Regina v McDonald

[2007] NSWSC 813

CITATION:	Regina v McDonald [2007] NSWSC 813
HEARING DATE(S):	24 May 2007 28 June 2007
JUDGMENT DATE :	27 July 2007
JUDGMENT OF:	Price J at 1
DECISION:	Convicted. Sentenced to a term of imprisonment with a non-parole period of 18 years which is to commence on 30 August 2005 and is to expire on 29 August 2023. Balance of term set of 6 years which is to commence on 30 August 2023 and expire on 29 August 2029. Eligible to be released on parole on 29 August 2023.
CATCHWORDS:	Criminal Practice and Procedure - sentencing - murder - guilty plea.
LEGISLATION CITED:	Crimes Act 1900 s 19A, s 19A(2), s 19A(3) Crimes (Sentencing Procedure) Act 1999 s 21(1), s 21A(3)(c), s 61(1)
CASES CITED:	R v AJP (2004) 150 A Crim R 575 R v Carter [2003] NSWCCA 243 R v Fernando [2002] NSWCCA 28 R v McNaughton [2006] NSWCCA 242 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v Merritt 146 A Crim R 309 R v Ponfield (1999) 48 NSWLR 327 R v Simon [2005] NSWCCA 123
PARTIES:	Regina William Andrew McDonald
FILE NUMBER(S):	SC 2006/2340
COUNSEL:	Mr G Tabuteau - Crown Mr C Smith - Public Defender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

27 July 2007

2006/2340 Regina v William Andrew McDonald

REMARKS ON SENTENCE

1 HIS HONOUR: William Andrew McDonald pleads guilty to the murder of Barry Shaw on 27 August 2005. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment.

2 The deceased died as a result of the infliction by the prisoner of multiple knife wounds to the neck and chest. At the time of his death, the deceased lived in Lalor Park. He was 45 years old when he was murdered.

3 It became apparent during the submissions on sentence that the extent of the prisoner’s premeditation to commit the offence was in dispute. The Crown contends that the prisoner’s attack on the deceased involved a significant degree of premeditation whereas the prisoner submits that the Court would find that the intention to do really serious bodily harm or to kill was not formed until after the deceased had taken the knife from the prisoner and had slashed him with it. This occurred, the prisoner contends, after a period of about one hour after he entered the deceased’s home during which time he and the deceased had consumed cannabis.

4 The onus is on the Crown to prove beyond reasonable doubt when the intent to kill or to inflict really serious bodily harm was formed and the extent of his premeditation to commit the offence.

5 As a mitigating factor to be taken into account on sentence, the prisoner contends that the deceased used the knife against him which is an act of provocation in the limited sense provided by s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (the Crimes (SP) Act). The Crown contends that the deceased’s movements with the knife were defensive in nature and provocation is “materially non-existent”.

6 The onus is on the prisoner to prove on the balance of probabilities that he was provoked by the victim.

7 Before considering these issues, I propose to detail those facts which are agreed. They are taken from the statement of AGREED FACTS which was tendered by consent.

AGREED FACTS

8 Barry Michael Shaw (the deceased), a single man aged 45, resided at……….Lalor Park. The deceased had been a local in [the] Lalor Park area for most of his life.

The deceased trained greyhounds, and kept a number of them at the house. The deceased collected knives and spears. He followed Aboriginal culture, making spears with knives. He was in receipt of health benefits.

For some months before 27 August 2005, a friend, Jason Remilton, had also been staying at the deceased’s address.

At around 8.00pm on Saturday 27 August 2005, Jason Remilton returned home to the residence, and discovered the body of the deceased laying on the floor in the loungeroom. The deceased had suffered numerous stab wounds to the neck and upper chest area, front and back, with a large laceration to his throat. Remilton summonsed the help of friends, and police were contacted. A Crime scene was established, and homicide investigation commenced.

