Ground 1: The finding of a mid range offence.
22 Under the Crimes (Sentencing Procedure) Act 1999 ("the Act"), the standard non parole period fixed in respect of the murder committed by Mr Collon was 20 years imprisonment. That standard presupposes an offence "in the middle of the range of objective seriousness" (s 54A(2) of the Act). Her Honour, in identifying where in the range of objective seriousness Mr Collon's crime fell, referred to two aggravating factors, namely: (ROS para [17])
" ... First that the offence involved the actual use of a weapon and secondly that the offence was committed in the home of the victim."
23 Her Honour thereafter dealt with the Crown's submission that the offence was "well above the mid range". She said this: (ROS para [18]/[19])
"18 I regard the first of these factors as by far the most significant. Not only did the offence involve the use of one weapon, but the forensic evidence clearly shows that two separate knives and a pair of scissors must have been wielded by the offender against the deceased. The number and extent of the injuries revealed in the autopsy report bear testament to the ferocity of this attack. Because of this factor, the Crown has submitted that this offence falls well above the mid-range of objective seriousness for the offence of murder.
19 I accept that the ferocity and violence of the attack upon the deceased is a serious aggravating factor, as is the fact that no less than three weapons were used. On the other hand, the killing itself was neither planned nor premeditated. There was a background of friction between the two men, but the evidence reveals no previous serious violence between them. The sequence of events which all parties accept as the most likely is this: After the deceased arrived home on the evening of 27th, the offender took a knife intending to threaten him with it. At some point in the confrontation between them, the offender lost control of himself and launched into his ferocious attack on the deceased. He nevertheless had enough self-awareness, and consciousness of the horror of the consequences of his actions, to make the 000 call shortly afterwards."
24 Her Honour then made the following determination: (ROS para [20])
"20 Given the lack of planning involved, I do not consider that the objective seriousness of this offence is as high as the Crown would put it. In my view it is in the mid-range of seriousness for the offence of murder."
25 Counsel for the applicant asserted there was error. The sentencing Judge failed to address adequately the criminality of Mr Collon. In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, the Court identified relevant circumstances that can objectively affect the seriousness of the offence, including the following: (at 186-187)
"86 ... This would extend to ... mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67."
26 Here, it was common ground that the crime was the product of a loss of self control. That loss, according to the applicant, could be traced to two matters, each reducing the moral culpability of Mr Collon. The first was that he was significantly (although not substantially) impaired, as recognised by Drs Wilcox and Carne. Each found that he had an abnormality of mind, the consequence of his deprived upbringing (cf R v Cheatham [2002] NSWCCA 360, per Smart AJ at para [125] and Beazley JA at para [139]).
27 Secondly, at the time of the incident, Mr Collon was further impaired because he was intoxicated through the combination of drugs and alcohol ingested that day. Ordinarily, self induced intoxication is not a matter in mitigation. However, Mr Collon, according to counsel for the applicant, fell within the exception recognised in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. In that case, Wood CJ at CL said this, in the context of drug addiction, when identifying factors relevant to the objective criminality of the offence: (at 398)
"273 ... (c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible ... or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;"
28 Counsel for the applicant, in written submissions, also added the following: (p 5)
"23 ... Relevant to this were the findings that this was not an offence where there was an intention to kill (inferred from the rejection of the Crown submission in this respect) and the intent that arose (at a time of loss of self control) was neither planned or premeditated."
29 Counsel for the applicant was also critical of other aspects of her Honour's remarks, including her reference to the ferocity of the attack (para [19]) and her finding, as a circumstance of aggravation, that the offence took place in the victim's house.
30 Let me quickly deal with the subsidiary issues before going to the Crown submissions in answer to the applicant's main argument. The ferocity of the attack was plainly relevant. Paragraph [19] of her Honour's remarks was simply descriptive. In support of the argument that it was not an aggravating factor that the crime was committed in the deceased's house, counsel drew attention to another sentencing matter involving her Honour Justice Mathews. In R v Stewart [2008] NSWSC 1359 (at para [48]), her Honour (adopting an agreed position by the parties) stated that, although the crime in that case was committed in the victim's house, and that was "technically" a matter of aggravation, it should be given no weight, since it was the home of both the offender and the deceased.
31 However, the accommodation occupied by the applicant and the deceased was akin to a boarding house. Each shared facilities but had separate rooms. The murder occurred inside the deceased's bedroom. He ought to have been safe within his bedroom. Further, counsel then appearing for Mr Collon on sentence did not dispute that, in the circumstances, it was an aggravating factor (ROS para [17]).
32 Returning to the main argument concerning Mr Collon's moral culpability, the Crown responded in a number of ways. First, the evaluation undertaken by her Honour involved a discretionary judgment. It was necessary, therefore, to demonstrate error in the exercise of that discretion, in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. According to the Crown, her Honour's assessment was plainly open to her.
33 Secondly, counsel then appearing for the applicant before her Honour, when answering the submission by the Crown that the offence was "well above mid range", submitted that it would be "mid range at worst" (T 7: 22.2.08).
34 Thirdly, there was plainly an intention to kill. Indeed, it had not been disputed during the sentencing hearing that Mr Collon intended to kill the victim, because it was beyond argument. The issue which her Honour was called upon to address was whether there was also premeditation having regard to the history of bad relations between the deceased and Mr Collon. Her Honour resolved that issue in Mr Collon's favour and thereafter determined that the matter was mid range.
35 Dealing with these submissions, there can be no question, even though her Honour made no express finding, that Mr Collon intended to kill the deceased. His intention was demonstrated by the ferocity of the attack, which culminated in slitting the victim's throat. Mr Collon told the police what he had done, saying he "stabbed him in the eye, then cut his throat".
36 The real issue was the moral culpability of the applicant in forming an intention to kill. I believe her Honour was acutely aware that Mr Collon was significantly impaired. She was also aware that he was intoxicated. She referred to each aspect in the paragraphs which preceded her conclusion, extracting the opinions of both psychiatrists, the evidence concerning Mr Collon's intoxication, and describing the circumstances in which his association with drugs and alcohol began. These were not matters overlooked.
37 In Mulato v Regina [2006] NSWCCA 282, the Chief Justice said this: (para [37])
"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
38 Simpson J made the following additional observations: (para [46])
"The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. ..."
39 The finding by her Honour that the offence was mid range was plainly open to her. There was no error. I would dismiss Ground 1.