R v Williams

[2011] NSWSC 583

Supreme Court

New South Wales

Medium Neutral Citation:

R v Ryan Christopher WILLIAMS [2011] NSWSC 583

Hearing dates:

20 May 2011

Decision date:

17 June 2011

Jurisdiction:

Common Law - Criminal

Before:

Schmidt J

Decision:

Sentenced to a term of imprisonment with a non-parole period of 16 years, 3 months and 23 days, commencing on 24 September 2009 and expiring on 15 January 2026.

The balance of term of 5 years, 5 months and 8 days, is to commence on 16 January 2026 and will expire on 23 June 2031.

The offender will be eligible for release on parole on 16 January 2026.

Catchwords:

CRIMINAL LAW - sentence - murder - plea of guilty - objectively serious offence - aggravating factors - mitigating factors - no prior criminal record - 25% utilitarian discount - early plea - offence above mid-range - provocation not established

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Alvares v R; Farache v R [2011] NSWCCA 33
Aoun v R [2007] NSWCCA 292
MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
Mulato v R [2006] NSWCCA 282
Nguyen v The Queen; ATCN v The Queen; Nguyen v The Queen; Huynh v The Queen [2007] NSWCCA 363; (2007) 180 A Crim R 267
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v AZ [2011] NSWCCA 43
R v Borg [2010] NSWSC 951
R v Day [2010] NSWSC 983
R v Dodd (1991) 57 A Crim R 349
R v Fletcher-Jones (1994) 75 A Crim R 381
R v Gordon (1994) 71 A Crim R 459
R v Kwon (2010) NSWSC 67
R v McEvoy [2010] NSWCCA 110
R v Mendez [2002] NSWCCA 415
R v Previtera (1997) 94 A Cim R 76
Regina v Prior [2002] NSWSC 56
R v Scott [2005] NSWCCA 152
R v Shepherd [2007] NSWSC 1416
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Tzanis [2005] NSWCCA 274
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Shaw v R [2008] NSWCCA 58
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
Versluys v R [2008] NSWCCA 76
XY v R [2007] NSWCCA 72

Category:

Sentence

Parties:

Regina (Crown)
Ryan Christopher Williams (Offender)

Representation:

Counsel:
Mr P Barnett SC (Crown)
Mr P Young SC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2009/213264

Judgment

1. The offender, Ryan Christopher Williams stands for sentence in relation to the murder of Shana Joy Wilkinson at Corowa on 18 September 2009. He pleaded guilty to the charge in the Local Court in 2010 and adhered to that plea when he first appeared in this Court and when the matter came on for hearing in May 2011.

1. The maximum penalty for the crime of murder is life imprisonment. The Parliament has also imposed a standard non-parole period of 20 years imprisonment for the offence under s 54A of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). A non-parole period is the minimum period that an offender will serve in prison for the offence, before being released on parole for the balance of the sentence. The standard non-parole period fixed by the Act applies to an offence falling in the middle of the range of objective seriousness of such offences.

1. Section 44(2) of the Act specifies that '[t]he balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more'. If there is to be any adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve (see Power v R [1974] HCA 26; (1974) 131 CLR 623 at 628).

The circumstances of this offence

1. Ms Wilkinson died on 18 September 2009 as the result of a number of blows which the offender inflicted, using a shovel, with asphyxiation also contributing to her death. The offender confessed to her murder on 24 September 2009, when being questioned by police. There is no dispute about the facts set out in an agreed statement of facts, which is in evidence. In addition, there is in evidence statements made by arresting police officers, the offender's girlfriend and his father, as well as an autopsy report, records relating to the offender's personal history, as well as psychiatric and other reports. The offender's mother was also called to give oral evidence.

1. The offender himself did not give evidence at the hearing. He had earlier declined to make a statement to the police. He has given two brief accounts of the circumstances of the murder. The first to arresting police officers and the second to the psychiatrist, Dr Westmore. Those accounts conflict.

1. The agreed statement of facts revealed that:

"On Sunday 20 September 2009, Margaret Wilkinson reported to Corowa Police that her daughter Shana Joy Wilkinson (the deceased) was missing. Mrs Wilkinson last saw the deceased at their home at XXX XXXXX XXX XXXX, Corowa around 9.30pm on Friday 18 September 2009. The deceased was watching television with a friend Mikhael Hynes (Hynes).

Mrs Wilkinson made several unsuccessful attempts to contact the deceased on her mobile telephone on Saturday 19 and Sunday 20 September. Mrs Wilkinson reported that the deceased's handbag and wallet were still in her bedroom.

The deceased failed to attend work at Corowa Target store on Saturday 19 September 2009. The deceased also failed to attend classes at the Australian College of Beauty and Hair Design, Wodonga on Monday 21 September 2009.

Mrs Wilkinson found the deceased's telephone directory in her bedroom and rang some friends of the deceased. Mrs Wilkinson rang Ryan Williams (the offender). The offender told Mrs Wilkinson that he picked the deceased up at home around 11pm on Friday night and he dropped her off near Edward Street and Federation Drive as she was going to see a mate. The offender was the last person to see the deceased.

On Monday 21 September 2009, Police received an area identifying the triangulation of the deceased's mobile telephone between Corowa, Wahgunyah and Rutherglen. On Tuesday 22 September 2009, NSW and Victorian Police, the State Emergency Service (SES) and the local Volunteer Rescue Association (VRA) commenced searching for the deceased within the area indicated from the mobile telephone triangulation, in particular the Murray River and its banks.