On Monday 29 August 2005, a search warrant was executed at 18/7 Iwunda Street Lalor Park, where one Clayton Martin, and the accused, William Andrew McDonald, were living. The accused was not present in the unit when the warrant was executed. A number of blood stained items were seized. Clayton Martin was interviewed by police, twice, on Monday 29 August, about the stabbing of the deceased. His accounts contained a number of inconsistencies. He nominated his flatmate, “Paul” as the person responsible for the death of the deceased. However in further conversation to police he nominated the accused as the person responsible for the death of the deceased.

At about 9am on Tuesday, 30 August 2005, the accused attended the Blacktown methadone clinic. He asked staff to contact police. This was done. Police attended, and the accused said he wanted to talk to them. He was cautioned, and informed that he was under arrest. He was transported to Blacktown police station, and was interviewed, admitting the offence.

When interviewed the accused stated that he had become angry over an assault by the deceased upon his friend, Clayton Martin, a few weeks beforehand. Such assault had never been reported to police. The accused said that he disliked the deceased, and that he (the deceased) had an affinity with knives.

He said that at about 10am on Saturday 27th August 2005, he began drinking beer with Clayton Martin. They had consumed over a carton of beer between them, and upon reaching late afternoon, the accused suggested to Clayton Martin that they pay the deceased a visit. The accused said he wanted an altercation with the deceased. He armed himself with a knife. He said he did not normally carry a knife.

Sometime in the early evening both the accused and Martin walked to the deceased’s address, and arrived when it was dark. The deceased allowed both men into his home. They consumed an amount of cannabis.

The deceased’s mother rang the deceased at about 6.10pm. In the conversation the deceased said there was someone there (at his place).

The accused said that after nearly an hour of being there he pulled out the knife which he had secreted in his tracksuit pants. What then happened was described by the accused in the interview in the following terms:

a) [17] He said that’s a mad knife, give us a look at it, and went whoosh, across my leg like that (382). I just went there to show him (the knife) at first, and it spun him out and he went funny. He grabbed it off me and that’s when he went like that (456). He jumped back. He said what’s that fucking for. What are you bringing that up here for. And I showed him and he freaked out and that’s when he slashed me with it (548-552). He cut me leg and I freaked out. It cut my pants. It freaked me out and it scared me. I just reacted (564-574). I took it off him straightaway (382, 559). I just grabbed it straight off him. I grabbed the blade. He didn’t cut me. I just snatched it out of him real quick. He didn’t have a hold of it at all, the first part (586-590). This was in the lounge room (556).
b) [18] I just went into a frenzy and I knew I’d done something bad by the first hit, by hitting him (729). I went into a stupid frenzy. I hit him in the throat first I think. He fell on the ground, and I fucking jumped on top of him. He tried to wrestle me. He tried to strangle me a bit, and I just got him out of the way and I just went stupid, I just lost it (574-578).
c) [19] When I hit him first with it, I realised I’d done something bad. He was gargling his blood, trying to talk. I thought I’d gone that far, I may as well keep going (615-617).
d) [20] After I grabbed the knife I think I spun him around, and I think I hit him in the back of the neck, and I spun him around the other way, and I hit him about three or four times here that I can remember, and then he collapsed onto the ground. We sort of wrestled a bit and he fell on the ground and I just jumped on top of him and just kept going (594-595). I threw Clayton’s jumper on him to shut him up. I didn’t want him to wake Clayton up. He was saying Clay get him off me, get him off me. I know that I hurt him really bad. He was saying stop Bill, stop, and I continued to stab him (600, 607-612).
e) [21] He stopped breathing, not very long, it was over pretty quick, probably less than a minute (623-624).
f) [22] When I tossed the (jumper) over his face he had stopped breathing. He was gone. I didn’t want Clayton to see his face, what I’d done. I just grabbed Clayton’s (jumper) and I said come on let’s go mate. I knew that I’d hurt him badly, I just wanted to get Clay out of there (627-633).


The accused said that after it became apparent that the victim was deceased, the accused and Martin returned to their Iwunda Street, Lalor Park, address. The accused discarded his tracksuit pants, which were covered in blood. The accused said he could not remember what he did with them. The tracksuit pants have not been recovered.

