Regina v Farmer

[2008] NSWSC 581

CITATION:	REGINA v FARMER [2008] NSWSC 581
HEARING DATE(S):	2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 21, 22, 23, 24, 29, 30 April 2008, 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 22 May 2008
JUDGMENT DATE :	13 June 2008
JURISDICTION:	Criminal Division
JUDGMENT OF:	Hall J at 1
DECISION:	In respect of Count 1 (s.86(1)(b), Crimes Act 1900): a non-parole period of 5 years and 6 months to commence on 1 August 2006 and to expire on 31 January 2012 with a balance of the term of the sentence of 1 year and 9 months to expire on 31 October 2013. In respect of Count 3 (s.198, Crimes Act 1900): a non-parole period of 12 years to commence on 1 August 2009 and to expire on 31 July 2021 with a balance of the term of the sentence of 4 years to expire on 31 July 2025. In respect of Count 2 (s.27, Crimes Act 1900): a non-parole period of 14 years to commence on 1 August 2012 and to expire on 31 July 2026 with a balance of the term of the sentence of 4 years and 6 months to expire on 31 January 2031. Accordingly, the effective total non-parole period intended and imposed in respect of counts 1, 2 and 3 is a period of 20 years commencing 1 August 2006 and expiring 31 July 2026 with an aggregate or effective total head sentence of 24 years and 6 months commencing 1 August 2006 and expiring 31 January 2031. The earliest date upon which the offender will become eligible to be released on parole, accordingly, will be 31 July 2026.
CATCHWORDS:	CRIMINAL LAW – Sentencing – Kidnapping – Attempted Murder – Damaging Property with Intent to Endanger Life – Whether Offence within Worst Category – Non-Parole Period – Objective Seriousness of the Offence – Aggravating Factors – Accumulation and Totality of Sentences
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Callaghan v Regina [2006] NSWCCA 58 Chaplin v The Queen (2006) 160 A Crim R 86; [2006] NSWCCA 40 Cheung v The Queen [2001] 209 CLR Johnson v The Queen (2004) 78 ALJR 616 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Regina v Berg [2004] NSWCCA 300 Regina v Falls [2004] NSWCCA 335 Regina v Harkin (1989) 38 A Crim R 296 Regina v Kalache [2000] NSWCCA 2; (2000) 111 Crim R 152 Regina v King (2004) 150 A Crim R 409 Regina v Mitchell & Gallagher [2007] NSWCCA 296 Regina v Newell [2004] NSWCCA 183 Regina v Olbrich (1999) 199 CLR 270 Regina v Previtera (1997) 94 A Crim R 76 Regina v SAE (CCA, unreported 3 April 1997) Regina v Slack (2004) NSWCCA 128 Regina v Twala (CCA unreported, 4 November 1994) Regina v Way (2004) 60 NSWLR 168 Veen v Regina (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629
PARTIES:	REGINA v FARMER, Robert Black
FILE NUMBER(S):	SC 2007/2218
COUNSEL:	Crown: C Maxwell QC Offender: C Davenport SC/J Trevallion
SOLICITORS:	Crown: S Kavanagh Offender: Archbold Legal Solutions

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

HALL J

FRIDAY 13 JUNE 2008

No. 2007/2218

REGINA v ROBERT BLACK FARMER

SENTENCE

1 HIS HONOUR: On 15 May 2008, Robert Black Farmer (who I shall refer to as “the offender”), was convicted of three counts on the indictment, the trial having commenced on 2 April 2008.

2 The three counts in these proceedings, of course, relate to the one person who I shall refer to, in these remarks, as “the victim”. I do so, I wish to emphasise, not to impersonalise her in any way but I consider that to do so is consonant with the fact that Count 1 involves a prescribed sexual offence and s.578A of the Crimes Act 1900 is directed to protecting persons who have been the victim of such an offence from having that fact publicly exposed by publication. I am aware, of course, that in respect of Counts 2 and 3, there has been extensive publication of the facts and of her identity relating to those counts in the media.

3 The three counts were:-

(1) Count 1: That on 9 November 2005 at Northmead, contrary to s.86(1)(b) of the Crimes Act 1900, the offender detained the victim without her consent and with intent to obtain an advantage, namely sexual gratification. The maximum prescribed penalty for an offence under that provision is a term of imprisonment of 14 years.

(2) Count 2: That on 9 November 2005 at Northmead, contrary to s.27 of the Crimes Act , the offender caused grievous bodily harm to the victim with intent to murder her. The maximum prescribed penalty for an offence under that provision is a term of imprisonment of 25 years.

(3) Count 3: That on 9 November 2005 at Northmead, contrary to s.198 of the Crimes Act , the offender maliciously damaged by means of fire a dwelling house, with intent to endanger the life of the victim. The maximum prescribed penalty for an offence under that provision is a term of imprisonment of 25 years.

4 The jury having returned verdicts of guilty in relation to all three counts, it is necessary for me, as the sentencing judge, to make the findings upon which the sentences to be imposed are to be based. That, in turn, requires that the facts to be adopted by me for that purpose must be consistent with the verdicts of the jury and that the findings of fact for the purpose of sentencing the offender must be arrived at beyond reasonable doubt.

5 The verdicts of the jury indicate that they were satisfied that the offender was present at the victim’s home on the afternoon of 9 November 2005 and there committed each of the offences.

