Harding v R

Judicial Task on Sentencing 8In the circumstances of this present case, it is appropriate that I remind myself of the judicial task on sentencing. 9In the present system of criminal justice, I must exercise a discretion as to what sentence should be imposed upon Mr Harding by applying well identified principles of law to the facts which I find: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at [1]-[2]. 10In the circumstances of this case, these principles of law require that I be satisfied beyond reasonable doubt of the facts upon which my sentence is based. Here, the facts surrounding the offence are agreed. Other facts, arising in the course of the sentencing process, and upon which Mr Harding relies, need only to be proved on the balance of probabilities by him. 11The appropriate approach to sentencing is to identify all of the factors that are relevant to sentencing, identify their significance with the particular circumstances of the offence and then to make a value judgment as to what is the appropriate sentence having regard to the purpose for which a sentence is to be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J; Muldrock v The Queen [2011] HCA 39 at [26]; (2011) 244 CLR 120. 12I will apply these principles in the course of this sentence.

The Relevant Legislation 13The Parliament of NSW has determined the purposes for which a court may impose a sentence on an offender. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 14Part 3 of the Sentencing Procedure Act sets out the relevant provisions that deal with sentencing procedures generally. Of particular importance are the terms of s 21A, which identify aggravating, mitigating and other factors which a Court must, or may, take into account. Those factors will need to be addressed in the course of this sentence. It is not mandatory that the sentence is increased or diminished by any one or more of these factors. 15As well, the provisions of Division 1A of Part 4 of the Sentencing Procedure Act, are applicable when considering the sentence in this matter because the crime of murder is specified in Item 1 in the Standard Non-Parole Period Table incorporated into that Division. The standard non-parole period applicable to this offence is 20 years.

Principles of Sentencing 16The courts have developed clear guidance for the exercise of the sentencing discretion by every judge. These common law principles are to be found in decided cases. 17In summary, the common law principles include: (a)Proportionality - namely that the sentence should be proportionate to the gravity of the offences: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ; (b)Parity - namely, that any difference between sentences imposed upon co-offenders for the same offence, ought not be such as to give rise to a justifiable sense of grievance, and to give the appearance that justice has not been done: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617 per Dawson J, Gibbs CJ and Wilson J agreeing; (c)Totality - namely, that when a person stands for sentence for a number of offences, the Court must look at the totality of the criminal behaviour and determine what the appropriate sentence is for all of the offences: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; (d)Avoidance of double punishment - namely that a person should not be punished twice for the same conduct: Pearce v The Queen [1988] HCA 57 (1998) 194 CLR 610. 18These principles have continuing relevance because s 21A(1) of the Sentencing Procedure Act preserves the entire body of judicially developed sentencing principles: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]-[57]: Muldrock at [18]. 19As well, factors established by the common law as affecting sentence, such as whether prison may be particularly burdensome, are also to be taken into account: Muldrock at [19]. 20In considering the imposition of a sentence under s 54B of the Sentencing Procedure Act, the following considerations are appropriate: (a)The effect of s 54B(2), despite its apparently mandatory terms, is to preserve the full scope of judicial discretion to impose a non-parole period longer or shorter than a standard non-parole period: Muldrock at [25]; (b)When read with s 21A, s 54B requires an approach to sentencing which is consistent with the judgment of McHugh J in Markarian at [51]; Muldrock at [26]; (c)In considering all factors relevant to sentencing the Court must keep in mind the two legislative guideposts: the maximum sentence and the standard non-parole period: Muldrock at [27]; (d)In giving content in a specific case to the statutory phrase "...an offence in the middle of the range of objective seriousness ...", the assessment is made without reference to matters personal to an offender or class of offenders, and is made by reference wholly to the nature of the offending: Muldrock at [27]; (e)The standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction: Muldrock at [31], nor does it have determinative significance in sentencing an offender: Muldrock at [32]. 21I will need to bear in mind the legislation by which I am bound and the principles which the Courts have determined, when proceeding on this task of sentencing Mr Harding.