On Sunday 28 August, 2005 the accused took the knife he had used against the deceased, and threw it in a drain in Boyd Street, Blacktown. Before he threw it away he washed it and cleaned it, as it had blood on it. Following the interview on Tuesday, 30 August 2005, the accused took police to the drain during a walk-through, and police recovered the knife. The knife measured approximately 30 centimetres overall, with a blade length of 19 centimetres. The blade measured 40mm at its widest point near the handle.

On Tuesday 30 August, 2005, shortly after 3.15pm, the accused’s right knee was examined by Dr Stuart Anderson, police medical officer. Dr Anderson noted two parallel and partly overlapping linear lesions with scab formation, one 3 cm and the other 1 cm in length both with scab formation. Above this was a discontinuous series of lesions, totalling about 1cm in length with scab formation, roughly parallel to and partly overlapping with the previous lesions. The knee was photographed shortly after 4.30pm.

In Dr Anderson’s opinion the wound complex was consistent with abrasions and bruising at the time in question and was consistent with being caused by a hard, sharp object, and appeared to result from a scraping force.

Following a post-mortem examination, the pathologist, Dr Langlois, determined the cause of death as knife wounds of neck and chest. Dr Langlois reported:

a) A mimimum of 15 stab wounds to the neck and chest;

b) Four wounds cut into bone, which would have required

substantial force;

c) Two further wounds which were typical of defence injuries;

d) The longest recordable wound track length was 21 cm, from

the back to the front of the chest, consistent with the length of the blade of the knife recovered from the drain.

Dr Langlois attributed death to:

a) Two wounds (9 & 10) which entered the chest from the front, and cut the aorta;
b) One wound (5) which cut the left carotid artery and the left jugular vein, the wound being a cut drawn across the neck;
c) Two wounds (1 and 2) which cut into the voice (sic) and windpipe;

d) One wound (19) which cut the left lung;

e) One further wound (6), which may have cut the left lung.

Did the attack on the deceased involve a significant degree of pre-meditation?

9 The Crown points to the origin of the attack upon the deceased being an incident some weeks beforehand when the deceased had apparently assaulted Clayton Martin, the prisoner’s friend. The prisoner had armed himself with a 30cm knife late in the afternoon of the day of the offence, with the intention, the Crown submits, of having an altercation with the deceased. He knew that the deceased had an affinity with knives and he told police that he did not normally carry a knife. In these circumstances, the Crown argues that the prisoner must have been aware that any physical altercation was likely to lead to at least very serious injury to one, if not both, of the men. After arriving at the deceased’s premises, he waited for nearly an hour before pulling out the knife which had been hidden in his track suit pants. The only available inference, the Crown contends, is that the deceased was taken by surprise when the prisoner pulled out the knife and the suggestion that the prisoner “showed” the deceased the knife should not be accepted. The only available inference is that the prisoner confronted the deceased with the knife.

10 Mr Smith, counsel for the prisoner, contends that the prisoner “showed” the deceased the knife not in a confrontational fashion which is consistent with his admissions to the police. Mr Smith points out that the information provided by the prisoner to police that he did not normally carry a knife is inconsistent with his criminal record and what he told Dr Westmore. The Crown has not excluded as a reasonable possibility what the prisoner says, Mr Smith argues, as to the production of the knife and the court could not be satisfied beyond reasonable doubt that it was a confrontation with the knife.

11 It is evident that the prior relationship between the prisoner and the deceased whom he had come to know through Clayton Martin (Clayton) had not been harmonious. He had been to the deceased’s house on one prior occasion during which the deceased was ‘smart’ to Clayton and the prisoner ended up saying ‘lets go’. According to the prisoner, the deceased had visited Clayton’s house where he was living probably a dozen times and had been present at most of those visits. In relation to two of these visits, the prisoner recounted in the electronic record of interview (ERISP) that a dog had been put onto Clayton and himself by the deceased which had resulted in a physical altercation between the prisoner and the deceased. On another occasion the deceased called them “fucking dogs” by which the prisoner understood him to mean they were informers.