Simultaneously, Police notified local media outlets and conducted several media interviews seeking assistance and information in locating the deceased. On 22 September 2009, the offender was contacted by the VRA to assist with the search. The offender attended VRA Headquarters around 1pm and assisted with the search of the river bank.

As part of the investigation, Police interviewed friends of the deceased, including the offender. Police contacted the offender on 22 September 2009, whilst he was searching for the deceased.

Around 4pm on 22 September 2009, the offender attended VRA Headquarters and participated in an Electronically Recorded Interview with Police. The offender told Police that the deceased sent him a text message on Friday night and then later rang him and she sounded upset so he went to see her. When he arrived at the deceased's home, she had been drinking. The offender took the deceased for a drive and talked and the deceased indicated that she wanted to rekindle their relationship. The offender declined as he had moved on with a new girlfriend. The offender stopped his vehicle on Federation Avenue, at the request of the deceased. The deceased got out of the car and said that she was going to see a mate. The offender stated that he dropped the deceased off around 11pm.

Despite extensive searches of the Murray River and surrounds, the deceased was not located.

Telephone records confirm that the offender was the last person to have telephone contact with the deceased.

On Thursday 24 September 2009, Police were granted a Crime Scene Warrant for the offender's motor vehicle, a white Ford Falcon sedan NSW registration XXX XXX. Around 2pm on Thursday 24 September 2009, Police spoke to the offender, in the presence of his father Graham Williams, in Sanger Street, Corowa.

During this conversation, the offender told Police "...it looks pretty bad for me. I was the last one to see her alive and they haven't found her body". The offender corrected himself and stated "No, I mean they haven't found Shana. I've been out with the VRA looking for her". Police advised the offender that they had a Crime Scene Warrant and intended to seize his motor vehicle. The offender and Mr Williams accompanied Police to his address at XXX XXXX XXXXX X, Corowa. The warrant was executed and the vehicle was seized.

Also at this address was a silver Ford Falcon Ute Victorian registration XXX XXX with a fibreglass canopy. The offender also owns this Ute. Mr Williams advised Police that they had seized the wrong vehicle as the offender was driving the silver Ute on Friday night. The offender confirmed this and told Police that "I was really pissed and I didn't want to get into trouble. I was driving the ute on Friday". The offender gave Police permission to seize the Ute for forensic examination.

Whilst at the offender's residence, Police asked the offender (sic) recall what happened after he dropped the deceased off. After a short time the offender asked to speak to his father. Following this conversation, the offender again told Police "I was driving my Ute and I dropped Shana off in Edward Street. I went home, I was really pissed and I shit myself and vomited up. I was really embarrassed and had a shower. I parked my Ute around the back behind the shed and then drove to my girlfriend's house".

The offender agreed to give Police the clothes that he said he was wearing on Friday night. Shortly after, Mr Williams said "He strangled her". The offender said "I killed her". The offender told Police that he buried the deceased near the Lagoon. The offender agreed to show Police the burial site. The offender was arrested and cautioned.

The offender directed Police to a turning circle at the end of Enfield Road, Corowa. At this location, a steep bank led to a small lagoon known as 'Dairy Lagoon'. Police walked down the bank to the Lagoon but were unable to locate any obvious areas where soil had recently been turned. The offender identified an area not far from the waters edge.

A short time later, the offender said to Police "I didn't mean to do it. It started out as a joke but I couldn't stop squeezing". The offender then demonstrated how he strangled the deceased in a headlock type position from behind. The offender told Police that he hit her with a shovel, took her clothes off and buried her. The offender also told Police that the deceased was dead before he hit her with the shovel. The offender said that he put his clothes and the deceased's clothes in a bag and put them in the roof of his house.

The offender was conveyed to Corowa Police Station. After obtaining legal advice, the offender declined to answer any questions regarding the murder. The refusal to answer any questions was electronically recorded. The offender was charged.

A crime scene was established at the burial site at 'Dairy Lagoon'. Crime Scene Officers (CSO) attended the burial site and dug a small hole in the area where the deceased was said to be buried. Approximately 570 millimetres below the surface, CSO located what appeared to be flesh. The crime scene remained under Police guard throughout the night.

On the evening of Thursday 24 September 2009, Police applied for and were granted a Search Warrant in respect of the offender's premises at XXX XXXX XXXXX X, Cowora. The search warrant was executed during the evening of 24 September 2009.

Police recovered a bag containing blood stained clothing belonging to the deceased and the offender from the roof cavity in the laundry. Police also seized six shovels from the rear shed. These items were subject to forensic analysis. A long brown handled shovel was examined. The neck of the blade, front and back and the blade, front and back produced a positive presumptive result for blood. DNA testing on the shovel was ultimately unsuccessful.

The rear shed was subject to forensic examination. A presumptive test for blood was conducted on the interior of the shed. Some small spots on the floor inside the roller door produced a positive presumptive test for blood. These spots were swabbed and forwarded to DAL. Blood was not detected on this swab.

Police and CSO returned to the burial site the following day, Friday 25 September 2009. The body of the deceased was uncovered, approximately 600 millimetres below ground level. The body was naked and laying face down. The body was removed and examined. Police observed a large laceration to the back of the head, a hole in the skull behind the left ear, a wound behind the right ear and a wound beside the right eye.

An Autopsy Report reveals the cause of death to be blunt force injuries to the head. Asphyxia was found to be a significant contributing factor to the death. The following injuries to the head were noted:

• Large lacerations lateral to the right eye, scalp of the forehead and back of the skull;
• Comminuted fractures of the base of the skull;
• Fractures of the right frontal skull, left occipital skull and right orbit;
• The brain had small subarachnoid and subdural haemorrhages and contusions.

