Murder Sentence Considering Intoxication

The court convicted the defendant of murder and sentenced them to a non-parole period of 17 years and 6 months, with an additional term of 5 years and 10 months, totaling 23 years and 4 months. The court considered the defendant's heavy intoxication and the fact that the murder occurred in the home they shared.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] [2013] NSWSC 1940 Hearing dates: 23 July, 30 July, 30 August, 20 September, 12 December, 13 December and 17 December 2013 Decision date: 20 December 2013 Before: Bellew J Decision: 1The [NAME] is convicted. 2The [NAME] is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 4 December 2013 and ending on 3 June 2031, with an additional term of 5 years and 10 months imprisonment, commencing on 4 June 2031 and ending on 3 April 2037, a total sentence of 23 years and 4 months imprisonment. 3The [NAME] will be eligible for parole on 4 June 2031. 4The total sentence will expire on 3 April 2037. Catchwords: CRIMINAL LAW - Murder - Sentence following late plea of guilty - Where [NAME] heavily intoxicated at the time of [NAME] aggravated by the fact that it took place in the home shared by [NAME] and the [NAME] a finding of special circumstances warranted Legislation Cited: Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bellchambers v R [2008] NSWCA 235 [NAME] v R [2012] NSWCCA 159 [NAME] v R [2010] NSWCCA 199; (2010) 79 NSWLR 740 Essex v R [2013] NSWCCA 11 Hasan v R [2010] VSCA 352; (2010) 31 VR 28 Ingham v R [2011] NSWCCA 88 Markarian v R (2005) 228 CLR 357 Montero v R [2013] NSWCCA 214 Muldrock v R (2011) 244 CLR 120 [NAME] v R [2012] NSWCCA 263 R v [NAME] [2011] NSWCCA 224 R v Carter [2003] NSWCCA 243 R v Comert [2004] NSWCCA 125 R v Dong [2010] NSWSC 1242 R v Engert (1995) 84 A Crim R 67 R v Fidow [2004] NSWCCA 172 R v Goundar [2010] NSWSC 1170 R v [NAME] [2012] NSWCCA 240 R v Hearne (2001) 124 A Crim R 451 R v Previtera (1997) 94 A Crim R 76 R v Rosenberger (1994) 76 A Crim R 1 Category: Principal judgment Parties: [NAME] - [NAME]: Counsel: [redacted] Mr M [NAME] QC - [NAME] Solicitors: [redacted] Publication restriction: Nil

Judgment 1On 30 July 2013 [NAME] ("[NAME]") pleaded guilty to the murder, on 3 May 2012, of [NAME] ("[NAME]"). [NAME]'s trial had been listed to commence on 12 August 2013. 2I heard evidence and submissions from the parties on 12, 13 and 17 December 2013.

THE APPLICABLE MAXIMUM PENALTY 3The maximum penalty for the offence of murder is one of life imprisonment (see Crimes Act 1900 NSW S. 19A). A standard non-parole period of 20 years is prescribed for that offence pursuant to s. 54A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). 4Section 61(1) of the Sentencing Act mandates the imposition of a life sentence for murder if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. The [NAME] has not sought the imposition of a life sentence in the present case, and I am satisfied that such a sentence is not appropriate. 5In determining the appropriate sentence, I am not required to assess whether, having regard to the standard non-parole period, the offence is in the middle range of objective seriousness, nor am I required to commence by asking whether there are reasons for not imposing the standard non-parole period (see Muldrock v R (2011) 244 CLR 120 at [25]). The relevant statutory provisions contained in the Sentencing Act require an approach to sentencing in which all of the relevant factors are identified. Having identified those factors, I must then reach a determination as to the appropriate sentence (see Muldrock (supra) at [26] citing Markarian v R (2005) 228 CLR 357). 6The standard non-parole period for the offence of murder requires that content be given to its specification as the non-parole period for an offence in the middle range of objective seriousness. It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock (supra) at [27] and [31]).

[NAME] 7Victim impact statements were read to the court by: (i)[NAME]'s mother; and (ii)[NAME]'s sister. 8A further [NAME] impact statement was read to the court on behalf of [NAME]'s father, [NAME]. 9Once again, I take this opportunity of expressing the court's sympathy to the members of [NAME]'s family. It is to be hoped that the opportunity that each of them has been given to provide a statement to the court will assist their process of grieving in respect of the loss of their daughter and sister. The authorities make clear the approach which is to be taken by a sentencing judge in relation to statements of that kind in a case such as the present (see for example R v Previtera (1997) 94 A Crim R 76).