12 Some two weeks before the murder, Clayton told the prisoner that the deceased had assaulted him and had shown him bruises. The prisoner told police that he was “really dirty” on the deceased because of the assault on Clayton and that he disliked him. On the day of the murder he had consumed a large amount of alcohol and was intoxicated. It was his suggestion that he and Clayton visit the deceased as he wanted an altercation with him. He was angry when he turned up at the deceased’s home (Q/A 410).

13 In the ERISP he said he did not normally carry a knife whereas he told Dr Westmore when asked why he had taken the knife with him:

“I’ve always had a knife because I’ve been in prison, being in protection you have to carry a knife because you can always have an altercation with someone outside”: see Exhibit B, document 10 at p 2.

14 Although the prisoner’s claim that he always had a knife gains some support from his prior criminal history which discloses three convictions for the offence of carrying a cutting weapon, in my view, he was being disingenuous in the statement he made to the psychiatrist. The prisoner detailed in the ERISP how he obtained the knife which he used in the murder. He told police that it was one of some twenty knives which he had stolen about two weeks before to exchange for “pot”. I reject the contention that the prisoner was in possession of the knife on the night of the murder as he always carried a knife. I am satisfied beyond reasonable doubt that he deliberately armed himself with the knife before he went to the deceased’s home.

15 When asked by police “What did you have the knife in your pocket for”, the prisoner replied:

“……….I don’t know, I just went there to show him at first and I don’t know, he just, it spun him out and he went funny, you know, in a way. And he grabbed it off me and that’s when he went like that”(emphasis added). (see Q/A 456)

It is plainly untrue that the prisoner just went to the deceased’s home to show him the knife. He went there to have an altercation with the deceased with whom he was angry.

16 The prisoner further told police that he pulled the knife out as he “just wanted to show him. I said……you know, this is my knife, you know what I mean?” (see Q/A 550).

17 There appears to be no good reason for the deceased to have reacted in the way the prisoner claims should the knife have been produced merely for it to be shown to him. The deceased was not unfamiliar with knives.

18 Mr Smith submitted that the deceased’s reaction may have been as a result of a bipolar disorder of which some evidence is provided by the statement of Tracie Anne Shaw, the deceased’s sister. Ms Shaw recounts in her statement that the deceased was diagnosed as a manic depressive when he was in his early twenties for which condition he was taking medication. He would get very angry, become irrational, sometimes be on a high and then in the next second would cry. However, the deceased would know when he was getting hyped up or stressed out and would try and get help on his own.

19 I do not accept that the prisoner, who was angry with the deceased and had gone to his home to have an altercation with him whilst armed with a knife concealed within his clothing, produced the knife merely to show it to him. I reject the submission made on behalf of the prisoner. I am satisfied beyond reasonable doubt that the Crown has excluded as a rational inference that the prisoner produced the knife merely to show it to the deceased. I am not however satisfied beyond reasonable doubt that the prisoner pulled out the knife with the intention to kill or to inflict really serious bodily harm.

20 The prisoner was asked (Q/A 409):

“Q. Did you want to seek an altercation with Barry about the
assault upon Clayton?

A I did yeah, I did but not like how it went” (emphasis added)

And

“Q …..did you go there with the purpose of stabbing him?

A No, not at first I didn’t” (emphasis added) (Q/A 618).

21 He had also told police that he just went there to show the deceased the knife at first. The only rational inference to be drawn beyond reasonable doubt from all the circumstances is that the prisoner produced the knife with the intention of frightening the deceased which changed when the knife was grabbed from him. I am satisfied beyond reasonable doubt that the prisoner confronted the deceased with the knife to frighten him.

Was the deceased provoked?

22 During the ERISP, the prisoner told police that upon producing the knife, the deceased grabbed it off him and slashed him with it across his knee. He snatched it back “real quick” by grabbing it by the blade. The prisoner submits that the deceased’s use of the knife against him is an act of provocation in mitigation of the murder.