The following asphyxial injuries were noted:

• Transverse bar-like area of blanching of the anterior neck, with adjacent, profuse petechial haemorrhage;
• Contusions on the skin of the front of the neck and the central posterior neck and the left posterior shoulder and right anterior shoulder;
• Subconjunctival haemorrhages, petechial haemorrhages or(sic) the oral mucosa and deep soft tissue haemorrhages within the neck.

The black plastic bag containing the offender's and deceased's clothing was subject to fingerprint examination. The right middle fingerprint and right palm print of the offender were located on the exterior of the plastic garbage bag. Ridge detail consistent with the right middle finger of the offender was also located on the plastic bag.

The offender's Ford Falcon sedan and Ford Falcon Ute were subject to forensic examination. A presumptive test for blood in the rear tray of the Ford Ute was conducted. A number of areas in the rear tray produced a positive result. DNA testing on a swab from the rear tray of the Ute was unsuccessful. A second swab was also examined. Blood was not detected on this swab.

The offender's jeans located in the bag in the roof cavity at XXX XXXX XXXXX were subject to forensic examination. The deceased has the same DNA profile as the DNA recovered from three stained areas of the jeans. This profile is expected to occur in fewer than 1 in 10 billion individuals. The DNA profile recovered from an unstained area inside the front waistband of the jeans is consistent with originating from the deceased. Traces of DNA from a second individual were recovered. The offender cannot be excluded as the second contributor.

Semen was not detected on the rectal, nasal, oral or vaginal swab of the deceased."

1. The autopsy report revealed no detectable alcohol or common drugs of abuse or prescribed drugs in Ms Wilkinson's body.

1. In evidence was a report prepared by the forensic psychiatrist Dr Westmore, who examined the offender on 23 December 2010. The account which Dr Westmore recorded the offender had given him was:

"I asked him what happened on the night of the incident. He said it was about one week after his current girlfriend had a miscarriage. He said "I'd been drinking pretty heavily all week and that night I really wrote meself off. She (Shana) rang me asking if I wanted to go for a drink. I went and picked her up (from her home). We were driving around for a bit and pulled over at the river, just talking. I told her how devastated I was at losing the baby. I was ready to be a father, built meself up to it. She said it was a good thing that it died, that it was a good thing that happened. That is when I got angry. I never really get angry like that, something was saying, I don't know how to explain it, something in me snapped I guess."

He continued and stated "It shouldn't have happened in the first place. I realised what I'd done. I freaked out and I panicked and that is when I tried to get rid of her."

I told him the police indicate that he had said at some stage that he had strangled Shana and he said "Yes, that is correct." I told him I understood he had also stated at some stage that he had hit her with a shovel, he said yes. I enquired had there been any sexual intimacy between him and Shana on that particular night, he said no.

I told him I understood she had been stripped naked and he said "Correct." I asked him why he done that and he said "Panic I just wanted it all to go away, I was freaking out about going to gaol. I didn't know what to do. I couldn't believe I'd done something like that."

I asked him how much alcohol he had consumed on the night and he said he had consumed a large bottle of Jack Daniel, twelve schooners and he had smoked cannabis as well. I confirmed with him that he had consumed a whole bottle of spirits by himself and he said yes to that question. He then said "I've been an alcoholic for years." I enquired had he been heavily intoxicated on the night and he said "Yes, I started drinking at quarter past three when I knocked off work. " He said the incident occurred between 10.30pm and 11.00pm. He thought Shana had been drinking as well, he said he can remember that she had a bottle of wine with her.

He had smoked a $20 packet of cannabis over a period of time leading up to the homicide."

1. Later Dr Westmore noted:

"I took him back to the offending behaviour and asked him what was he thinking at the time. He said "Something was telling me, you can't let her talk like that, it wasn't the first baby that I'd lost. I was pretty built up to be a father. When she said she was glad it died, it wasn't even like anger, it was blind rage. I've never felt anything like it before."

I asked him did he think he had lost control on that particular night or not. He said "Yeah, I think I did." I enquired did he think that he would have lost control in the same way if he had not used drugs and alcohol that night. He said no. I asked him in the past when he had been aggressive, had it always been in conjunction with drug and alcohol use, he said yes."

1. The offender's girlfriend's statement indicated that their relationship had existed for some three months. They had met at work and the offender was 'pretty much' living at her house. The relationship was good, they had never argued until recently and there had been no violence. Ms Wilkinson was a member of their friendship group.

1. On the night of the murder the offender's girlfriend had missed a call from the offender at 9.50pm, while she was at work. She finished work at 11.00pm and returned home, arriving a few minutes later. Between that time and 12.35pm she tried calling the offender eleven times without success and then went to bed. He arrived at her home at about 2.00am. He had been drunk every night over the preceding week, but she would not have described him as drunk that night. They had an argument. Her account was:

"When he arrived, I was in bed. I said, "Where the fuck have you been?"

He said, "I picked up Shana and then I passed out ...."

I got angry as soon as he said her name and said, "Don't even fuckin' talk to me."

He said, "I didn't root her! I didn't do anything. She put the moves on but I told her how it was and that I was with you and then I dropped her off."

1. The offender and his girlfriend spent the weekend doing chores and seeing friends. On Sunday afternoon he received a telephone call and told her that Ms Wilkinson was missing. On Monday he told her he had been called in to assist Corowa Search and Rescue, with which he had been involved for a few years, to assist in the search for Ms Wilkinson. After he returned she asked the offender to tell her everything about what had happened the previous Friday evening. He told her that they went to see friends, had driven around for a while and then he had dropped her off.