The Facts 22I find the facts of the matter, in accordance with the Agreed Facts, to be as follows. 23Mr Harding was born in September 1953, and was 57 at the time he killed Ms Anthony. They had known each other since childhood and had been in a sexual relationship for about 14 months prior to the offence. 24Mr Harding was in a de facto relationship at the time with another woman. He and she also lived in Narromine, a short distance away from where Ms Anthony lived. Ms Anthony had previously been married but was not in any permanent relationship at the time of her death. 25Ms Anthony suffered from an hereditary condition of spastic paraplegia, which had confined her to a wheelchair for about 20 years. She lived on her own in her house in Narromine, and was visited once a day by a community nurse who assisted her with showering and other personal tasks. She had a number of close friends and family members who would visit regularly. 26On the morning of 14 February 2011, Mr Harding, having left his home at about 9.30am, and having done some shopping at the local shopping centre, including purchasing a cask of Moselle wine, went to visit Ms Anthony shortly after 10am. He assisted her with a few chores, and between about midday and 2pm they both drank a number of glasses of Moselle together. At about 2pm, the community nurse called in to see Ms Anthony. At that time, Mr Harding and Ms Anthony were sitting in the living area talking apparently amicably. 27Mr Harding and Ms Anthony stayed in each other's company for the rest of the afternoon and into the evening. It is quite unclear precisely what happened throughout that time. It appears that there was an argument between Ms Anthony and Mr Harding about another male from Nevertire coming to live with her. When this argument occurred, how long it continued for, and how it ended, are not matters which are contained within the Agreed Facts. 28I am satisfied that both Mr Harding and Ms Anthony continued to drink some of the Moselle wine. At about 9.30pm, by which time the deceased was wearing a nylon nightgown, it appears that Mr Harding rose from his chair and picked up a bottle of methylated spirits which had been sitting on a bench in the kitchen area of Ms Anthony's apartment. Methylated spirits was used by Ms Anthony for various personal hygiene purposes. 29The methylated spirits was in a plastic bottle which had a childproof cap on it. It required the person who wished to open the bottle, to depress the cap and twist it. Mr Harding opened the childproof cap on the bottle, stood over Ms Anthony who was in her wheelchair, and then poured the contents of the bottle, which I am satisfied was about 250ml, over the head and torso of Ms Anthony. 30He then took his cigarette lighter and set fire to Ms Anthony. Mr Harding then left Ms Anthony's home carrying the plastic bottle. It seems he shut the door behind him. It is unclear how long it was between the time he set Ms Anthony alight and his leaving her home. 31Mr Harding walked down the back laneway and threw the plastic bottle into the backyard of one of the houses adjacent to that laneway. Mr Harding walked past a witness at the end of the laneway and said: "I'm going to get a bottle to stop any evidence pointing towards me". 32Mr Harding walked home and spoke with his de facto. He told her that Ms Anthony had "dared him to set her alight" and that the police would be around to see him soon. I am not satisfied that Ms Anthony in fact dared Mr Harding to set her alight. 33Although Ms Anthony was alight and confined to her wheelchair when Mr Harding left her home, she was able to move her wheelchair around the house, seemingly in an attempt to call for help, or in a vain attempt to extinguish the flames. She telephoned for help and two men arrived quickly. They tipped water on Ms Anthony and called 000. Ms Anthony told these two gentlemen that "David poured metho on me and lit it". She said something similar to the police and ambulance officers when they arrived. 34Ms Anthony was transported to Dubbo Base Hospital for emergency medical treatment and was then flown to Sydney. It was intended that she be taken to the Burns Unit at Concord Hospital, but as she arrived at Sydney Airport, she suffered a cardiac arrest and despite treatment at the Intensive Care Unit at St George Hospital, which was the nearest hospital to the airport, she died as a result of her burns at about 9.20am on 15 February 2011.

Police Investigation 35Police secured the crime scene at Ms Anthony's home and at about 11.40pm on the night of 14 February 2011, attended the home of Mr Harding at Narromine. Mr Harding was arrested by police and taken to the Narromine Police Station. 36Detective Heckendorf, who was present at the police station, could smell intoxicating liquor on Mr Harding's breath and noted that Mr Harding appeared to be slurring his words. Mr Harding participated in an electronically recorded interview, commencing at 3.35am. On 18 February 2012, he also participated in a video recorded walk through of the crime scene. 37In the course of his recorded interview, Mr Harding gave broadly, two versions of the facts to the police officers. The first was that Ms Anthony had dared him to set her alight, and that he did so. The second version was that Mr Harding did not know the bottle contained methylated spirits, and threw it onto Ms Anthony from about three feet away, thinking that it was water and that the fire was lit accidentally when he passed a lit cigarette to her. 38I am well satisfied that neither of these accounts are correct. 39The unchallenged expert opinion provided by Professor Maitz, who is the Professor of Surgery of Burn Injuries at the Concord Hospital, and a leading expert in Australia in burn injuries, satisfies me that: (a)it is unlikely that the methylated spirits was thrown onto Ms Anthony from three feet away; (b)the most likely method of the methylated spirits being put onto Ms Anthony was by pouring it over her, whilst she was seated, by Mr Harding whilst he was standing on the right hand side of Ms Anthony; (c)that whilst this was happening, Ms Anthony tried to cover her face by raising her right arm and hand to her face, which were then covered by the methylated spirits; (d)the origin of the fire was not in Ms Anthony's hair, but on a part her body; (e)a lit cigarette could not be the source of the fire. 40A post-mortem examination of Ms Anthony revealed that she had a moderate blood alcohol level which was slightly higher than the legal limit for driving, which is likely to reflect the ingestion of alcohol to only a moderate degree shortly before she was set alight.

Specific Statutory Considerations 41As I have earlier said, it is necessary to identify the relevant aggravating and mitigating factors provided for by the legislation. An aggravating factor, which is accounted for as being an element of the offence, does not warrant any additional regard.

