviewed on 17 May 2004.

35 On 16 May 2004, the Offender arranged for his wife and son to go to the home of his wife’s mother, and to take the family albums with them. The Offender then returned home to the Picnic Point address where the Offender and his family had been residing since September 2003. The house was a suburban cottage some distance from the nearest residential dwelling.

36 The Offender set fire to the house and pretended that he had been accosted and tied up by persons who had set fire to the house. He went to a neighbour’s house, and the neighbour opened his front door to see the Offender bound with an electrical cord and a belt around his neck. The Offender told the neighbour that his house was on the fire. The neighbour rang ‘000’, and police and the NSW Fire Brigade attended the premises. The fire was extinguished.

37 The Offender told police that night that Ms Labouchardiere was not missing any longer, that he had kept in touch with her, and that she had become possessive and had threatened to tell his wife that they were having an affair. He told police that when he arrived home that evening, he walked in to the house to find Ms Labouchardiere and an unidentified Aboriginal man present in the house. He told police that he had punched Ms Labouchardiere in the mouth and that the man had punched him to the ground, with the Offender then being bound. The Offender told police that he could smell smoke in the house, that he ran to the main bedroom of the house and jumped out the window and ran to the neighbour’s house.

38 Upon forensic examination, it was established that there were four seats of fire in the house in four separate rooms. Damage caused to the house was assessed at $35,371.68 which was recovered under an insurance policy by the property owner, Gary Phillips.

39 I am satisfied beyond reasonable doubt that the Offender’s motive in setting fire to the house was to deflect the police investigation concerning his involvement in the disappearance of Ms Labouchardiere. The actions of the Offender in this respect were intended to cover up the fact that he had murdered the victim and disposed of her body. Powerful support for this conclusion arises from the setting of the fire on the eve of his police interview, and his allegation to police that the fire had been set by Ms Labouchardiere and another person, with the obvious consequence that the police would believe that Ms Labouchardiere was alive and not dead. At this time, the Offender well knew that this was false, given that he had killed the victim less than three weeks earlier.

40 Between May 2004 and his arrest on 17 April 2007, the Offender gave other false accounts to police concerning the fate and whereabouts of the victim. He maintained his pattern of deception. These accounts included an allegation that a police officer, Geoff Lowe, had murdered and dismembered Ms Labouchardiere and then disposed of her body in the Royal National Park at Audley. I am satisfied that Mr Lowe did not know, and had never met, the victim. There was no motive at all for Mr Lowe to wish any harm to her.

41 On the other hand, the Offender knew that Mr Lowe had had a relationship with Ms Thurecht in January 2001, prior to the commencement of her relationship with the Offender. It is apparent from the evidence that the Offender harboured strong adverse feelings towards Mr Lowe. I am satisfied that it was the Offender’s animosity towards Mr Lowe which motivated the false allegation to police that Mr Lowe had murdered Ms Labouchardiere.

42 The Offender’s different versions had the effect of protracting the police investigation, as searches were undertaken at different places nominated by the Offender. The Offender’s false reports injected an element of confusion into the police investigation. It was not until 17 April 2007 that the Offender was arrested and charged with the murder.

43 A range of investigative means were utilised by police, including the recording of conversations between the Offender and an undercover operative. The telephone of the Offender was legally intercepted by warrant over an extended period from November 2005 to June 2006, with SMS messages and telephone calls being recorded. On a number of occasions, the Offender said in these calls and messages that it was Mr Lowe who had killed Ms Labouchardiere in the presence of the Offender and that he, the Offender, knew the location of the body. SMS messages sent by the Offender to Ms Thurecht on 13 February 2006 included the following:

“That evidence u referring 2 last 4-5 days only b4 bein lost. Everybody has reasons 4 hiding a crime. Mine is the family can live not knowing where and why 4. What they have done. Call me cruel, call me nasty and YES I’d agree, howeva kn knowledge ISNY goin 2 b theres, IT will hurt them NOT me. It WONT b there DNA, BE TOLD RITE … And I’m NOT goin 2, her family can live their lives in misery 4 all I care FUCK THEM. Weapon they can have, her NO.”

These messages from the Offender provide considerable insight into his attitude towards the victim’s family and his unwillingness to reveal the location of the body.