1. They discussed Ms Wilkinson further over the next few days and she encouraged him to tell all that he knew. He insisted that he had not done anything and that he was telling the truth. She believed him, because she did not believe that he would hurt anyone. She had never seen him angry.

1. The offender's father's statement indicated that he was at home on the night of the murder. He woke at about 1.30am and saw the offender outside walking toward the house, wearing only a pair of jeans. The offender was acting out of sorts and fobbed him off, going towards the shed. A little later when the offender entered the house, he was naked. The offender then had a shower and left about 30 minutes later.

1. The offender's mother, Ms McGeeham, gave an account of the offender's background, personal and employment history.

1. The offender is a 23 year old man who came from a close knit family. While his parents were divorced, he lived with his mother as a child and at the time of the offence, with his father in Corowa, when not with his girlfriend. His parents were both involved in his upbringing. He left school in year 11 to pursue an apprenticeship as a fitter and turner. He enjoyed success in his studies and later worked in his trade in full-time contract work. He was named Victorian apprentice of the year in 2008. He had purchased his own home. He was actively engaged in a number of sports, had qualifications as a martial arts coach and was involved in volunteer work in search and rescue operations.

1. His mother's evidence was that she was aware that on occasions the offender drank to excess, but he was always able to maintain full-time employment; he had been careful not to drive while under the influence; and his drinking had not caused him to have any time off work. She, his father and his girlfriend maintain contact with him.

1. His mother first learned of his girlfriend's pregnancy and miscarriage, after the offender's arrest, even though they were close and had dinner together each week, including on the Tuesday before Ms Wilkinson's murder. He did not drink alcohol while with her that evening. Neither the offender nor his girlfriend then told her about the miscarriage. Their conversation had been about normal things, including what to do with a litter of puppies and travel plans.

1. She explained that she had only learnt of the death of the offender's prematurely born child, who had been born while the offender was living at home with her when he was 19, on the night before giving her evidence, when she read certain documents. That morning her daughter had revealed to her, her knowledge of the birth of that child.

1. Ms McGeeham had counselled the offender not to discuss Ms Wilkinson's murder with anyone other than his solicitor, but he had told her that he was responsible for her death and that he was sorry for Ms Wilkinson and her family. He had asked her what he could do. She had told him that he could not undo anything. In cross-examination, she also explained that the offender had told her he was sorry for the pain he had caused Ms Wilkinson's family and the shame that he had brought to his own family.

1. The evidence showed that the offender was socially gregarious, with a close circle of friends. He had had a number of personal relationships. He had also had a casual sexual relationship with Ms Wilkinson, whom he first met when they were teenagers, but that had ceased some time before her murder. They remained friends.

1. The offender has been in custody since his arrest. He has been in employment while in prison and intends in future to pursue studies to university level.

1. In evidence was a report prepared by clinical and forensic neuropsychologist Dr Pulman, who examined the offender on 11 December 2010 for a neuropsychological assessment. Her report shows that the offender is a young man of average intelligence, not suffering from any ill health, but with a history of head injuries sustained during sport and a number of fighting incidents. He reported having commenced drinking at about 12 or 13 years of age and daily binge drinking to the point of passing out, from age 17. This caused him at one time to attend alcoholics anonymous meetings. He had commenced smoking pot at age 13 and had used ecstasy and amphetamines at weekends, 'a fair bit', since age 18. He had also used mushrooms and LSD, but not heroin or Ice.

1. Dr Pulman's opinion was that the offender was functioning within the average range of intellectual ability; there were no abnormalities in his cognitive functioning; and his verbal memory and processing speed were intact. An assessment of his higher order functioning and executed reasoning abilities indicated that the offender had sound abilities in problem solving, self judgment and self regulation.

1. Dr Westmore's report noted a similar history of drug and alcohol abuse; that the offender had never attended a drug or alcohol rehabilitation facility; and that he was not taking any prescribed medications. He had no history of violent behaviour. The offender explained that he might get angry and loud while affected by alcohol, but that he would not go out of his way to hurt people, or to look for fights. He told Dr Westmore that after the miscarriage, both he and his girlfriend were upset.

1. The offender reported suffering from ongoing nightmares, seeing Ms Wilkinson and thinking that he had blood on his hands. Dr Westmore was of the opinion that:

"Based on his longitudinal history, the extreme nature of the violence towards the deceased does seem to be unexpected and unpredictable. Feelings of depression and despondency following [the] pregnancy problems and his abuse of drugs and alcohol in the night in question are all likely to have been significant contributors to the offending behaviour.

He was able to express feelings of regret in relation to his actions and he described symptoms which are likely to be part of a posttraumatic stress disorder arising from the homicide.

I do not believe that he has a psychiatric defence for the charge of murder. The offending behaviour does appear to be extremely specific occurring in the context of an acute psychosocial stress along with the other aetiological factors identified and his general risk to the community is probably low, particularly if he is able to enter into sobriety in relation to drug and alcohol abuse."

The parties' cases

1. The parties did not agree about the seriousness of the offence, or the effect of evidence going to various mitigating matters and their impact on the sentence to be imposed.

1. The Crown's case was that the circumstances of this offence were such that in sentencing, strong elements of denunciation, retribution and punishment were called for and that general deterrence must also play a role. The Crown did not submit that the offender's level of culpability was so extreme, that a sentence of imprisonment for life is to be imposed in accordance with s 61(1) of the Act. There is an onus falling on the Crown to establish that such a sentence is warranted, if it is to be imposed. What the Crown submitted was that on the evidence, this was an offence which fell at the top of, or just above the middle of the range of objective seriousness.