23 I find on the probabilities that after the prisoner produced the knife there was a struggle during which the deceased had possession of it for a short time. The wound on the anteromedial aspect of the prisoner’s knee examined by Dr Anderson on 30 August 2005 was caused by contact with the knife after the deceased had taken possession of it.

24 During the proceedings on sentence, the features of this wound assumed significance because of the prisoner’s description of being “slashed” by the deceased with the knife and evidence was given by Dr Anderson and Dr Duflou. The prisoner had demonstrated during the ERISP the knife being brought down in what was described by Dr Duflou as “almost in an arc type arrangement”.

25 Both Dr Anderson and Dr Duflou expressed an opinion that the three lesions were consistent with abrasions. In his report, Dr Anderson opined that for a knife to cause these wounds “it would seem more likely that the tip or point of the knife was used to scrape the skin, rather than the blade cutting the skin.” Dr Anderson could not see how one motion with the knife could explain the three individual abrasions because of their partly overlapping and parallel features. He was of the opinion that it could have been two but probably three motions. He acknowledged that in a struggle there are all sorts of complicated movements and the wearing of tracksuit pants did complicate things but even with these complicating factors had “difficulty visualising how these components of this wound could be caused by one slashing motion”. Dr Duflou expressed the view that there were three separate options two of which involved more than a single motion. He opined that the three lesions could have been caused by “a single movement with associated movement of the knee while the weapon is brought against the knee”.

26 The prisoner’s injury consisted of two parallel and partly overlapping linear lesions both with scab formation above which were a discontinuous series of lesions with scab formation roughly parallel and partly overlapping the lesions below. The partly overlapping and parallel features of these lesions and their abrasive nature make it improbable, in my view, that the lesions resulted from the prisoner being slashed with a knife. It is more probable that they were caused by the knife being scraped across the prisoner’s knee during the struggle for the knife.

27 Both the prisoner and Clayton were invited by the deceased into his home although their arrival was unexpected. They consumed marihuana together and there is nothing that suggests that the deceased bore the prisoner ill will on that night. The deceased had no reason to slash the prisoner with a knife. I do not accept on the probabilities that he did so as a result of a bipolar disorder.

28 I am not satisfied on the balance of probabilities that the deceased slashed the prisoner with the knife. The deceased, I conclude, grabbed the knife when he was suddenly confronted with it by the prisoner and the prisoner’s wound occurred during the brief struggle that followed. I find on the probabilities, as the Crown contends, that the deceased’s movements with the knife for the short time he had it in his possession were defensive in nature. It follows that I am not satisfied that the prisoner was provoked by the deceased.

29 The attack upon the deceased when the prisoner regained possession of the knife was horrifying. He stabbed the deceased a minimum of 15 times to the neck and chest. Such force was used that four wounds cut into bone. The deceased’s left carotid artery, left jugular vein, windpipe, left lung and aorta were cut in a frenzied attack. The deceased’s pleas for the prisoner to stop were ignored. When he first hit the deceased with the knife, the prisoner knew he had done something bad. When asked by police (ERISP Q/A 617):

“Q. Why did you continue stabbing him if he was in a lot of pain?

The prisoner replied:

“I don’t know, I just thought, I don’t know, I thought I’d gone that far I may as well keep going.”

30 Although the prisoner denied that he meant to kill the deceased (ERISP Q/A 620), the only rational inference to be drawn from all the circumstances beyond reasonable doubt is that the intention to kill was formed following the struggle with the deceased over the knife.

31 As this is an offence to which a standard non-parole period applies, it is necessary to consider where the offence committed by the prisoner lies on the range of objective seriousness of the offence of murder although a plea of guilty has been entered: see R v AJP (2004) 150 A Crim R 575 at [18], R v Simon [2005] NSWCCA 123 at [30].

