168 A Crim R 41
Cvitan v R [2009] NSWCCA 156
Frigiani v R [2007] NSWCCA 81
Gore v R
Hunter v R (2010) 208 A Crim R 353
[2010] NSWCCA 330
Hili v The Queen
Jones v The Queen [2010] HCA 45
Source
Original judgment source is linked above.
Catchwords
168 A Crim R 41
Cvitan v R [2009] NSWCCA 156
Frigiani v R [2007] NSWCCA 81
Gore v RHunter v R (2010) 208 A Crim R 353[2010] NSWCCA 330
Hili v The QueenJones v The Queen [2010] HCA 45
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2014/277471
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: R v Archer [2015] NSWSC 1487
Date of Decision: 8 October 2015
Before: Wilson J
File Number(s): 2014/277471
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant pleaded guilty in the Local Court to the following offences:
1. On 21 September 2014 at Taree he did murder Anne Marie Pearson, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for life with a standard non-parole period of 20 years.
2. On 21 September 2014 at Taree he did wound Natasha Leigh Mason with intent to cause her grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900. This offence carries a maximum penalty of imprisonment for 25 years with a standard non-parole period of 7 years.
Archer v R [2017] NSWCCA 151 | Case summary | Zoe
The third offence before the Court was an offence of contravene an apprehended domestic violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which was on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). This offence carries a maximum penalty of imprisonment for 2 years.
On 17 September 2015 the sentence hearing was held before Justice Wilson in the Supreme Court and on 8 October 2015 her Honour sentenced the applicant in relation to those offence (R v Archer [2015] NSWSC 1487 (the sentence judgment) as follows:
1. Breach of apprehended violence order - imprisonment for 21 months commencing 21 September 2014 and expiring 20 June 2016.
2. Wound with intent to cause grievous bodily harm - imprisonment for 8 years commencing 21 January 2016 and expiring 20 January 2024 with a non-parole period of 6 years expiring 20 January 2022.
3. Murder - imprisonment for 24 years commencing 21 January 2017 and expiring 20 January 2041 with a non-parole period of 18 years expiring 20 January 2035.
The total sentence imposed on the applicant was therefore imprisonment with a non-parole period of 20 years 4 months commencing 21 September 2014 and expiring 20 January 2035 with a balance of term of 6 years expiring 20 January 2041.
The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) in relation to the following grounds:
Ground 1 - Her Honour erred by double counting in relation to the applicant's breach of the conditional liberty of the apprehended violence order.
Ground 2 - Her Honour erred in her assessment of factors relevant to the objective gravity of the murder offence.
Ground 3 - Her Honour erred by failing to give effect to the discount for the plea of guilty in relation to the breach of AVO offence.
Ground 4 - Her Honour erred by failing to give effect to the finding of special circumstances.
Ground 5 - The sentence imposed was manifestly excessive.
Factual Background
The following review of the facts is based on her Honour's findings and the Agreed Statement of Facts, signed by both the Crown Prosecutor and the applicant.
Anne Marie Pearson (the deceased) was born in 1965 and was aged 49 at the time of her death. During 2010 she was living in Stevenson Street, Taree and working in the bar of the Exchange Hotel in Taree. She had been close friends with the other victim, Ms Mason, for about 8 - 10 years at the time of her death. Ms Mason was aged 39 at the time she was assaulted by the applicant. In 2010 a long term relationship in which the applicant had been involved came to an end. He was a patron of the Exchange Hotel and it is there that he met the deceased. He and the deceased became friends and after some time, commenced a relationship.
During the relationship between the applicant and the deceased, the applicant was employed in the abattoir at Wingham and the deceased engaged in bar work. Ms Mason described a good relationship between them. There was no arguing, not much drinking or any violence for the first few years. She described the applicant as "quiet and placid" and the deceased as "really happy".
In mid 2013, the applicant left his job and moved to Tamworth to work. He was employed to train people on work visas to work as boners and slicers in the Tamworth abattoir. The deceased went with him to make a new start but returned to Taree after some months. She moved back to Stevenson Street and Ms Mason moved in with her again. The deceased told Ms Mason that she missed her children. She told her that the applicant had commenced to gamble his income secretly. He had lied to her about his gambling when she questioned him, and had become a little jealous and controlling in his behaviour.
The applicant remained in Tamworth to work but returned to Taree each weekend. He and the deceased began to argue over his gambling behaviour and they drank more. The applicant was seen to become jealous and more possessive of the deceased and physically aggressive towards her. The deceased did not involve the police.
On 19 March 2014, while he was still living in Tamworth, the applicant engaged in an act of self-harm after drinking. He cut his chest with a knife. He was taken by ambulance to the Tamworth Hospital and treated for superficial injuries. He was discharged to see a psychiatrist on 27 March but did not attend. He declined a voluntary admission to the Banksia Mental Health Unit. Hospital notes indicate that he said that "it all got too much". He was living in a hotel, gambling excessively and not paying his rent. His son had lost his apprenticeship and his employment. The applicant increased his alcohol intake.
On 4 April 2014 the applicant while in Tamworth attempted to commit suicide by hanging himself. He reported that he had had an argument with his partner and that he had gambled the whole of his fortnightly pay. He was reported to have lost consciousness and the attempt was described as near fatal. Marks consistent with this attempt were observed around his neck. He was visited by the deceased and Ms Mason on the day following the attempt.
Hospital notes recorded his gambling, ongoing depressed mood, hopelessness, a lack of enjoyment of life and poor sleep over some months. He was sent from the Tamworth Hospital to the Banksia Mental Health Unit where he remained until 9 April 2014. He was commenced on an anti-depressant (Escitalopram). His presenting principal diagnosis was recorded as mild to moderate depression, secondary to pathological gambling, alcohol abuse, financial and relationship problems.
In May 2014, the applicant returned to Taree from Tamworth. He moved in with the deceased and Ms Mason.
After a period of struggling to find work, the applicant secured a different job at the abattoir to that which he had previously held. The applicant was observed to be drinking a lot more than he was before he went to Tamworth. The applicant and the deceased often argued when drinking together in hotels. Neighbours reported hearing escalating arguments between them. Other persons warned the applicant about his behaviour towards the deceased.
As a result of the gambling, drinking and behaviour towards her when he was drinking and the deterioration in the relationship, the deceased broke off her personal relationship with the applicant. As a result, the applicant moved into the front bedroom of the Stevenson Street property. The deceased did not force the applicant to move out because she was concerned that if she did he would have nowhere to sleep.
