R v Wood

[2018] NSWSC 1855

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Wood [2018] NSWSC 1855

Hearing dates:

12 December 2018

Date of orders:

14 December 2018

Decision date:

14 December 2018

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The offender is convicted of the murder of Sarah Brown.
(2) The offender is sentenced to imprisonment for a period of 25 years and 6 months commencing on 30 September 2017 and expiring on 29 March 2043.
(3) I specify a non-parole period of 19 years and 1 month imprisonment to expire on 29 October 2036.
(4) The total sentence is one of 25 years and 6 months imprisonment.
(5) The offender will be eligible for parole on 29 October 2036 and his sentence will expire on 29 March 2043.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Murder – Where deceased was the partner of the offender – History of domestic violence – Offending aggravated by a series of factors including the offender’s record which included previous breaches of apprehended violence orders – Finding that the offender acted with an intention to kill the deceased – Necessity for sentence to incorporate considerations of both general deterrence and specific deterrence

 

CRIMINAL LAW – Offences – Sentence – Murder – Whether offender’s intoxication was an aggravating factor – Where the offender had a history of alcohol related offending including offending of a domestic violence nature – Where offender must have been aware of the connection between his consumption of alcohol and violence – Offender found to be reckless – Offending aggravated by intoxication

  CRIMINAL LAW – Offences – Sentence – Murder – Whether the offending was aggravated by gratuitous cruelty perpetrated by the offender on the deceased – Evidence of widespread bruising to the deceased in addition to the stab wounds which caused her death – Where the offender admitted to the police that he had “choked out” the deceased and caused her to lose consciousness – Offending aggravated by gratuitous cruelty

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure)1999 (NSW)
Criminal Code 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:

Abbas, Bodiotis Taleb and Amoun v R [2013] NSWCCA 115
Attorney-General’s Application under s 37 of the
Cherry v R [201] NSWCCA 150
Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Mendes v R [2012] NSWCCA 103
R v Coleman (1990) 47 A Crim R 306
R v Medich (No.43) [2018] NSWSC 886
R v Qutami [2001] NSWCCA 353
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2009] NSWCCA 309
RL v R [2018] NSWCCA 174
Stanford v R [2007] NSWCCA 73

Category:

Sentence

Parties:

Regina - Crown
Russell Brian Wood – Offender

Representation:

Counsel:
M Paish – Crown
A Webb - Offender

  Solicitors:
Director of Public Prosecutions NSW – Crown
Legal Aid NSW – Offender

File Number(s):

2017/295773

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 5 October 2018 Russell Brian Wood (“the offender”) pleaded guilty to a charge that on 30 September 2017, at Whalan in the State of NSW, he murdered Sarah Brown (“the deceased”). That is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and carries a maximum penalty of life imprisonment. It should be noted at the outset that the Crown did not submit that a life sentence was appropriate in the present case.

2. In addition, the offender has asked this Court to take into account a further matter on sentence, namely a contravention of a prohibition or restriction in an Apprehended Violence Order which also occurred on 30 September 2017.

3. In RL v R [1] , by reference to the judgment of Spigelman CJ in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002[2] , and that of Bathurst CJ in Abbas, Bodiotis Taleb and Amoun v R [3] , Wilson J and I set out a number of propositions regarding the use of a Form 1 on sentence. We observed, in particular, that the entire point of the Form 1 process is to impose a longer sentence than would have been imposed if the primary offence had stood alone [4] . We also observed that whilst each case will depend its own facts, the proposition that there should be little or no increase in the sentence imposed for the principal offence in such circumstances has been consistently rejected[5] . I have taken the Form 1 offence into account in accordance with those principles.

   1. [2018] NSWCCA 174 commencing at [54].

   2. (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]-[44].

   3. [2013] NSWCCA 115 at [22]-[23].

   4. Attorney-General’s Reference at [18] per Spigelman CJ.

   5. At [58] citing R v Vougdis (1989) 41 A Crim R 125; R v Morgan (1993) 70 A Crim R 368 at 371; R v Barton [2001] 121 A Crim R 185 at [55]; [62]; [64]; Abbas at [22].

THE EVIDENCE ON SENTENCE

4. The Crown tendered a folder of written material [6] which contained the following;

   6. Exh. A on sentence.

1. the Indictment;

2. the Form 1;

3. a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) regarding the offence set out in the Form 1;

4. a document headed “Proposed Facts”;

5. a series of photographs;

6. a copy of the offender’s criminal history;

7. a summary of the offender’s previous convictions for domestic violence related offences;

8. a statement of facts relating to offences committed by the offender in January 2010 (“the 2010 offences”);

9. a statement of facts relating to offences committed by the offender in September 2011 (“the 2011 offences”);

10. a statement of facts relating to an offence committed by the offender in March 2017 (“the Commonwealth offence”);

11. a copy of a Recognisance entered into by the offender pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in respect of the March 2017 offence;

12. a statement of facts relating to an offence committed by the offender in March 2017 (“the March 2017 offence”);

13. a copy of the offender’s custodial history;

14. a copy of an Intensive Correction Order Assessment Report prepared at the time of the offender’s sentencing for the 2011 offences;

15. a copy of a Pre-sentence Report prepared at the time of the offender’s sentencing for the Commonwealth offence;

16. the transcript of a conversation between the offender and police immediately following the offending;

17. the transcript of a recorded interview with the offender; and

18. a photograph of the deceased and her children.

5. In addition, the Crown tendered:

1. victim impact statements prepared by two of the deceased’s children [7] ; and

2. an Autopsy Report prepared by Dr Sairita Maistry [8] .

   7. Exh. B. These statements were also read to the Court.

   8. Exh. C. The contents of this report are summarised in the facts which were tendered.

6. Counsel for the offender tendered two documents on sentence, namely:

1. a report of Anita Duffy, Psychologist, of 19 November 2018 [9] ; and

2. a copy of an affidavit affirmed by the offender on 14 November 2018 [10] .

   9. Exh. 1.

   10. Exh. 2.

7. At the time of the tender of the offender’s affidavit, the Crown indicated that he wished to cross-examine the offender on its contents. Counsel for the offender indicated that although the affidavit was relied upon, it was not proposed to call the offender to give evidence. To the extent that the affidavit set out matters of background, and expressions of remorse, the Crown did not take issue with it. Beyond that, as I observed at the time, the document amounts to little more than a series of assertions made by the offender which are entirely untested by cross-examination. Beyond the matters conceded by the Crown, it is deserving of little or no weight.

THE VICTIM IMPACT STATEMENTS

8. As I have indicated, the Crown tendered victim impact statements prepared by two of the deceased’s five children. Those statements were read to the Court on their behalf. The deceased’s children have found themselves confronted, without warning, by an unimaginable tragedy. It is apparent that the deceased had a close bond with all of her children. Her death has deprived those children of a mother, a carer, a mentor and a friend. The consequences have been particularly profound in the case of one of the children, who continues to struggle with mental health issues precipitated by her mother’s death. I am hopeful that the opportunity that two of the deceased’s children have been given to provide statements will assist them to manage their obvious and understandable grief. I extend my deepest sympathies to each of them, and to their siblings.

