Regina v Robinson

[2007] NSWSC 460

CITATION:	REGINA v ROBINSON [2007] NSWSC 460
HEARING DATE(S):	01/12/06; 02/03/07; 13/04/007; 27/04/07
JUDGMENT DATE :	11 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Hall J at 1
DECISION:	For the murder of Kelly Lorraine Hudson, I sentence you to a non-parole period of 16 years to commence on 28 June 2005 and to expire on 27 June 2021. The balance of your term of imprisonment will be five years, expiring on 27 June 2026, a total sentence of 21 years. The earliest date on which you will be eligible for release on parole will be 27 June 2021.
CATCHWORDS:	CRIMINAL LAW – SENTENCING – Murder – Intent – Level of objective seriousness – Intoxication – Aggravating Factors: Injury, emotional harm, loss or damage caused by offence was substantial - Offence was committed while offender on conditional liberty in relation to an offence or alleged offence - Victim was vulnerable - Offence part of a planned criminal activity – Plea of guilty – Remorse – Rehabilitation – Subjective factors – Standard non-parole period – Deterrence – Crimes (Sentencing Procedure) Act 1999 (NSW) – Crimes Act 1900 (NSW)
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	R v Berg [2004] NSWCCA 300 R v King [2004] NSWCCA 444 R v MMK [2006] NSWCCA 272 R v O'Connell [2004] NSWSC 1120 R v Previtera (1999) 94 A Crim R 76 R v Reid [2005] NSWSC 230 R v Scott [2003] NSWCCA 286 R v Tadrosse [2005] NSWCCA 145 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Williams [2005] NSWCCA 99
PARTIES:	REGINA v ROBINSON, Dalley Stuart
FILE NUMBER(S):	SC No. 2006/1844
COUNSEL:	Crown: T Hoyle SC Offender: G W Turnbull
SOLICITORS:	Crown: S Kavanagh Offender: Bale Boshev Lawyers

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

HALL J

FRIDAY 11 MAY 2007

No. 2006/1844

REGINA v. DALLEY STUART ROBINSON

SENTENCE

1 HIS HONOUR: Dalley Stuart Robinson, and I will refer to him throughout these remarks as “the offender”, was charged by way of indictment that on 28 June 2005 at Bexley North in the State of New South Wales, he did murder Kelly Lorraine Hudson.

2 The offender, through his legal representative, indicated to the Local Court that a plea of guilty would be entered on the next occasion. On 8 August 2006, he pleaded guilty to the charge before the magistrate. He was committed to this Court for sentence.

3 The offender was born on 5 June 1973. He was therefore 32 years of age at the date of the offence and is now 34 years of age. He and the victim had lived in a domestic relationship for approximately 11 to 12 years. They had two children, aged six years and 10 years as at the date of the offence. Ms Hudson had a son from a previous relationship who was aged 15 years at that time.

4 The level of culpability in the commission of the offence by the offender is, in part, dependent upon the relevant findings of fact to be made in relation to the circumstances in which the offence occurred. That, in turn, requires close consideration to the offender’s own account or accounts given, firstly, to police during the electronically recorded interview held on 29 June 2005 and, secondly, to his evidence given in these proceedings. It also requires consideration to other evidence to which I shall shortly refer.

5 I have viewed the videotape of the electronically recorded interview, which reveals something as to the offender’s capacity to respond to questions in considerable detail. The manner of giving his responses in the interview did not, while it proceeded, reveal a lack of understanding. He, however, requested the interview be suspended when questions were directed as to the precise events as to what occurred in the lead up to his attack upon Ms Hudson. A similar observation was made in the pre-sentence report dated 2 March 2007 (Exhibit E) which records that there was some reservation in the offender accepting that he had come to a full acceptance of his actions, it being noted that he claimed to have minimal recall pertaining to the attack and its ferocity, although he appeared capable of recalling other detailed facets of information leading up to the offence.

6 It has been submitted on behalf of the Crown that the offender went to the victim’s flat with the intention of killing her. The Crown submitted that the offender has not given a truthful or reliable account of the events leading up to the victim’s death (written submissions, paragraph [16]). In this respect, the Crown submitted that the offender’s assertion that he went to the victim’s unit with her agreement to discuss the future arrangements for the children was unbelievable, given the context of the relationship that existed at the relevant time between her and himself.

7 In his written submissions, the Crown submitted as follows:-

“39. It is submitted that the objective seriousness of this case takes it beyond an offence that falls within the ‘middle range of objective seriousness’ for murder:-
• the offence was premeditated;
• it involved a high degree of violence;
• it was committed when the offender was subject to court orders restraining him from approaching the deceased;
• was committed in the context of domestic violence.”

8 On behalf of the offender, it was submitted that the objective seriousness of the offence is to be considered in the light of the facts relating directly to its commission, including those that may explain why it was committed (written submissions, paragraph [4]). It was contended by Mr. Turnbull, on behalf of the offender, that the offence in question does not fall into the mid-range of seriousness in light of the facts set out in paragraphs (a) to (k) of paragraph [5] of the written submissions, namely:-

“(a) limited, if any, pre-planning,
(b) the offence was not committed in cold blood but in the context of heightened emotion leading to impeded thinking, whilst not at a high level to afford a defence to the charge, nevertheless a significant level such that it impinged on the mens rea of the offender,
(c) the killing was followed by an immediate expression of remorse and thereafter a desire for self-harm,
(d) the accused had no sensible exit strategy sufficient to avoid detection, or to realise any misguided ambition in relation to his children,
(e) the question of intention to kill or grievous bodily harm cannot be resolved adverse to the offender on the evidence,
(f) the fact of killing was effected over a short space of time and, whilst frenzied, did not involve gratuitous cruelty or humiliation,
(g) there was an incapacity to sufficiently advert to the harm,
(h) access to the weapon used was opportunistic – it was not brought by the offender to the scene,
(i) there was some degree of intoxication,
(j) it was not part of a planned or organised criminal activity sufficient to attract the operation of s.21A,
(k) the injury, emotional harm, loss or damage caused by the offence was not substantial to the victim’s family.”