An incident which resulted in police intervention took place at the Manning River Hotel on 21 June 2014. The applicant was arrested that night and charged with assaulting the deceased and a Mr Moore, who was an employee of the hotel who had intervened to assist the deceased. The applicant had grabbed the deceased and pushed her into a door. CCTV footage of the incident was obtained. The deceased told police that she had no fears of the applicant when he was sober but that he became aggressive and assaulted her if he was intoxicated, or losing heavily when gambling.
The applicant was found by police at the home of the deceased and arrested. The arresting officer observed a high level of intoxication in the applicant. When the applicant returned to the house in the early hours of the next morning, he was refused entry. On 6 and 7 September 2014 there were further arguments and episodes of violence. The applicant told his friend, Mr Mitchell, of the incident. He went to Mr Mitchell's house affected by alcohol and told him that he had been charged with offences of assault and drink driving.
On 12 September 2014 final orders were made in the Taree Local Court for an apprehended personal violence order (AVO) for two years in relation to the applicant and the deceased. It contained the usual orders and an additional order that the applicant not approach the deceased or her premises within 12 hours of consuming alcohol. The applicant was on bail for the two assault and the DUI matters when he murdered the deceased.
There was evidence before the sentencing judge concerning the applicant's mental state. Ms Gay Finlayson had known the applicant for 30 years. They were friends and in regular contact. The applicant would text her, meet her for coffee and ring her. If he had been drinking he would ring her and she could tell from the way he spoke when he had had too much to drink. On two occasions when he spoke to her, he had threatened to kill himself. The first was in the middle of 2014 when she told him not to ring her when he was drunk. On 7 September 2014 he rang Ms Finlayson and told her that his life was "f---ed", that he had not heard from his son and that he was going to kill himself. Ms Finlayson thought that he sounded drunk.
His friend Mr Mitchell spoke to the applicant on 18 September 2014. Mr Mitchell was driving and saw the applicant jogging and pulled over. When he asked the applicant how he was going, the applicant said "I've just had enough".
On 20 September 2014 the applicant and the deceased attended a football grand final. After the match, they went to the Royal Hotel at Kew. Staff at the hotel saw them there at around 5pm. The deceased was noted to be moderately affected by alcohol. They bought a carton of beer and left the hotel at 5.45pm.
On 21 September 2014 the applicant and the deceased arrived at a Mr Whittaker's house at about 10am for a barbeque. The applicant was drinking at the barbeque which finished at 12.30pm. After the barbeque, they went with others to the Laurieton Hotel in two vehicles. They remained there for an hour before leaving. They then went to the Royal Hotel at Kew.
The group, which included Ben and Wayne Whittaker, Ms Mason, the deceased and the applicant, stayed at the Royal Hotel for about an hour. An employee of the hotel observed that the group was showing signs of intoxication. She described the deceased as not being as drunk as others in the group and she could not smell alcohol on her. Another hotel worker spoke to the deceased and described her as "drunk but happy".
The applicant was observed to be putting bets on in the TAB and he purchased a carton of beer just before leaving at 2.32pm. While at this hotel, the applicant called Ms Finlayson from his mobile telephone. She said from her knowledge of him, that he spoke in a way that she knew he had been drinking and he told her that he was "pissed".
Ms Mason and the deceased drove to KFC in Taree and then to Stevenson Street. She and the deceased had showers, changed into their pyjamas and ate dinner. The next door neighbours described a conversation which they had with the deceased at some time after 4pm. They both noted that the deceased slurred her words a bit and sounded like she had been drinking, but was cheerful and relaxed.
Ms Mason said that the applicant was "really drunk." He fell asleep at the table and the deceased told him to go and lie down. He went into his room. There Ms Mason could hear him making a number of phone calls. The deceased asked him who he was calling and he gave the name of his son. Ms Mason heard the applicant say words like, "I love you, I miss you."
Ms Mason said that the deceased went into the applicant's bedroom and came out with his mobile phone. She then rang the last number called and had a conversation with Ms Finlayson which Ms Finlayson confirmed. Ms Finlayson said that she heard the applicant calling out in the background asking who the deceased was ringing. Ms Mason said that she heard the deceased say to the applicant while still on the phone "Tell her what you're really like, tell her you stole money off me." Ms Finlayson said that she terminated the call on her phone after a short period of time.
According to the history given by the applicant to the psychologist and psychiatrist, the deceased had entered the bedroom and struck him on the face with the phone, causing an injury. Police did subsequently see an injury to his nose and eyebrow. The deceased then left the bedroom and sat in a reclining chair in the lounge room. This chair was adjacent to the entrance to the kitchen.
There were a number of calls from the applicant's mobile phone to Ms Finlayson that afternoon and evening. Eight calls were made between 1.50pm and 6.56pm. The applicant came out of his bedroom and went to the kitchen and grabbed a white handled boning knife. He held it in his right hand. He came up to the deceased and Ms Mason saw him appear to punch the deceased with his left hand to the right side of her chest. His hand remained in position, forcing the reclining chair back. He then appeared to punch her with his right hand in the left side of her chest.
Ms Mason got up and tried to stop him. She then realised that he was holding a white handled knife. She saw blood and became aware that he was naked from the waist down when she tried to pull him away. The applicant stabbed at the chest and neck of the deceased a number of times. She raised her hands above her head to try to ward off the blows and received defensive injuries.
Ms Mason went to the front of the house to seek help, while trying to ring for help at the same time. The applicant followed her and demanded to know who she was calling. When she said no-one, he said she was lying. The light on her phone screen was visible. He then struck her with the knife in the upper abdomen below her left breast causing an eight centimetre laceration which bled immediately. In a walk through video she described to police a backhanded motion with the knife.
The applicant remained where he was as Ms Mason retreated across the road. He re-entered the house and slammed the door. Ms Mason was locked out of the neighbour's house across the road by the young occupant and she rang 000. The call was logged at 6.52pm and lasted for 10 minutes and 52 seconds. During that call Ms Mason said that she heard the front door re-open and footsteps with the applicant mumbling words to the effect of "Where is the f---ing bitch?" She remained hidden on the porch of the house, whispering to the operator at this point. The applicant then went back to the house and slammed the door.
Ms Mason was conveyed by ambulance to the Manning Base Hospital. She was found to have an eight centimetre oblique wound to the left upper quadrant of her abdomen which was actively bleeding. She underwent surgery that evening where the wound was explored and cleaned. The knife had not penetrated into the peritoneum. There was blood loss of approximately 500 mL in theatre. Her wound was sutured following the evacuation of a large haematoma in the abdominal wall. She was discharged on 22 September 2014 in a satisfactory condition. The injuries were described as "moderate".