9. Section 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is in the following terms:

When victim impact statements may be received and considered

…

(4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community.

10. The Crown submitted that I should treat the victim impact statements in the present case in the manner for which provision is made in that section. In R v Medich (No.43) [11] I made reference to the authorities governing s 28(4) and concluded [12] that those authorities supported the general proposition that although the nature and degree of harm may vary, any case of murder is harmful to the community. The present case falls squarely into that category. I am satisfied that it is appropriate to have regard to the victim impact statements in the manner for which s 28(4) provides. Counsel for the offender did not object to that course.

THE FACTS OF THE OFFENDING

11. [2018] NSWSC 886 commencing at [16].

12. At [25].

The events leading up to the deceased’s death

11. As I have indicated one of the documents tendered by the Crown was entitled “Proposed Facts”. However, counsel for the offender made it clear that I could proceed on the basis that the facts set out in that document were agreed.

12. At the time of the offending, the offender was 26 years of age and the deceased was 34 years of age. The deceased was the mother of five children ranging in ages from 18 to 6. The three youngest children lived with her.

13. The offender and the deceased had been in what has been described as an “on again/off again relationship” since approximately October 2015. It is apparent that such relationship was characterised by domestic violence. On a number of occasions, family members and friends had observed the deceased to have injuries, including black eyes and bruising to her arms. The deceased had told family and friends that the offender was responsible for these injuries, and that he had put his hands around her throat on a number of occasions. On one particular occasion in July 2016, an ambulance and police were called to the deceased's home and the deceased transported to hospital with injuries to her head and face. The deceased's 14 year old daughter had been present on that occasion and had witnessed part of the assault. The deceased presented at hospital with swelling and bruising on her forehead, right cheek and right parietal area, and a laceration to her lower lip.

14. Approximately one week prior to the deceased’s death, her relationship with the offender had again ended, following which she travelled with her three youngest children to the Central Coast where she stayed with friends for the week. Despite the cessation of their relationship, the deceased and the offender kept in contact during that time. On the afternoon of 29 September 2017, the offender finished work and attended a hotel at Parramatta where he consumed alcohol. Whilst he was there he spoke with the deceased who was returning home from the Central Coast. The deceased had become lost, a matter about which she and the offender commenced arguing. She nevertheless made arrangements to collect the offender from Mount Druitt Railway Station. Having done so, the deceased and the offender went to a bottle shop and purchased alcohol, before going to the deceased’s home where they commenced drinking.

15. At 8:42pm, the deceased called a taxi which arrived at her home at 8:50pm. She and the offender then travelled to “Uncle Bucks Tavern” in Mount Druitt, arriving at about 8:55pm. CCTV footage taken from inside the taxi on the way to the tavern showed the offender and the deceased apparently in good spirits. Observations made by staff members at the tavern were to a generally similar effect. Both were in the poker machine area at times, and during the period in which he was at the tavern the offender withdrew a total of $500.00 from a nearby ATM. The offender was obviously drinking.

16. The offender left the tavern by himself at about 11:06pm, arriving at the deceased’s home at some time before midnight. The deceased remained at the tavern until about 11.51pm when she departed in a taxi. There was telephone contact between the offender and the deceased whilst the deceased was at the tavern on her own, as well as during her journey home, as follows:

1. at 11:44pm the deceased had a missed call from the offender;

2. at 11:44pm the offender called the deceased and a 4 second connection followed;

3. at 11:45pm the deceased had a missed call from the offender;

4. at 11:46pm the offender sent the deceased the following text message:

"Ou";

5. at 11:49pm the offender called the deceased and a 7 second connection occurred;

6. at 11:49pm the deceased sent the offender the following text message:

"Stop hanging up on me I'm cab now”;

7. at 11:52pm the offender called the deceased and a 7 second connection occurred;

8. at 11:53pm the offender called the deceased and a 12 second connection occurred; and

9. at 11:54pm the deceased had two missed calls from the offender.

17. At 11:56pm the offender then sent his father the following text message:

“I’ll be home in an hour up not Sarah lol honestly".

The deceased’s death

18. The deceased arrived home at approximately midnight. At 12:33am, the offender called triple 0. The call lasted 93 seconds but was not connected to a despatcher.

19. At 1:36am the offender called his father and a 54 second connection occurred. The offender called his father again at 1:39am and a 17 second connection occurred. The offender’s father said that during these calls, the offender sounded upset. At one point, the following exchange took place between the offender and his father:

Offender: Dad I need you to come over here. Something has happened       with Sarah.

Father:      What is going on?

Offender:    Just come over here.

20. The offender’s father arrived at the deceased’s home at about 1:55am. He walked up to the front door. The offender opened the door. His father looked into the house and saw the deceased lying on the kitchen floor. He walked inside and saw that deceased’s face and lips were pale and blue. He also saw a wound on the deceased’s ribs which he described as being "about an inch and a half long", around which was dried blood. The offender then retrieved a nearby tea towel and placed it on that wound before lying down next to the deceased crying and saying:

"Don't leave me, don't do this to me … I love you."

21. When asked by his father whether he had called anyone, the offender replied:

No, I haven't.

22. The offender's father then walked out to the front of the house and called triple 0. He went back into the house and saw a large silver knife in the corner of the kitchen. He then left the house and remained out the front until police arrived, during which time he could hear the offender crying loudly.

23. Police arrived at the deceased’s premises at about 2:08am. As they approached the front door they could hear a person inside yelling. Upon entering the house, they saw the offender lying on the floor curled up next to the deceased, resting his head on her shoulder and holding the tea towel against her stomach. They noticed that the deceased was very pale and had a wound on the left side of her stomach which was visible when the offender removed the tea towel. Police also saw a large kitchen knife about a metre away from the deceased’s feet. A trail of smeared blood extended from near the knife to the lower half of the deceased’s body.

24. At this point, the offender cried and said:

Please don't be dead baby, you can't be dead, please don't be dead, is she dead? Is she dead? I watched my best friend die. I tried to get my phone to call somebody but I'd lean over to try and get it and then I'd take pressure off and it'd start bleeding and then my phone died and I couldn't reach it and I know I had to keep pressure on it and I just kept trying to reach it and it'd start bleeding again.

25. Police then moved the offender away from the deceased, at which time he said:

I was there for 4 hours with her watching her die, I tried calling yous but my phone kept dying and then I'd try and get the phone and then I took pressure off and blood would keep coming out and then I'd go back to that I was fucking breathing in her mouth and then I just stayed there, I stayed there until she was cold and when she was cold I knew I had to call my dad, so I called my dad to call you.

26. Police then removed the offender from the house and on to the front lawn of the premises. Ambulance officers arrived at about 2:11am and commenced CPR. They continued to try to revive the deceased over a period of more than 25 minutes. The deceased was pronounced dead at 2:37am on 30 September 2017.