32 It is a factor in mitigation that the murder was not planned. The prisoner’s premeditation was confined to showing the knife to the deceased to frighten him. The position changed unexpectedly when the deceased grabbed the knife. The intention to kill was not formed until the prisoner regained possession of the weapon. The lack of planning is a consideration, in my opinion, which places the offence slightly below the mid-range of objective seriousness. The horrific attack which then followed significantly increases, to my mind, the objective seriousness of the offence. The attack upon the deceased was extremely violent and hideous wounds were inflicted. The prisoner knew that he had seriously hurt the deceased yet persisted in the attack disregarding the deceased’s pleas. I conclude that the offence is to be characterised in the upper half of the middle range of objective seriousness.

33 The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) of the Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (SP) Act (which authorises the passing of a lesser sentence than imprisonment for life).

34 Section 61(1) of the Crimes (SP) Act provides:

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

35 The primary focus of s 61(1) is an assessment of how extreme the prisoner’s culpability is: see R v Merritt 146 A Crim R 309 at [52]. Although the offence is very serious, the prisoner’s level of culpability is not such that his crime falls within the worst category of the offence of murder.

36 The Crown invites me to find that the prisoner has not expressed remorse for his conduct and the death of the deceased. Whilst there has been no explicit statement of remorse for the murder, it is apparent from the answers given during the ERISP that the prisoner recognised what he did was wrong and expressed some regret for his conduct. I take into account the prisoner’s co-operation with the police and his plea of guilty as evidencing contrition for the offence.

37 The prisoner pleaded guilty on 7 May 2007 on which date his trial had been listed to commence. The court had been advised during the preceding week that a plea was to be entered and a jury panel was not required. The expense of a trial estimated to take three weeks and the emotional stress and inconvenience likely to have been experienced by the deceased’s family, friends and witnesses has been avoided. A plea entered at such a late stage usually attracts a discount for the utilitarian value of the plea at the lower end of the range of 10-25 per cent.

38 The delay in the present case has been to an extent explained by Mr Velcic’s affidavit. I accept that difficulties experienced in obtaining psychiatric opinions caused delay in obtaining the prisoner’s instructions.

39 On 30 August 2005, the prisoner handed himself in to police and made extensive admissions during the ERISP. He took police to the drain where the knife was found. The prisoner’s early disclosure was plainly of use to police and enhanced the Crown case against him.

40 The prisoner is entitled to a discount for the utilitarian effect of his plea and for his contrition which I assess at twenty per cent.

41 The prisoner has an unattractive criminal history. There are convictions for many offences of dishonesty which I do not propose to detail. There are also convictions for possession of drugs, carrying cutting weapons, malicious damage and the possession of an unlicensed pistol. On many occasions terms of imprisonment have been imposed. Offences involving violence for which he has been sentenced to imprisonment are: assault (May 1983), maliciously inflict grievous bodily harm (December 1989) and robbery (August 1996). Having regard to this extensive record, I give more weight to considerations of personal deterrence and the protection of the community than otherwise would be the case: see R v McNaughton [2006] NSWCCA 242; R v M.A.K, R v M.S.K [2006] NSWCCA 381.

42 An aggravating factor is at the time of the murder the prisoner was subject to three bonds under s 9 of the Crimes (SP) Act. He was placed on these bonds for 3 years on 16 May 2003 for the offences of possession of implements to enter a conveyance, shoplifting and carrying a cutting weapon upon apprehension. A condition of each bond was that he was to accept the supervision of the probation and parole service. It is significant that one of the offences for which he had been placed on a bond involved the carrying of a cutting weapon. The prisoner abused his conditional liberty by stabbing the deceased to death with a knife. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see for example Regina v Fernando [2002] NSWCCA 28 at [40-42] and R v Ponfield (1999) 48 NSWLR 327 at [48].

43 The murder was committed after the prisoner had consumed a large amount of alcohol. He went to the deceased’s home whilst he was intoxicated and then smoked marihuana. The prisoner had a history of alcohol and substance abuse. His intoxication was not out of character for him. The three bonds to which he was subject included the condition that he accept drug and alcohol counselling. In these circumstances, the prisoner’s intoxication is not a mitigating factor although it provides some explanation as to why the offence occurred.