Police arrived at the scene at 7pm by which time ambulances had already arrived. Police forced open the front door and arrested the applicant for the wounding of Ms Mason and handcuffed him. The applicant was heard to say, "I f---cked up, sorry". The police became aware of the deceased sitting in the chair and the applicant informed them that she was dead. A white handled knife was observed by the arresting officer to be tangled in her hair, on her left shoulder. The DNA of both the deceased and Ms Mason was found on the knife. It was accepted that the applicant must have returned to the deceased with the knife after stabbing Ms Mason.
At 7.10pm a short interview with the applicant was recorded by police on his mobile phone at the front of the house. He was informed that he was being arrested for assault on Ms Mason and the death of the deceased. The applicant at that point denied killing the deceased. He was cautioned.
At 7.25pm the applicant was conveyed to the police station where he was placed in custody. He was interviewed at 2am and made no comment on the allegations put to him on the advice of his solicitor, although he did deny that there was an argument about a phone call. He assessed his intoxication level at the time of the incident as "about a 5 out of 10".
The applicant was observed by police to have a swelling to his right eye. This was later described as a cut to the right eye. The arresting officer noted a swollen right cheek and what appeared to be blood around the bridge of his nose when he was back at the police station. During his interview, the applicant was asked about his injured right eye and the blood around it, but he declined to say anything until he had spoken to his solicitor.
On 24 September 2014 a forensic pathologist, Dr Vuletic, conducted a post mortem examination of the deceased. Dr Vuletic reported that death was due to blood loss from a stab wound to the front of the chest which penetrated the chest wall, pericardial sac and aorta (the main blood vessel that supplies blood to the body). Death was inevitable and would have occurred within minutes after the injury was inflicted. The fatal stab wound was consistent with having been inflicted with a boning knife, as were all the incised and stab wounds.
There were also incised wounds to the right parietal scalp, extending to the right angle of the mouth and then to the right side of the chin. The right frontal bone was exposed. There were further wounds. These were to the left shoulder extending from the base of the neck to the tip of the shoulder, to the right upper chest. There was a wound on the chest midway between the breasts, superficial wounds to the area below the right clavicle and right breast and three defensive wounds to the right hand. Bruising was seen on the right upper arm and on the right leg. All wounds resulted in the loss of blood contributing to death. The toxicology report on the deceased recorded an alcohol reading of .232.
The applicant has been in custody, bail refused, from 21 September 2014.
Proceedings on sentence
The Crown tendered a bundle of material, which included the applicant's criminal antecedents, an expert medical certificate from Dr Simons dated 4 December 2014 outlining the injuries suffered by the deceased and the autopsy report of Dr Vuletic. Four victim impact statements were also tendered from Ms Mason, the deceased's sister, the deceased's daughter and the deceased's son. The applicant did not give evidence in the sentence proceedings. The defence tendered a report by Dr Olav Nielssen, psychiatrist, dated 24 April 2015 and a psychologist's report by Ms Robilliard, dated 4 August 2015. Medical records relating to the applicant's admission to the Tamworth Hospital in 2014 were also before the court.
Her Honour characterised the murder of the deceased as "a barbarously savage crime marked by the severity of the injuries inflicted upon her. The facial wound in particular is demonstrative of what must have been a ferocious and particularly violent attack" (Sentence judgment, [93]).
Her Honour was unable to determine what precipitated the commission of the offence. Her Honour noted that the continuing "unhappiness" between the deceased and the applicant seemed to have been exacerbated immediately before the applicant went into the kitchen to obtain the knife by whatever had occurred in the bedroom. Her Honour was not able to make a finding of what in fact occurred in the bedroom.
Ms Mason did not see or hear what occurred in the bedroom. The applicant in his interview with police denied that there had been an argument connected with Ms Finlayson, but said nothing else about what had occurred. To Dr Nielssen the applicant said that the deceased had grabbed his mobile telephone and "slammed it" into his face. He told Ms Robilliard that the deceased "threw the phone at him" and that it struck him in the face.
Her Honour accepted that there was objective evidence that the applicant had an injury to his face when arrested and that he had not had that injury when he went into the bedroom to lie down after returning from the day's social events. Her Honour noted that Ms Mason did not observe the injury at any time, although it was possible that she had simply failed to notice it given the terrible events which subsequently occurred.
Her Honour's conclusion on this issue was:
"It may be, as the offender asserts in his unsworn and untested statements to forensic practitioners, that Ms Pearson struck him with his mobile telephone but the credible evidence does not establish that, even on the balance of probabilities. I am unable to accept the offender's belated and self-serving hearsay assertion to a doctor as credible evidence.
It is reasonable to conclude that there was an unpleasant exchange between Ms Pearson and the offender after Ms Pearson went into the offender's bedroom to confront him about the telephone calls that he had been making. That she was upset and angry with the offender is readily suggested by her comment during the telephone call to Ms Finlayson about money having been stolen. I am unable to accept however that, as the offender submits, Ms Pearson assaulted him, and he was thus provoked by her conduct to the violence that followed." (Sentence judgment, [98] - [99])
Her Honour observed that even if the applicant had been assaulted in the way in which he alleged, it was a relatively low level of violence which could never account for the barbarity that followed. Her Honour found that the offence was not planned, but occurred as "a spontaneous eruption of vicious rage".
Her Honour found that after the angry exchange in the bedroom, the applicant who was probably intoxicated to some extent and enraged, went to the kitchen and deliberately armed himself with a boning knife which in his hands was a particularly lethal weapon. Her Honour considered that it was of some significance that the applicant did not simply pursue the deceased and strike her but first went to the kitchen and selected a boning knife. Her Honour characterised this as purposeful behaviour which to some small extent operated to aggravate the offence. Her Honour took into account that a weapon was used in the offence as an aggravating matter of greater significance.
Her Honour characterised the offence itself as involving a particularly brutal attack with the applicant striking repeatedly at the deceased with the knife as she sat in the recliner chair so that the level of violence and the injuries inflicted on the deceased were terrible as well as fatal.
Her Honour found that when the applicant attacked the deceased with the boning knife, he acted with an intention to kill. Her Honour found that this intention to kill made the crime more serious.
Her Honour found that the attack was made on a woman who was particularly vulnerable at the time.
"Ms Pearson's level of intoxication, which the offender must have been aware of, would have compromised her ability to effectively respond to the attack upon her. She was seated in a chair at a lower level than that of the offender when he attacked, and was trapped by him in the chair without means of retreat. She was physically of lesser strength and stature than the offender, who was a large and physically fit man. Although not relevant in the context of a feature of aggravation as provided by the [Crimes (Sentencing Procedure) Act], these are factual matters which heighten the gravity of the offence." (Sentence judgment, [107])
Her Honour found that the deceased's defensive injuries indicated that she struggled against the applicant's attack and must have known that she was fighting for her life and would have been terrified. Her Honour concluded that the deceased's last moments were spent in fear and pain.