The conversation with the offender at the scene

27. Once out on the front lawn, the police had a conversation with the offender. It would be fair to say that the transcript of that conversation reflects what could only be described as a high level of disordered thought on the part of the offender, consistent with his having consumed a large quantity of alcohol.

28. In the course of that conversation the following exchange took place [13] :

    13. At p.7.

Offender:   … there was an AVO and I did not give a fuck about the AVO.       I will tell you something, not give a fuck about the AVO or court       order.

Police:    Are you supposed to be here tonight?

Offender:   I’ll fucken stay with her until her fucken death. Of course I’m       not.

Police:      Okay.

Offender:   But I loved her. I don’t give a fuck.

Police:    Do you still reside here? Do you still live here?

Offender:   No. I live with my dad.

Police:      So are you supposed to be inside here?

Offender:   No.

29. A further exchange took place [14] regarding the offender’s drinking earlier that evening:

    14. At p. 12-13.

Police:      How much have you had to drink tonight?

Offender:   A fair bit.

Police:      Right. Do you remember what you were drinking?

Offender:   New. Extra Dry.

Police:      Mmm. All at Uncle Buck’s?

Offender:   A couple of bourbons. Uncle Buck’s, I started drinking after       work.

Police:      Okay where do you work?

Offender:   Silverwater.

Police:      Okay what do you do?

Offender:   Spraypainter.

Police:    So what time did you leave work?

Offender:   3.30.

Police:      Drive?

Offender:   No caught a bus and a train. But I stopped off at the Colonial at Parramatta, uh sorry, Commercial Hotel, maybe.

Police:   Yeah.

Offender:   Commercial Hotel ---

Police:   After the ---

Offender:   Right next to the station yeah. And I stayed there for about an hour.

Police:   What were you drinking there?

Offender:   Yeah I did. Yeah. I had about two beers there I think and then I bought a long neck when I left.

The transfer of the offender to the police station

30. As police began to drive away from the deceased’s premises, the offender began to scream and yell, repeatedly banging his head and fists against the inside of the caged police truck. When the truck arrived at the police station, the offender was taken into the custody area where he continued to yell, scream, throw his hands around and bang his head on the walls. After being introduced to the custody manager, the offender was placed in a cell and could be heard yelling towards police. Approximately 45 minutes later, the offender yelled out:

"Here do you want this?"

31. The offender then gave police some money and a quantity of cannabis. He continued to violently thrash around in the dock at the police station, repeatedly hitting his head on the perspex wall. The offender was extremely emotional, his behaviour ranging from displaying violence and aggression, to crying uncontrollably, to pacing within the dock and jogging on the spot. This behaviour continued for some time. At about 3:45am, the offender said:

She's gone, she's gone. I don't care. I'll plead guilty, I don't care she ain't coming back. Please take the cuffs off now, I gotta start training now, no, now. I'm dead, she knows so many bikies, when they find out, I'm dead and I'm not dying for nothing, not dying for no reason. … I don't give a fuck about my rights, I'm going to goal for a long time I need to start training because I'm dead.

32. At about 5:17am, the offender stood up and placed both hands on his head and said:

I remember, I remember. … I remember now, I choked her out, I killed her.

33. At 5:38am, the offender said:

I'm going to have a bit of a lay down to rest to see if I can remember any more. I remember choking her out, but I don't remember stabbing her. I need to rest to see if I can remember more. I remember the knife there, but I don't remember stabbing her. I remember choking her but I can't remember why. I can't remember why I done it or what it was about I need to rest, I'm tired, but I don't think I deserve to sleep.

The record of interview

34. Commencing at around 5:45am, the offender participated in an electronically recorded interview with police. Whilst I do not propose to recount the entirety of what he said, there are certain aspects of that interview which, in view of the nature of the offending, assume some importance.

35. The offender was questioned about his consumption of alcohol [15] :

    15. Commencing at Q/A 62.

Q62   OK. And you've drunk alcohol in the past?

A   Yeah. I've got —

Q63   So you understand —

A   — bad drinking problem.

Q64   — these are events between you're —

A   Yes.

Q65   — intoxicated and when you're not?

A   Yep.

36. When asked by police what he could tell them about the events earlier that morning, the offender said [16] :

Um, I remember us going out to the pub, where we drank, played the    pokies and that. I remember I spent a bit more money than what I    wanted to and I got angry and I told her I was leaving. Got in a cab, I    waited for her at her place. I remember her coming home. We got into    an argument. What I remember about the argument is that she told    me to get the fuck out of the house, this and that. I said I was going to    bed. I went into the bedroom. She come into the bedroom. She, um,    pulled me out of the bed and she started pushing me down the    hallway and that, told me to get out. Said I wasn't gettin' out. I hopped into the, um, kitchen and I remember, um, when I hopped into the kitchen, she pulled out the knife and she, like, didn't go to attack me but sort of, like, went to get me with it, threatened me to get out. I then, um, spun her around, grabbed her in a choker hold where I think I choked her out until she passed out. I want to say that I stabbed her but I don't remember stabbin' her, but I do that when I drink, I black out shit. I think it's like a personal defence. But I'm gunna say, go ahead and say that I did it. 'Cause I remember chokin' her out, so I'm gunna say that I did it. And I don't know why. I don't know why the ..... I don't know what we were fightin' over, I don't, I remember, like, yeah, I know, like, we were, the gamblin' and that, but I don't know why I did what I did ..... I don't know why I did what I did. And I'm not just saying that   I don't care, I'll rot in gaol for the rest of my life. I don't care. And tell the Judge that, too. I want my maximum. I don't care. How do you murder the love of your life? I’m not, I’ll never be able to speak to her or see her ever again. I don't ever want to get out of gaol. I don't ever want to get out of gaol. You know fuck if there was a firing squad in this country, I'd say, Shoot me now. Solve fuckin' problems, man. I don't know how to live with what I done. I didn't even think, like, I just did a domestic violence course and fuckin' they talked about this shit, you know. They said it happens in the bathroom or whatever.... 'cause that's the only place with a lock on the door. I didn't think I'd be this statistic, you know. Always thought I was better than, but obviously not. Just a piece of shit. Just ..... that's all I got to say.

16. At Q/A 80.

37. The offender was then asked how intoxicated he thought he was at the time, to which he responded [17] :

I was pretty drunk, yeah. I’m a bad drunk too.

17. At Q258.

38. According to the offender’s account of events [18] , he had walked into the bedroom of the premises when the deceased grabbed a knife from a kitchen drawer and threatened to stab him [19] . He agreed that he was not permitted to be at the deceased’s premises and was then asked [20] :

Q316   Why is that?

A   There was an AVO.

Q317   And what are the conditions for that?

A   Police put it on saying that I'm not allowed to go round there 'cause he

had allegations that I smashed windows, which I never smashed.

Q318   So the AVO is so - - -

A   I was found not guilty, but the AVO was placed on because I told the    Judge at the time, we weren't together so I didn't care that the AVO    was there.