The facts

9 I observe here that before any matters of fact may be used adversely to the offender, I am required to be satisfied of such matters to the criminal standard of proof. In relation to matters that go to mitigation of the offence, however, then it is sufficient that I be satisfied of such matters on the balance of probabilities.

10 The offender gave evidence in the proceedings on sentence. The material tendered by the Crown included a statement of Kelly Hudson to police dated 21 June 2005 and transcript of an electronically recorded interview by police with the offender on 29 June 2005. The relevant facts may be divided into three categories to which I will now relate:-

(1) The relationship in the months prior to the offence

11 The relationship, as the offender conceded, was marked by verbal and physical aggression perpetrated by him upon Ms Hudson. It is unnecessary to recount the full detail of that history over the period of the relationship. The part of the history that is most relevant is that which occurred closer in time to the offence. In relation to the earlier history, however, it is sufficient to say that in a statement dated 30 October 1998 (Exhibit B), the victim recorded that she had a “on again off again” relationship with the offender for about four years as at that time in which she said she suffered emotional and physical abuse from him. Reference is made by the victim in that statement to physical beatings in late December 1997, early January 1998 when the victim was pregnant. There was argument, according to her, about the offender’s desire that she have an abortion.

12 In relation to the more recent events, the victim provided police with a statement dated 21 June 2005, that is, approximately a week before she was murdered. That statement formed part of the materials within Exhibit A.

13 The material events related in that statement may be summarised as follows:-

(a) In the first week of the Easter school holidays in 2005, the offender head butted the victim whilst she was ironing causing pain to her head and injury to the bridge of her nose. The offender, according to the statement, then spat on her. These events occurred in front of the older child who was then 10 years of age.

(b) Later that same evening, the offender hit the victim on the nose causing her head to fling backwards. Blood ran down her throat from her nose. At this time, the victim recorded in her statement:-

“I was too scared to call the police. Dalley has said in the past that if ever I take the girls off him he would kill me …”

(c) Approximately two weeks before 21 June 2005, the offender pushed a table towards the victim in a rage. He dragged the victim along the ground on her back down the hallway and into the bedroom and proceeded to hit her. He kicked her on the ground and in the back. He placed his foot on her head and threatened “if you ever try and take these kids away from me, I’ll kill you. They deserve a better life” . The victim was left with a sore left ear and marks on her forehead (on the left side) and carpet burns on her back from being dragged by the offender.

14 In the statement of 21 June 2005, which I consider to be reliable, the victim also recited many instances of verbal and other physical abuse in the period leading up to 28 June 2005.

15 In cross-examination, the offender agreed that the criminal charges that were brought against him related to assaults that he had committed upon the victim over the previous two or three weeks prior to the charges. In cross-examination, he accepted that he had been guilty of assaulting the victim.

16 The statement of facts, Exhibit A, records a work supervisor noting on 21 June 2005 scratches to the right side of Ms Hudson’s neck and that the victim was crying uncontrollable. She said to him “I can’t live like this anymore”.

(2) The events concerning the AVO proceedings in the Newtown Local Court

17 At approximately 4.30 pm on 21 June 2005, police arrested the offender and interviewed him in relation to the assaults alleged by the victim to have been committed upon her. Following the interview, he was charged with four counts of assault of the victim and one count of maliciously damaging her property.

18 A telephone interim Apprehended Violence Order was obtained by police from a magistrate. The order prohibited the offender from approaching the victim either at her home or place of work. The order was served upon the offender at about that time.

19 In evidence, the offender stated that, following his arrest, he had resided, firstly, with a friend and then for most of that week at the hotel to which I have referred. On the Sunday, the day before the proceedings again at Newtown Local Court, Ms Hudson had gone to work and the children were in the custody of the offender. The victim rang to say that she had finished work earlier than expected and that the children wanted to see a movie. She picked up the children and she, with the offender, attended the movie. That evening, after dinner, the victim left and stayed at her mother’s house where her son was also then living with a view to returning in the very early hours of the morning on 27 June in the expectation that the offender would, by then, have gone to work.

20 He appeared at Newtown Local Court on 27 June 2005 when the four counts of assault and the maliciously damaging property came before the Court. The proceedings were adjourned, on the offender’s application, to Monday 11 July 2005. Bail was ordered to continue. It was a condition of bail and a term of the Apprehended Violence Order that the offender was not to engage in contact with the victim and, in particular, was not to enter the premises in which she resided in or in which she worked.

21 A reading of the transcript of the proceedings of 27 June 2005 discloses that the offender clearly understood the restrictions that operated upon him and he agreed in cross-examination in these proceedings that he did understand the effect of the apprehended violence order. He also conceded that within hours of the Local Court ordering the continuation of the apprehended violence order, he knowingly and deliberately breached it by entering the victim’s unit on the evening of 28 June 2005.

22 Later on the day of the hearing, that is, at about 4.30 pm, 27 June 2005, the offender attended Marrickville Police Station and told Senior Constable Narrelle Hall that the victim had texted him and he wanted her charged.