THE FACTS 10The [NAME] tendered a statement of facts which, but for two issues arising from the medical evidence, were agreed. I have dealt with those issues separately below. 11The [NAME] was 43 years old at the time of her death and lived with the applicant in Toormina, in northern New South Wales. At the time of her death she had recently commenced work as a kitchen hand at a café in Coffs Harbour. She had previously worked as a sex worker and [NAME] had been one of her clients. 12The [NAME] and [NAME] commenced a relationship in 2011. That relationship was marked by volatility. One particular source of argument appears to have been [NAME]'s decision to return to being a sex worker. [NAME] had complained to a number of friends and colleagues that [NAME] had been physically violent toward her in the months leading up to her death. In particular, she had complained that [NAME] had held a knife to her throat when he was drunk at the end of March 2012. Shortly before her death, she had complained that [NAME] had hit her, and she was observed at that time to have a black eye and a swollen face. Although she was encouraged to report the incident to the police, she did not to do so. 13At about 11.30pm on 3 May 2012 [NAME] arrived at the home of his brother, [NAME], at Tewinga, a location approximately 38 km south of Toormina. Prior to [NAME]'s arrival, his brother had gone to bed. Having woken to the sound of knocking and screaming, [NAME]'s brother got out of bed and heard [NAME] saying: "I've killed her ....I finally killed". 14The [NAME] brother noted that [NAME] appeared to be heavily intoxicated, having seen him previously in that state. He noticed that [NAME] was stumbling, and on a scale of 1 to 10 he formed the view that [NAME] was at level 10, or perhaps even 11. 15The [NAME] asked his brother to assist him in disposing of [NAME]'s body. This request was refused, and [NAME] left the house. 16Brendan [NAME], a friend of [NAME] and his brother, was also staying at the house at Tewinga at that time. He had been sleeping in a bedroom towards the rear of the house when [NAME] arrived. [NAME] heard a car approaching the house. He initially stayed in bed but having heard yelling and screaming, he got up and went to the living room where he saw [NAME]. [NAME] described [NAME] as yelling and screaming, "off his ..... head", and saying things about killing or hurting someone in "drunken rampage mumbles". According to [NAME] was known to make violent and intemperate statements when he was intoxicated, although [NAME] stated that he had never seen [NAME] as drunk as he was on this occasion. He thought that on a scale of 1 to 10 [NAME] was at 11. 17The [NAME] behaviour caused [NAME] to leave the house and hide in a nearby paddock. It was not until he heard a car leave the area several hours later that he decided to return. As he approached the inside of the house he saw a person's leg hanging over the sofa. He then ran away again and went to a friend's house. 18Subsequently, [NAME]'s brother saw [NAME] lying on the sofa. He noticed blood dripping from her head, injuries to her face and a white substance that he thought was moisturiser on her head. That same substance had been squirted around the house. [NAME]'s brother formed the view that [NAME] was dead at that time. 19The [NAME] brother then collected some clothing and left the premises. As he left he noticed items of clothing on the ground near where he had seen [NAME] and the car earlier that night. He drove to the Macksville Police Station at around 3.00am where he reported the incident. 20Upon arrival at the premises at Tewinga, police found [NAME]'s body lying across the sofa. She was wearing underpants, a short black skirt, a pink bra, a singlet type top which had been pushed up revealing her stomach, and ankle length socks. She was not wearing shoes. A baseball bat was found underneath her body. 21The left side of [NAME]'s face was heavily bruised and swollen, and blood was draining from her mouth and nose. Her hair was blood soaked and a denture plate was tangled in her hair. She had blood on both hands, both arms, both feet and her right thigh. 22Drops of a white cream substance were on [NAME]'s face. An empty 375ml tube of "Palmolive Naturals Conditioner" was resting near [NAME]'s left ear. There was an oval pattern of white cream on the floor and another oval pattern of white cream on the bottom sheet of the bed located in the bedroom used by [NAME]'s brother. 23At about 2.25 am on the morning of 4 May 2012 police observed a vehicle being driven by [NAME] travelling at an excessive speed in a southerly direction along the [ADDRESS] near Taree. Police had earlier received reports of a similar vehicle swerving all over the road. When the police stopped [NAME], he fled on foot. He was pursued and apprehended. Police observed that [NAME]'s breath smelt strongly of alcohol, his speech was slurred, he was unsteady and he was only partially dressed. 