18. Commencing at Q/A 301.

19. Q/A 301-314.

20. Commencing at Q/A 316.

39. The offender went on to explain [21] that he put the deceased “in a choker” which he explained in the following terms [22] :

—I grabbed her, spun her around, grabbed her by the neck, dropped her to the ground, wrapped my legs around her legs, stretched her out.

21. At Q/A 331.

22. At Q/A 333.

40. The offender explained to the police [23] that this had cut off the deceased’s circulation, causing her to lose consciousness.

    23. Commencing at Q/A 334.

41. When questioned further about what he could remember about the incident, the offender said the following [24] :

    24. Commencing at Q/A 348.

Q348   So do you remember being - - -

A   — trying to ring the police.

Q349   - - - on the floor - - -

A   I remember choking her out.

Q350   [06:15] - - - choke-holding her?

A   Now this is when I said I remember doing it now.

Q351   Yep. OK. And what's the very next thing you remember, then?

A   Holding her ribs.

Q352   OK. Where? How is, how is this happening?

A   I don't know, I just had a tea towel and I just brought her towards me, I    dragged her towards me and I was just telling her how sorry I was.

Q353   Yep.

A   And - - -

Q354   D, describe it to me, though, 'cause the last thing you remember is

you're underneath her.

A .   I was, yeah, I had her —

Q355   Yep.

A   — in the choker hold or whatever and then —

Q356   What's, what's the very next thing? How did you get up?

A   I just, I don't know.

Q357   OK.

A   I just remember just, I was holding her, then, like, I don't know. Like,

there was smudge mark or I just remember seeing the smudge mark. I    remember the knife sitting under the basin, like, just next to the basin    on the floor —

Q358   Yep.

A   — and I just remember grabbing a tea towel and just telling her how

sorry I was and she said that she forgives me, it's OK.

Q359   OK. And you said you dragged her?

A   I just brought her close to me   

Q360   OK. So when you put the tea towel on her, what position was

she in?

A   She was laying on her back —

Q361   Yep.

A   — and I brought her just laying up, like, in between my legs and onto   my chest and I was just hugging her and holding her, ringing, trying to ring the police

Q362    OK.

A   And I couldn't get through on my phone.

Q363   All right. So where'd you get the tea towel from?

A   I don't know, I just —

Q364   OK.

A   --- had it

Q365   So you’re holding your left side of your ribs there. Is that where you were holding her?

A   Yeah, I was hold that ---

Q366    And she’s on top of you there.

A   --- holding her around here.

Q367   Yep. So she, there was some type of injury there?

A   Yes, in her ribs, yeah.

Q368   So what were you trying to do there?

A   Hold the blood in.

Q369   OK. All right. And was she saying anything?

A   Yeah, she was telling me it’s OK and she forgives me ---

Q370   OK.

A   --- she loves me. I just told her how scared I was, how sorry I am.

Q371   Yep. What were you sorry for?

A   For hurting her.

Q372   How’d you hurt her?

A   I’m assuming I stabbed her. But I have this thing, like, I’m just, and    I’m not making it up, like, I’m telling you, sometimes, like, if I do bad    shit, I just black it out, like, when I get drinkin' and shit, when I'm    drunk. But I think I just gunna say that I stabbed her. I don't remember    100 per cent doing it, but I know that I done it.

Q373   You only have to say anything what you actually remember.

A   Yeah.

Q374   We don't need you - - -

A   Yeah.

Q375   — to, like, guess.

A   Yeah.

Q376   All right? I'm not trying to get you to say anything.

A   Well, I choked her out, next minute she's got a stab wound in her and

I'm holdin' her.

Q377   Was there anyone else in the house?

A   Nuh, it was just me and her.

42. The offender was then asked about his reaction to alcohol [25] :

    25. Commencing at Q/A 412.

A   … But, like I said, when I drink, I think it's, like, a defence mechanism    for meself, I do black out the bad shit that I do.

Q413   Has that happened before?

A   Sort of a way, so, like, yeah, like, plenty of times, I've, got, yeah,

problems and that —

Q414   Can you give me an example?

A   I don't know, any, any time something bad happens to me, I black out,

I just don't remember it's happened. I don't know. I've broken my hand    and I've punched shit, I don't remember.

Q415   Mmm.

A   I've woken up, broken hands —

Q416   Mmm.

A   — splits across my head, 'cause I've fuckin' bottled meself, or —

Q417   Mmm.

A   — I head butt concrete, shit like that.

Q418   Uh-huh.

A   Just a weirdo … But I never remember doing it, you know.

Q419   Why do you do those things?

A   I don't know, I'm just ..crazy.

Q420   Is it anger or, uh, you're upset or —

A    It's not anger because when I'm sober I'm fine. Happy as when I'm

sober. It's just the drunk   

Q421   Yeah, that's what I'm talking about, when you're drinking, is that - - -

A   It's just the - - -

Q422   — an issue for you?

A   — yeah, I'm going through a ..... program right now.

Q423   Yeah.

A   I haven't had a drink in a while.

Q424   Mmm.

A   I wasn't supposed to drink, you know, like, we'd told each other we

weren't going to drink anymore. And it's just unfortunately, it's like, the    first time we've drank together and - - -

Q425   Yep.

A   and, like, we were going through court and that, to get the AVO

lifted, so we could actually start doing things legally.

Q426   Yep.

A   Like I said to youse before, no AVO was ever going to keep me away

from her, like —

Q427   Yeah.

A   — it's hard to explain, like, I don't know, youse could track down our    messages and shit, I guess, like asked my dad, I wasn't with her, I    felt sick, seriously, like, I don't know if youse have ever had that    feeling with someone, like, I get withdrawals, like, I feel sick. It's    probably not healthy. She says the same shit, but, like, that's how I    feel, I couldn't be away from her.

43. The offender was then asked about the history of his relationship with the deceased [26] :

    26. Commencing at Q/A 447.

Q447   So what's, what's your relationship with Sarah like in general, what's    the history been like?

A   Pretty rocky.

Q448   Yep. And what---

A   When we're sober, we're good.

Q449   OK. So alcohol's an issue.

A   Alcohol's an issue   

Q450   OK.

A      sober   

Q451   Yep.

A   ---no problem .....

44. Finally, the offender was asked why he had applied a choke hold to the deceased [27] :

    27. Commencing at Q/A 481.

Q481   Um, why did you put her in the chokehold?

A   (NO AUDIBLE REPLY)

Q482   Not sure, uh, what did you think that would achieve, like —

A   I honestly wasn't thinking, and if I was, I don't know.

Q483   OK.

A   I was just, I don't know, I just remember doing it.

Q484   Um, have you ever put anyone in a chokehold before, like that, 'cause

it's quite specific, what you were doing?

A   Yeah, like, training and that.

Q485   Training, yeah, what type of training?

A   Brazilian Jujitsu.

Q486   OK. How often do you do that?

A   I don't anymore.

Q487   Oh, you don't anymore.

A   I, I don't know, about a year or something.

Q488   OK. Um, and what generally happens when you put someone in a

chokehold?