Her Honour found as a further aggravating feature that the attack occurred in the deceased's home, a place where she was entitled to be safe, and at the hands of someone she loved and should have been able to trust. Her Honour concluded that "[t]he breach of trust is absolute".
Her Honour took into account as a further aggravating feature that the applicant murdered the deceased when he was subject to conditional liberty. Her Honour noted that the applicant was "on bail for the earlier assault upon her together with the related offences, and when subject to a court order which restrained his conduct towards the deceased".
As a separate matter, her Honour found that the breach of the apprehended violence order, being his presence in the house with the deceased a short time after having drunk alcohol to intoxication, was also a very grave example of "a crime of that nature". Her Honour observed that apprehended violence orders "are made by the courts to regulate the conduct of persons who pose a risk to others" and that "[i]f orders of the court are ignored, the court's authority is undermined and the rule of law is compromised". This results in those intended to be protected being left without that protection. Her Honour found that the applicant's presence in the deceased's house involved a flagrant disregard for the court's orders.
Her Honour found that the wounding of Ms Mason was a serious offence. Although the offence was largely spontaneous, it was significant that the applicant pursued the victim and attacked her in the context of knowing that she was telephoning for help. Her Honour characterised this is as purposeful conduct rather than the product of a lack of control. Her Honour noted that the only threat posed by Ms Mason to the applicant was that she might secure help for the deceased by the intervention of the authorities. Her Honour concluded that the applicant's actions to counteract the possibility of such intervention heightened the objective seriousness of the offence against Ms Mason.
Her Honour found that the wound inflicted by the applicant, in the course of preventing Ms Mason from summoning help, was a serious one. Her Honour accepted that despite the seriousness of the physical injury suffered by Ms Mason, it was readily capable of surgical repair and that there was no evidence of any ongoing physical disability.
Her Honour assessed the applicant's moral culpability for the offence. Her Honour noted the submission on his behalf that his moral culpability should be regarded as diminished by his particular psychological makeup with his resort to alcohol to deal with depression being an inherent part of his impaired functioning. The applicant also relied upon there being a degree of provocation leading to the commission of the crimes which should also mitigate his moral culpability.
Her Honour largely rejected that submission. Her Honour was not prepared to give weight to the applicant's history to Dr Nielssen and Ms Robilliard in circumstances where he did not give evidence of those matters nor was he subjected to cross-examination in relation to them. This was particularly so when there was an absence of independent evidence which might provide some support for those assertions. In reaching that conclusion, her Honour relied upon R v Qutami [2001] NSWCCA 353; 127 A Crim R 369.
Her Honour noted a number of inconsistencies in the histories given to those medical experts. Her Honour was not prepared to accept the genuineness of the applicant's assertion that he could not remember inflicting more than one stab wound on the deceased. Her Honour noted the difference in the assertions made to Dr Nielssen as to his level of intoxication and those made contemporaneously to the police.
Her Honour accepted that the applicant was suffering from depression in the months leading up to the offence. This had been confirmed by objective evidence. Nevertheless, her Honour did not regard the evidence of the applicant's depressive state as being capable of significantly mitigating his moral culpability. Her Honour regarded the fact of the applicant's depression as providing the context for the offending but it did little to mitigate the seriousness of it.
Her Honour noted that the diagnosis of depression had been made in March or April 2014 and the applicant had been offered treatment. He had chosen not to accept the treatment and he had not complied with the regime of medication prescribed for him. Instead he had chosen to self-medicate with alcohol.
Her Honour was not prepared to accept that the applicant's self-induced intoxication at the time of the commission of the offences should be regarded as a feature of his depressive state and capable in that way of mitigating his crimes. In that regard, her Honour noted that the applicant had at least one previous warning of the dangers inherent in his intoxication because he had previously assaulted the deceased and another person in June 2014 when he had been significantly under the influence of alcohol. Her Honour found that this experience should have alerted the applicant to the dangers of excessive alcohol consumption for him.
Her Honour also had regard to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) which provides that a court is not to take an offender's self-induced intoxication into account as a mitigating factor. Her Honour found that these were offences born of intoxication and sparked by an explosion of anger, together with a realisation, in the case of Ms Mason, that she was calling for help and not an irrational intention of preventing her from doing so. Her Honour's conclusion was that nothing in the applicant's circumstances could diminish his moral culpability for his crimes to any real extent.
In relation to the applicant's subjective case, her Honour noted that the applicant had been raised in the Armidale area and that he had experienced a happy childhood. He had been in steady employment since he left school. Apart from the relationship with the deceased, the applicant had had only one other significant long term relationship. The applicant's son was close to the deceased and her death had adversely affected the applicant's relationship with him. This loss of contact had greatly saddened the applicant.
Her Honour found that the applicant's criminal record was of little relevance, other than the assaults which occurred in June of 2014.
Her Honour noted the discrepancy of opinion between Dr Nielssen and Ms Robilliard as to the range of the applicant's intelligence. Dr Nielssen had assessed him as falling within the normal range, whereas Ms Robilliard had concluded that he fell within the "lower end of the below average range" for intelligence. Her Honour concluded that both assessments placed the applicant in the average or normal range of function which was consistent with the fact that the applicant had functioned appropriately in the community for many years until this offending.
The applicant was recorded in the medical reports as drinking alcohol from the age of 16, but until recent years it had never been a problem for him. Gambling had become a problem for the applicant causing him to fall significantly into debt in 2014, as well as creating tensions in his relationship with the deceased.
Her Honour noted that since his incarceration on 21 September 2014 the applicant had worked when possible and at the time of sentencing was working as a wing sweeper. The applicant continued to pursue activities directed to the maintenance of his physical fitness. He had been appropriately medicated for his depression since his incarceration and Dr Nielssen considered that he was in remission.
Although the applicant's expressions of remorse to the medical practitioners were untested, her Honour regarded them as being consistent with his early pleas of guilty and accepted that he was remorseful for the murder of the deceased.
Her Honour was not prepared to make the same finding in relation to the offence against Ms Mason. There was a degree of resentment against Ms Mason apparent from what the applicant had told Dr Nielssen and Ms Robilliard. The applicant reported that Ms Mason was responsible for much of the trouble between him and the deceased. The applicant said that her presence on 21 September 2014 inflamed the situation. Her Honour concluded that the hostility felt by the applicant against Ms Mason was not consistent with true remorse for his offending against her. That having been said, her Honour was prepared to accept that by his plea of guilty the applicant acknowledged responsibility for what he had done.