23 Senior Constable Hall then spoke to him and told him that it had been stated in Court that day that the AVO did not prevent arrangements for access being made by telephone. Senior Constable Hall emphasised that the offender’s mother should pick up and drop the children back to the victim, emphasising that he could not go there by himself and that it was important that he understand that because otherwise he would be arrested. The offender said, “Fine, I won’t. Whatever”.

24 The offender took a room at the Bexley North Hotel, which was situated directly opposite the victim’s unit.

25 The offender was asked in his evidence in chief as to whether or not he had discussed the court proceedings with the victim before going to court on Monday 27 June 2005. He admitted that they had had such a discussion. The offender said that it was his expectation before he arrived at Court that day that he was going to plead guilty to the charges and that the victim was “going to endeavour to get the AVO dropped”. This evidence does support an inference that the offender had sought to persuade the victim to that end, even though he was reluctant to concede as much in evidence.

26 The offender denied putting pressure on the victim to drop the AVO proceedings. He said he was simply trying to “work out something was going to (be) beneficial to everyone”.

27 I am unable to accept this statement as truthful evidence. What emerges plainly from the evidence is that in the weeks and months preceding 28 June 2005, the offender, at no stage, acted in a way which was “beneficial” to Ms Hudson, he having, on his own evidence, assaulted and intimidated her often in the presence of the children. Immediately before denying that he endeavoured to persuade or put pressure on the victim to drop the AVO proceedings, it was put to him in cross-examination in these proceedings (transcript, p.46):-

Q. Look, you treated her like dirt, didn’t you, in the weeks leading up to you being charged, correct? A. Some of my actions, yeah, yeah without a doubt.”

28 The evidence, in my opinion, well supports the inference that the offender had endeavoured to have the victim drop the AVO proceedings. When the victim did not, he was enraged at the fact that events at Court on 27 June went against his expectations and wishes.

29 The offender said that he had received messages and phone calls from the victim on the morning of 27 June 2005 that indicated that she was irate. In his evidence, he admitted that when he went to court he was “angry”. He added “… I couldn’t understand how things had turned out the way they did after what I’d thought was progress made the week prior”. He said he was angry, upset and confused when he left the court.

30 He said that he went to his mother’s place and then to the pub and “got on the drink”. He said that he did not sleep that night and his mind “was still racing”. He went to work the next morning at 4.00 am and then after work went back to the hotel and “got back on the drink again”. He said he spent the afternoon drinking at the hotel, and his evidence indicates he did so as an angry brooding man.

(3) The events leading to the offence

31 These events may be dealt with under a number of subject matters as follows:-

(a) The question of the offender’s intoxication

32 The offender was challenged over the inconsistency in his accounts as to how much alcohol he had drunk before the offence. In the record of interview held on 29 June 2005, he told police that before making contact with the victim by telephone, on the evening of 28 June 2005 he had consumed six schooners of beer. He told interviewing police that he considered he was “slightly” intoxicated at the time he entered the victim’s flat that evening.

33 In his evidence in chief, he stated that he consumed at least three schooners of beer an hour from the time he got there until the time he left, that is, between approximately 11.30 am and at least 6.00 pm. He gave a similar history to psychologists who made the psychological report (Exhibit 2).

34 He was challenged in cross-examination on his account in evidence that he had drunk that afternoon something in the order of three schooners of beer every hour or approximately 20 schooners of beer. Dr Westmore, it is noted, records in his report that he told the doctor that on the day of the offence “he may have had eight schooners …”. Dr Westmore saw him on two occasions, 20 July 2005 and 8 June 2006.

35 He was also challenged on his claim in evidence that he was unsteady on his feet and would have been slurring his words due to the effects of alcohol in contrast to his statement to police that he estimated that he was only “slightly” affected. The version of having consumed approximately 20 schooners appears, it seems recorded the first time, in the pre-sentence report dated 2 March 2007 (Exhibit E).

36 I will return later in these remarks to the question of the offender’s intoxication.

(b) Telephone contact made by the offender with the victim – discrepancy in the offender’s evidence

37 In the early evening of 28 June 2005, at about 6.30 pm, the offender telephoned the victim’s mobile phone. An inconsistency emerged in the offender’s account to the police in the interview and his evidence to this Court. He told police that, on the evening of 28 June 2005, he rang the victim once, not twice, as he recounted in evidence. In his interview, he stated that the purpose of contacting her was “to speak to her and to speak to the children”.

38 He claimed that the victim responded, “not a problem”. The arrangements were that she was going to bring the children and meet him at his mother’s house. It was then that he said to police that he saw the children and “then I went up to see her”.

39 In his evidence, he gave an account of not one but two telephone communications with the victim. In evidence, he said that on the Tuesday afternoon “… I rung Kelly on her mobile. I asked if I could have some contact with the kids, I wanted to see the kids”.

40 He agreed that he knew it was wrong to be making contact with her. He said when he made the call he asked if the victim could drop the children off at his mother’s place and that she said that that was not a problem.

41 He then stated that after the phone call he stayed at the hotel, had a couple more drinks “… stewed on a little bit more, made another phone call to Kelly’s mobile again”. He also gave a history of two calls to the psychiatrists (Exhibit 2) in which history he said he requested to speak to her at the unit.