A   Pass out.

Q489   Yeah, do you know how long you have to hold someone for them to

pass out?

A   Depends how tight you're holding their throat. Probably about 15, 20

seconds.

Q490   OK. And what happens when that happens?

A   They lose consciousness.

The medical evidence

45. The cause of the deceased’s death was a stab wound to the left anterior abdominal wall. The wound track proceeded medially, backwards and downwards. It perforated the skin and subcutaneous tissue of the left anterior abdominal wall, incised loops of the small bowel and transected the abdominal aorta and inferior vena cava immediately before its bifurcation. There were resultant retroperitoneal haemorrhages (accumulation of blood found in the retroperitoneal space), pneumoperitoneum (abnormal presence of air or other gas in the peritoneal cavity), haemoperitoneum (1000 mL) (presence of blood in the peritoneal cavity) and features of hypovolemic shock secondary to blood loss (pale organs and subendocardial haemorrhages in the head).

46. There was a further stab wound to the deceased’s left anterior chest wall. The wound track proceeded medially, backwards and downwards. It perforated the skin and subcutaneous tissue of the left anterior chest wall and fractured the 3rd left rib.

47. There was also a focal haemorrhage over the pericardium and injuries to right hand, including:

1. superficial sharp trauma to the fingers of the right hand;

2. a 6mm superficial incision to the dorsum of the right thumb;

3. an 11 mm superficial incision to the dorsum of the right index finger; and

4. a 3mm puncture wound to the palmar surface at the base of the right little finger.

48. There were signs of neck compression in the form of abrasions and bruising to both sides of the neck and to the rami of the mandible. In addition, there were facial, oral and conjunctival petechial haemorrhages. There was focal bruising to the platysma muscle and submandibular gland on the right. There were no cervical spine injuries. There were no fractures of the hyoid bone, cricoid cartilage or thyroid cartilage.

49. On right side of neck, there was a wound that consisted of a linear bruise that lay over the sternocleidomastoid muscle, and a horizontal abrasion that extended to the anterior midline and then dipped inferiorly. The total area involved was 80 x 70mm. The linear bruise was approximately 60 x 10mm. The horizontal abrasion in its entirety was 50 x 20mm. The inferior component was 10mm wide and extended 30mm inferiorly. There were petechial bruises over the thyroid cartilage in the midline.

50. On the left side of the neck, there was a broad band of abrasion and bruising that had a semi-circular configuration. The total surface area involved was 50 x 60mm. The superior bruise was 40 x 30mm and the inferior abrasion was 50 x 10mm.

51. There was bruising 5-10mm over the proximal end of the left clavicle and over the sternal notch, along with numerous other bruises and lacerations to the face, both arms, thighs, shins and feet. These included:

1. a 30 x 10mm bruise to the left forehead;

2. a 5mm bruise to the right earlobe;

3. a 20 x 35mm bruise to the nasal bridge with associated petechial haemorrhages;

4. a 20mm bruise to the left nostril;

5. a bruise to the left lower lip;

6. a 6 x 10mm bruise to the right chin;

7. a linear 20mm bruise to the undersurface of the chin in the midline;   

8. a 20 x 10mm bruise to the upper eyelid on the left;

9. a 5mm bruise below the left eye;

10. a 30 x 20mm bruise to the rami of the mandible on the right;

11. a 30mm bruise to the rami of the mandible on the left;

12. a 20 x 15mm bruise immediately inferior to the angle of the jaw on the left;

13. subcutaneous haemorrhages to the chin and over the rami of the mandible on the right and left side;

14. a 30 x 20mm bruise to the right forearm;

15. 10 x 20mm bruising to the flexor surface of the left forearm;

16. a 10mm bruise to the dorsum of the left forearm;

17. a 40 x 60mm area of bruising over the left elbow;

18. a 60mm linear bruise to left triceps area;

19. subcutaneous haemorrhages corresponding to external bruises;

20. a 60 x 30mm bruise to the right thigh;

21. a 15mm bruise to the proximal part of right shin;

22. a 20mm bruise to the distal part of right shin;

23. a 90 x 30mm bruise, a 15mm abrasion, and an accompanying bruise, to the right foot;

24. a 10mm linear abrasion to the medial surface of right shin;

25. a 100 x 50mm area of bruising to left ankle and foot;

26. three 20-30mm bruises to the left shin;

27. a 30mm bruise to the left shin;

28. a 50 x 30mm bruise to the left hip;

29. a 10mm laceration to the medial surface of the left thigh;

30. a 15mm bruise to medial surface of the left thigh;

31. a 17mm superficial incision of the right big toe;

32. a 9mm superficial incision over the right medial malleolus; and

33. subcutaneous haemorrhages corresponding to external bruising.

AGGRAVATING FACTORS

52. The Crown submitted that the offending was aggravated by a number of factors. It was not in dispute that one such factor stemmed from the offender’s use of a weapon[28] . Further, both the Crown and counsel for the offender acknowledged that the offending occurred in the deceased’s home, in circumstances where there was an order in place prohibiting the offender from going within 250m of that location[29] . Finally, the parties agreed that the fact that the offender was on conditional liberty at the time further aggravated the offending[30] .

    28. Sentencing Act s 21A(2)(c).

    29. Sentencing Act s 21A(2)(eb).

    30. Sentencing Act s 21A(2)(j). The details of that conditional liberty are set out below at [57] and [65].

53. Three further aggravating factors, two of which were in issue and one of which was not, warrant particular consideration.

The offender’s record of previous convictions

54. The offender’s record of previous convictions is, in the circumstances, an aggravating factor[31] of considerable significance. It was not disputed that such record aggravated the offending.

    31. Sentencing Act s 21A(2)(d).

The 2010 offences

55. On 1 February 2010 the offender appeared before the Mt Druitt Local Court in respect of three offences, namely:

1. stalk or intimidate with intent to cause fear of physical or mental harm[32] ;

2. resist an officer in the execution of duty[33] ; and

3. assault[34] .

   32. Crimes (Domestic and Personal Violence) Act 2007 s 13.

   33. Crimes Act 1900 (NSW) s 58.

   34. Crimes Act 1900 (NSW) s 61.

56. The victim of the offending in (i) and (iii) was the offender’s mother. On 25 January 2010, the offender had consumed a large amount of alcohol. At about 1.30am the following morning he and his mother were in the lounge room of the premises in which they lived, when an argument developed. The offender became abusive towards his mother, picked up a plastic bottle of water and threw it at her before walking over and kicking her repeatedly in the left leg. When his mother left the premises to seek refuge elsewhere, the offender followed her and threatened to kill her. When police arrived they spoke with the offender. He was well affected by alcohol, was slurring his speech and was unsteady on his feet. Whilst police were speaking with the offender’s mother, the offender climbed on the roof of a carport at the premises and again threatened to kill her. In the course of being arrested, the offender engaged in a struggle with police.