24The [NAME] was taken to Taree police station and subjected to a breath analysis. He told police he commenced drinking at a hotel at 12 pm on the previous day and had not consumed any food. On analysis, [NAME]'s blood alcohol concentration was 0.150 g/100ml. There is pharmacological evidence, based partly on [NAME]'s account of the amount of alcohol he had consumed, which establishes that [NAME]'s blood alcohol concentration at 9.00 pm on the evening of 3 May 2012 would have been 0.239, and that it would have been 0.224 at 10.00 pm. 25At the home shared by [NAME] and [NAME], police observed the following: * a clear oily residue had been sprayed over the internal side of the front door; * an empty Coca Cola bottle and an empty water bottle were found on the kitchen bench. The caps of the bottles were on the floor in the living room; * the kitchen floor was wet and soil was scattered over the floor; * there were numerous shoe impressions on the kitchen floor, all of one shoe type; * handwriting and scribble in blue marker pen were on the front of the refrigerator door; * a symbol which appeared to have been written in tomato sauce was on the inside of the refrigerator; * soil and shoe impressions similar to those in the kitchen were located in the bathroom; * a potted plant and soil had been tipped into and around the bowl of the vanity; * a tube of toothpaste was also in the bowl and had been used to write the letters "BW" and "AK" on the vanity; * the words "On Dave" appeared to have been written in purple soap on the sliding doors of the vanity; * a pot containing soil was in the toilet bowl along with a can of air freshener. 26The [NAME] participated in an electronically recorded interview with police on 14 June 2012. He told police that in the two to three week period leading up to [NAME]'s death he had been drinking every day and that on 3 May 2012 he had spent most of the day drinking whilst [NAME] was at work. He said that at about 5.00pm [NAME] had arrived at the hotel looking for him, and that a short time after he returned to the premises at Toormina. Upon arrival, [NAME] saw that his belongings had been packed up and were out the front of the house. 27According to [NAME] had told him to "get out" and had complained about the fact that he had been supposed to take her out for dinner that night. [NAME] and [NAME] argued, [NAME] being upset about [NAME]'s drinking, before things calmed down and [NAME] agreed to let [NAME] stay. 28The [NAME] told police that [NAME] decided to have a sleep, at which time he went and purchased a bottle of rum. He returned to the house and was having a drink when [NAME] woke up. [NAME] then started shouting at [NAME] and ordered him from the house saying: "Get out of the house before I fucking stab you" 29According to [NAME], an altercation ensued in which [NAME] squeezed his testicles, and in which he became fearful that [NAME] was going to get a knife to stab him. He asserted that it was in the course of this altercation that he commenced to hit [NAME]. He told police that having done so, he began to panic and then telephoned his father, telling him that he had done something "really really stupid". According to [NAME], he had decided to take [NAME] to the hospital but he said that as he approached the turn off to the hospital, he became overwhelmed by the prospect of being arrested. This appears to have stemmed from the fact that there were outstanding warrants for his arrest in relation to other offences, which he believed might result in his immediate incarceration. He told police that he decided instead to drive to his brother's house, some 38km away, so that his brother could phone an ambulance. It should be noted that there is no evidence to suggest that [NAME] asked his brother to call an ambulance, or that an ambulance was otherwise called. 30Both parties made submissions to me regarding [NAME]'s account to police. The [NAME] urged me to reject [NAME]'s assertion that he was assaulted by [NAME] by her grabbing his testicles and further submitted that I would reject [NAME]'s assertion that he was fearful of the possibility that [NAME] was intending to obtain a knife and inflict injury with it. It was made clear on behalf of [NAME] that any previous suggestion of self defence was abandoned. However, it was submitted that the opinion of [NAME], which I have referred to further below, supported at least some aspects of [NAME]'s account. 31The [NAME] did not give evidence before me, and his account is therefore untested. Although I am satisfied that there was some altercation between [NAME] and [NAME], the evidence is insufficient to enable me to reach any further conclusion about what occurred in the course of that altercation. The evidence of [NAME] and [NAME] 32Professor [NAME] conducted an autopsy of [NAME] on 6 May 2012 and his report forms part of the material tendered by the [NAME]. In terms of [NAME]'s injuries, [NAME] found: (i)injuries to the ear, eye, and mouth; (ii)evidence of traumatic brain injury; (iii)two injury patterns to the neck, namely an area of bruising and a patterned abrasion; (iv)a fracture of the greater horn of the hyoid bone; (v)multiple bruising to the arms and legs, and to a lesser extent the torso, all of which were of a fingerprint bruise type; (vi)a pattern of bruising on the back of both hands, suggestive of a defence pattern of injuries; (vii)fractures of the right 6th and 7th ribs, immediately adjacent to the sternum; (viii)bruising to the membrane connecting the small intestine to the abdominal cavity around the duodenum, suggestive of moderate to blunt force trauma to the abdomen; and (ix)bruising to the left breast, the top of the right foot and the outer left lower leg. 33Initially, [NAME] thought that the injuries inflicted to [NAME]'s head region were most likely caused by an instrument such as the baseball bat found underneath [NAME]'s body, and were the result of at least three applications of such force. He also thought that [NAME]'s death was caused by the combined effects of head injury and neck compression. In response to these opinions, two reports of [NAME] were tendered in the case for [NAME]. [NAME] stated that he was "in substantial agreement" with the opinions expressed by [NAME], his reports raised two issues, namely: (i)whether an implement such as a baseball bat was used to inflict one or more of the injuries; and (ii)whether, having inflicted injury to [NAME] at their home, [NAME] inflicted further injury upon [NAME] after that time and in particular, at or about the time that he arrived at his brother's premises. 