42 The offender said that on this occasion he spoke to Ms Hudson when she was in the car on her way to drop the children off at his mother’s house. Unlike his version to police, he said that in the second call:-

“I asked if I could have words with her. I didn’t understand what was going on. She said ‘look, I’m in the car driving. We can talk, but I’ve got to get off the phone, I don’t want to get pinched’ sort of thing. I said, ‘fine, I’ll speak to you later on’ and that was that.”

43 The more recent account of two phone calls and the victim’s alleged ready compliance with his request to speak to her stands in significant contrast to the version he gave to police. This inconsistency to which I have referred is a matter that, in my opinion, undermines the offender’s reliability and credibility.

44 Other evidence, of course, indicated how unlikely it was, given the events that preceded it, that Ms Hudson would, late on 28 June, have been so willing to enter into discussions with the offender, as he suggested. Whilst it is clear that she agreed to take the children that evening to his mother’s place to meet him, the statement of facts (Exhibit A) records that, after Ms Hudson received the phone call from the offender, she appeared to be very upset and was unable to eat her dinner and told her mother “I don’t know what he is going to do”. Mrs Lesley Hudson told the victim not to go but the victim told her to keep out it. She then left her parents’ home at about 7.15 pm with the two children.

45 I am unable to accept the offender’s evidence that, if indeed there was a second alleged phone call, that Ms Hudson willingly agreed to his claimed suggestion of meeting to have a conversation. I, accordingly, reject his version that she expressly consented to meeting with him.

(c) The direction to the children to say goodbye

46 In his record of interview, the offender said that it was approximately 15 or 20 minutes after he took the children to his mother’s home that he then walked to her unit.

47 The eldest daughter gave an account when interviewed by police that when their mother delivered them to the offender’s home that evening:-

“Q209 What happened when she dropped you off? A. He just said, like, just tell your mum love you, love you, two, two or three times or four.”

48 In an answer to a later question in that interview, she said:-

“A220 To tell us to tell mum, say goodbye and love you, love you about three or four times.”
Q222 Was that normal? A. No.
Q223 Did he normally say that? A. He’d just, like, say it once.”

49 The offender, in his evidence in chief, stated that when the victim dropped the children off and they got out of the car “I asked the kids to say goodbye to their mother, told her that they loved them (as said) like I always do, got the kids. I said, ‘I’ll see you soon, Kel’ and that was that”. Whilst the direction to the children to say goodbye to their mother could bear a sinister meaning, I do not consider the evidence would enable me to conclude beyond reasonable doubt that the statements attributed to the offender may be taken as evidence of an intention to kill.

(d) The offender’s anger

50 His evidence was that his initial arrest by police on 21 June 2005 took place in front of other parents who were picking up their children from the school and “I was pretty upset and pretty angry”. It is clear that being charged, arrested and made subject to an apprehended violence order set off in the offender a high level of anger. That anger escalated or re-surfaced at and following the events of 27 June at Newtown Local Court. The offender conceded that he was particularly angry when he had gone to the court on 27 June. When he realised that the victim wished to have the continued protection of the apprehended violence order, his level of anger once again escalated. He said when he left the court, “I was angry, I was upset, I was very confused” (transcript, p.25).

51 During the afternoon of that day, he said he “stewed on a little bit more” (transcript, p.28) and had been working out some questions that had “been mulling over in my head” which he wanted to put to Ms Hudson.

52 The evidence indicates that as the day wore on 28 June 2005, the offender was fixated upon the events of that day and was maintaining his anger. When he went about 4.30 to the police station and spoke to Senior Constable Hall he agreed that he was then angry and that he left the police station “upset”.

53 In the early evening when he telephoned the victim, he conceded that he was “upset”. It is clear that he had been ruminating or, as he put it, “stewing”, over the events all day and this was associated with his decision to make contact with the victim.

54 When asked in cross-examination why he could not have any discussions with her at his mother’s place, whether inside or outside, he was unable to provide what he termed “a logical explanation”. Of course, as the Crown also observed, had he wished to speak to Ms Hudson, he could easily have done so by telephone.

55 He said that he just wanted to ask “the questions that were confusing me, that made me upset”. To start, he said it was “just a normal conversation” and then things “began to get agitated” and deteriorated from that point. In the lead up to him punching the victim in the face and then stabbing her, the offender stated “I can tell you that I was asking questions in relation to how come things went so sour the week prior” (transcript, p.79). This statement supports the inference that the offender had indeed been endeavouring to have the victim drop the AVO proceedings and for her to possibly have the charges dropped.

56 The offender’s evidence was that he gained entry into the unit by the use of a key that he still had in his possession. He said he went upstairs and started speaking to the victim adding, “everything was civil to begin”. He said that the victim then began to get agitated with the questions he was asking and then he became agitated. He said things got heated and that he began to get dramatic, telling her that she had ruined his life. He said that he went into the kitchen and grabbed the knife and returned to the lounge room with it and said, “here, if you’re going to do this to me, you might as well stick this through my heart now” (transcript, p.31).

57 The offender, at a mid-point in the police interview on 29 June 2005, requested the interview be suspended. He declined to go into any detail with police as to what had happened when he entered the victim’s unit on the night he killed her. There is no earlier recorded account of him having grabbed the knife and suggesting that the victim might stab him. Although Dr. Westmore in his report of 29 June 2006 stated that he did not include the detailed history of events leading up to the incident, the account as to the lead-up to the stabbing given to him by the offender as set out in his report does not include any reference to any dramatic incident in which the offender suggested to the victim that she might stab him.