57. The offender was convicted of each of these offences and was released, in respect of each, on a bond under s 12 of the Sentencing Act with conditions that he accept supervision and direction in respect of counselling, drug and alcohol rehabilitation, and domestic violence and anger management. An apprehended violence order was made for the protection of his mother, for a period of two years.

The 2011 offences

58. On 1 December 2011 the offender appeared before the Mt Druitt Local Court in respect of charges of:

1. destroying or damaging property[35] ;

2. assault[36] ;

3. contravening a prohibition, order or restriction in an apprehended violence order[37] .

   35. Crimes Act 1900 (NSW) s 195(1).

   36. Crimes Act 1900 (NSW) s 61.

   37. Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14(1).

59. The victim of the offending in [58](ii) above was, once again, the offender’s mother. On 22 September 2011 (and thus within the period of the apprehended violence order referred to in [57] above), the offender had gone into the lounge room of the premises he shared with his mother. He appeared intoxicated and was stumbling. He remonstrated with his mother over a purchase of underwear that she had made for him, complaining that what had been purchased was not the right colour. His mother left the lounge room and went to her bedroom. The offender followed her, picked up a piece of wood approximately one metre in length, and began to damage the ceiling by hitting it. The offender then went over to where his mother was sitting and slapped her a number of times about the head. Police arrived a short time later.

60. The offender was convicted and the following sentences were imposed:

1. in respect of the charge of destroying or damaging property, an intensive corrections order for a period of nine months;

2. in respect of the charge of assault, an intensive corrections order for a period of six months; and

3. in respect of the charge of breaching an apprehended violence order, an intensive corrections order for a period of fifteen months.

61. The assessment report which was undertaken prior to those orders being made recorded (inter alia) the following:

Mr Wood said he had issues with alcohol, however he claimed he ceased alcohol use and remained abstinent for one month.

The March 2017 offence

62. On 16 February 2017 an interim apprehended violence order was made for the protection of the deceased, the conditions of which prohibited the offender from:

1. assaulting or threatening the deceased;

2. stalking, harassing or intimidating her;

3. intentionally or recklessly destroying or damaging any property which belonged to her, or which was in her possession;

4. approaching her or contacting her in any way, other than through a lawyer; and

5. going within 250m of any place where she lived or worked.

63. In the early hours of 26 March 2017 police were called to the deceased’s premises. Upon arrival, the offender and the deceased were seen to be shouting at one another in the middle of the street. Although the deceased did not assist police with their inquiries, the offender was arrested and charged with breaching the order referred to in [62] above. The police declined to read and explain the offender’s rights pursuant to Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) on account of what was described as his “severe level of intoxication”.

64. On 17 May 2017, the offender appeared at the Mt Druitt Local Court and pleaded guilty to breaching the apprehended violence order in [62] above. He was fined $800.00 and placed on a bond pursuant to s 9 of the Sentencing Act for a period of 18 months. That bond was accompanied by a condition that he obey all reasonable directions of the NSW Probation Service in respect of counselling, educational development and drug and alcohol rehabilitation. The previous apprehended violence order was made final.

The Commonwealth offence

65. On 17 May 2017, the offender also appeared at the Mt Druitt Local Court in respect of a charge of using a telecommunications service to harass a person, contrary to s 474.17(1) of the Criminal Code 1995 (Cth). That offence arose out of a series of text messages in which the offender had threatened to jump on his former partner’s head, break her jaw if she ever came near him, an punch her head in. On that occasion, the offender was released on a Recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), which included a condition that he accept supervision for as long as was considered necessary by the Community Corrections Service, and obey all reasonable directions of that service in respect of counselling, educational development and drug and alcohol rehabilitation.

66. The offender’s criminal history is extensive. It reflects generally violent offending, and breaches of apprehended violence orders. Given the nature of the offending to which the offender has pleaded guilty, that history is of obvious significance. However, there is one aspect of the offender’s record which warrants particular emphasis.

67. At the time of the present offending, the offender was subject to an order of a Court which prevented him, not only from assaulting the deceased, but from going within 250m of where she lived. The breach of that order is the subject of the Form 1 offence. It occurred on the night of the deceased’s murder. Compliance with any order of a Court is not optional. The offender told police that he did “not give a fuck about the AVO” and that “no AVO was going to keep him away” from the deceased. Any further observation about his cavalier disregard for, and his complete defiance of, that apprehended violence order, would be superfluous. Apprehended violence orders are put in place for good reason, namely to protect those who are considered to be in need of protection. Any breach of them is a serious matter. The circumstances of the present case should serve as a warning of the disastrous consequences which can eventuate from the actions of those who act in flagrant disregard of such orders.

Gratuitous cruelty

68. The Crown submitted that the offending was further aggravated by the fact that it involved gratuitous cruelty[38] . In this regard, the Crown pointed, in particular to the extensive injuries which were inflicted upon the deceased over and above the wounds left by the stabbing which caused her death. Counsel for the offender submitted that I could not be satisfied beyond reasonable doubt that those injuries, or at least the entirety of them, had been caused by the offender. He submitted, in particular, that there was no evidence of the age of any of the bruising which was found on post mortem examination.

    38. Sentencing Act s 21A(2)(f).

69. In the context in which it is used in the Sentencing Act, the term “gratuitous cruelty” connotes intentional violence which is committed simply to make a victim suffer[39] . The nature and extent of the injuries found during the post mortem examination conducted in the present case are, in my view, entirely inconsistent with the deceased having sustained them (as was submitted on the offender’s behalf) as a result of nothing more than the exigencies of life. Moreover, on the offender’s own admission to the police, he applied pressure to the deceased’s neck in what was obviously a choking-type action. In my view, these matters establish gratuitous cruelty which further aggravates the offending.

    39. McCulloch v R [2009] NSWCCA 94.

Intoxication

70. The Crown submitted that on the entirety of the evidence, it was clear that the offender had been intoxicated at the time of the offending, and that in the circumstances I should conclude that such intoxication amounted to a further aggravating factor. The Crown pointed to a number of matters in support of that submission, including:

1. the fact that the offender’s ingestion of alcohol was voluntary, and had commenced some hours before he met the deceased on the afternoon of 29 September;

2. the offender’s criminal history, which included instances of domestic violence type offending committed when the offender was obviously intoxicated;

3. the offender’s history to Ms Duffy; and

4. the offender’s statements to police.

71. Counsel for the offender accepted that the evidence supported a conclusion that the offender was intoxicated, to a significant degree, at the time of the offending. He also accepted that if it is established that there is recklessness connected to the ingestion of the alcohol which causes the intoxication, then this can aggravate the offending. Further, counsel did not take issue with the fact that the offender had previously displayed what might be described as alcoholic tendencies, nor did he dispute that the offender’s intoxicated state had contributed to his conduct on this occasion.

72. However, whilst counsel certainly did not suggest that the offender’s intoxication was a mitigating factor, he submitted that on the whole of the evidence I could not be satisfied that the conduct which resulted in the offender becoming intoxicated prior to his offending was reckless. He submitted that in the circumstances of this case, intoxication was a neutral factor.