34It was initially proposed that both experts would be called to give oral evidence as to these issues but as events transpired this was not possible. Arrangements were then made for the two experts to confer, which resulted in a further report from [NAME] being tendered by the [NAME]. [NAME] stated that such report had been prepared with the "substantial agreement" of [NAME], before expressing the following further opinions: (i)no baseball bat or similar implement was used in the assault upon [NAME]; (ii)the injuries to the face, head, neck, hyoid bone and ribs were generally consistent with having been caused by vigorous blows from one or both fists; (iii)the abdominal injury was caused by a form of blunt force trauma, which could have resulted from simply the weight of [NAME] in moving himself into a position in which he was sitting on [NAME]; (iv)the bruises to the left thigh were unlikely to have been caused by the use of an implement and were consistent with being caused by a fist; (v)the complex pattern of injuries was such that it was not possible to describe one particular event as the terminal event. 35Professor [NAME] did make reference to the fact that some of the injuries could have been "caused by a weapon in the sense of a shoe in stamping". However, both parties agreed that this was necessarily speculative and that I should proceed on what were, in effect, the joint opinions set out in [34](i) to (v) above. 36Bearing all of these matters in mind, I am satisfied that [NAME]'s injuries, and her resultant death, were caused by multiple blows struck by [NAME] with his fists. [NAME]'s intention 37The [NAME] submitted that there were a number of factors which supported a conclusion that [NAME] had acted with an intention to kill [NAME]. Those factors were said to include: (i)the severity of the assault upon [NAME]; (ii)the statement made by [NAME] to his brother to the effect that he had "finally killed" [NAME]; and (iii)the request made by [NAME] to his brother for assistance in disposing of [NAME]'s body. 38However, the [NAME] expressly acknowledged that it remained open to me to find that [NAME] acted with an intention to inflict grievous bodily harm as opposed to an intention to kill. In circumstances where the [NAME] bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against [NAME], I am not satisfied that [NAME] acted with an intention to kill [NAME]. I have reached that conclusion for a number of reasons. 39Firstly, whilst the injuries sustained by [NAME] were both significant and widespread, caution must be exercised in drawing an inference of intention from such evidence, particularly in circumstances where [NAME] was intoxicated (see Bellchambers v R [2008] NSWCCA 235 at [36] per Allsop P (as his Honour then was)). 40Secondly, whilst I have had regard to the statements made by [NAME] to his brother, on the evidence before me [NAME] was still in an intoxicated state when those words were said. 41Finally, even if it is accepted that [NAME] was at one point intending to dispose of [NAME]'s body, and that he requested assistance from his brother in that regard, I do not consider that circumstance to be consistent only with an intention to kill [NAME]. It may, for example, have arisen as a result of [NAME] being in a state of panic. 42For all of these reasons, I find that in repeatedly punching [NAME] acted with an intention to cause [NAME] grievous bodily harm. The statutory aggravating factors 43Two statutory aggravating factors were relied upon by the [NAME], the first of which was that the offence was committed in the home of [NAME] (see s. 21A(2)(eb) of the Sentencing Act). Given that the premises in which the incident occurred were those of the both [NAME] and [NAME], it was submitted on [NAME]'s behalf that s. 21A(2)(eb) had no application. 44In R v Comert [2004] NSWCCA 125, a case of sexual assault committed by a husband upon his wife, the sentencing judge had concluded that [NAME] was aggravated by the fact that it had occurred in the [NAME]'s home. Hidden and Hislop JJ said (at [29]): "Reading the relevant part of the sentencing judge's remarks as a whole, there can be no doubt that her Honour did characterise, as an additional aggravating feature, the fact that the offence was committed in the complainant's home. We are satisfied that, in so doing, her Honour fell into error. No doubt, that would have been an aggravating feature if [NAME] had been an intruder. However, we are unable to see how a sexual assault on a woman by her husband is rendered more serious because it was perpetrated in the matrimonial home. This, of course, is not to deny the gravity of offences of violence, whether or not of a sexual nature, committed in a domestic setting". 45That reasoning has been applied in several cases since that time (see for example [NAME] v R [2010] NSWCCA 199; (2010) 79 NSWLR 740; Ingham v R [2011] NSWCCA 88; R v [NAME] [2011] NSWCCA 224; [NAME] v R [2012] NSWCCA 159; and Essex v R [2013] NSWCCA 11). 