44 As a result of statements made by the Offender, police undertook extensive searches for the body of the victim in the Audley National Park area in August 2005 and June 2006 and in the Mooney Mooney Creek area in February 2008, March 2008 and October-November 2008. These searches involved, at different times, numerous police, the use of cadaver dogs, excavators, National Parks & Wildlife Service rangers, a pathologist, an archaeologist, Water Police, the Police Rescue Squad and officers of the Department of Corrective Services.

45 Substantial resources were devoted to investigating the Offender’s various allegations and reports concerning the whereabouts of the victim. There was significant emotional cost, as the hopes of the victim’s family were raised that her body may be found, but with those hopes being dashed repeatedly as the searches discovered nothing. There was substantial financial cost to the State as a result of the Offender’s false accounts. The evidence reveals that the total departmental costs for the searches undertaken up to November 2008 exceeded $119,000.00 and if a commercial rate for use of these resources was applied, the cost would have been about $255,000.00.

46 I am satisfied that the Offender made false reports that the body was located in the Audley National Park. Given that the Offender admitted in October 2008 his sole responsibility for the death of Ms Labouchardiere and asserted, in that context, that her body was buried in the Mooney Mooney Creek area, I have considered whether that account may be treated as credible, albeit without the precise location having been determined. The difficulty remains that the Offender is well versed in deception, motivated by self-interest. As explained earlier, I am not prepared to accept as truthful the details of his account of the killing. I am satisfied that the Offender has perceived, and continues to perceive, it to be in his interest not to disclose the true location of the body. I am satisfied that even his accounts in October and November 2008 concerning the location of the body were knowingly false, and were stated to erect a façade of assistance to the authorities, rather than as a genuine attempt on his part to locate the body. The appropriate inference to be drawn, to the criminal standard, is that the Offender believed, and continues to believe, that forensic examination of the remains would not assist him.

The Offender’s Subjective Circumstances

47 The Offender did not give evidence before me.

48 Affidavits of his mother, June Wilkinson, and his father, Ronald James Wilkinson, were read in the Offender’s case on sentence. Mrs Wilkinson gave short oral evidence.

49 Those affidavits reveal that the Offender (born in 1975) is the older of two brothers. The Offender attended primary and secondary school, excelling as a sportsman. He left school after Year 11 and worked in a number of positions, including as a security guard and as an Aboriginal Liaison Officer at a hospital. Thereafter, he entered the Police Academy in about 1993, but left after about six months. He re-enrolled in the Police Academy, but once again did not complete the course. Later, the Offender commenced employment as an Aboriginal Community Liaison Officer with the NSW Police.

50 He married Ms Thurecht in February 2003 with a son being born to the marriage in November 2003. The Offender separated from his wife before his arrest in April 2007. According to the Offender’s mother, he did not have a problem with alcohol or drugs in 2004 (T351).

51 The Offender’s parents were not aware of his relationship with Ms Labouchardiere.

52 At the time of the present offences, the Offender had no criminal history, although offences of assault and resist arrest were committed in October 2004 for which fines were imposed in the Local Court.

53 The psychiatric reports which are in evidence provide additional biographical information concerning the Offender along similar lines to that given by his parents.

54 I have had regard to the totality of the evidence, including the oral and written psychiatric evidence, with the view to determining whether the Offender has suffered from, or suffers, a psychiatric condition or disorder. I accept the evidence of Dr Allnutt concerning the Offender. I am satisfied that the Offender has suffered from, and continues to suffer from, depression and anxiety. There is some evidence (summarised at pages 7-9 of Dr Allnutt’s report of 27 August 2008) of the Offender experiencing anxiety and depression before April 2004, in the aftermath of the incident that saw him take 12 months’ stress leave (referred to at [6] above). I am satisfied his present conditions of anxiety and depression flow essentially from his prosecution and imprisonment. In that sense, they are understandable conditions. Although there is evidence pointing to psychiatric treatment of the Offender at an earlier time, I am not satisfied that he suffered from any relevant psychiatric condition at the time of the murder and arson offences, nor that he has suffered such a condition since, apart from the depression and anxiety to which I have referred. The account of the female police officer concerning his manner and demeanour in 2003 (see [8] above) does not suggest a person who was labouring under the effects of any psychiatric disorder.

55 An examination of aspects of the psychiatric evidence was undertaken for the purpose of my ruling on the Offender’s application for leave to withdraw his plea of guilty to murder: R v Wilkinson (No. 4) at [64]-[71], [75]-[85]. I am satisfied that the Offender attempted to deceive psychiatrists who examined him, and in particular, Dr Allnutt, Dr Nielssen and Dr Westmore in 2008 and 2009. I do not accept Dr Nielssen’s opinion that the Offender suffered from, or suffers, any psychotic disorder.