73. In R v Coleman [40] Hunt J (as his Honour then was, and with whom Finlay and Allen JJ agreed) observed [41] that the degree of deliberation shown by an offender is usually a matter to be taken into account in determining the seriousness of offending, and that intoxication is therefore relevant in determining the degree of deliberation in an offender’s breach of the law. His Honour went on to say:

In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender, by reason of that intoxication, acted out of character.

40. (1990) 47 A Crim R 306.

41. At 327.

74. These observations were adopted by Rothman J (with whom McClellan CJ at CL and Hulme J agreed) in Stanford v R [42] . In that case, the offender had become what his Honour described as “uncharacteristically drunk” at the time of the offending. His Honour found[43] that the aberrant nature of that offender’s conduct supported the conclusion that such conduct was induced by the alcohol and that, however reprehensible, the conduct was an irrational response to the conduct of the victim. In those circumstances, his Honour concluded that intoxication was properly regarded as a mitigating factor. As I have indicated, no submission was made on behalf of the offender in this case that his intoxication mitigated his offending.

    42. [2007] NSWCCA 73 at [55] and following.

    43. At [56].

75. In Mendes v R [44] Davies J (with whom Whealy JA and Schmidt J agreed) concluded that in the circumstances of that case, there was an evidentiary background demonstrating a link between drug use and aggression which the applicant had understood. Having cited the judgment of Rothman J in Stanford his Honour said[45] :

In the present case the intoxication came about from two self-administered drugs as well as alcohol. There was deliberation involved in both the drug-taking and the alcohol consumption, or at the very least recklessness. The statements made by the Applicant to Mr Glancey suggest that the ingestion of the drugs for the specific purpose of becoming aggressive was not out of character. In all of those circumstances, far from the drug-taking being a mitigating factor, it was an aggravating one, although the Sentencing Judge did not specifically regard it as such.

44. [2012] NSWCCA 103.

45. At [75].

76. The evidence in the present case does not support a conclusion that the offender consumed alcohol in the hours leading up to the offending for the specific purpose of becoming aggressive. However, it is clear that the offender was intoxicated and I am satisfied that this should be treated as an aggravating factor. I have reached this conclusion for a number of reasons.

77. Firstly, the offender’s criminal history includes a litany of violent offending. Two instances of that offending were obviously, and specifically, alcohol related.

78. Secondly, a number of the offender’s statements to police are particularly telling. He told police he had a “bad drinking problem”, that he was “pretty drunk” and that he was a “bad drunk”. He told them that when he was drunk, he did “bad shit”, he “punched shit”, and that he head butted concrete. He told them that there were occasions on which he had woken up with broken hands after consuming excessive alcohol. He described himself as a “weirdo” and said that he became “crazy” when he drank. Even more significantly, when asked about his relationship with the deceased, the offender told police that “sober, we’re good” but that alcohol was “an issue”. Clearly, the offender appreciated the connection between drinking to the point of intoxication, and violent behaviour.

79. Thirdly, Ms Duffy recorded the following [46] :

Mr Wood reported that as a child, he could go wild and ‘carry on’ if he did not get his way. He smashed and broke objects and put holes in walls. He was never taken to doctors for assessment and was never diagnosed with ADHD. He recalled being sent to a school counsellor in primary school due to his unruly behaviour but did not recall any counselling. He described a history of acting out behaviour, often self-harming, especially when affected by drugs and/or alcohol. He related numerous incidents where he punched trees, walls, and knocked himself out by hitting his head against walls, throughout his life. He reported psychotic symptoms after using ‘ice’ and linked his behaviour to the effects of the drug.

A discharge summary from Blacktown Hospital reported that he presented to the Emergency Department on 17 March 2013 with a right hand closed fracture of the fifth metacarpal bone after he was found at home punching himself and head butting walls and was brought in by police. He told the medical officers that he had suicidal thoughts and was affected by alcohol. It was noted that his presentation was incongruous, where he laughed about his situation when he spoke of suicidal ideas.

46. Commencing at p 4 under the heading “Health and Habits”.

80. Later in her report [47] Ms Duffy recorded the history provided by the offender in respect of drugs and alcohol. She stated:

Mr Wood said he consumed alcohol from the age of 12 or 13. He ‘drank to get drunk’ and by the age of 14-15 he and his mates were drinking home brew and other alcoholic concoctions at the local park on weekends. He had memory blackouts and often got into fights when drunk. He often drank three long necks after work and at the age of 19 he decided to stop drinking and abstained for six months. He was then ‘clean’ for about two years around the age of 21 when he was given an ICO for a charge of contravene AVO. He engaged in exercise and martial arts and avoided drinking mates. He began drinking again when he became involved with Sarah who also consumed alcohol. He had been abstinent for four months until late July 2017 when he was under stress at work and incurred the drink driving charge and a breach of AVO. This led to a self-harming incident in August 2017, admission to Nepean Hospital and referral to treatment including the MERIT program. He began the program on 13 September 2017 and remained abstinent. He had resumed limited consumption of alcohol prior to the day of the offence. On 29 September he drank heavily in the afternoon and into the evening such that he has been unable to recall all the details leading up to and after the death of his partner.

47. Commencing at p 6.

81. In my view, bearing in mind the whole of this evidence, it is inconceivable that the offender was unaware of the link between his alcohol consumption and his violent behaviour. I am satisfied that his decision to become as intoxicated as he was on the night of the offending was clearly reckless, and that this further aggravates the offending.

THE SERIOUSNESS OF THE OFFENDING

Submissions of the Crown

82. The Crown submitted that the deceased was a defenceless and vulnerable woman who had been attacked in what should have been the sanctuary of her home. It was submitted that because the offending had been committed in the context of domestic violence, general deterrence and denunciation were important considerations on sentence.

83. The Crown submitted that the evidence supported a conclusion that the offender had intended to kill the deceased. In this regard, the Crown pointed, in particular, to the nature and extent of the deceased’s injuries, as well as the specific fact that the force inflicted by the offender in one instance was sufficient to cause a fracture of one of the deceased’s ribs. The Crown accepted that there was no evidence which established that the offending was pre-meditated.

84. Ultimately, it was the Crown’s submission that the offending fell into the mid to upper range of seriousness.

Submissions of the offender

85. Counsel for the offender submitted that an assessment of the objective seriousness of the offending fell to be determined having regard to the nature of the attack itself. Counsel submitted that notwithstanding the evidence, I would not be satisfied beyond reasonable doubt that the offender intended to kill the deceased. He submitted that it was likely that the offender had been driven by anger, leading to a sudden and complete loss of self-control.

86. Ultimately, counsel for the offender accepted that the offending was at least at the mid-range.

Consideration

87. The evidence in the present case overwhelmingly establishes that the deceased, a woman who was 1.59m tall and who weighed just 49kgs [48] , met an untimely, brutal and violent death at the hands of the offender. She was stabbed to death, one of the blows being of sufficient force to fracture one of her ribs. The force of that blow, and the extent of the injuries generally, satisfy me that the offender acted with an intention to kill the deceased. There is some vague suggestion in the evidence that the offender may have been angry due to losing money gambling on poker machines earlier in the evening. However, the evidence does not permit me to reach any finding as to what motivated him to act as he did. Similarly, the evidence does not enable me to reach a finding as to the sequence in which the various injuries were inflicted on the deceased.