6 In determining the appropriate sentence in respect of each of the offences on Counts 1, 2 and 3, the jury’s verdicts decided the issues joined by the pleas on the indictment. However, they did not decide, either expressly or by implication, all of the facts of possible relevance to sentencing. The High Court observed in Cheung v The Queen [2001] 209 CLR 1 at 10, that a jury’s verdict on the black and white issue of guilt may leave to a sentencing judge a very difficult task of deciding questions of degree involved in assessing an offender’s culpability, and the proper measure of punishment.

7 The Crown case was a circumstantial one based upon a wide range of evidence including forensic evidence recovered from the crime scene, DNA material found on certain items located at the crime scene (including, in particular, the eastern bedrail of the victim’s bed and the surface of a fuel tin lid found in the garage), together with evidence of the offender’s conduct both on the evening of 9 November 2005, on 10 November 2005 and thereafter on what were said to be episodes of flight following the commission of the offences. It was the Crown case in relation to Count 2 that the offender repeatedly struck the victim with a set of fibro cutters that were located in the garage at her home and where she was found by police on the floor in a severely injured and unconscious condition.

8 The evidence established that there had been no known association or relationship or connection between the offender and the victim or any member of her family. There was, accordingly, no suggested motive or reason based upon matters such as hatred, jealously or revenge involved in this case.

Particular events on 9 November 2005

9 Evidence was given by members of the victim’s family that she was well and in good spirits when she left with her mother to attend her TAFE College that day.

10 It was accepted at trial that, by reason of the very severe head injuries sustained causing brain damage, she had no memory of the events either immediately preceding the attack or during the attack itself.

11 The evidence established that at 2.06 pm, she alighted from the bus which took her from Baulkham Hills TAFE College on the day of the offences, which was a Wednesday. She had attended a presentation as part of her Diploma in Business Marketing course.

12 The evidence established that she arrived home by about 2.30 pm on that day and that the offences were committed during the period 2.30 pm and 4.30 pm. The fire call was received at the Sydney Communication Centre at 4.39 pm. By the time police arrived at 4.50 pm, the house was on fire and a number of fire brigade units were already in attendance and in the process of extinguishing the fire.

13 The garage was detached from the house. Fire had not reached it when police arrived. Police proceeded to inspect the premises and, in the course of doing so, entered the garage. There, they found the victim on the floor. She was lying in blood and there was a strong smell of petrol on and about her. The blood and swelling made her face unrecognisable.

14 A black electrical cord was found tied to and wrapped around her left wrist and forearm and a computer monitor cord was across her chest. There was blood spatter noted over the wall and on a timber box or chest and on surrounding areas.

15 She was found naked apart from a pink and white striped top or blouse. When the intensive care paramedic from the New South Wales Ambulance Service arrived, she was found in a critical condition with a Glasgow Coma Score of approximately 4 to 5. It was apparent to the paramedic that she had sustained, what were described in evidence as “massive blunt and penetrating head injuries”. These included a number of fractures, discolouration around the eyes, cheeks and the right side of her face and massive open lacerations to the temporal and scalp regions. There appeared to be, to the paramedic’s observation, four to five massive lacerations running from the front and side of her head towards the back of the head.

16 Dr Ellis, specialist forensic pathologist, gave evidence that, if there were four or five separate lacerations, then that would certainly have been consistent with four or five separate blows with something long and hard or straight and hard.

17 The nature and extent of the injuries and disabilities inflicted and suffered were the subject of evidence from Dr Mudaliar, who, at the relevant time, was Director of the Intensive Care Unit at Westmead Hospital.

18 On clinical examination, he said that the following injuries were detected:-

(1) A compound compressed skull fracture of the left frontal and parietal occipital region.

(2) Frontal sinus fractures (between the eyebrows and above the ridge of the nose) and in the area just under the eye socket.

(3) A small extradural haematoma in the area of the membrane outside the brain.

(4) “Le Fort 3” injury (describing the entire structure of the facial bones as it fits into the skull cavity). The entire frontal part of the bone had become fractured and avulsed forward.

(5) Intercranial dural tears (coverings of the brain and dura being torn in multiple areas internally).

(6) Multiple cuts on the face.

(7) Dislodgment of blood from blood vessels extravasated into other areas.

(8) Leakage of cerebral spinal fluid with fluid exuding from the ear and nose (due to fractures).

(9) Superficial and partial thickness burns to the back, the buttocks and all limbs attributed to exposure to petrol.

19 Surgical procedures were undertaken including, in particular, laparotomy on 9 November 2005, surgery to the facial lacerations, and on 10 November 2005, debridement and elevation of the left temporal compound bone depressed skull fracture, suture of dural lacerations and of multiple facial lacerations. On 16 November 2005, the patient underwent bifrontal flap, craniotomy, cranialisation of frontal sinus and operative fixation of the comminuted facial fractures. She has also undergone several facial reconstructive procedures.

20 The initial surgery was undertaken over a four hour period and she was subject to blood transfusions.

21 Clinical examination revealed deep and middle section burns to the upper layers of the victim’s skin, the middle layers of the skin and the lower layers, presumed to be chemically induced by hydrocarbons whilst lying in petrol. Dr Mudaliar stated that she would need to have been lying in petrol for a substantial period of time, not a few minutes, in order for such chemical burns to have occurred. He estimated that it would have been more than one hour for the burns to have resulted.

22 The victim remained in Intensive Care from 10 November until 2 December 2005 and in that period, she was on life support intensive care monitoring, artificial ventilation and assisted respiratory support to maintain breathing. Dr Mudaliar described her injuries as “life threatening”.

23 In the intensive care stage, she underwent two main operations involving fixation of facial fractures to the mid and upper third of the face (the “le Fort 3” facial fractures).