1. The case advanced for the offender was that this was an offence which fell at the lower spectrum of the band of offences which lie at the mid-range of objective seriousness. This was the offender's first offence and gave rise to special circumstances. Further, given the evidence, particularly of the offender's subjective case and that going to matters of mitigation, including remorse, rehabilitation, the likelihood of re-offending, behaviour in prison and intentions in relation to further education, when coupled with a utilitarian discount, it would be concluded that he should be extended considerable leniency and sentenced well below the statutory non-parole period.

The Court's sentencing task

1. The Parliament has required that the sentence imposed on the offender be determined having in mind the purposes of sentencing set out in s 3A of the Act. Those purposes are:

"(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community."

1. The sentence imposed must reflect the gravity of this offence, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354.) Section 21A of the Act also requires that in determining that sentence, consideration be given to specified aggravating and mitigating facts revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of the offence. The sentence must also ensure that there is a reasonable proportionality between the sentence imposed and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15].) Consideration must also be given to general and specific deterrence in the sentence imposed.

Matters relevant to the determination of the sentence

1. I have born all of these considerations in mind in arriving at a sentence. I accept the submission that the offender has a strong subjective case. Objectively, however, that this is a very serious offence may not be doubted. This may not be overlooked in the sentence imposed. Ultimately, the sentence imposed must not be unreasonably disproportionate to the nature and circumstances of this offence.

Aggravating factors

1. The Crown's case was that the aggravating factor necessary to be taken into account was the offender's use of a weapon. That was accepted for the offender. The submission is plainly correct, even though, as Buddin J observed in R v Day [2010] NSWSC 983 at [19], 'most murders are committed by a person using a weapon.'

1. In this case, not only was Ms Wilkinson strangled, which has been described as 'a horrible way to die' (see Versluys v R [2008] NSWCCA 76), she was repeatedly struck with a shovel. Those blows finally caused her death, with the asphyxiation contributing. The offender told police that she was already dead when he struck her. That belief appears to have been wrong, but the evidence certainly suggests that she was, by then, unconscious. She was patently defenceless. Given what the autopsy report reveals as to the brutality with which she was repeatedly struck with the shovel, that the use of this weapon was an aggravating factor may not be doubted.

1. The other aggravating factors specified in the Act do not arise for consideration in this case.

Mitigating factors

1. That the offence was not planned, was accepted by the Crown. That the offender has no prior criminal record is also a matter to be taken into account. On confession the offender provided certain assistance which must also be taken into account when consideration is given to other mitigating matters which arise for consideration in sentencing.

1. The offender is entitled to a discount for having pleaded guilty to the charge. His plea was first entered in the Local Court and adhered to in this Court. The Crown conceded that in the circumstances, it is within my discretion to grant the offender a discount of at or close to 25% for the utilitarian value of his plea of guilty, in accordance with the Court of Criminal Appeal's judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.

1. The purpose of such a utilitarian discount was there explained by the Chief Justice as reflecting the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses, especially victims, who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. These benefits must be identified by a trial judge when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived (see R v Thomson; R v Houlton at [115] to [123]).

1. In this case I am satisfied that given the offender's early plea, he must have a discount of 25% on this account.

1. That the offender has accepted responsibility for his actions in committing this offence, must be accepted. That was evidenced by his confession to investigating police officers; by the assistance which he then provided; by his plea; and by what he later told his mother and Dr Westmore. Whether additional leniency is available on account of the offender's demonstrated remorse for the offence must also be considered.

1. As the Crown accepted, while he initially denied knowledge of Ms Wilkinson's whereabouts and over several days took a number of steps designed to conceal her death and his responsibility for that death, his confession and subsequent co-operation with the police reflected that remorse over what he had done, while initially absent, came to grow.

1. The trigger for the confession was plainly the police pursuing its investigation and taking steps to search one of his cars. His father's presence at that point led to his consent to the car he was driving on the night he murdered Ms Wilkinson being investigated; his confession; and the recovery of Ms Wilkinson's body. This must also all be taken into account.

1. While there was not in this case sworn evidence of remorse given by the offender, which was capable of being tested, I am satisfied that the evidence of the offender's conduct when he confessed, as well as what he later told his mother and Dr Westmore, shows that he has not only accepted responsibility for his actions, he has also acknowledged the injury which he has caused Ms Wilkinson and her family (see Alvares v R; Farache v R [2011] NSWCCA 33). That remorse must also be taken into account and given proper weight in the sentencing process.

1. There is also evidence, including Dr Westmore's opinion, which supports the view that the offender has good prospects of rehabilitation, particularly having regard to his age, his conduct while in custody, his existing qualifications and intentions to purse further studies and the ongoing support which he has from his family. That evidence must, however, be considered together with the evidence that he has not taken effective steps to deal with what appears to be a serious, longstanding problem with drugs and alcohol.

1. As I said, the evidence shows that the offender has a strong subjective case. There is evidence that he was previously of good character. However, the evidence of his significant long term use of illicit drugs must also be taken into account. That reduces the weight which may be given to the evidence of good character (see Aoun v R [2007] NSWCCA 292 at [23]).

1. That the offender is unlikely to reoffend, is in my view not a conclusion which may readily be reached. I note Dr Westmore's opinion that the offender's risk to the community is probably low. Nevertheless, given the evidence as to the circumstances in which he came to murder Ms Wilkinson and dispose of her body; the extreme nature of his violence, which Dr Westmore considered to be unexpected and unpredictable; and the absence of any evidence from the offender, that he is not likely to re-offend in future is, in my view, not a matter about which it is possible to be confident.