The diagnosis by Dr Nielssen was that the applicant was suffering from alcohol abuse disorder and depression. The opinion of Ms Robilliard was that his significant abuse of alcohol before the offending produced behavioural disinhibition and dysregulation and that his overall symptoms were suggestive of a Borderline Personality Disorder. Her Honour noted that as a psychologist, Ms Robilliard was not qualified to provide such a diagnosis. Her Honour found that the diagnosis of Dr Nielssen was consistent with her findings concerning the applicant's depression.
Her Honour found that it was almost impossible to make any meaningful prediction about the applicant's future prospects of rehabilitation, given the lengthy period which he must spend in prison. Nevertheless, there was some reason for optimism given his solid employment history and limited criminal history before the offending. Her Honour concluded that the applicant's rehabilitation, particularly in relation to his abuse of alcohol and associated resort to violence, was largely in his own hands.
In relation to special circumstances, her Honour said:
"The offender raised the issue of special circumstances in submission. I do not find that the offender's circumstances require any variation on the ordinary ratio of sentence. The usual proportion of sentence will result in a lengthy parole period, simply because the overall sentence must be a lengthy one. That parole period will be adequate to assist the offender in his reintegration to the community.
…
I do, however, propose to make the finding of special circumstances pursuant to s 44(2) of the [Crimes (Sentencing Procedure) Act], insofar as it is necessary to adjust the statutory ratio of individual sentences to attain an overall sentencing outcome which, in broad, complies with the usual regime. There will be some slight adjustment to the usual overall ratio, which is a considered and intended adjustment, necessary to ensure that the NPP properly reflects the criminality of the offences." (Sentence judgment, [169]-[171])
Her Honour was not prepared to find that the applicant's depressive condition would cause his time in prison to be more onerous than for other prisoners. This was because there was no evidence before her to that effect. Her Honour found that to the extent there was any evidence on the subject, it was to the effect that the applicant had adjusted relatively well to a custodial environment and in taking his medication and abstaining from alcohol abuse, his health had improved.
Her Honour took into account not only general deterrence but specific deterrence given the fact of the earlier assault upon the deceased in June of 2014.
Her Honour had regard to the principle of totality, given that the sentence to be imposed would be significant. Her Honour specifically took into account the degree to which the criminality of one offence might be reflected by the sentence imposed for the other offences as discussed in Cayhadi v Regina [2007] NSWCCA 1;168 A Crim R 41. Her Honour did not regard that commonality as great but there was some overlap which would be reflected by a degree of concurrency in the sentences imposed.
In relation to the early plea of guilty, her Honour said:
"The offender entered a plea of guilty to the offences on indictment at an early stage, and he also entered a plea of guilty to the summary offence before this Court. There is considerable utilitarian value in the offender's pleas and that value attracts a discount of 25% on the sentences that would otherwise have been imposed". (Sentence judgment, [181])
When considering the question of general deterrence, her Honour made the following observation:
"Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. Violent and non-fatal attacks by persons known to the victim are also common. That is something of which we as a community should be ashamed and which the courts must seek to address when sentencing offenders such as Mr Archer.
It is incumbent upon this Court to clearly signal the community's intolerance of domestic violence. The High Court has recently given powerful expression to the need for the courts to denounce domestic violence in the case of Munda v Western Australia [2013] HCA 38; 249 CLR 600. There it was said:
"A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law"." (Sentence judgment, [174]-[175])
THE APPEAL
Ground 1 - Her Honour erred by double counting in relation to the applicant's breach of the conditional liberty of the apprehended violence order.
The applicant submitted that the sentencing judge erred by taking into account that the applicant was on conditional liberty at the time of the offence as "a matter of serious aggravation" of the offence of murder in circumstances where he was sentenced separately and cumulatively for the offence of breach of the AVO.
The applicant submitted that the conditions of the AVO were the standard orders prohibiting him from assaulting, intimidating or stalking the person in need of protection (PINOP) with an additional order that he must not approach the PINOP at her residence or place of work within 12 hours of consuming intoxicating liquor. The applicant submitted that there was a need to achieve balance in approaching these aspects of aggravation "so that in combination they are not double counted or given disproportionate weight when it comes to assessing the objective factors …".
The applicant submitted that her Honour's finding that it was a "matter of serious aggravation" that he was on conditional liberty at the time of the offence meant that her Honour had failed to appreciate the risk of double counting and that there had been no consideration of balance between or totality of the two offences. The applicant submitted that the conduct underlying this aggravating feature largely overlapped the offence of contravening the AVO. The applicant submitted that it was an error to make the sentence for murder effectively cumulative upon the breach of the AVO and to significantly increase the sentence for murder because of this same factor. The applicant submitted that the approach of the sentencing judge resulted in double counting which produced a significant increase in the overall sentence.
Consideration
At the time of the commission of the principal offences, the applicant was on bail for two charges of assault and one of driving a vehicle under the influence of alcohol. He was also subject to an AVO which was imposed on 12 September 2014.
The two concepts are different. A breach of bail involves a breach of an undertaking given to the court to observe certain conditions. In this case the grant of bail was brought about by the offending which occurred in June 2014. The AVO, although based upon the fact of the offending in June 2014, did not raise the same issues as were raised by those offences. It constituted an additional layer of protection for the deceased in that it involved specific orders being made for by a court as to the conduct of the applicant towards the deceased.
The difference is made clear in the cases to which her Honour referred in her sentence judgment.
In Frigiani v R [2007] NSWCCA 81 Howie J (Simpson and Barr JJ agreeing) said:
"24 It is clear that the prior matter was relevant in two ways. Firstly it was an aggravating factor because the offence for which the applicant was being sentenced was committed in breach of a good behaviour bond. That is an aggravating factor listed in s 21A(2)(j) regardless of the conduct in respect of which the bond was imposed. However, it is generally considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced. The second paragraph of his Honour's remarks quoted above reflects this fact.
25 Secondly, the fact that the applicant had assaulted his wife was relevant to show that the offence for which he was being sentenced was not an aberration. For this purpose it was enough that the applicant had been found guilty of that conduct even though no conviction had been recorded against him. …"
In Porter v R [2008] NSWCCA 145 Johnson J (Bell JA and McCallum J agreeing) said at [86]:
" … it seems to me that the purpose of s.21A(2)(j) is to capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour."
There was no error of principle in what her Honour said nor in how her Honour took into account that the principal offences were committed while the applicant was on conditional liberty. Because it was different to the breach of the AVO offence, it was appropriate for her Honour to take it into account when sentencing for the principal offences without there being double counting.