24 In all, the victim spent 23 days in intensive care management. She was subsequently discharged to another section of the hospital for rehabilitation.

25 The evidence established that, but for medical intervention, she would have died from her injuries.

26 Dr Joseph Gurka, rehabilitation specialist, had her under his care from 14 December 2005. On admission to Westmead Brain Injury Rehabilitation Unit, she was described as being “in a minimally responsive state”. She demonstrated slowed information processing and was fully dependent in all respects of care at that stage.

27 She spent three and a half months as an in-patient in the Brain Injury Rehabilitation Unit.

28 During that period of time, she demonstrated improvement. She remained in a state of post-traumatic amnesia for a period of three months which Dr Gurka stated indicated “an extremely severe traumatic brain injury”. He observed that her “thinking speed” was slow and memory was impaired as were her planning and organisational skills.

29 She was discharged from the Westmead Brain Injury Rehabilitation Unit following an intensive rehabilitation programme. She then went into the Transitional Living Unit for two months focusing on the rehabilitation of her living skills.

30 She was subsequently discharged from the Transitional Living Unit on 26 May 2006 to live with her family. She remained in ongoing rehabilitation with the hospital’s community rehabilitation unit. She has had and has required enormous support from her family.

31 Dr McCarthy, rehabilitation specialist, furnished a report which was tendered by the Crown. The report is dated 28 May 2008 and it is Exhibit D in the sentence proceedings. I will refer to Dr McCarthy’s most recent assessment when dealing with the assessment of the offence in Count 2 for the purpose of determining the appropriate sentence to be imposed.

32 Returning to the injuries sustained, Dr Ellis, specialist forensic pathologist, examined a number of statements and photographs taken at the crime scene and at the hospital. He gave evidence that the facial fractures made it likely that there were a number of hard impacts to the front of the face, possibly with an increased concentration of the left side, and that the impacts were likely to have been with an object such as a weapon. He stated that the fractures were obviously indicative of multiple applications of force which were capable of causing bleeding in and around the brain.

33 In relation to injuries on the victim’s torso, Dr Ellis referred to a very distinctive marking on the victim’s back. He said that the object responsible for inflicting the wound on the back must have been used with considerable force.

34 The nature of the injuries inflicted on the victim in the garage was also elucidated by the evidence on blood stain pattern interpretation. The evidence established that there were signs of what was termed “cast-off blood”. This referred to blood flying off a weapon or implement. The evidence was that the blood was thrown off the implement when it was drawn back from the floor in an upwards direction and then downwards. The evidence revealed that there were several impact marks on areas of the chipboard chest consistent with having been caused by an implement such as the fibro cutters.

35 The blood stain evidence established that the victim was struck whilst on the ground with several blows of sufficient force to cause the factures and the blood spatter patterns detected.

36 So far as markings to the head and face, Dr Ellis stated that it was evident that considerable force must have been used to inflict them for such swelling to have occurred. He further stated:-

“The overall impression is that of a woman who has suffered very severe, life-threatening blunt force injuries to her head. Additionally, other injuries suggested chemical burns on some parts of her body as well as possible signs of restraint …”

37 The evidence established that after the victim was rendered unconscious, the offender set about putting in place the means to destroy the house and garage by fire. The placement of the electric toaster on the stove with the gas turned on is, on the evidence, consistent with an intention in the offender to create an interval of time before ignition actually occurred, thereby permitting him time to escape before the premises were set alight. I am satisfied to the requisite standard that an inference to that effect may and should be drawn.

38 The evidence was that the primary ignition or the seat of the fire was on the gas stove in the kitchen. The probable cause was the ignition of gas vapours or perhaps a mixture of gas and petrol vapours from the stove top as a result of heat from the toaster.

39 In relation to the steps taken by the offender to set the home alight, the crime scene evidence established the following:-

(1) The presence of blood soaked clothing items located in the garage.

(2) The presence of petrol in the kitchen area.

(3) A metal fuel tin was located on an island bench in the middle of the kitchen. The fuel tin had no lid on it. The red fuel tin lid was located, as I have earlier stated, on the floor of the garage.

40 Examination of the crime scene also revealed the following:-

(1) The fibro cutters wrapped in a sheet and located on a rocking chair in the family room. Blood stains and hair were found on the fibro cutters.

(2) A large number of items of clothing, bedding and assorted items had been strewn around the floor in the victim’s bedroom.

(3) Three apparent blood stains were found on the mattress of her bed.

(4) Apparent blood stains were found on a cream coloured pillow case located in her bedroom.

41 The evidence also established that petrol had been poured over items in the house including a pink Sussan brand top in the third bedroom, on an area on the mattress from which a sample was taken and on a grey coloured handbag which was located on the floor of the kitchen.

42 A review of the evidence establishes, beyond reasonable doubt, the following facts:-

(1) That a struggle took place between the offender and the victim in her bedroom.

(2) That she was detained against her will.

(3) The presence of the offender’s DNA on the eastern bedrail, the location of a used tampon on the floor of the victim’s bedroom and the fact that she was semi-naked when found in the garage support the inference, beyond reasonable doubt, that the offender in some way had sexually interfered with her.

(4) That the telephone in the main bedroom was, at some point during the detention, was disconnected from the wall socket.

(5) That the victim moved or escaped from her bedroom to the garage where she was confronted and repeatedly struck in the face, head and body with the fibro cutters.

(6) In consequence of the repeated striking, she suffered grievous bodily harm by the offender using the fibro cutters as a weapon.