1. It is also necessary to consider the evidence that the offender had consumed both cannabis and alcohol before he committed the offence. The offender gave no evidence himself about what he consumed, but there is various evidence as to how much alcohol he had consumed and conflicting evidence as to how it affected him. The offender told Dr Westmore that he had been heavily intoxicated and that he would not have lost control in the same way, if he had not used alcohol and drugs that night.

1. On his account to Dr Westmore and Dr Pulman, consuming alcohol and drugs to excess was not unusual, to the contrary, it was habitual. There was daily alcohol intake, as well as regular binge drinking and drug taking on weekends. By way of contrast, his mother's evidence was that she had seen the offender intoxicated, but he was careful not to drive when affected by alcohol and that his consumption of alcohol had never created any problems for his work attendance or performance. She was not aware of his drug consumption. That evidence was consistent with his driving record.

1. On his account to Dr Pulman, in the past the offender had engaged in a number of fights, but he had no other history of violence, particularly no history of drug or alcohol fuelled violence towards his friends or family. Despite his account of regular binge drinking and substance abuse, the offender had no driving offences or any other criminal record. It thus appears that the offender had considerable ability to control his conduct, even when drinking to excess and taking illicit drugs.

1. The offender gave conflicting accounts as to how much he had drunk and how he was affected, when he killed Ms Wilkinson. There was also other evidence which shed light on these matters, which must be considered.

1. The offender told Dr Westmore that he commenced drinking when he finished work at 3.15pm. There is evidence that he left the pub at 10.04pm and went home by taxi. From exchanges of text messages between the offender and Ms Wilkinson, it seems that they must have met after the last text which Ms Wilkinson sent him at 10.38pm. He told Dr Westmore that he killed Ms Wilkinson between 10.30pm and 11.00pm.

1. An account of the amount of alcohol the offender had consumed was given to police by a friend in 2009. He said that they had drunk eight beers and then the offender had drunk double scotch on ice and had taken some mixed drinks away with him from the pub. The offender told Dr Westmore in December 2010 that he had been an alcoholic for years, he had drunk a large bottle of Jack Daniels that night, as well as twelve schooners and had smoked a $20 packet of cannabis; he had been drinking pretty heavily all week and that night he 'really wrote himself off'.

1. On 22 September 2009, the offender told police in a recorded interview that he had 'just had a few' that night; on 24 September, before he confessed, he told his father that he could not remember a period of two hours on the night of the murder; later he told police that he was 'really pissed' and that he 'can't really remember much about Friday night'. When he confessed later that day, he made no reference to his alcohol consumption.

1. It is apparent from his confession and subsequent actions in assisting the police, that whatever his level of intoxication was that night, he had a memory of what he had done to Ms Wilkinson.

1. Another friend who spoke to the offender at about 10.30pm on the night he killed Ms Wilkinson, later described him to police as being 'pretty pissed'. The taxi driver told the police that when he drove the offender at about 10.00pm, that he did not appear intoxicated. When his father saw him at their home at 1.30am, he described him as 'very out of sorts'. The offender told his father the next day, when asked why he was so weird the previous night, that he fell asleep in his ute and when he woke up he realised 'I'd shit myself'. That was untrue. The offender had gone home, to clean up and to hide the clothes he and Ms Wilkinson had been wearing.

1. The offender arrived at his girlfriend's house at about 2.00am. His girlfriend told police that she had often seen him drunk, but would not have described him as drunk when he came home that night and later, that she thought he was 'completely sober'.

1. As Hidden J observed in R v Shepherd [2007] NSWSC 1416 at [59] 'it is the experience of this Court, that, not infrequently, elaborate steps are taken to cover up a killing which was spontaneous.' The evidence of the extensive steps taken by the offender to conceal Ms Wilkinson's murder, were consistent with his girlfriend's and father's descriptions of his state. That he would have been capable of doing all that he did that night, if heavily intoxicated and drug affected as he later told Dr Westmore he was, seems most unlikely.

1. Not only did he drive, both before and after Ms Wilkinson's murder, contrary to his usual habit when drinking to excess, he undressed Ms Wilkinson's body; he buried her body at night on the bank of a lagoon some distance from his home; he concealed the burial site in such a way that even when he later took the police to the site, it was not apparent that the ground had been disturbed; he went home and hid Ms Wilkinson's clothes and his own; and he cleaned himself sufficiently, so that when he encountered his father, what he had done was not obvious. He then showered and drove to his girlfriend's house. He was able to conceive and act on a plan to conceal his knowledge of Ms Wilkinson's death and the whereabouts of her body, by disposing of her mobile phone and sending a text to her phone and attempting to ring her, after her death. That night he was also able to successfully interact with both his father and his girlfriend, without revealing to them that he was either heavily intoxicated or drug affected, or what he had done to Ms Wilkinson. He retained a memory of what he had done and was able to effectively conceal his actions that night and during the following days.

1. In all, the offender was able to maintain remarkable control over his faculties and his conduct, given the state he told Dr Westmore he was in, when he murdered Ms Wilkinson. The offender also told Dr Westmore that he freaked out and panicked, after he realised he had killed Ms Wilkinson and that was when he tried to get rid of her. While what he then did was consistent with that account, it was not consistent with the level of intoxication the offender described to Dr Westmore.