    48. Exh. C at p. 6.

88. I am similarly unable to determine whether, as the offender asserts, the deceased originally came at him with the knife in the kitchen of the premises. Even if that were the case, it would not detract in any way from the seriousness of an attack which reflects a complete lack of respect for the life of another human being. The offending was aggravated by a multiplicity of factors to which I have referred.

89. Although there is no specific category of “domestic murder” or “relationship murder”[49] , there is no escaping the fact that the deceased was murdered in an atmosphere of serious domestic violence. It follows that the gravity of the offending must be assessed in the context of the relationship which existed between the offender and the deceased[50] . Domestic violence of any kind is, quite simply, unacceptable. It is a scourge on the community, and antithetical to what any right thinking member of the community regards as appropriate. In the present case, the level of violence exhibited by the offender escalated to the point where it was out of control. The consequences were disastrous. The fact that a relationship may be unstable, or the fact that a relationship entirely breaks down, can never justify vengeful violence being perpetrated by one party to the relationship upon the other [51] .

    49. R v Knight [2006] NSWCCA 292; (2006) 164 A Crim R 216 at [26]; R v Gonzales [2007] NSWCCA 321; (2007) 178 a Crim R 232 at [175].

    50. ZZ v R [2013] NSWCCA 83 at [99].

    51. R v Rae [2001] NSWCCA545 at [21] per Sully J.

90. The approach to be taken in sentencing for offending of this general nature was reiterated by the High Court [52] in Munda v State of Western Australia [53] in the following terms:

A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.

52. French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ.

53. [2013] HCA 38; (2013) 249 CLR 600 at [55].

91. In Cherry v R[54] Johnson J (with whom Macfarlan JA and Harrison J agreed) said, in reference to the decision in Munda[55] :

In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence.

54. [2017] NSWCCA 150.

55. At [79].

92. Such observations have a particular resonance in the circumstances of the present case. This was a serious case of murder. In my view, it falls above the mid-range of objective seriousness. Any sentence must reflect the need to protect the community. It is, regrettably, too late to protect the deceased. However, it is not too late to impose a sentence which will act as a deterrent to others who might be minded to act as the offender did. It is in that way that the Court’s obligation, of which Johnson J spoke, can be met. Moreover, and in light of this offender’s history of offending, any sentence must carry with it an equally strong measure of personal deterrence.

THE OFFENDER’S SUBJECTIVE CASE

93. There is no dispute that the offender pleaded guilty at the first available opportunity. As a consequence, he is entitled to a 25% discount to reflect the utilitarian value of his plea[56] . I also accept that the offending was not planned[57] .

    56. Sentencing Act s 21A(3)(k); R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2009] NSWCCA 309.

    57. Sentencing Act s 21A(3)(B).

94. I have already noted [58] the documentary material tendered in the offender’s case. For the reasons I have explained, the majority of the offender’s affidavit is deserving of little or no weight in circumstances where its contents were not the subject of cross-examination. Similarly, one must be cautious of accepting statements made by an offender to third parties such as Ms Duffy whose reports are tendered in evidence[59] . That said, the Crown did not take issue with the accuracy of the details of the offender’s general background which are set out in that material.

    58. At [7] above.

    59. R v Qutami [2001] NSWCCA 353 at [58]-[59] per Smart AJ and at [79] per Spigelman CJ.

95. The offender is now 27 years of age. He has two siblings. His parents, both of whom were at one stage addicted to heroin, separated when he was young. In addition, his father suffered from alcoholism for a period. As a consequence of a combination of these matters, the offender’s domestic upbringing was a violent one.

96. At the age of 14, the offender was expelled from school in Year 9 due to behavioural and truanting issues. Because of those issues, and her inability to cope with them, the offender’s mother sent him to live with his father. This resulted in the offender’s behaviour becoming worse, and he was eventually sent back to live with his mother.

97. Having worked as a cashier in a retail store for about 6 months, the offender attended TAFE where he commenced a course in spray painting. He secured an apprenticeship, which he completed. It is apparent that the offender’s work history has been punctuated by terminations of employment due to his drinking. However, on those occasions he appears to have obtained alternative positions reasonably quickly, to the point where he appears to have had no real lengthy periods of unemployment. Unsurprisingly, the offender regards himself as an alcoholic. I have previously recounted the history that he provided to Ms Duffy.

98. I have taken all of the factors bearing upon the offender’s background into account in determining an appropriate sentence.

99. Despite the fact that the contents of the offender’s affidavit were untested, the Crown was prepared to accept that the expressions of remorse which were contained within it were genuine. Ms Duffy also noted that the offender had expressed “considerable” remorse to her. Those statements are generally consistent with some of the statements made to police by the offender shortly after he was taken into custody. I am satisfied that he is genuinely remorseful[60] .

    60. Sentencing Act s 21A(3)(i).

100. Ms Duffy concluded that the offender’s presentation, history and clinical assessment revealed “an individual exhibiting symptoms consistent with generalised anxiety disorder and major depression in respect to his circumstances”. She also concluded that he exhibited signs of post-traumatic stress although this was as a consequence of his own actions in causing the death of the deceased. She considered it essential that the offender be given the opportunity for rehabilitation and counselling. She concluded that he would need ongoing management and care, including psychiatric review.

101. Assessing the offender’s prospects of rehabilitation[61] is problematic, for the simple reason that his successful rehabilitation depends largely upon him being able to firstly, abstain from alcohol and secondly, to control his anger. In these circumstances, and in light of his history, the Crown submitted that I should conclude that the offender’s prospects of rehabilitation were, at best, guarded. Counsel for the offender did not submit to the contrary. In my view, that is the most favourable finding that can be made on the entirety of the evidence.

     61. Sentencing Act s 21A(3)(h).

SPECIAL CIRCUMSTANCES

102. Counsel for the offender invited me to make a finding of special circumstances[62] . I decline to do so. The offender’s period of parole will be sufficiently lengthy for him to address any rehabilitative measures.

     62. Sentencing Act s 44(2).

103. The offender has been in custody since his arrest on 30 September 2017 and there is no issue that his sentence should be backdated to commence on that day.

ORDERS

104. I make the following orders:

1. The offender is convicted of the murder of Sarah Brown.

2. The offender is sentenced to imprisonment for a period of 25 years and 6 months commencing on 30 September 2017 and expiring on 29 March 2043.

3. I specify a non-parole period of 19 years and 1 month imprisonment to expire on 29 October 2036.

4. The total sentence is one of 25 years and 6 months imprisonment.

5. The offender will be eligible for parole on 29 October 2036 and his sentence will expire on 29 March 2043.

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Endnotes

Decision last updated: 14 December 2018