(7) That the offender took the fuel tin from the garage and poured it on clothing and other items to which I have referred in the bedroom, the family room and kitchen and, at some point, placed the toaster on the stove as a source of ignition of gas and/or fuel vapours.

(8) The offender poured petrol on the victim herself and in the area in which she was lying on the garage floor and that at the time she was lying on the garage floor, she was then exhibiting signs of life that would have been apparent to the offender.

(8) That she was lying on the garage floor for a period of up to one hour or so in consequence of which she suffered chemical burns to her skin on various parts of her body.

43 In relation to those findings of fact, issues as to the offender’s state of mind or intent must be considered in this case at two stages:-

(1) The first stage relates to time of the offender’s action in inflicting grievous bodily harm upon the victim by means of the fibro cutters in the garage.

(2) The second stage relates to the period when the offender poured petrol on her, as she lay in the injured condition.

44 In light of the number, the nature and the extent of the physical injuries inflicted by the use of the fibro cutters, the evidence supports the conclusion, beyond reasonable doubt that, at the time the offender inflicted those injuries, he intended to kill the victim.

45 On the findings of fact to which I have referred, the evidence, in my opinion, also establishes to the requisite standard, that on the occasions on which the offender poured petrol on the victim and about her and in the house, he intended to bring about her death by setting alight the petrol-doused premises.

46 The offender’s state of mind at each of the two stages to which I have referred are central to the determination of the level of criminality involved in Counts 2 and 3.

47 The Crown put to the jury that there were two possible explanations as to why the offender entered the victim’s home on 9 November 2005. The first possibility suggested was a chance sighting by the offender of the victim who was described in evidence as a “striking girl”. Such a possibility would suggest a sexual motive.

48 The second possibility, which was put as the more likely of the two, was that the offender went to the victim’s home with the intent to commit robbery, that he was surprised by her presence and that things escalated to the point described by the Crown as the “brutal assault”.

49 Either possibility, of course, would involve serious criminality. In Regina v Olbrich (1999) 199 CLR 270, the High Court (Gleeson CJ, Gaudron, Hayne and Callinan JJ) at 278 stated:-

“… very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused came to commit an offence for which he or she stands for sentence …”

50 See also Weininger v The Queen (2003) 212 CLR 629 at 636.

51 In the circumstances of the present proceedings, there is a need to distinguish between the offender’s motive or reason for entering the victim’s home and the motive or reason for inflicting grievous bodily harm with intent to kill.

52 The former, if known, may be an aggravating factor in assessing the criminality of the offender. But the last-mentioned motive or reason on the prosecution case was the offender’s desire to avoid apprehension. On the findings made and to which I have earlier referred, it is clear and I find to the requisite standard that the motive or reason for inflicting such harm with intent to kill her was to prevent the victim as the only person who could identify him from doing so and so avoid apprehension for the offences.

Count 1: Detention contrary to s.86(1)(b) of the Crimes Act

53 From the jury’s verdict, it can be concluded that the offender detained the victim against her will. The evidence as to the condition of her room, with clothing and other items found scattered on the floor and the bed out of its customary position, establish beyond reasonable doubt that the offender detained the victim in the house by overpowering her.

54 The gravamen of the offence under s.86(1)(b) is the unlawful detention of a person. There can be a number of factors that determine the seriousness of the offence. The purpose of the offence is one factor. However, in Regina v Newell [2004] NSWCCA 183, the Court of Criminal Appeal observed that serious offences under the section are not restricted to cases of kidnapping for ransom.

55 The matters that are relevant in making an assessment of the seriousness of an offender under s.86 include the following:-

(1) The period of the detention . In the present case, it is impossible to be precise as to the period of the detention. The evidence would support an inference that the period of the detention was over a number of minutes in the house before the physical attack in the garage, where she was again detained for a short period before being rendered unconscious. However, given the circumstances of the detention, I do not consider the duration of the detention in the house can be said to be a factor that detracts from the seriousness of the offence.

(2) The circumstances of the detention . In this case, the circumstances would include the fact that the detention occurred in the victim’s home, in particular, including in her bedroom, an aggravating factor under the Crimes (Sentencing Procedure) Act 1999, s.21A(2)(b). During the detention, she was detained in a state of undress.

(3) The person being detained . In this case, the victim was a young woman 18 years of age who must have suffered extreme fear and terror during the detention.

(4) The purpose of the detention . The evidence establishes beyond reasonable doubt, as I have earlier stated, that the offender detained the victim to prevent her from escaping and identifying him. But the evidence also supports the finding to the requisite standard that, during the detention, the offender in some way sexually interfered with her. Given the offender’s denial of the offence, there is no evidence from him as to his intention or his state of mind.

56 The evidence, however, does, as I have stated, permit a finding to the requisite standard that the violation of the victim undertaken by the offender for the purpose of obtaining sexual gratification was an incident of the detention and, as I have said, committed by him with the requisite specified intent.

57 Whilst no direct comparison of one case with another is usually possible, an examination of comparable sentences may be of assistance in indicating the general range which a court has regarded as appropriate for offences of this kind. Examples include the sentences considered by the Court of Criminal Appeal in Chaplin v The Queen (2006) 160 A Crim R 86; [2006] NSWCCA 40; Regina v Falls [2004] NSWCCA 335 and Regina v Harkin (1989) 38 A Crim R 296.

58 I intend to impose a sentence that is appropriate, having regard to the factual matters and findings to which I have referred and issues of accumulation of sentences and to the principle of totality.