1. Also to be considered is what the offender told the police in September 2009 when he confessed. Then he said that strangling Ms Wilkinson had started out as 'a joke', but he could not stop and that he hit her with the shovel, after he thought that she was dead. This account does not appear to be consistent with what he later told Dr Westmore in 2010, namely that he had strangled Ms Wilkinson in an act of blind rage, in response to what she had said about the miscarriage a week earlier, that behaviour being the result of his alcohol and drug consumption. Because the offender gave no evidence, the two accounts remain untested.

1. Alcohol and drug consumption of itself cannot mitigate the seriousness of an offence, but it may explain the context in which it occurred (see R v Fletcher-Jones (1994) 75 A Crim R 381). In XY v R [2007] NSWCCA 72 at [29] it was observed that '[a] person's self control may be severely diminished by excessive alcohol although a memory of the event remains.' In R v Gordon (1994) 71 A Crim R 459 at 467, Hunt CJ at CL explained that in some circumstances 'intoxication will mitigate the offence because the offender has by reason of that intoxication acted out of character.'

1. It must be accepted that the evidence established that the offender killing Ms Wilkinson was entirely out of character. It may also be accepted that the alcohol and drugs which he had consumed that night, affected his judgment. Of itself, however, the offender's drug and alcohol consumption, whatever it might have been, cannot mitigate the seriousness of this offence.

1. It is also necessary to deal with the question of provocation. The offender bears the burden of proof, on the balance of probabilities. The Crown's case was that the evidence could not satisfy the Court that Ms Wilkinson provoked the offender. The offender's case was that it would be accepted that provocation was established, as the result of a combination of the offender's increased sensitivity to Ms Wilkinson's remarks, given his earlier loss of a child and the recent loss as the result of the miscarriage; the nature of the comments themselves; and the effects of alcohol and cannabis on his judgment.

1. On the evidence I am not persuaded that provocation was established.

1. I have already dealt with the question of the alcohol and drugs which the offender had consumed and their effects.

1. As I have already noted, the offender has given two quite different accounts of how he came to murder Ms Wilkinson. It was only when he spoke to Dr Westmore, that he gave any account of remarks made by Ms Wilkinson, which provoked his 'blind rage', causing him to strangle her. His earlier account was that the strangling began as a joke. Because the offender gave no evidence, his differing accounts were not tested.

1. The offender also told Dr Westmore that Ms Wilkinson was a nice girl, who he first met when she was 15 or 16 and that their sexual relationship began when she was 18. It later ended mutually when he had another girlfriend and Ms Wilkinson then entered a relationship with one of his friends. They had no ongoing sexual relationship. She had rung him that night and asked him if he wanted a drink, he had picked her up and they had driven around for a bit and had then pulled over at the river and talked.

1. It was only in this account which he gave to Dr Westmore, that the offender mentioned discussing the miscarriage and Ms Wilkinson saying to him that it was a good thing that the baby had died and a good thing that it had happened. In my assessment, if Ms Wilkinson made such remarks, even accepting that the offender was upset by the miscarriage and the earlier loss of another baby, the offender's reaction was grossly disproportionate, notwithstanding the drugs and alcohol which he had consumed.

1. How Ms Wilkinson came to know about the miscarriage is not known. Presumably it was the offender who told Ms Wilkinson of the recent miscarriage. On the evidence, the offender's girlfriend and Ms Wilkinson were not close. There is no suggestion that anyone else knew of the miscarriage, other than the treating doctor. The offender's mother did not know of the miscarriage, or that the offender was upset as a result, even though they had dinner together a few days later. The offender did not drink that night, while they were together and they discussed only normal, everyday things. Neither the offender or his girlfriend told her of the miscarriage, or that the offender was upset. The offender's mother was also not aware of the birth and death of the child of his earlier relationship, or that it was something which had ever troubled him.

1. There is little else that is known about the interaction between the offender and Ms Wilkinson that night. That Ms Wilkinson was aware that the offender was not only distressed about the miscarriage, but also about the death of his other prematurely born baby some years earlier, is not apparent. Even assuming that she was aware of this and that she then made what was an insensitive, or even a very cruel remark about the miscarriage, that the offender's response was 'so far out of any reasonable proportion to the behaviour of the victim' that there was no mitigation arising, must in my view be accepted (see R v Mendez [2002] NSWCCA 415 at [16].)

1. Even accepting that his judgment was adversely affected by what he had consumed, the untested, contradictory and incomplete accounts of what caused the offender to strangle Ms Wilkinson and then to beat her to death with a shovel cannot, in my assessment, 'constitute evidence of provocation such as to amount to mitigation', (see Shaw v R [2008] NSWCCA 58 at [26]).

1. It follows that the offender must be sentenced on the basis that his offence was not premeditated and that it was out of character. I can, however, make no positive finding in his favour as to what caused him to kill Ms Wilkinson, or that the killing was provoked by Ms Wilkinson. The evidence does not permit any firm finding as to what it was that triggered his attack, other than that it was spontaneous.

Standard non-parole period

1. As I have said, the offence of murder, which carries a maximum penalty of life imprisonment, attracts the operation of s 54A of the Act, which provides for a standard non-parole period of 20 years for a mid-range offence of murder. This standard non-parole period does not apply after a plea, but it must still be kept in mind as 'a reference point, or benchmark' in sentencing, as must the maximum penalty (see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [122]).

1. In considering where in the range this offence falls, I have paid regard to the principles discussed in R v Way ; R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575; MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93; R v McEvoy [2010] NSWCCA 110; Mulato v R [2006] NSWCCA 282; and R v AZ [2011] NSWCCA 43. For the offender it was urged that particular regard would be paid to what Kirby J observed in MLP v The Queen at [33].