This ground of appeal has not been made out.
Ground 2 - Her Honour erred in her assessment of factors relevant to the objective gravity of the murder offence.
The applicant submitted that her Honour erred in finding that he had abused a position of trust in relation to the deceased in that the attack on her had occurred in her home where she was entitled to be safe and that the attack had occurred at the hands of someone whom she loved and should have been able to trust so that the breach of trust was absolute. The applicant submitted that the observations of the sentencing judge in relation to a "breach of trust" were incorrect in fact and in law.
The applicant submitted that there was no evidence that the deceased was still in love with the applicant. It was an error to suggest that the conduct of the applicant amounted to an absolute breach of trust. This was because the agreed facts recorded that the deceased broke off the personal relationship but allowed the applicant to remain in the house because he had nowhere else to go. To the extent that there was any evidence on the subject, e.g. the taking out of the AVO and the comment made to Ms Finlayson during the telephone conversation, that evidence indicated that the relationship between the deceased and the applicant had irretrievably broken down. The applicant submitted that he was not in a position of trust insofar as the deceased was concerned.
The applicant submitted that there was no basis for her Honour's finding that the deceased was "particularly vulnerable at the time". He submitted that there was no evidence that he was aware of the extent of the deceased's intoxication so that she was not effectively able to defend herself. The applicant submitted that there was no factual basis for such a finding. The applicant submitted that there was no evidence that he was capable of assessing the level of intoxication of the deceased before the offence took place.
The applicant submitted that her Honour had not properly taken into account the issue of provocation because she had only considered the question of whether the deceased had assaulted the applicant and failed to take into account her other conduct leading up to the alleged assault with the mobile phone.
The applicant submitted that the other conduct in relation to provocation was taking his mobile phone, re-dialling the last number called, speaking to a long time female friend of his and referring to him in an abusive manner during the course of the phone call. The applicant submitted that the sentencing judge failed to take these matters into account and focused entirely upon whether or not the deceased had hit him with the mobile phone.
The applicant submitted that her Honour should have taken the matters of provocation properly into account and that if she had, the requirement of s 21A(3)(c) of the Sentencing Act would have been met. This was so irrespective of whether her Honour was satisfied that the deceased subsequently assaulted the applicant with the phone. The applicant submitted that where some provocation can be established, such that it was a mitigating factor under s 21A(3)(c), it could reduce the objective seriousness of the offending.
The applicant submitted that her Honour's finding that she was unable to accept that the deceased had assaulted the applicant by hitting him with the mobile phone, thereby provoking him to the conduct which followed, was inconsistent with the statement of agreed facts (at par (33)) signed by the Crown and defence. The applicant submitted that the agreed facts adopted the statements of the applicant made to the psychologist and psychiatrist and it was not open to her Honour to reject that evidence.
Consideration
There is force in the applicant's submission that it was not open to her Honour to find that he had abused a position of trust when he attacked and killed her. Certainly his conduct could not be properly characterised as an "absolute" breach of trust. The only evidence available to her Honour was that the relationship between the applicant and the deceased had broken down and that his presence in the same premises was only by sufferance because he had nowhere else to go. Not only could this not satisfy s 21A(2)(k) of the Sentencing Act, it could not amount to a breach of trust generally. This part of the ground of appeal has been made out.
Her Honour made it clear that she was not referring to the deceased as vulnerable by reference to s 21A(2)(l) of the Sentencing Act. It was, however, open to her Honour to find that the deceased was vulnerable in a general sense at the time of the attack. The applicant had been with her for the whole of the day and would have been well aware that she was intoxicated. Moreover, she was seated in a large chair while he was standing. Finally, he was a fit male of substantially larger physique. These were all particular features of this offence and were not matters inherent in the offence of murder. When taken together with the violence of the attack, it was well open to her Honour to make the finding which she did.
It is true that some matters identified by the applicant as amounting to "provocation" were not specifically dealt with by her Honour. What her Honour did was to identify the most serious of those matters, i.e. the alleged hitting with the mobile phone, and rejected it on two bases. The first was its evidentiary foundation and the second was that it involved a level of violence on the part of the deceased which was minor when compared with the actions of the applicant in response, as being of little significance.
The same conclusion is applicable to the matters raised by the applicant under this part of ground 2 of the appeal. The only evidence that the deceased took the applicant's mobile phone from him came from what the applicant somewhat belatedly told Ms Robilliard. It suffered from the same problems which her Honour identified in relation to the alleged hitting of the applicant with the mobile telephone.
In relation to the other matters (i.e. re-dialling the last number, speaking to a long time female friend and referring to the applicant in that conversation in a derogatory manner), they were matters of such low import as to have no real bearing on the seriousness of the offending. They are better characterised as matters of irritation, not provocation.
The applicant's submission that her Honour's findings as to provocation were precluded because they were contrary to the agreed facts, is not made out. The agreed facts never asserted the accuracy or reliability of what the applicant said to the psychologist and the psychiatrist. All that the agreed facts did was to set out as a fact that these statements were made by the applicant to those persons.
It follows that this ground of appeal has been made out but only in respect of her Honour's finding that the offending involved a breach of trust on the part of the applicant and that this was to be taken into account as a matter of aggravation.
Ground 3 - Her Honour erred by failing to give effect to the discount for the plea of guilty in relation to the breach of AVO offence.
The applicant submitted that the maximum penalty for the offence of contravening an AVO (s 14 Crimes (Domestic and Personal Violence) Act) was 2 years imprisonment so that even if her Honour had imposed the maximum sentence for that offence and allowed for the discount for the early plea of guilty, the sentence imposed would have been for 18 months. The applicant submitted that her Honour clearly failed to apply the 25% discount to the sentence imposed for this offence.
Consideration
This ground of appeal has been made out. Her Honour does appear to have overlooked the 25% discount for the early plea of guilty when passing sentence for this offence.
Ground 4 - Her Honour erred by failing to give effect to the finding of special circumstances.
The applicant submitted that her Honour made a limited finding of special circumstances to adjust the ratio of the individual sentences to obtain an overall sentencing outcome that "in broad" complied with s 44(2) of the Sentencing Act. The applicant submitted that despite that express intention, the ratio of the total overall non-parole period to the head sentence is 77.2%.
Consideration
It is not clear what her Honour had in mind when making the finding of special circumstances. However, the result does not accord with s 44(2) and having regard to what was said in Caristo v R [2011] NSWCCA 7 at [36] R A Hulme J (Giles JA and Adams J agreeing) and MD v R [2015] NSWCCA 37 at [42] - [43] Gleeson JA (with whom Johnson and Hall JJ agreed) would appear to be indicative of error.