Count 2: Causing grievous bodily harm with intent to murder contrary to s.27 of the Crimes Act

59 The objective seriousness of the offence on Count 2 is apparent from the factual findings to which I have already referred. The repeated striking of a defenceless young woman with a heavy metal implement such as the fibro cutters as she lay on the garage floor, constitutes an offence involving almost an unimaginable level of ferocity and callousness. The subsequent actions in pouring the petrol over the gravely injured young woman would confirm, if any confirmation had been required, that at the time of striking the victim, the offender was intent on killing her.

60 The Crown submitted that Counts 2 and 3 are offences that are in the worst case category for such offences.

61 The relevant principles in that respect are established by various decisions, the most commonly cited being the decision of the Court of Criminal Appeal in Regina v Twala (unreported, 4 November 1994) and the following dicta was relied upon by the Crown in its submissions in the present proceedings:-

“However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).”

62 The principles and their application have been considered in a number of cases including, in particular Regina v Kalache (2000) 111 A Crim R 152; [2000] NSWCCA 2. In the present case, as in Kalache, the offender did not give evidence at the sentencing hearing although, of course, as in these proceedings, he did at trial.

63 The Crown pointed to the features which are said to be of very great heinousness:-

(1) Severe traumatisation and extreme fear which the actions constituting the second offence must have produced.

(2) The offender’s actions placing the victim in, what was said to be, a situation of complete and absolute indignity.

(3) The nature of the weapon and that the offender must be taken as knowing that he would cause extreme injury to the victim.

(4) The infliction of harm by repeated blows.

(5) The fact that the victim was completely defenceless.

64 It is essential to have regard to the fact that the offence under s.27 of the Crimes Act involved in Count 2, includes two components to the offence both of which require consideration in determining whether Count 2 is in a “worst case” category. The first physical element of the offence is the concept of “grievous bodily harm”. This is not limited to the physical injuries but includes their impact or effects.

65 The injuries suffered by the victim in the present case were very substantial, as is apparent from my earlier description of them. So also are the effects of those injuries.

66 However, in evaluating where Count 2 in this case lies in terms of a worst case category, a fundamental matter to be assessed is the nature and extent of the grievous bodily harm. In Regina v Mitchell & Gallagher [2007] NSWCCA 296, the victim suffered extensive brain injury that had a profound impact. He was confined to a wheelchair, had limited speech and very severe cognitive problems from which he would never recover. His condition was described as being a “vegetative state”, or “like a living death”. The offence in that case was under s.33(1)(b) of the Crimes Act. Such an offence carries a maximum penalty of 25 years and involves causing “grievous bodily harm to a person with intent to cause grievous bodily harm …”.

67 Although the Court of Criminal Appeal in that case was concerned with such an offence, the following observations made by the court I consider to be also relevant in considering an offence under s.27:-

“27. A very important aspect of an offence under s.33 is the result of the offender’s conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s.35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. It should be borne in mind that, if the victim had died, the respondents would have faced a charge of murder. The injury suffered by the victim was, as her Honour noted, little short of death.
28. The nature of the injury suffered by the victim was in the very worst category that could be envisaged for the offence. That itself brought the offence into a very serious category …”

68 Whilst the possibility of envisaging a worst case than the present is not, such as in Gallagher (supra), itself determinative of the Crown’s submission that Count 2 is in a worst case category, the objective assessment must have regard to the nature and to the extent of the grievous bodily harm referred to in s.27 of the Crimes Act.

69 In terms of assessing the extent of culpability in terms of premeditation and planning, the evidence establishes that the offender did not bring a weapon to the premises with him, but that, at about the time of forming the intent referred to in s.27, the offender had resort to the fibro cutters that he found on the premises.

70 Whilst I have concluded that I should not accept the Crown’s submission on this issue of the categorisation of the case, I do, of course, accept that this case is one involving such grave culpability that it should be assessed at above the middle of the range of objective seriousness for such an offence in terms of s.54B of the Crimes (Sentencing Procedure) Act and that both the non-parole period for the offence and the balance of term to be imposed should appropriately reflect that culpability.

71 It is necessary for a sentencing judge to bear in mind that the purposes for which a sentence is to be imposed on an offender are various. The High Court observed in Veen v Regina (No 2) (1988) 164 CLR 465 at 476:-

“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

72 A sentencing court is required by s.21A of the Crimes (Sentencing Procedure) Act, in determining the appropriate sentence for an offence, to take into account the aggravating and mitigating factors that are relevant and known to the Court as referred to in s.21A(2) and (3) and which are applicable to the offence in question together with any other objective or subjective factors that affect the relative seriousness of the offence.

73 The aggravating factors under s.21A(2) that are applicable to the present case are as follows:-

(1) Section 21A(2)(c) – the actual use of a weapon . In the present case in relation to Count 2, the offender used the fibro cutters, a substantial steel implement, as a weapon to inflict injury on the victim.