Objective Seriousness of Offences

56 The Crown submitted that the crime of murder in this case was in the worst category so that a sentence of imprisonment for life ought be imposed: s.61(1) Crimes (Sentencing Procedure) Act 1999.

57 It is necessary for the Court to make an assessment of the objective seriousness of the crime of murder for the purpose of determining the Crown submission that a sentence of life imprisonment ought be imposed and, if that submission is not accepted, to assist an assessment of the role of the standard non-parole period of 20 years to this case.

58 Whilst all murders are to be regarded as extremely serious, the range of circumstances which may bear upon the objective seriousness of this category of crime is widely variable: R v White [2005] NSWSC 667 at [33]. An intention to kill and premeditation are usual elements in a matter of mid-range objective seriousness: Nguyen v R [2007] NSWCCA 363 at [143].

59 Section 61(1) Crimes (Sentencing Procedure) Act 1999 provides for the imposition of a mandatory life sentence where a person is convicted of murder and the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The burden of proving that a case falls within s.61(1) rests on the Crown and the standard of proof is beyond reasonable doubt: R v Merritt (2004) 59 NSWLR 557 at 567 [35]. The primary focus of the legislation is directed towards an assessment of extreme culpability.

60 I am satisfied that the Offender approached his rendezvous point with Ms Labouchardiere on 28 April 2004 knowing that stern action on his part would be required to ensure the victim’s silence concerning their affair and her pregnancy. I am satisfied that the Offender acted with the intention to kill the victim when he killed her by means which remain unclear. He then disposed of the body. In doing so, the Offender intended to protect himself from detection and to ensure that forensic examination of the body would not be possible to aid any police investigation. Although the crime of murder in this case involved the killing of a person in a relationship with the Offender, I do not accept that it may be characterised as a crime of passion.

61 Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18]. The dumping of a body by a murderer constitutes an aggravating circumstance of the offence itself, and such concealment of the body is not limited in its significance to the absence of remorse: Director of Public Prosecutions v England at 266 [27]; Bell v R [2003] WASCA 216 at [23]-[25]; Colledge v State of Western Australia [2007] WASCA 211 at [16]; R v Cavkic (No. 2) [2009] VSCA 43 at [134].

62 However, the Offender’s subsequent false statements to police and others concerning the whereabouts of the body cannot, in my view, be taken into account in an assessment of the objective seriousness of the murder itself. Nor can his failure to reveal the true whereabouts of the body: R v Cavkic (No. 2) at [134]. Undoubtedly, such post-offence conduct may bear upon the Offender’s lack of remorse and contrition and his prospects of rehabilitation: Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 at 223-224 [37]-[40]; Douar v R (2005) 159 A Crim R 154 at 179 [131]; Weininger v The Queen [2003] 212 CLR 629 at 638-640 [25]-[32]. However, apart from the separate crime of arson for which the Offender is to be sentenced, I do not consider that his post-offence conduct can be taken into account in an assessment of the objective seriousness of the crimes themselves.

63 I am not satisfied beyond reasonable doubt that the crime of murder in this case is in the worst-case category so as to attract a sentence of imprisonment for the term of the Offender’s natural life. Accordingly, I intend to impose a determinate sentence of imprisonment for the crime of murder in this case.

64 As the Offender has pleaded guilty to murder, the standard non-parole can properly be taken into account as a reference point or benchmark in the determination of sentence: R v Way (2004) 60 NSWLR 168 at 192 [122].

65 I am satisfied that the crime of murder in this case lies clearly above the middle of the range of objective seriousness for the crime of murder. The foundations for this conclusion are my findings that the Offender approached his rendezvous with the victim expecting that he would need to take stern action to silence her, that he acted with intent to kill and that he determined to conceal the body to protect himself from detection and to prevent the body from being available for forensic examination. In addition, the murder of this young woman at a time when she was bearing the Offender’s child, is a factor which magnifies the objective seriousness of the crime.

66 I turn to the arson offence. The crime of arson may be committed in a variety of circumstances. It has been described as an extremely serious and dangerous crime: Porter v R [2008] NSWCCA 145 at [81]. The motive of the Offender is relevant to an assessment of the objective seriousness of the offence: Porter v R at [81].