46In Melbom v R [2013] NSWCCA 210 the applicant had been convicted of offences of reckless wounding and threatening to use an offensive weapon which had been committed in the home of the victims, who had previously invited the applicant to live with them. R A Hulme J (with whom Simpson and Price JJ agreed) noted (at [44]) that the [NAME] had conceded the correctness of the earlier authorities cited in [45] above. However his Honour appeared to express some doubt as to such correctness, observing (at [44]): " ..... the plain words of s. 21A(2)(eb) do not support the limitation that this Court has placed on their application. ..... It was never intended by Parliament that there should be the constraint upon their application that this Court has imposed". 47Simpson J (at [2]) shared the reservations expressed by R A Hulme J and thought that the time had arrived for a re-examination of those earlier decisions. R A Hulme J ultimately concluded (at [51]) that the sentencing judge had not simply referred to the fact that [NAME] was aggravated by the fact that it occurred in the home occupied by the victims and the applicant. His Honour added: "Her approach would clearly have been contrary to authority if that was all that she had said". 48More recently, in Montero v R [2013] NSWCCA 214, the Court of Criminal Appeal considered offences of aggravated sexual assault committed in the applicant's home in circumstances where the [NAME] was an acquaintance of the applicant's girlfriend. The sentencing judge had made reference to the place of [NAME] as an aggravating factor. R A Hulme J (with whom Leeming JA and Button J agreed) having referred to the decisions cited in [45] above and the decision of Melbom, was not persuaded that the sentencing judge had erred in finding that [NAME] was aggravated by the fact that it had occurred in the applicant's home, because it was not that fact alone which had been taken into account (at [52]). The additional factors which aggravated [NAME] included that: (i)the [NAME] was a guest; (ii)she had gone to bed with an [NAME] who had been her friend for six years; (iii)she had, as a result, an entitlement to a feeling of safety and security; (iv)unbeknown to her, the applicant had taken the place of her friend in the bed and had proceeded to sexually assault her. 49His Honour proceeded (at [53]) to draw a distinction between the facts in the case before him and those in Comert (an assault by a husband upon his wife in their home), [NAME] (assaults by a father in the home in which he and the [NAME] lived), Ingham (where [NAME] was a regular overnight visitor to the premises in which he sexually assaulted two complainants in his care) and [NAME] (each of which concerned sexual assaults by men of children of their respective partners, committed in the home). His Honour also concluded (at [55]) that even if the sentencing judge had erred in the manner for which the applicant contended, he had nevertheless been entitled to take into account the violation of the [NAME]'s expectation of safety and security as a factor which rendered [NAME] more serious. 50The circumstances of [NAME] in Montero which led his Honour to reach his conclusions are quite different from the circumstances of the present [NAME], which are far closer to those considered in the earlier decisions to which his Honour referred. Although doubts have been expressed about the correctness of those decisions, the occasion for reconsidering them has not yet arisen.

Accordingly, in the absence of any matter over and above the fact that [NAME] took place in the home occupied by [NAME] and the [NAME], I have reached the conclusion that s. 21A(2)(eb), on the present state of the authorities, has no application to the circumstances of the present case. 51The second statutory aggravating factor relied upon by the [NAME] arises from s. 21A(2)(j) of the Sentencing Act, namely that the offence was committed by [NAME] at a time when he was on conditional liberty. There is no dispute that [NAME] was on bail for firearms offences at the relevant time. I am satisfied that this aggravates [NAME]. Other aggravating factors 52The [NAME] submitted that there were two other factors which aggravated [NAME]. The first was the placing of cream to the face of [NAME] which the [NAME] argued was a further act of aggression. In the context of that submission, the [NAME] referred to the fact that [NAME] had done "some bizarre things .... which remain unexplained". The placing of cream on [NAME] certainly falls into the category to which the [NAME] referred but I am unable, without more, to categorise it as an act of aggression. 53The second matter was the request made by [NAME], to his brother, for assistance in disposing of [NAME]'s body. The general principle that the treatment of the body of a murder [NAME] is capable of amounting to an aggravating factor has been extended to cases where such treatment does not involve any form of mutilation (see R v Goundar [2010] NSWSC 1170; R v Dong [2010] NSWSC 1242). In the present case [NAME]'s disposal of [NAME]'s body consisted of leaving the body at his brother's premises after his request for assistance was not met. This aggravates [NAME] to some degree, although it must be recognised that such degree of aggravation is less than, for example, an instance in which a body is deposited in bushland (see Goundar).