(2) Section 21A(2)(d) which provides as an aggravating factor to be taken into account in determining the appropriate sentence for an offence:-

“(d) The offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences).”
The offender in this case has a record of previous convictions and, accordingly, this may be taken into account although, as set out in s.21A(5) of the Act, not necessarily increasing that sentence. The High Court considered the impact of the criminal history of an offender upon sentence in Veen (No 2) (supra) at 477.
The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence. However, an antecedent criminal history may be relevant on the issue as to whether the instant offences in these proceedings reveal a continuing attitude of disobedience of the law. If so, in that case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
In the present case, the offender’s prior criminal record indicates a conviction in the District Court for an offence of armed robbery causing grievous bodily harm on 1 December 1993 for which he was sentenced to penal servitude for a minimum period of 5 years with an additional term of 5 years. In that matter, the offender’s co-offender fired a revolver saying it was a warning shot. A fragment of the bullet struck one of the victims in the eye causing severe damage. The sentencing judge noted that the offender did not hold the firearm during the robbery.
In 1997, the offender was convicted of driving offences, in 2001 he was in breach of parole, being returned to former custody for approximately three years between 12 December 2003 and 19 January 2007.
In 2004, the offender was sentenced in Burwood Local Court to terms of imprisonment of 12 months for an offence of steal property, he being released subject to supervision and to a term of 18 months for an offence of possessing ammunition without holding a licence and being released subject to supervision.
Parole was revoked on 2 December 2005 for breach of parole, the offender being returned to custody for 1 year and 4 months. I will return to discuss this aspect further.
Whilst the offender’s criminal history reveals a continuing attitude of disobedience to the law, it does not in my opinion require that the sentences to be imposed are to be increased on account of that prior history. The history is, however, relevant in that it disentitles the offender to leniency.


(3) Section 21A(2)(eb) – the offence was committed in the home of the victim . A citizen is entitled to the privacy and to the security of their own home. The offender’s actions in entering the victim’s home where she was alone at the time and assaulting her, plainly constitutes an aggravating factor to Counts 2 and 3.

(4) Section 21A(2)(g) – the injury, emotional harm, loss or damage caused by the offence if it was substantial . In this respect, the victim has been left with seriousness cognitive deficits that will impede and limit her capacity for an independent life and will limit her in her employment and her capacity to undertake academic studies. In a young woman of the victim’s age, such losses are substantial indeed and add to the seriousness of the offence in Count 2.

(5) Section 21A(2)(j) – the offence was committed whilst the offender was on conditional liberty in relation to an offence or alleged offence . In the present case, in considering Counts 1, 2 and 3, the offender was on parole and had been, not long before, granted bail in respect of outstanding charges concerning the theft of petrol from a petrol station. It is acknowledged that it will be more aggravating if the offence is one similar to that for which the offender is being sentenced.

74 Taking these aggravating factors into account, the offence of which the offender was convicted in respect of Count 2 involved a high level of objective criminality. I will deal separately with the offence in Count 3.

75 The evidence does not, in my opinion, establish any mitigating circumstances and no submission was made on behalf of the offender seeking to identify any mitigating circumstances in terms of s.21A(3) of the Crimes (Sentencing Procedure) Act or otherwise. The absence of mitigation is a relevant factor in the assessment of the level of criminality to which I have referred.

76 The Crown observed that the psychiatric report of Dr Westmore dated 12 July 2007 (Exhibit 1) indicated that the offender had no underlying psychological illness and that he must be taken as having full awareness of what he was doing. The Crown also observed that the offender has not acknowledged his guilt and this reflects adversely on his prospects of rehabilitation. The circumstances of the offences, including the absence of mitigation, was said to point to the offender being, at this stage, dangerous and that caution should be exercised in terms of his release back into the community: Veen (No 2) (supra) at 477.

The appropriate sentence in respect of Count 2

77 The maximum penalty for an offence under s.27 of the Crimes Act (count 2), is a term of imprisonment of 25 years. The offence is also subject to a standard non-parole period of 10 years under Division 1A of Part 4 – Standard non-parole periods of the Crimes (Sentencing Procedure) Act.

78 The determination of the appropriate sentence in respect of Count 2 is to be assessed by reference to two statutory guideposts or benchmarks. The first is the maximum penalty prescribed for the offence, namely, the term I have referred to, 25 years imprisonment. The second is found in the provisions of s.54B(2) in relation to the standard non-parole period for the offence. I have, accordingly, had close regard to both. In relation to s.54B(2), it is necessary to have regard to the principles enunciated by the Court of Criminal Appeal in Regina v Way (2004) 60 NSWLR 168, [2004] NSWCCA 131.

79 Section 54B(2) states:-

“When determining the sentence for the offence, the Court is to set the standard non-parole period as the non-parole period for the offence unless the Court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.”

80 The reasons for which a Court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s.21A: s.54B(3). A Court is required to make a record of its reasons for increasing or reducing the standard non-parole period. In that respect, the Court must identify in the record of its reasons each factor that it took into account: see s.54B(4).

81 Applying the provisions of s.54A(2) to Count 2 in the present case, the standard non-parole period of 10 years represents the non-parole period for such an offence in the middle of the range of objective seriousness for offences identified in the Table to Division 1A of the Act. In Way (supra), the Court has stated at [66]:-

“… a purposive interpretation needs to be applied, by which s.54B(2) should be understood as permitting a departure from the standard non-parole period, wherever the objective seriousness of the individual offence is either lesser or greater than that of an offence in the middle range of seriousness.”

82 In the present matter, I have had regard to the observations and to the principles stated by the Court of Criminal Appeal in Way (supra), in particular at pp.185 to 187. The critical focus in the present case is upon both the objective seriousness of the subject offence, and also upon the abstract offence in the middle of the range of objective seriousness. It is necessary to have regard to what is a mid-range offence so that a meaningful comparison can be made between it and the offence at hand. The Court, in Way, stated (at [85]):-

“The multiplicity of purposes of sentencing set out in s.3A of the Act … do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as ‘objective’ facts and matters which may affect the judgment involved in assessing ‘seriousness’. It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender …”

83 Accordingly, it is relevant in the present matter to have regard to the findings made as to the nature and to the number of the acts committed by the offender against the victim and to his mental state or state of mind at the time of committing the offence and the effects of his actions. In other words, the circumstances that are relevant both to the offence and to the offender are assessed in determining the appropriate level of punishment including, in particular, the appropriate non-parole period.