58 In his evidence in chief, the offender stated that the victim actually grabbed the knife off him and put it on the lounge. He said that soon after he punched her in the face. In cross-examination he had said that he had not previously punched her with a closed fist as he did on 28 June 2005. On this occasion, he punched her with sufficient force to cause her to fall to the ground backwards. The severity of this incident and the injury it inflicted, is itself, suggestive of extreme anger. The offender said that the victim got off the ground and came towards him screaming. It is then that he said he grabbed the knife off the lounge and stabbed her.

(e) Threatening statements

59 It was put to the offender in cross-examination that on a number of previous occasions he had said to the victim that if she or any other person stood in the way of him having access to the children he would kill them. He obfuscated and would not make any concession that he had actually made a statement to the victim to that effect. He did, however, agree that when he was in a rage and confronting the victim he had said “a lot of nasty things” (transcript, p.51). I consider that Ms Hudson’s statement that he had previously threatened to kill should be accepted, her statement in relation to other matters referred to therein being shown to have been correct.

(f) The offender’s plan

60 The Crown submitted that the offender’s request to have the children delivered to his mother’s house was a ruse or a contrivance to be able to separate the children from their mother so that he would then be in a position of being alone with her.

61 The offender’s account for the reasons as to why he requested the children to be brought to his mother’s home (namely, so he could see them) is itself highly improbable. He had only seen them the day before. He had been consuming alcohol during the day, on his account, At that hour of the night (7.30 pm) the children would normally be home settling down for the evening, the next day being a school day. The offender failed to offer any plausible explanation in evidence as to why it was that he had made the request so late in the day and so soon after the events of the previous day. His mother’s statement (Exhibit C) records that he asked her to look after the children so he could talk to Ms Hudson. There is, in my opinion, adequate support in the evidence for the Crown’s submission, and I find beyond reasonable doubt, that the offender’s request for the children to be brought to him was a ruse in order to be able to separate the victim from the children and then approach her when she was alone in the unit.

(g) The attack upon the victim

62 Exhibit A contains the autopsy report which states that the condition leading to death was multiple stab wounds of the trunk. At autopsy, 11 stab wounds were observed with associated injuries to the lungs, heart, major vessels and airway. There were also stab/incised wounds to the forearms, bruising with laceration to the nose and multiple bruises to the upper and lower limbs. The pathology summary also refers to several linear abrasions on the left side of the neck and bruising of the left side of the neck.

63 The wound depths of the various stab wounds ranged, in the case of some, between 15 and 20 millimetres, with others being 40 to 50 millimetres and a wound of 80 millimetres in depth. The nature, extent and number of wounds and other injuries to the victim have all the hallmarks of a determined and brutal attack.

Findings

64 On the evidence, this is not a case in which the offence simply occurred during an angry outburst in the course of a domestic dispute. The offender, initially angry at being arrested and charged, became increasingly angry and incensed when he realised on 27 June 2005 that the victim was proceeding with the AVO proceedings. Brooding in anger throughout the day, he developed and carried out a plan to separate Ms Hudson from the children and then to confront her in her unit when he knew she would be alone.

65 Although he denied, when it was put to him by the Crown Prosecutor, that he went to the victim’s unit to exercise power and control over her, as he had done in the past and, if necessary to kill her if she did not drop the AVO proceedings, I conclude that the evidence does support beyond reasonable doubt that he went there intending to commit violence upon her.

66 The evidence, in my opinion, establishes beyond reasonable doubt the following in relation to the events leading up to the victim’s murder:-

(1) On 27 June 2005, on hearing that Ms Hudson was proceeding with the proceedings to continue the apprehended violence order, the offender reacted with a high level of anger. This followed his initial anger at having been charged by police a week earlier.

(2) The offender retreated to the hotel, drinking and preoccupied with the events of that day in his much angered state and ruminating over the events which he considered would disrupt his access to the children.

(3) He determined, within hours of the order continuing the interim apprehended violence order, that he would approach the victim knowing that to do so was in breach of the AVO and bail conditions.

(4) The offender engaged in a calculated course of conduct involving a stratagem to have the children delivered to his mother’s home in order to separate them from the victim and then gain uninvited entry into the unit knowing that the victim would then be alone.

(5) That whilst in the unit with the victim, the offender embarked upon a ferocious attack whereby he intended to kill her.

67 The offender’s explanation for wanting to speak to the victim on 28 June 2005, namely, to try and work something out that was “going to be beneficial to everyone” is inconsistent, as earlier mentioned, with the history of the offender’s conduct towards Ms Hudson which was repeatedly marked by violence towards her and no consideration for her wishes or welfare. He conceded that he knew that the victim would be terrified of him. His deliberate actions in breaching the bail conditions and the AVO and entering the unit was the prelude to the violent course of conduct that occurred once he had gained entry.

68 The evidence does not establish that the offender brought the knife to the premises. For reasons he was unable to explain, after he had killed the victim, he removed his clothes, which were covered in blood, and placed them and the knife in a plastic bag. He said that he left the premises and took the bag and its contents with him in the car, which he then proceeded to drive to Coogee. His evidence was that he subsequently placed the bag and its contents in a bin, but he was unable to say where that occurred.

Pre-sentence custody

69 Following the offender’s arrest on 28 June 2005, bail was refused. He has, accordingly, been in custody exclusively in relation to this matter since 28 June 2005.

70 Section 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the Court must take into account any time which an offender has been held in custody in relation to the offence to which the sentence relates.

71 The Crown has submitted that the sentence should commence on and from 28 June 2005. I have no hesitation in accepting the Crown’s submission in this respect.