44 The prisoner was born on 24 March 1965 and is 42 years of age. He was 40 years old at the time of the murder. As the prisoner did not give evidence in the proceedings on sentence, his subjective circumstances are taken from the histories given to Dr Westmore and Dr Nielssen. He is the only child to his parents union and his mother was fourteen when he was born. He does not know his father. He has two half siblings from his mother’s second relationship and who he said suffer some type of schizophrenia. He claimed that his stepfather who died when he was thirteen used to bash him. The prisoner was educated to year 8 and has only basic literary skills. He was frequently expelled or suspended from school and was placed in juvenile facilities. He escaped from Mt Penang to Queensland where he lived until apprehended. The prisoner started smoking cannabis at the age of thirteen and later used other drugs mainly heroin. He has a work history limited to short periods in casual employment. Due to his frequent periods of imprisonment, he told Dr Westmore that he had become “institutionalised”. Dr Westmore thought he was of below average intelligence and had probably suffered periods of depression in his past, probably from his childhood years. His psychiatric diagnosis included alcohol and substance abuse. When in the community, he said he would drink alcohol on a daily basis. Following his release from custody on 17 December 2004, he was becoming intoxicated on a daily basis and was abusing minor tranquillisers and Rivotril. He currently takes methadone. The prisoner reported an extended period of nocturnal enuresis which lasted into his early twenties. Dr Westmore observes that this is a most unusual history and suggests significant psychological disturbances when the prisoner was a boy, adolescent and young adult. For nocturnal enuresis to extend into early adulthood, Dr Westmore states is very unusual. His frequent incarcerations and his own observations about probable institutionalisation are all matters, Dr Westmore states, which will need to be carefully considered when he is eventually provided with some counselling and rehabilitation. He was, Dr Westmore opines, probably a very disadvantaged child and that early disadvantage has impacted very adversely on his subsequent personality development and the later life style he adopted.

45 Dr Nielssen expressed the opinion that the prisoner has a severe substance abuse disorder and was intoxicated with alcohol at the time of the offence. He estimated his intelligence to be in the lower part of the normal range.

46 I accept that the prisoner’s personal circumstances have been difficult and disadvantaged. It appears, however, that he has done little in the past to assist in his own rehabilitation. His failure to take advantage of the drug, alcohol and psychiatric counselling opportunities which have been previously available to him as conditions of release on parole or on a bond and his history of re-offending lead me to conclude that his prospects of rehabilitation are poor.

47 A victim impact statement was read to the court by Ms Tracie Shaw. The contents of the statement cannot be used by me to increase the prisoner’s sentence. I acknowledge the grief and distress by the deceased’s family and express on the community’s behalf its sympathy and compassion for them.

48 The prisoner has been in custody for the offence since 30 August 2005. Accordingly the sentence will commence on that date.

49 The appropriate, undiscounted starting point of the overall sentence, I conclude, is 30 years. The overall sentence is reduced by 20 per cent to 24 years.

50 Mr Smith contends that the community interest in the prisoner’s rehabilitation and the need to acquire social skills through programs available within the correctional system can be advanced by finding special circumstances. There are no positive signs in the case of the prisoner which show that if allowed a longer period on parole, rehabilitation is likely to be successful, and not merely an optimistic hope: see R v Carter [2003] NSWCCA 243. I do not consider that “special circumstances” exist which justify the balance of the term of the sentence exceeding one-third of the non-parole period.

51 William Andrew McDonald for the murder of Barry Shaw, I convict you. I sentence you to a term of imprisonment with a non-parole period of 18 years which is to commence on 30 August 2005 and is to expire on 29 August 2023. I set a balance of term of 6 years which is to commence on 30 August 2023 and will expire on 29 August 2029.

52 You will be eligible to be released on parole on 29 August 2023.

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