[NAME]'s intoxication 54I have already made reference to the fact that [NAME] had been drinking heavily up to the time of [NAME]. I am satisfied that he was grossly intoxicated when he killed [NAME]. The fact that [NAME] had been drinking heavily was not, on the evidence, out of the ordinary. Significantly, he had been given the benefit of a bond under s. 9 of the Sentencing Act when sentenced in June 2008 for an offence of being armed with intent to commit an indictable offence. It was a condition of that bond that he obey all reasonable directions in relation to (inter alia) drug and alcohol rehabilitation. The fact that [NAME] was intoxicated does not aggravate the offence, nor does it mitigate it. I accept, as was submitted on behalf of [NAME], that it may assist in providing an explanation for [NAME] (see Hasan v R [2010] VSCA 352; (2010) 31 VR 28; R v [NAME] [2012] NSWCCA 240).

The objective seriousness of [NAME] 55The [NAME] submitted that I should find that [NAME] fell "in the middle of the range of seriousness" for offences of murder. Counsel for [NAME] submitted that [NAME] should be regarded as "less than mid range". [ADDRESS] of Criminal Appeal has observed that a sentencing judge need not, and arguably should not, engage in the exercise of quantifying the distance between [NAME] before the court, and the conduct involved in a putative offence in the middle of the range (see [NAME] v R [2012] NSWCCA 263 per McCallum J at [25] with whom Macfarlan JA and Price J agreed). However, the assessment of objective seriousness of [NAME] nevertheless remains an important part of the sentencing process. 56Exactly what it was that motivated [NAME] to act in the manner in which he did remains unexplained. Some of his actions were, as the [NAME] submitted, bizarre. What is clear however, is that although there is no evidence to suggest that [NAME]'s attack was pre-planned, it was nevertheless brutal and sustained. It involved a high degree of violence with repeated use of the fists and resulted in a multitude of injuries being inflicted upon [NAME]. It follows that this was, on any view, an offence of significant objective seriousness.

[NAME]'S [NAME]'s background 57The [NAME] father gave evidence before me. A statement prepared by him was admitted without objection and he was cross-examined by the [NAME]. [NAME] is now 26 years of age and was 24 years of age at the time of the commission of the offence. His parents separated when he was 12, at which time he remained living with his mother although his father saw him regularly. His father has since formed the view that the separation had a greater effect upon [NAME] than may have been appreciated at the time. 58The [NAME] left school without completing [NAME] 9 and was initially employed by his mother working in a nursery. His mother then formed a new relationship and moved to Queensland. [NAME] remained in NSW living what appears to have been a nomadic existence without a fixed address. At the age of 19 he moved back to live with his father. An attempt to attend TAFE for the purposes of obtaining his School Certificate was unsuccessful and he abandoned his studies. He obtained employment as a process worker and later as a fork lift driver before problems emerged in relation to his being able to retain his employment. This, it seems, was the first indication that [NAME] was drinking to excess. He obtained an apprenticeship as a cabinet maker before returning to his previous job as a process worker but fell into a routine of spending the entirety of his wages on alcohol. His difficulties with alcohol appear to have continued, largely unabated, since his late teens. 59The [NAME] father described [NAME] as "beside himself" and "a visual and mental wreck" when he first saw him following his arrest. He also gave evidence of the remorse expressed by [NAME] to him on more than one occasion since that time. Medical evidence 60Tendered in [NAME]'s case was a report of [NAME], Consultant Psychologist, dated 3 December 2013. [NAME]'s history to [NAME] as to his upbringing was generally consistent with the evidence of his father. 61The history provided by [NAME] to [NAME] also included an assertion that in his early 20s he had consulted a General Practitioner who "thought he had psychiatric problems" and who "said (he) might have schizophrenia". [NAME] told [NAME] that he felt "bad" about that suggestion and ceased attending the doctor. No other medical evidence has been tendered to support these assertions. 62The [NAME] also asserted that whilst in custody he had consulted a psychiatrist who "said (he) had bipolar" for which he was prescribed anti-depressant medication. According to [NAME], the side effects of that medication caused it to be replaced by a form of anti-convulsant medication which, according to [NAME], is also prescribed in cases of Bipolar Disorder. No evidence from Justice Health was tendered in support of this history or treatment. 