72 Section 21A of the Crimes (Sentencing Procedure) Act requires the Court to take into account in determining the appropriate sentence, both aggravating and mitigating factors.

Aggravating factors

(a) The injury, emotional harm, loss or damage caused by the offence was substantial (s.21A(2)(g))

73 The Victim Impact Statement of Vicki Hudson dated 2 March 2007 was read by her. I have examined the statement and, in doing so, have regard to the provisions of the Crimes (Sentencing Procedure) Act and the decisions of the Court of Criminal Appeal in Regina v Previtera (1997) 94 A Crim R 76; Regina v Berg [2004] NSWCCA 300 at [43] and Regina v King [2004] NSWCCA 444 at [171]. In accordance with established principle, I must approach my sentencing task objectively and dispassionately. However, in saying that, I do not in any way leave out of account that the dominating feature of any conviction for murder is that the person convicted has caused the death of another human being with the sad and often traumatic consequences that commonly flow from such an event.

(b) The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence: s.21A(2)(j)

74 The Crown submitted that the offence was especially aggravated by reason of the breach by the offender of the interim apprehended violence order. It was submitted that there was more than a failure to comply with the bail undertakings to stay away from the victim and to be of good behaviour. The breach, it was said, amounted to a deliberate and contemptuous disregard for an order of a court that resulted in the victim being attacked inside her own home at a time when she believed that she had the protection of the interim order. Both general deterrence and denunciation were said to be material factors in this respect.

75 The evidence establishes that the offender was fully aware of his obligations not to approach the victim at her home and that he deliberately acted in contravention of the interim apprehended violence order and in breach of the bail conditions in doing so.

76 On the findings which I have made and recorded earlier, the purpose for his wilful breach was to approach the victim in order to intimidate and perpetrate violence upon her. I accept the Crown’s submission that the objective seriousness of the offence is to be evaluated having regard to the fact that the offence was committed whilst the offender was on conditional liberty and that this does constitute an aggravating factor and is relevant to general deterrence and denunciation of his conduct.

(c) The victim was vulnerable (s.21A(2)(l))

77 Vulnerability, within the meaning of s.21A(2), arises by reason of any particular state or condition (eg, the victim was very young or very old or had a disability or because of the victim’s occupation (eg, taxi driver)). Whilst in a general sense, the victim was always vulnerable to the offender’s intimidation and violence, that is not the vulnerability to which the provision relates. This is evident from the Court of Criminal Appeal’s judgment in Regina v Williams [2005] NSWCCA 99. There, Buddin J, with whom the other members of the Court agreed, stated that, in a case in which the sentencing judge concluded that the deceased was vulnerable upon the basis that the applicant was a powerful man who had violent tendencies, whereas the deceased did not have such characteristics, those were matters that were relevant to an assessment of the objective gravity of the offence. However, it was held that it should not have been treated as a factor which further aggravated it. His Honour observed that, in any event, all victims of a homicide can be said to be vulnerable and that s.21A(2)(l) is not directed to vulnerability in the generalised sense.

78 The approach taken by Buddin J in Williams (supra) was confirmed by the Court of Criminal Appeal in Regina v. Tadrosse [2005] NSWCCA 145 and Regina v MMK [2006] NSWCCA 272.

79 The Crown submitted that because of the ongoing domestic violence and abuse at the hands of the offender in circumstances where she was incapable of defending herself or asserting her rights and being a woman and smaller and did not fight back, that some allowance should be made by reason of this factor.

80 For reasons earlier mentioned discussed, I am unable to accept that submission in this respect.

(d) The offence was part of a planned criminal activity: s.21A(2)(n)

81 As mentioned earlier in these remarks, the Crown submitted that the offender went to the flat with the intention of killing the deceased. His account, the Crown contended, was neither truthful nor reliable as to the events leading up to her death.

82 I have earlier made findings in relation to these events. I am satisfied on the evidence beyond reasonable doubt that the offender went to the victim’s unit with the intention of causing grievous bodily harm to her. I am also satisfied beyond reasonable doubt that once inside the unit, the offender formed the intention to kill Ms Hudson. Accordingly, the offender’s planning of the offence is to be taken into account in assessing the objective seriousness of the offence. As Davidson AJ in Regina v O’Connell [2004] NSWSC 1120 observed at [70], much depends upon what is meant by the term “premeditated” and that it does not necessarily involve long and careful planning. In that case it was determined that at some stage during the course of events leading to the death of the deceased, the offender formed the intention of killing her. In that case, as in this case, the potentiality for violence existed well prior to the commission of the offence and the offender acted on the occasion in question to give vent to that potentiality.

Plea of guilty

83 In passing sentence for an offence for an offender who has pleaded guilty to that offence, the Court is required to take into account the fact that the offender has pleaded guilty and when the offender pleaded guilty or indicated an intention to plead guilty and may accordingly impose a lesser sentence than it would otherwise have imposed: s.22(1), Crimes (Sentencing Procedure) Act 1999 (NSW).

84 I have had regard to and I apply the principles stated by the Court of Criminal Appeal in relation to discounts for pleas of guilty in Regina v Thomson & Houlton (2000) 49 NSWLR 383. In that case, the Court of Criminal Appeal explained the reasons why a plea of guilty should attract a lower sentence. The reasons are identified, firstly, as being that the plea is a manifestation of remorse or contrition. Secondly, the plea has a utilitarian value to the efficiency of the criminal justice system. Thirdly, in particular cases, there can be a particular value in avoiding the need to call witnesses, especially victims, to give evidence.