67 I am satisfied that the Offender set alight to the Picnic Point property for the purpose of covering up his commission of the murder of Ms Labouchardiere some weeks earlier. Faced with an interview with investigating police concerning her disappearance the next day, the Offender arranged for his wife and son to be away from the premises, and started a fire which he then sought to blame on Ms Labouchardiere and another unidentified person. At the time when he told police that Ms Labouchardiere had been present at the house and set the fire, he knew that this was false as he had murdered her just weeks earlier.

68 The Offender’s motive for committing this offence was grave indeed. To advance his own personal interests, as he perceived them, he was prepared to make a false allegation not only that Ms Labouchardiere was still alive, but that she had been involved in serious criminal conduct herself in setting the fire. Substantial damage was caused to the house. This was a deliberate and planned offence by the Offender, aimed to deflect police from their investigation of the disappearance of Ms Labouchardiere. I am satisfied that the offence of arson lies towards the top of the range of objective seriousness for this class of offence, for which the maximum penalty is imprisonment for 10 years.

The Victim’s Family

69 Victim impact statements were read at the sentencing hearing by Ms Carol Edwards, the victim’s mother and Ms Leanne Edwards, the victim’s sister. In addition, victim impact statements were read to the Court on behalf of Ms Louisa Windeyer, the victim’s grandmother (now aged 81 years), Mr John Edwards, the victim’s father, and Mr Michael Edwards, the victim’s brother.

70 I acknowledge the victim impact statements and make the following comments about them: s.29(3) Crimes (Sentencing Procedure) Act 1999. The statements reveal the profound consequences upon Ms Labouchardiere’s grandmother, parents and siblings resulting from her death. These terrible circumstances have been made worse by the uncertainty concerning the whereabouts of her body and the Offender’s post-offence conduct, involving the raising of the family’s hopes as to the location of the body. Time and again, these hopes were dashed as searches did not reveal her whereabouts.

71 I express the sympathy of the Court and the community to each member of the family of Ms Labouchardiere for their loss. I must approach the victim impact statements in accordance with the principles in R v Previtera (1997) 94 A Crim R 76 at 84-87 and R v FD and JD (2006) 160 A Crim R 392 at 415-416, 428.

72 The evidence in this case reveals that the Offender was conscious of the devastating effects upon the family resulting from his concealment of the body since 2004. Indeed, his SMS messages of 13 February 2006 (see [43] above) point to the Offender thumbing his nose at the victim’s family in a manner which demonstrates a total lack of contrition and remorse, and a heartless approach which undermines any claim of good prospects of rehabilitation. I will return to this issue shortly.

Other Factors Relevant to Sentence

73 The Offender pleaded guilty to murder on 12 November 2008, six days before the date ultimately fixed for trial (the trial having been originally fixed to commence on 13 October 2008). In the ordinary course, the Offender would be able to call in aid the principles in R v Thomson and Houlton (2000) 49 NSWLR 383 with respect to a discount for the utilitarian value of his plea. The discount for the utilitarian value of the plea will be determined largely by the timing of the plea, so that the earlier the plea the greater the discount and some allowance may be made, in determining the discount, where the trial would be particularly complicated or lengthy: R v Borkowski [2009] NSWCCA 102 at [32].

74 Ordinarily, the Court would consider allowing a discount towards the bottom of the 10%-25% range for a late plea such as this which avoided the need for a trial. By the time the Offender pleaded guilty to murder on 12 November 2008, the trial fixed to commence on 18 November 2008 was estimated to run three-to-four weeks (T30.37; T32.49). This is the appropriate trial estimate to be used for the purpose of assessing a utilitarian discount.

75 The position is complicated in this case by the Offender’s application for leave to withdraw the plea of guilty to murder. As my judgment on that application makes clear, it was necessary for the Court to undertake a lengthy hearing over seven sitting days between 19 December 2008 and 21 April 2009: R v Wilkinson (No. 4) at [18]-[38]. The Crown submitted that, in these circumstances, there was little scope for the utilitarian discount, although noting that the admission that the victim was dead which was implicit in the plea served a utilitarian purpose (T358.15). Mr Sutherland SC, for the Offender, submitted that these circumstances may serve to reduce the discount for the plea, but not disentitle the Offender to any discount.