63Having conducted formal testing, [NAME] concluded that [NAME] presented with DSM5 diagnostic criteria for the following: (i)generalised anxiety disorder; (ii)panic disorder; (iii)persistent depressive disorder (moderate, chronic) (iv)substance-related and addictive disorder (alchohol/cannabis) 64Mr [NAME] also expressed the view that [NAME] exhibited criteria consistent with a diagnosis of Bipolar Disorder. He appears to have based this opinion, at least in part, upon the history provided to him by [NAME] and, in particular, upon [NAME]'s assertion that he is currently taking prescribed medication which is used to treat that illness. However, [NAME] acknowledged that he would "require further psychiatric/medical opinion" in relation to this issue. In circumstances where [NAME]'s history to [NAME] in respect of his medical history is not corroborated, and given the qualification expressed by [NAME], I am not satisfied that [NAME] suffers from Bipolar Disorder. 65I accept [NAME]'s diagnoses of the conditions set out in [63] above. Although it was not suggested that [NAME]'s mental state was causally related to his commission of the offence, it was submitted on his behalf that the court should nevertheless have regard to such matters on sentence. The [NAME] conceded that [NAME]'s mental state was relevant in the overall assessment of his subjective case, but submitted that I would conclude that the source of [NAME]'s current depression and anxiety was, in large measure, his present circumstances and, in particular, his incarceration. In those circumstances, it was submitted that general deterrence remained an important consideration. 66Even where an [NAME] mental state is not causally connected to the commission of the relevant offence, it may remain the case that such condition renders [NAME] an inappropriate vehicle for general deterrence (see R v Engert (1995) 84 A Crim R 67 per Allen J at 72). However, that is not to say that evidence of a mental disability inevitably leads to the conclusion that general deterrence is of less significance. In Engert (supra) Gleeson CJ said (at 68): "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular [NAME], an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of [NAME] (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of [NAME]. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise". 67The decision in Engert was referred to by McClellan CJ at [NAME] in Director of [NAME] (2010) 79 NSWLR 1; [2010] NSWCCA 194 where his Honour (commencing at [177]) set out a number of principles relating to the sentencing of mentally ill offenders. More recently, the decision in Engert was expressly applied by the Court of Criminal Appeal in Iskandar v R [2013] NSWCCA 235. In that case, the Court determined that the sentencing judge had not erred in concluding that in the circumstances of that case general deterrence remained an important consideration notwithstanding [NAME]'s mental illness. 68I am satisfied that general deterrence remains an important consideration in the present case, and that its importance is not lessened by the conditions diagnosed by [NAME]. There remains, in particular, a necessity to make it abundantly clear that the unprovoked perpetration of violence by persons who are grossly intoxicated has no place in the community. That said, and although there is no evidence which would suggest that [NAME]'s mental state renders his conditions of custody more onerous, I have taken that mental state into account in my overall assessment of his subjective case. [NAME] expressed the view that [NAME]'s depression and anxiety (and, if it exists, his Bipolar condition) required treatment, and that [NAME] would benefit from programs designed to address issues of drug and alcohol abuse. I have also taken these matters into account, along with [NAME]'s reported expressions of willingness to undergo such treatment. The plea of guilty 69The [NAME] was first arraigned on 5 April 2013 at which time he entered a plea of not guilty. The matter was then listed for trial commencing on 12 August 2013. The matter came before the court again on 5 July 2013 at which time the trial date was confirmed. There was no suggestion on that occasion that a plea of guilty might be entered. 70The matter first came before me on 23 July 2013 for the purposes of ascertaining (inter alia) the proposed length of the trial. On that occasion, an indication was given that it was likely that [NAME] would plead guilty. The matter was adjourned until 30 July 2013, at which time the plea of guilty was entered. That was only two weeks prior to the proposed commencement of the trial. 71It was submitted on behalf of [NAME] that there had been indications prior to 23 July that the matter would not proceed to trial and that in these circumstances, the appropriate discount to reflect the utilitarian value of the plea was 20%. The [NAME]'s position was that what might be described as a vague indication of a plea was given shortly before the matter first came before me on 23 July. However, the [NAME] pointed out that trial preparation continued until such time as the plea was entered on 30 July. In these circumstances, the [NAME] submitted that the range of appropriate discount was between 12% and 15%. 