85 However, although the range for a discount for a plea on sentence is 10 to 25%, an early plea does not necessarily lead to the conclusion that a discount of 25% must be given. It is true that a plea of guilty to a charge of murder is a very significant matter to be taken into account. On the other hand, Regina v Scott [2003] NSWCCA 286, Howie J (Tobias JA and Shaw J agreeing) stated at [28]:-

“There is nothing in Thomson & Houlton that required his Honour to give a discount of twenty-five percent simply for the utilitarian aspect of the plea standing alone, particularly, where there would have been nothing complex about the issues in the trial had it proceeded. The only matter that appears to have been in dispute on the first count in the indictment was the intention to murder. It has to be emphasised, once again, that the range of discounts referred to in the guideline judgment is a guideline. It creates no presumption of, or entitlement to, a particular discount in a given situation.”

86 The facts of this matter are such that there was highly incriminating evidence and it can be said that there would have been nothing complex about the issues had the matter proceeded as a defended trial.

87 In all the circumstances, I consider that an appropriate discount for the offender’s early plea of guilty is 20%.

Remorse

88 Pleas of guilty are often taken as evidence of remorse. Certainly they are consistent with remorse, but as has been observed, given the discount available for pleas, they are often inspired, in whole or in part, by an accused making the best of a bad situation. In Regina v Reid [2005] NSWSC 230, Hulme J at [86] made such a point. As there stated, remorse is not necessarily the most probable inference or justified from the fact of a plea standing on its own.

89 The offender has expressed his remorse and contrition in his evidence. I, however, have regard to the extent to which he has not been completely forthcoming either with police or in his evidence as to precisely what occurred prior to stabbing the victim. I also have in mind the statement made in the pre-sentence report:-

“Whilst Mr Robinson appeared to provide various self-reflective insights into his offending behaviour, and offered what may constitute a degree of plausible victim insight/empathy, this Service is ambivalent at this juncture regarding the offender’s thorough level of awareness and acceptance of his action. Such speculation is noted, given Mr Robinson’s claims that he possessed minimal recall pertaining to his attack upon the victim (and its incumbent ferocity), albeit appear incapable of recalling other detailed facets of information leading up to the offence, irrespective of alcohol impairment …”

90 I consider in all the circumstances that the offender has established that he is remorseful for his crime, to some extent, but that his expressions of remorse are qualified by the fact that he has, in my assessment, refrained from a full disclosure and acknowledgment of the events immediately preceding his attack upon the victim.

91 I, accordingly, do give some, but limited, weight to his evidence given of remorse in determining the sentence to be imposed.

Rehabilitation

92 In relation to the question of rehabilitation, there is no clear affirmative statement whereby one could comfortably make any forecast or assessment. I have previously referred to the offender’s good conduct and constructive activities whilst in custody. Those are favourable matters that provide some prospect of the offender being rehabilitated, although it is difficult to say to what extent. No doubt, following release, his conduct will be very much dependent upon the extent to which he can control alcohol and substance abuse and his ability to control his anger and impulsive tendencies. I have, however, had regard to the favourable matters which do support some prospect of rehabilitation. Beyond this, it would be sheer speculation to suggest that the probabilities of successful rehabilitation are heavily in his favour.

Subjective factors

93 Dr Bruce Westmore saw the offender on two occasions. In his report of 29 November 2006, he records that the offender first saw a psychologist in 1997 for depression and again in 2001 and 2002. His general practitioner in 2005 treated him with an antidepressant. The history was that the offender had suffered from depression since his teenage years and that he had tried to deal with it by using alcohol and drugs. The history also records that he was admitted to Royal Prince Alfred Hospital in 1999 suffering anxiety.

94 The offender began to consume alcohol aged 16 years and a history of alcohol abuse followed. Dr Westmore recorded that he did not receive any medical treatment for his alcohol abuse problem. He commenced using cannabis around the age of 17 before abusing a wide range of illicit drugs.

95 The history records that his parents separated and he left home at the age of 17. He stated that he had only started speaking to his father again within the last three years.

96 The offender was educated to Year 10 standard, obtaining the School Certificate. He repeated that year. He worked as a storeman for 12 months then at a hotel in Kings Cross and than on and off at an RSL Club and thereafter undertook unskilled labouring/factory work.

97 At the time of examination, Dr Westmore did not think that he was suffering from a major depressive illness and there were no psychotic symptoms identified. He recorded that he had a history of depression and appears to have suffered a mood disturbance and that his mood state was more of an adjustment type disorder.

98 Dr Westmore records the psychological and psychiatric problems experienced over the years by the offender and their contribution towards interpersonal conflicts. Depression, anger and drug and alcohol abuse would have complicated his psychiatric problems and caused a further deterioration in interpersonal relationships.

99 A lengthy psychological report (Exhibit 2) was prepared by Ms Madelaine, psychologist and Fenia Kaufman, regional senior psychologist dated 23 February 2007. This report provides a detailed history, although certain aspects of the account given by the offender are not consistent with his evidence. He was assessed as a person of high average intelligence.

100 The report (Exhibit 2) records that the offender has had no record of institutional misconduct or charges since he has been in custody. His work in the prison has been regarded as extremely satisfactory. Reference is also made to the various courses which the offender has completed whilst in custody, including alcohol and drug awareness programmes and specified workshop courses. He has also undertaken individual counselling sessions in relation to strategies to avoid drug use. He has also accessed education services whilst in custody and completed a number of courses and has attended sessions for stress management and other matters. Nine certificates in relation to these course were tendered and constitute Exhibit 5.