This ground of appeal has been made out.
Ground 5 - The sentence imposed was manifestly excessive.
The applicant submitted that the overall head sentence of 26 years and 4 months with a non-parole period of 20 years and 4 months was excessive as were the individual sentences imposed. By way of illustration, the applicant submitted that if one took into account the 25% discount in respect of the sentence for murder, her Honour's starting point for that sentence must have been 32 years which he submitted was manifestly excessive. Similarly, in respect of the sentence for wounding with intent to inflict grievous bodily harm, the starting point for that sentence must have been 10 years and 8 months. The applicant submitted that by reference to those starting points, it was clear that the sentences imposed by her Honour were "unreasonable or plainly unjust".
The applicant submitted that although it was difficult to make comparisons with individual cases, he had identified five cases where the intention was an intention to kill and which shared other features with the offending in this case. Those cases were R v Sjahadi [2013] NSWSC 540, R v Faehndrich [2008] NSWSC 877, R v Wicks [2009] NSWSC 266, R v Maglovski (No 2) [2013] NSWSC 16 and R v Giercynski [2013] NSWSC 1870. The applicant submitted that in all of those cases the sentences imposed for the murder offence was significantly less than that imposed in this case. He submitted that given the similarity in facts, there was a consistency in the sentences imposed in those cases which supported his submission that the sentences imposed in this case were manifestly excessive.
Consideration
In view of the finding of error in relation to specific grounds of appeal, it is not necessary to deal with this ground of appeal in any detail. Something does need to be said, however, given the approach of the applicant relying upon a small number of cases which are said to be similar and therefore indicative of the sentences imposed in this case being manifestly excessive.
The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases. Manifest excess has to be established in a context where there is "no single correct sentence" and that "judges at first instance are allowed as much flexibility in sentence as is consonant with consistency of approach and application of principle" (Markarian v The Queen [2005] HCA 25; 228 CLR 357).
In Huynh v R [2008] NSWCCA 216 Johnson J (with whom Allsop P and Price J agreed) said at [61]:
"… The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49]. …"
In Vandeventer v R [2013] NSWCCA 33 at [45] Adamson J (with whom McClellan CJ at CL and Rothman J agreed) said:
"… Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive."
The definitive statement of principle remains that of the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520:
"54 In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
55 As the plurality said in Wong:
"[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."" [Footnotes omitted]
The cases relied upon by the applicant are of little assistance in determining whether or not the sentences imposed in this case were manifestly excessive. They do not provide any unifying principle that dictates that the subject sentences were manifestly excessive. In any event, it is apparent that each of the five cases depends very much upon its own specific facts.
Resentence
In view of the nature of the errors which have been identified, it is necessary for this Court to re-exercise the sentencing discretion generally. This is so because it involves the operation of s 6(3) of the Criminal Appeal Act. In relation to the application of that section, Bathurst CJ (with whom Beazley P and R A Hulme and Schmidt JJ agreed) said in Lehn v R [2016] NSWCCA 255:
"68 As was stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context which includes the general purposes and policy of the provision: at [47]; see also Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. The text of the section under consideration in this case, where it applies, requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law. The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence."
In carrying out the resentencing exercise, it is necessary to consider not only the material which was before the sentencing judge but also what has happened since the date when sentence was imposed and the date of the appeal. In an affidavit, sworn 7 April 2017, the applicant stated that because of the length of his sentence, he will not be eligible to participate in rehabilitation programs for a number of years. Despite this fact, he has engaged in mentoring roles with younger men in prison, particularly in relation to the sport of rugby league. He has also been acting as Inmate Delegate at the Kempsey Correctional Facility. He has maintained contact with his family, is compliant with medical advice and has been regularly taking anti-depressant medication. His record while in custody is a good one and he has complied with prison regulations. His classification is that of an A2 maximum security prisoner. That situation is unlikely to change for many years. A downgrading in his security classification is unlikely to change until approximately 10 years preceding the end of his sentence.
Apart from the matters raised in the appeal, the findings of fact by the sentencing judge have not been challenged. Those findings accord with my reading of the evidence. Accordingly, in the re-exercise of the sentencing discretion I propose to rely upon those unchallenged findings of fact.
In assessing the objective seriousness of the murder offence, I have had regard to the following matters:
The maximum penalty is imprisonment for life and that there is a standard non-parole period of 20 years.
The applicant acted with an intention to kill the deceased.
The offence involved the use of a weapon.
There was no provocation.
It was a brutal attack with the applicant striking repeatedly at the victim with a knife as she sat in the recliner chair without a means of retreat.
The level of violence was considerable.
The offence was committed while the applicant was on conditional liberty and was in breach of an AVO for the protection of the deceased.
The murder occurred in a domestic context and involved the murder of a woman by her former partner.
In those circumstances I assess the objective seriousness of that offending as above the midrange.
In relation to the offence of wounding with intent to cause grievous bodily harm, I have had regard to the following matters:
The maximum penalty is 25 years imprisonment with a standard non-parole period of 7 years.
The requisite intent "to cause grievous bodily harm" is the same mental element as is required for murder.
While the physical results of the wounding have not been significant, the manner in which the wound was inflicted is a relevant consideration as are the circumstances surrounding the infliction of the wound.
The nature of the weapon used.
The wounding involved a pursuit of the victim and the victim was under threat from the applicant over a period of time.
The wounding was intended to prevent the victim obtaining help for the deceased.
Although there is no evidence as to the mental effect on the victim of the wounding and the circumstances surrounding it, it can be reasonably inferred that they would not be transient.
Accordingly, even though an offence contrary to s 33(1)(a) of the Crimes Act is essentially a "results based" offence, the surrounding features in this case are such as to lead me to conclude that the objective seriousness of the offence is above midrange.
As already indicated, I accept and take into account the findings by her Honour as to the applicant's mental state and as to the effect of his depressive condition on the time that he will spend in custody. I have otherwise had regard to his subjective case, including his good conduct whilst in custody. The applicant, of course, retains his entitlement to a discount of 25% on sentence.
I decline to make a finding of special circumstances. The allowance which I have made for a period on parole will be ample to provide for rehabilitation. While I am conscious that the ratio between the non-parole period and the head sentence is slightly above the statutory proportion, the non-parole periods which I propose in respect of counts 1 and 2 represent the minimum time which the applicant should spend in custody and should not be further reduced.
Accordingly, the sentences which I propose are as follows:
1. For the offence of contravention of an apprehended violence order, a sentence of 12 months imprisonment commencing 21 September 2014 and expiring 20 September 2015.