76 If the Offender’s trial had proceeded on 18 November 2008, it would have involved a range of witnesses different to those who were called on the application for leave to withdraw the plea of guilty, with the exception of Dr Allnutt and Dr Nielssen who were expected to be witnesses in the trial as well.

77 In my view, a modest discount may be allowed for the Offender’s plea of guilty to murder, given the substantial erosion of the utilitarian value of the plea resulting from a lengthy contested hearing on the application for leave to withdraw the plea of guilty to murder.

78 The position is different with the Offender’s plea of guilty to arson. The Offender was not charged with arson when the matter was before the Local Court, and this count was not included in the indictment until shortly prior to 13 October 2008. The Offender pleaded guilty to arson on 17 October 2008. I accept that this plea was entered at the earliest opportunity. The Offender did not press an application for leave to withdraw his plea of guilty to arson. In these circumstances, I am satisfied that the Offender should be afforded a 25% discount on the arson charge to reflect the utilitarian value of that plea.

79 The Offender has not displayed contrition or remorse for his offences. I have referred to this already with respect to his conduct since April 2004 in making false assertions to police, psychiatrists and others and giving false locations of the victim’s body in circumstances where the hopes of her family were raised, only to be dashed by reports from police that the body had not been located. The Offender appears to have taken a particularly cold-blooded approach to this issue, as reflected in his text messages on 13 February 2006 referred to at [43] above. To these factors may be added his totally false claim on 16 May 2004 that not only was Ms Labouchardiere still alive, but that she herself had committed the serious crime of arson as a vindictive act against the Offender. The absence of remorse is indicated by the Offender continuing his pattern of deception by giving false accounts of the way in which the victim died, and the location of her body, thereby denying her family and friends even the limited comfort of knowing the truth: Colledge v State of Western Australia at [28]. His denigration of the victim, and his heartless lies and pretences, point to a complete absence of remorse: R v Kellisar [2001] VSCA 224 at [4].

80 I do not consider that the Offender’s pleas of guilty reflect any element of contrition or remorse. There was a very strong circumstantial case against the Offender. That was his view as well, as reflected in his affidavit of 12 January 2009: R v Wilkinson (No. 4) at [51]-[52]. The fact of Kylie Labouchardiere’s death could be proved, as any other fact, by reliance upon circumstantial evidence: Peacock v The King (1911) 13 CLR 619 at 630. The Appellant’s intention could be proved by inference: Keir v R [2007] NSWCCA 149 at [161]. As Kirby J observed in De Gruchy v The Queen [2002] 211 CLR 85 at 97 [48], circumstantial evidence calls upon processes of reasoning that involve the drawing of inferences from a jigsaw of established facts, with circumstantial evidence capable of being stronger than direct evidence. To this very strong circumstantial case may be added the Offender’s pleas of guilty. I am satisfied that the Offender was conscious of his guilt of each crime, and the strong prospects of conviction, and that he pleaded guilty to seek to obtain a more favourable sentencing outcome. None of this assists the Offender on the issues of contrition and remorse.

81 The existence of contrition or remorse is relevant as well to an assessment of an offender’s prospects of rehabilitation and the likelihood of him committing further offences in the future: R v MAK and MSK [2006] NSWCCA 381 at [41]. I accept that the Offender had no prior convictions at the time of these offences in 2004, and that he had occupied a responsible position in the New South Wales Police Service for a period of time up to then. The Offender can call these features of his life in aid on the question of sentence, including an assessment of his prospects of rehabilitation. On the other hand, the circumstances of these two separate and grave offences, committed some weeks apart, and his subsequent conduct over a period of years in making false allegations and false reports, constitute a substantial impediment to a positive finding that his prospects of rehabilitation at this time are good. The Offender has displayed no insight into his offending which can assist him on the issue of rehabilitation. I am not satisfied that the Offender has good prospects of rehabilitation.

82 Mr Sutherland SC submitted that the Offender’s previous employment has led to the conditions of his custody in prison being harsher than would otherwise be the case, and that this will continue for the term of his sentence. I take this factor into account in determining appropriate sentences in this case.

83 Mr Sutherland SC submitted that the Court should accept the Offender’s account that the victim was strangled by him in circumstances where he was provoked by the victim: s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999. I have referred to this aspect earlier in the course of making factual findings for the purpose of sentence. For reasons expressed earlier, I am satisfied beyond reasonable doubt that the victim did not say anything to the Offender concerning an intent to kill the Offender’s wife. This aspect of the Offender’s account is inherently implausible, and I reject it. I am satisfied that the circumstances of the murder did not involve any provocation of the Offender by the victim.