101 I have had regard to the letters written by the Reverend Paul Drury dated 30 November 2006 (Exhibit 3) and that written by Mr Ian Mitchell from Parklea Correctional Centre dated 27 November 2006 (Exhibit 4). It should be acknowledged that the offender’s attitude and conduct in custody has, according to Exhibit 3 and 4, been exemplary.

The standard non-parole period

102 The offender’s state of mind is of central relevance in the determination as to whether or not the offence is appropriately characterised as one falling within the mid-range for the purposes of the standard non-parole period provisions in Division 1A of the Crimes (Sentencing Procedure) Act. A plea of guilty might, in itself, however, provide a reason for departing from the standard non-parole period. Accordingly, I have used the standard non-parole period as one reference point in the exercise of my sentencing discretion.

103 The standard non-parole period for an offence of murder under the table in Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 is 20 years. That represents the non-parole period of an offence in the middle of the range of objective seriousness for offences of murder and assessment of all relevant facts requires a determination as to whether or not the standard non-parole period is to be applied as a guidepost or benchmark or if it is to be so taken, to determine whether it falls above or below that middle range of objective seriousness.

104 Whatever quantity of alcohol the offender had consumed on 18 June 2005, though it may have played a part in his action, I do not consider that its degree was such that the offender’s culpability is moderated by reason of his intoxication. He was clearly intent upon the course of action of confronting the victim and whatever effect the alcohol had on him did not prevent him from planning and carrying out the brutal attack.

105 In determining the objective seriousness of the offence, I have regard to the brutal, callous and cowardly act of the offender made against a much smaller and defenceless woman preceded by a degree of planning, as I have described it earlier.

106 The nature of the wounds inflicted upon the victim as I have described them, of itself, is indicative of the ferocity of the attack, although it does not contain the element as has arisen in some cases of added gratuitous cruelty added to the basic ingredients of the offence as committed.

107 Finally, I have also taken into account the fact that an aggravating factor was that the offender was on conditional liberty in relation to the charges that he had assaulted the victim. The offence is also aggravated by his wilful disregard of the interim apprehended violence order.

Deterrence

108 In evaluating the appropriate sentence, the Court must consider the issue of deterrence, including general deterrence. The Crown has submitted that the objective facts and subjective matters call for a strong element of deterrence. There can be no question but that public deterrence in relation to the offence of murder is a most significant matter to be borne in mind and taken into account in determining sentence. The offence in question occurred against a background of domestic violence, a tragic fact that occurs far too often these days.

Other matters

109 The offender does not have any record of convictions and, accordingly, that also is a matter to be taken into account in the offender’s favour.

110 In relation to the assault and malicious damage offences for which the offender stood charged at the time of the offence and which are detailed in MFI 2 and which have been transferred to this Court pursuant to s.166 of the Criminal Procedure Act 1986, are, as requested by the Crown Prosecutor, to be dismissed on the basis that there is no longer any available evidence to prosecute them. I accordingly dismiss them.

Conclusion

111 Murder has always been the most serious crime in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including denunciation and general deterrence. However, the objective seriousness of offences of murder is to be assessed within the relevant range.

112 I have been referred to a schedule of sentencing decisions in what sometimes have been referred to as relationship murder cases. Some of them involved sentencing after trial, some after pleas of guilty and some preceding and post-dating the standard non-parole period provisions to which I have referred. I have examined the sentencing remarks in many of those cases, including those to which Mr Turnbull drew my attention, making due allowance for their individual facts and circumstances of those cases and the present.

113 Section 19A of the Crimes Act provides that a person convicted of murder is liable to imprisonment for life. However, as earlier noted, that is not suggested as being appropriate in this case. It is reserved for cases which can be properly described as within a worst category. For the benefit of those unfamiliar with the gradations which the law recognises, I observe that premeditated murders committed simply for financial gain or carried out with great cruelty or which involve not one but multiple murders are the type of case or cases that fall into the worst category. The offence in this case did not fall into that category and is to be judged against a somewhat imprecise standard of criminality.

114 The purposes of punishment include, in addition to general and specific deterrence, the rehabilitation of the offender, protection of the community and retribution. I have already referred to the importance of emphasising deterrence in the context of domestic violence in which usually females are subjected to a history of violence before a catastrophic event such as murder occurs.

115 In the present offence, there are few factors which would indicate leniency is required in terms of the objective seriousness or criminality involved in the offence.

116 I am required by the terms of the Crimes (Sentencing Procedure) Act to fix a non-parole period being the minimum period for which the offender must be kept in detention in relation to the offence. The sentence which I have determined has been arrived at with allowance being made for the 20% discount for his plea of guilty.

117 The statute requires that the balance of term of the sentence must not exceed one third of the non-parole period unless there are special circumstances for it being greater. Mr Turnbull submitted that being the first time in custody for the offender and by reason of the prospects of rehabilitation, there is a need for enhanced supervision. However I do not consider that this is a case in which there is a basis upon which there can be said that the offender should be subjected to a longer period of supervision than he will need under the statutory ratio. I, accordingly, decline to find special circumstances and impose a balance of term to which I shall refer.

118 Dalley Stuart Robinson, for the murder of Kelly Lorraine Hudson, I sentence you to a non-parole period of 16 years to commence on 28 June 2005 and to expire on 27 June 2021. The balance of your term of imprisonment will be five years, expiring on 27 June 2026, a total sentence of 21 years.

119 The earliest date on which you will be eligible for release on parole will be 27 June 2021.

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