1. In Nguyen v The Queen; ATCN v The Queen; Nguyen v The Queen; Huynh v The Queen [2007] NSWCCA 363; (2007) 180 A Crim R 267 at [143], it was observed that '[a]n intention to kill and premeditation are usual elements in a murder of mid range objective seriousness'. On the evidence that there was an intention to kill in this case was established, but premeditation was not.

1. In Versluys v R it was observed at [34] that:

"It may be accepted that a murder which is not premeditated would usually be less serious than one which involves planning. However murder is a crime which can be committed under a very wide range of circumstances and the absence of premeditation does not dictate a finding that the objective seriousness of the particular offence falls below the mid range."

1. While this murder was not premeditated, in determining the objective seriousness of this offence proper account must be taken of all the evidence as to the circumstances of the offence, including how Ms Wilkinson's death was caused. That this was a most brutal killing may not be overlooked in assessing the objective seriousness of the offence and the range within which it falls.

1. Having weighed the various aggravating and mitigating matters which must be taken into account in assessing the objective seriousness of the offence, I am satisfied that the evidence does not permit a conclusion that this offence fell below the mid-range of seriousness, even though it was not premeditated. I have concluded that this offence falls at just above the mid-range of such offences.

1. In determining sentence, consideration must be given to that conclusion, as well as to the offender's subjective case and the mitigating matters which are relevant to sentence. They include my conclusion that the offender is entitled to a 25% utilitarian discount; his remorse and prospects of rehabilitation; and his confession and co-operation with the authorities.

1. I am not of the view that there should be a finding of special circumstances warranting a reduction in the proportion of the sentence to be represented by the non-parole period, because this is the offender's first time in custody. I have taken his lack of prior record into account in determining the sentence and am of the view that the usual statutory ratio will provide an appropriate period of supervision on parole. In my view, any lesser period of imprisonment would not be sufficient to reflect necessary considerations of deterrence and retribution.

Comparable cases

1. For the offender it was submitted that some, albeit limited guidance would be provided by statistics available from the Judicial Commission, which showed only nine cases with comparable characteristics to those in this case. The result was a mid-range non-parole period of 15 years.

1. Attention was also drawn to what were submitted to be comparable offences considered in decisions such as R v Borg [2010] NSWSC 951; R v Kwon (2010) NSWSC 671; R v D ay; R v Shepherd and Regina v Prior [2002] NSWSC 56 (where no standard non-parole period applied). It was submitted that they involved comparable factual circumstances, which had been assessed as falling below the mid-range of objective seriousness.

1. These decisions were of some assistance to what I have to determine, but each dealt with differing circumstances to those which arise for consideration in this case. The sentencing discretion which I must exercise in this case, must have reference to the evidence which has here been led on sentence.

Custody

1. I do accept that account must also be taken of the fact that the offender has been in continuous custody since 24 September 2009. It is appropriate to commence the sentence imposed on the offender from that date.

The victim impact statement

1. With assistance, Ms Wilkinson's mother read a victim impact statement which described her outrage and distress over the untimely loss of her daughter. What she explained about the impact of her daughter's death on her and her family was heartrending. The despair, grief and betrayal which she described is entirely understandable, as are the difficulties which the legal process itself have given rise to, about which she also spoke.

1. That process and the delays involved are not always easy to understand, but it may be observed that it is a system which our society has developed, in an endeavour to ensure that justice is achieved, but not at the risk of inflicting injustice on top of terrible tragedy. There are inevitably tensions in any system which human beings devise and have to implement, when important competing considerations must be balanced. That the perhaps imperfect operation of this system is the cause of additional pain for Mrs Wilkinson and her family, is very much to be regretted.

1. It is not possible for me to attempt to summarise what Mrs Wilkinson said in her statement, let alone to convey the emotion with which her words were delivered in this courtroom. Any member of the community who heard what she described, would feel the utmost sympathy for her plight. The sentence which will be imposed on the offender, indeed any sentence, cannot make good the loss which has been suffered.

1. Ms Wilkinson's family, her friends and the members of the small community in which she and the offender lived, all have to continue living with the consequences of what has occurred. That will not be easy, but has to be faced. For myself, I extend my very deepest sympathies to Ms Wilkinson's family and friends for their terrible loss.

1. Finally, I record that in making these remarks I have adhered to the well settled approach which a sentencing judge must adopt, when receiving victim impact statements. In R v Tzanis [2005] NSWCCA 274, five members of the Court of Criminal Appeal considered the approach established in R v Previtera (1997) 94 A Cim R 76, which has since been followed. They concluded that approach must be adhered to. That means that an unsworn, untested victim impact statement may not be taken into account in sentencing the offender, for reasons which were explained at length by Hunt CJ at CL in 1997 and which I understand were explained to Mrs Wilkinson, before she made her statement. I will not deal with them further now.

Sentence

1. I note that but for the utilitarian value of the offender's plea, I would have imposed a head sentence of imprisonment of 29 years. With discount, the sentence is 21 years and 9 months. I will fix a non-parole period of 16 years, 3 months and 23 days.

1. Ryan Christopher Williams I convict you of the murder of Shana Joy Wilkinson.

1. You are sentenced to a term of imprisonment with a non-parole period of 16 years, 3 months and 23 days, commencing on 24 September 2009 and expiring on 15 January 2026. I set a balance of term of 5 years, 5 months and 8 days, which is to commence on 16 January 2026 and to expire on 23 June 2031. You will be eligible for release on parole on 16 January 2026.

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