84 There has been delay between the offences committed in April and May 2004 and the Offender’s arrest in April 2007, and him standing for sentence today. However, the Offender’s deception over several years is the principal reason for that delay and he is not in a position to call it in aid on sentence: R v Gilham [2009] NSWSC 138 at [45]; R v Borkowski at [40].

85 I take into account the evidence of the Offender’s parents concerning his background and upbringing. I accept that, prior to April 2004, the Offender had no prior convictions, held a responsible position in the community and was a man of good character. I take these matters into account in his favour on sentence.

Determining the Appropriate Sentences

86 The purposes of sentencing include ensuring that the Offender is adequately punished for his crimes, specific and general deterrence, protection of the community, promoting the rehabilitation of the Offender, making him accountable for his actions, denouncing his conduct and recognising the harm done by him to the victim and the community: s.3A Crimes (Sentencing Procedure) Act 1999.

87 Having regard to the objective seriousness of the crime of murder, and having taken into account all other factors bearing upon the determination of sentence for this offence, I am satisfied that a sentence of imprisonment for 28 years should be imposed, comprising a non-parole period of 21 years and a balance of term of seven years. I am not satisfied that special circumstances have been demonstrated so as to alter the statutory ratio between the non-parole period and the balance of term.

88 I am satisfied that the arson offence lies towards the top of the range of objective seriousness for such an offence. It was a planned and calculated act, committed by the Offender for the purpose of deflecting the attention of police from him as a suspect in the disappearance of the victim. The offence involved the additional heartless aspect of falsely asserting that the victim was still alive and had herself set the house alight. The Offender is entitled to a 25% discount for his plea of guilty to this charge. I also take into account other subjective factors bearing upon the determination of sentence. I am satisfied that a sentence of imprisonment for six years should be imposed, comprising a non-parole period of four years and six months and a balance of term of 18 months. I am not satisfied that special circumstances have been demonstrated so as to vary the statutory ratio between the non-parole period and the balance of the term of imprisonment.

89 As the Offender is to be sentenced for two offences, it is necessary to consider issues of concurrency, accumulation and totality.

90 There is a link between the offences of murder and arson. The arson offence was committed by the Offender for the purpose of deflecting police from their investigation of him arising from the disappearance of the victim. However, although connected in this way, the two offences are very serious crimes of different types which must attract, as I have already said, substantial periods of imprisonment.

91 It cannot be said that the offences are substantially contemporaneous and connected, or that they constitute part of a single episode of criminality. The crimes were some weeks apart.

92 I am satisfied that there ought be a substantial accumulation of sentences in this case. Given the length of the sentences to be imposed, some element of concurrency will be allowed so that the aggregate sentence to be passed is just and appropriate. When applying the totality principle, however, the Court should bear in mind that public confidence in the administration of justice requires the Court to avoid any suggestion that what in effect is being offered is some discount for multiple offending: R v MAK and MSK at [18]. Having applied these principles to this case, I am satisfied that a period of concurrency of one year and six months accords with the justice of the case.

93 I am conscious that the overall effective period of imprisonment to be served by the Offender will comprise a non-parole period of 24 years with a balance of term of four years. I have considered whether the non-parole period ought be reduced to allow for a longer balance of term component having regard to the length of the sentences. I have formed the view that an effective non-parole period of 24 years represents the minimum term of imprisonment which the Offender ought serve for these objectively serious crimes: Power v The Queen (1974) 131 CLR 623 at 628; R v Simpson (2001) 53 NSWLR 704 at 716-717 [53]-[57].

94 It is appropriate that the sentence for murder commence on 17 April 2007, the date on which the Offender was taken into custody.

95 Will the Offender please stand. Paul James Wilkinson, for the crime of murder of Kylie Labouchardiere, I sentence you to a non-parole period of 21 years commencing on 17 April 2007 and expiring on 16 April 2028 with a balance of term of seven years commencing on 17 April 2028 and expiring on 16 April 2035. For the crime of arson, I sentence you to a non-parole period of four years and six months commencing on 17 October 2026 and expiring on 16 April 2031 with a balance of term of one year and six months commencing on 17 April 2031 and expiring on 16 October 2032.

96 The earliest date on which the Offender will be eligible to be released on parole is 16 April 2031.

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