72It is well established that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10% - 25% discount on sentence. The primary consideration which determines where, within that range, a particular case should fall, is the timing of the plea (see R v [NAME]; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418, 419; [152], [154] and [160](iii) per Spigelman CJ). A discount towards the bottom of the range is appropriate for late pleas unless there are particular benefits arising from the prospective length and complexity of the trial ([NAME] at 418; [155]). In circumstances where [NAME]'s plea was entered virtually on the eve of an estimated three week trial, a suggested discount of 20% is, in my view, wholly inappropriate. Bearing in mind that timing of the plea primarily determines where, within the range, a particular case falls, I take the view that the appropriate discount is one of 12.5%. Remorse 73The actions of [NAME] in depositing [NAME]'s body at the home of his brother, after his request for assistance in disposing of the body was rejected, were not consistent with genuine remorse. However, as I have noted, [NAME] gave evidence that from an early stage following his arrest, [NAME] expressed his remorse for [NAME]. Those expressions have, according to [NAME], continued. I formed the view that [NAME] was a truthful witness and I have no reason to doubt his evidence. I am satisfied that the applicant is remorseful and I take that into account as a mitigating factor. [NAME]'s youth 74The [NAME] was aged 24 at the time of the offence. It was submitted on his behalf that whilst he was "not a child he nevertheless should be regarded as a youth and some allowance made in reduction of his sentence for the impulsiveness of his youth". I am unable to accept that submission. Whilst an allowance can, in an appropriate case, be made for an [NAME] youth as opposed to just his or her biological age (see R v Hearne (2001) 124 A Crim R 451 at [25]) [NAME] in the present case was clearly an adult at the relevant time. There is no evidence that immaturity, or for that matter impulsivity, played any part in his [NAME]. [NAME]'s criminal history 75The [NAME] has a criminal history dating back to 2005. There are some offences of violence, and others which are obviously alcohol related. In particular, and as previously noted, he was dealt with in 2008 on a charge of being armed with intent to commit an indictable offence and was given a bond under s. 9 of the Sentencing Act, which carried with it, in effect, a condition that he address his drug and alcohol addiction. By virtue of his criminal history, [NAME] is not a person of prior good character and is not entitled to leniency on that basis. [NAME]'s prospects of rehabilitation 76As I have previously noted, [NAME] thought that [NAME] required treatment to address his mental state, and thought that he would benefit from undertaking remedial programs. He reported that [NAME] had expressed a willingness to undertake such treatment. [NAME]'s prospects of rehabilitation are necessarily dependent, at least in part, upon him successfully addressing his alcohol addiction. Although he has expressed a willingness to undertake treatment, it is of concern that he has previously been given the benefit of a bond designed to address that very issue. The commission of the present offence makes it clear that his efforts on that occasion fell short of what was required. In these circumstances [NAME]'s prospects of rehabilitation remain uncertain. The commencement date of the sentence 77The [NAME] was arrested on 4 May 2012 and was refused bail. There were, at that time, warrants for his arrest in respect of other charges including escaping from lawful custody as well as firearms offences. Following his arrest for [NAME]'s murder, he was sentenced in respect of those outstanding matters. Those sentences expired on 3 December 2013. In those circumstances, the [NAME] submitted that the sentence in respect of the present matter should commence on 4 December 2013. It was submitted on behalf of [NAME] that if such a course were taken a finding of special circumstances should be made. 78In my view, there is no reason why the [NAME]'s submission as to the starting date should not be accepted. As to the submission made on behalf of [NAME], circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that if [NAME] is allowed a longer period on parole, rehabilitation is likely to be successful, and not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]). I have already reached the conclusion that [NAME]'s prospects of rehabilitation are uncertain.

Accordingly, I do not find special circumstances. The period in which [NAME] will be on parole will be significant in any event. 79In sentencing [NAME] I have had regard to the provisions of s. 54B of the Sentencing Act as amended by Schedule 1[3] of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act NSW [POSTCODE] ("the Amendment Act"). In particular: (i)I have taken into account the applicable standard non-parole period as required by s. 54B(2); and (ii)I have set out above my reasons for the sentence I propose to impose as required by s. 54B(3). ORDERS 80The [NAME] is convicted. 81The [NAME] is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 4 December 2013 and ending on 3 June 2031, with an additional term of 5 years and 10 months imprisonment, commencing on 4 June 2031 and ending on 3 April 2037, a total sentence of 23 years and 4 months imprisonment. 82The [NAME] will be eligible for parole on 4 June 2031. 83The total sentence will expire on 3 April 2037.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 January 2014