2. For the offence of wounding Natasha Mason with intent to cause grievous bodily harm, a term of imprisonment with a non-parole period of 6 years commencing 21 March 2015 and expiring 20 March 2021 with a balance of term of 2 years expiring 20 March 2023.
3. For the offence of murder of the deceased, a term of imprisonment with a non-parole period of 18 years, commencing 21 March 2016 and expiring 20 March 2034, with a balance of term of 6 years expiring 20 March 2040.
4. The overall effective sentence with respect to the three offences consists of a non-parole period of 19 years and 6 months, commencing 21 September 2014 and expiring 20 March 2034 with a head sentence of 25 years and 6 months expiring 20 March 2040.
Proposed orders
The orders which I propose are:
1. Leave to appeal against sentence is granted.
2. The sentence imposed by Wilson J on 8 October 2015 is quashed.
3. In lieu thereof the applicant is sentenced as follows:
1. With respect to the offence of contravene an apprehended violence order, imprisonment for 12 months commencing 21 September 2014 and expiring 20 September 2015.
2. For the offence of wound with intent to cause grievous bodily harm, imprisonment with a non-parole period of 6 years commencing 21 March 2015 and expiring 20 March 2021 with a balance of term of 2 years expiring 20 March 2023.
3. For the offence of murder, imprisonment with a non-parole period of 18 years, commencing 21 March 2016 and expiring 20 March 2034 with a balance of term of 6 years expiring 20 March 2040.
1. (4) The earliest date on which the applicant will be eligible for release on parole is 20 March 2034.
PRICE J: I agree with Hoeben CJ at CL.
FULLERTON J: I have read the judgment of Hoeben CJ at CL and the orders his Honour proposes on re-sentence with which I agree. I also agree that the errors attracting the operation of s 6(3) of the Criminal Appeal Act include the sentencing judge's treatment of the applicant's offending as aggravated under s 21A(2)(k) of the Crimes (Sentencing) Procedure Act (the limited error identified in his Honour's consideration of the second ground of appeal) and the errors the subject of the third and fourth grounds of appeal.
Although I would also have found the error the subject of the first ground of appeal to have been made out, for the reasons which follow I do not propose that on re-sentence a lesser sentence on the murder count be imposed as a result.
The complaint the subject of the first ground of appeal was not that the sentencing judge was in error in treating the applicant's breach of bail for the earlier assault on the deceased as a feature of serious aggravation. The applicant accepts that it was open to her Honour to treat that breach as aggravating his offending for both the murder of the deceased and the wounding of Ms Mason in accordance with s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. Neither was it submitted that her Honour was in error in treating the breach of the apprehended violence order as an aggravating factor on the murder count, albeit an aggravating factor at common law (see Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [99]; Porter v R [2008] NSWCCA 145 at [87]; Cvitan v R [2009] NSWCCA 156 at [60] where this Court has emphasised that common law sentencing principles are preserved by s 21A(1)). I note that her Honour, correctly, did not treat the breach of the apprehended violence order as aggravating the offence which involved the wounding of Ms Mason contrary to s 33(1)(a) of the Crimes Act, appreciating, it would seem, that Ms Mason was not the person nominated as the person to be protected under that order.
The error complained of was confined to what was said to be her Honour's failure to attend to the risk of "double counting" by treating the applicant's breach of the apprehended violence order as a feature of aggravation on the murder count in circumstances where he was also to be sentenced for contravening that order.
The applicant submitted that the risk of double counting materialised in the ultimate sentencing order with the sentence for breach of the apprehended violence order to be served, effectively, cumulatively on the sentence for the murder. The applicant submitted that where, as here, the conduct constituting the offence of breaching the apprehended violence order is the same conduct relied upon as a feature of aggravation in the assessment of the objective seriousness of the murder, the degree of accumulation between the two offences amounted to a sentencing error.
The discrete passage in the sentencing remarks at [111] where the breach of the apprehended violence order was treated as aggravating the criminality inherent in the murder of Ms Pearson is as follows:
A final feature of the offence that heightens its gravity is the fact that the offender murdered Ms Pearson when he was subject to conditional liberty, being on bail for the earlier assault upon her together with the related offences, and when subject to a court order which restrained his conduct towards Ms Pearson. This is a matter of serious aggravation: Porter v R [2008] NSWCCA 145; Frigiani v R [2007] NSWCCA 81.
Although each of the cases to which the sentencing judge referred (the relevant passages being set out in the judgment of Hoeben CJ at CL at [87] and [88]) deal with the reach of s 21A(2)(j) of the Crimes (Sentencing) Procedure Act which is limited, in its terms, to where an offender is subject to conditional liberty at the time of the offending, there are clear lines of authority where breach of an apprehended violence order has been treated as an aggravating factor at common law (see R v Macadam-Kellie [2001] NSWCCA 170; Wilmot v R [2007] NSWCCA 278; R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436; Kaiser v R [2009] NSWCCA 130; Kennedy v R [2008] NSWCCA 21).
The Court was not taken to the precise terms of the apprehended violence order imposed in the Local Court on 12 September 2014 - a final order effective for two years pending resolution of the assault allegedly committed against the deceased on 21 June 2014. It would appear, however, that in addition to what are commonly referred to as the usual orders made under the Crimes (Domestic and Personal Violence) Act prohibiting the person the subject of the order from stalking, harassing or intimidating the person in need of protection, the applicant was also expressly prohibited from approaching the deceased or being in her home (where he resided) within 12 hours of drinking alcohol.
No issue was taken on the appeal with her Honour describing the applicant's breach of the apprehended violence order as "a very grave example" of an offence of its kind, the prohibition on him being in the deceased's home or in her company when intoxicated being a condition specifically crafted to provide the deceased with protection from the applicant's violent behaviour when he was drunk. That said, I make the observation that the deceased and the applicant had been drinking in each other's company and the company of others for some hours, in a number of different venues, without any dissent from her, before they returned to the deceased's home on the afternoon she was killed. While compliance with the apprehended violence order obliged him to leave her company as he became increasingly intoxicated over the course of the day and also obliged him to absent himself from the house until he had regained an appropriate level of sobriety, there was nothing in the evidence to suggest that he forced his way into the house or that he was present against the deceased's wishes.
In these circumstances, by her Honour treating the breach of the apprehended violence order as "a matter of serious aggravation" in the sentence to be imposed for the murder, and then to order that the sentence of 21 months for breach of the apprehended violence order to be, effectively, wholly accumulated upon that sentence where the underlying conduct was, to a large extent, overlapping did, in my view, involve some impermissible double counting.
I consider that in the sentencing order proposed by Hoeben CJ at CL that error has been corrected.
[3]
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Decision last updated: 26 June 2017