84 The offence in Count 2 committed by the offender has clearly had a devastating impact upon a young woman who was, at the time of the attack upon her, on the threshold of her adult life. Having successfully completed her secondary schooling she embarked upon her tertiary course of study whilst also holding part-time employment. Her future was full of promise. The progress she has made since the offences were committed has been the product of a combination of highly skilled medical treatment, the help and support of a loving family and her own determination and remarkable courage.

85 It is clear, however, that she has not, on the evidence, regained the level of independence that she previously enjoyed. Dr McCarthy referred in her report of 27 May 2008 to the fact that she has learnt to manage most community tasks but with supervision and prompting. She noted, “without this support, she could not manage independent community living”. Dr McCarthy’s observations were as follows:-

“10. [The victim] attempted TAFE study but could not cope with the cognitive demands. She also attempted part time work but again her cognitive impairment means that she is likely to be unable to maintain open employment. High level balance and word retrieval difficulties persist and she has difficulty with complex information.”

86 Dr McCarthy concluded:-

“17. The cognitive difficulties described above are consistent with the extremely severe brain injury that was sustained on 5 [sic] November 2005. There are significant mild improvements from the initial assessment, however further gains are likely to [sic] modest.
18. I consider that [the victim] will have long-term and permanent effects due to her injury on thinking and memory that will impact adversely on work , study and lifetime goals. [The victim] has learnt to drive. She shows difficulties in areas that may impact on driving safety, particularly speed of information processing, judgement [sic] , quick decision making and visual search. It is considered that these difficulties will impact adversely on her safety with respect to driving.
19. [The victim] demonstrates the capacity for study at a supported TAFE level.”

87 Having regard to the matters which I have identified in the factual findings, and, in particular, the number and nature of assaults which the offender executed with a degree of callousness and ferocity and the effects on the victim, I consider that the offence in Count 2 involves a high level of objective seriousness and moral culpability on the offender’s part. His multiple acts in striking the victim on the head and face with a heavy implement, his state of mind and the consequences of his conduct for the victim constitute the bases or reasons for not imposing the standard non-parole period and for the conclusion that they together warrant a longer non-parole period than the standard non-parole period of 10 years.

88 On that basis, I have concluded that an appropriate non-parole period of 14 years, being the minimum period for which the offender must be kept in detention in relation to this offence, together with a balance of the term of the sentence of 4 years and 6 months imprisonment to be appropriate. That non-parole period will be reflected in the sentence that I intend to impose in respect of Count 2.

89 I should add that I have borne in mind the offender’s is presently aged 39 years, his date of birth being 7 December 1968.

Count 3: Maliciously damaging by means of fire a dwelling house with intent to endanger life contrary to s.198 of the Crimes Act

90 As I have earlier stated, the maximum penalty for an offence under s.198 is, as I have earlier noted, a term of imprisonment of 25 years. The Crown’s submission was that the offence in Count 3 can be seen as an attempt by the offender to prevent him from being caught for the offences in Counts 1 and 2. As such, the Crown contended it falls within the category of offence described in Kalache (supra) at [18]. In that case, a corruption offence was designed to and had the effect of preventing detection of, and the proper prosecution and punishment of serious drug trafficking offences which fitted within the “worse case” category. In those circumstances it was held that the corruption offence itself had about it those special qualities of unmitigated heinousness apt to bring it also within the “worst case” category.

91 In relation to Count 3, the evidence does not, of course, establish that prior to going to the victim’s house, the offender had an intention to commit and offence under s.198. It is clear on the evidence that he formed that intent at some point after the commission of the offence in Count 2. A worst case under s.198, in my opinion, would include a case where, for example, through vindictiveness or revenge, an offender planned prior to the date of the offence to destroy or damage a dwelling house to endanger the life of another. Premeditation and planning of that kind, of course, is not open on the evidence in the present proceedings.

92 In addition to the factual matters previously referred to concerning Count 3, the Crown relies, in particular, upon the fact that in a very calculating way, the offender doused the victim with petrol as part of the arrangements he implemented to destroy the home and that it must be taken at that time that he was aware that she was still alive and wished to prevent her from ever identifying him.

93 I accept that the evidence does establish beyond reasonable doubt that the offender set upon a course of dousing the house and the victim with petrol, as earlier described, in the knowledge that she was still alive and determined that he would bring about the destruction of the dwelling house and garage thereby endangering her life. I accept the Crown’s submission that the offender’s actions in this regard displayed a calculated course of action by him. I also add that his actions displayed a criminal culpability in relation to Count 3 which calls for a sentence in the upper range for offences of that kind.

94 The absence of evidence of premeditation and planning prior to the offender entering the victim’s home, in my opinion, would prevent Count 3 from the “worst case” categorisation, the subject of the Crown submission, but that in every other respect, it remains, as I have stated, an offence involving a very high level of culpability which I intend to reflect in the sentence to be imposed in respect of Count 3.

Victim Impact Statement

95 By reason of the provisions of s.27 and s.28 of the Crimes (Sentencing Procedure) Act, the Court, if it considers it appropriate to do so, may receive and consider a victim impact statement after conviction and before sentence. In these proceedings, the statement of the victim dated 2 May 2008 was read, without objection, to the Court by her sister. The statement referred, in what I consider to be restrained and unembellished terms, to her difficulties with studying and work and the impact on her in the particular respects to which the statement refers.

96 In considering it, I have done so with regard to the observations in Regina v Previtera (1997) 94 A Crim R 76; Regina v Berg (2004) 41 MVR 399, [2004] NSWCCA 300 at [48] to [49]; Regina v Slack (2004) NSWCCA 128 at [58] to [62] and to Regina v King (2004) 150 A Crim R 409, [2004] NSWCCA 444. I also take into account that the harm to the victim is a relevant factor at sentence and it must be proved beyond reasonable doubt by evidence tendered by the Crown. The medical evidence to which I have referred establishes to that standard the severity of the harm occasioned to the victim including the continuing disabilities from which she suffers and will continue to suffer indefinitely.

Accumulation and totality

97 Because these proceedings involve not one, but three offences, it is essential that each offence is considered individually and an assessment made as to the appropriate sentence for that particular offence. However, it is then necessary to proceed further and to review the aggregate or combined sentences for the three offences and to consider whether the aggregate of the sentences or the sentences in combination are “just and appropriate”.

98 This approach, referred to as the totality principle, must be applied in the present case. It is accepted that the appropriate result may be achieved either by making the sentences partly or wholly concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred: Mill v The Queen (1988) 166 CLR 59, 63, Pearce v The Queen (1998) 194 CLR 610, 624 and Johnson v The Queen (2004) 78 ALJR 616. In this case, I intend to adopt that preferred course.

99 In sentencing an offender, a court must take into account any time for which the offender has been held in custody “in relation to the offence”: s.24(a), Crimes (Sentencing Procedure) Act. The date for the commencement of a term of sentence is commonly back-dated pursuant to the statutory discretion in s.47(2) of that Act to the date when an offender was first taken into custody for the offence for which he or she is to be sentenced. The Crown has submitted that in this case, the offender was on parole as at the date of the present offences which was subsequently revoked. The offender was convicted on 24 November 2005 for an offence of larceny on 18 September 2005 in Parramatta Local Court. His parole was revoked on 2 December 2005.

100 The Crown submitted that the appropriate commencement date for the sentences to be imposed is 1 April 2007. Exhibit B confirms that the balance of the parole period was a period of 1 year and 4 months, to which I have earlier referred, commencing on 1 December 2005 and expiring on 1 April 2007.

101 The Court has a discretion where pre-sentence custody may be partly referable to the crime for which the offender is to be sentenced for the crimes and partly to some other circumstance, as discussed by the Court of Criminal Appeal in Callaghan v Regina [2006] NSWCCA 58. In that case, Simpson J referred to observations in Regina v SAE (CCA, unreported 3 April 1997) wherein Gleeson CJ referred to the usual principle that allowance is made for pre-sentence custody but only in circumstances where the pre-sentence custody is exclusively referrable to the crime for which the offender is sentenced. Whilst Simpson J in Callaghan observed that this was not to be taken as prescribing an absolute rule and there may be circumstances that warrant the exercise of the discretion.

102 Ms Davenport SC, for the offender, submitted that I had the discretion to determine the commencement date for the sentences back to 1 December 2005 or a date in between that date and another, given the substantial sentence likely to be imposed for the present offences. She submitted that the “more appropriate” date would be 1 December 2005.

103 Simpson J observed in Callaghan (supra), that the time of re-offending in relation to the date of release to parole and the length of the balance of the term to which an offender is exposed may be considered relevant to the question as to whether the time spent in custody up to the expiration of the parole period is referable to the earlier offence and not to subsequent offences.

104 I consider that, having regard to the length of the aggregate non-parole period under the sentences to be imposed, the length of the balance of the parole period of 1 year and 4 months to which I have referred and the principle of totality that the commencement date for the sentence to be imposed in respect of the sentences, should be 8 months prior to 1 April 2007, namely, 1 August 2006, that is, 50% of the 16 months parole period in question.

105 On the basis of the factual findings to which I have referred, upon a consideration of the objective seriousness of the offences together with the aggravating circumstances to which I have referred, I have determined that the appropriate sentences to be imposed are as follows:-

106 In respect of Count 1 (s.86(1)(b), Crimes Act 1900): a non-parole period of 5 years and 6 months to commence on 1 August 2006 and to expire on 31 January 2012 with a balance of the term of the sentence of 1 year and 9 months to expire on 31 October 2013.

107 In respect of Count 3 (s.198, Crimes Act 1900): a non-parole period of 12 years to commence on 1 August 2009 and to expire on 31 July 2021 with a balance of the term of the sentence of 4 years to expire on 31 July 2025.

108 In respect of Count 2 (s.27, Crimes Act 1900): a non-parole period of 14 years to commence on 1 August 2012 and to expire on 31 July 2026 with a balance of the term of the sentence of 4 years and 6 months to expire on 31 January 2031.

109 Accordingly, the effective total non-parole period intended and imposed in respect of counts 1, 2 and 3 is a period of 20 years commencing 1 August 2006 and expiring 31 July 2026 with an aggregate or effective total head sentence of 24 years and 6 months commencing 1 August 2006 and expiring 31 January 2031.

110 The earliest date upon which the offender will become eligible to be released on parole, accordingly, will be 31 July 2026.

111 I am conscious of the proportions of the non-parole periods to the total head sentences in respect of Counts 1 and 2 as well as the proportion of the total effective non-parole periods in respect of Counts 1, 2 and 3 to the total effective head sentences in respect of those three counts. In the present case, I consider that such relationship of non-parole periods to the balance of the term of the sentences to which I have referred is justified:-

(1) First, by the need for exemplary punishment.

(2) Secondly, by the absence of evidence demonstrating a need for longer parole periods in the interest of the offender’s rehabilitation.

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