Mr Harding's record of previous convictions: s 21A(2)(d) Sentencing Procedure Act. 42Mr Harding's past criminal record is very poor. Since he was first convicted of an offence of violence for assaulting a female in 1982, Mr Harding has been convicted of about 15 separate offences of assault, of one form or another including, on one occasion, the assault being one which has occasioned actual bodily harm. As well, he has five convictions for being in breach of, or else contravening, provisions of, apprehended domestic violence orders, or apprehended violence orders, and he has four convictions for stalking or intimidating either police officers or others. 43Since his first conviction in 1982, the balance of his convictions have continued up until the time of this offence. He has spent time in prison for some of these offences. 44This record is relevant to consider because it means that Mr Harding is not entitled to the benefit of any leniency which may impact upon the sentence to be imposed.

House of the victim: s 121A(2)(eb) Sentencing Procedure Act. 45Although the statute describes this as an aggravating factor because all people are entitled to feel safe in their home, and safe from being attacked in their home, where, as in this case, Mr Harding was invited into Ms Anthony's home and remained there with her consent, this is not an aggravating factor: DS v Regina [2012] NSWCCA 159 at p[145] per Beazley JA, Harrison and McCallum JJ.

Offence involves gratuitous cruelty: s 21A(2)(f) Sentencing Procedure Act. 46Here I am satisfied that the offence did involve gratuitous cruelty. The use of fire in the circumstances where Ms Anthony was physically unable to put it out, combined with Mr Harding leaving the premises without making any attempts to extinguish the fire or call for help, in my assessment constitutes gratuitous cruelty.

Subject to conditional liberty: s 21A(2)(j) Sentencing Procedure Act 47At the time that he committed this offence, Mr Harding was on bail for charges of common assault and contravening an apprehended domestic violence order. 48The terms of his bail required him to be of good behaviour whilst awaiting the disposition of those charges. His failure to comply with that obligation aggravates his conduct in this case. 49However, in the entire context this is a matter of limited weight.

Victim of offence is vulnerable: s 21A(2)(l) Sentencing Procedure Act. 50The fact that Ms Anthony, because of her long term hereditary paraplegia, was confined to a wheelchair, meant that she was a vulnerable person. Ms Anthony was not in a position to defend herself against this offence. She was not in a position to stop Mr Harding pouring the methylated spirits on her, she could not run away, nor was she easily able to extinguish the fire once it had been lit. She was not in a position easily to call for help, although ultimately she managed to do so. This, in my assessment, in the circumstances of this case, is a serious aggravating factor.

The offence was not part of a planned or organised criminal activity: s 21A(3)(b) Sentencing Procedure Act. 51This offence did not have any suggestion of a planned or organised criminal activity, on the contrary it seems to have been somewhat spontaneous. In the circumstances, this has a mitigatory effect.

Likelihood of re-offending: s 21A(3)(g), and Prospect of Rehabilitation: s21A(h) Sentencing Procedure Act. 52I am not satisfied on the evidence before me that Mr Harding is unlikely to re-offend, nor am I satisfied that he has good prospects of rehabilitation. His lengthy history of past criminal convictions, his easy resort to violence, and his lack of capacity or will to refrain from drinking alcohol and abusing it, all satisfy me that these mitigating factors do not exist in this case.

Remorse: s 21A(3)(i) Sentencing Procedure Act. 53It is a mitigating factor if an offender shows remorse, provided that he accepts responsibility for his actions, and acknowledges the injury which has occurred. Mr Harding's plea of guilty is an acceptance of his responsibility for the offence. 54During his interview with police, Mr Harding was asked if he was sorry for what he had done, and he said that he was very sorry for it. Whilst it is possible to regard this as a statement of remorse, I am not satisfied that I can accord it very much weight. It was not a volunteered statement, but rather an answer to a targeted question. I did not detect in any of the evidence before me, any acknowledgement of what Mr Harding had done or any specific expression of remorse. 55Whilst it will be appropriate to acknowledge, with an appropriate discount, his plea of guilty, I am not satisfied that Mr Harding has shown any real remorse for his crime, such as would constitute a significant mitigating factor of the kind contemplated by the legislation.

Other Factors 56Where an offender has pleaded guilty to an offence, such as Mr Harding has done in this case, a court is obliged to take the fact that the offender has pleaded guilty into account in passing sentence for the offence: s 22 Sentencing Procedure Act. 57A plea of guilty is relevant for a court to consider in determining the appropriate sentence to be imposed, because such a plea saves the community a considerable amount of time and money which contested committal hearings and trials would involve. It is a substantial facilitation of the course of justice. However, any lesser penalty imposed by reason of a plea of guilty, must not be unreasonably disproportionate to the nature and circumstances of the offence. 58It was submitted by counsel for Mr Harding, and the Crown accepted, that Mr Harding's plea of guilty had been entered at the first reasonably available opportunity. He is entitled to the maximum level of discount of 25 per cent in those circumstances.

Mr Harding's Criminality 59It is appropriate to make an assessment of the criminality involved in Mr Harding's offence. This is to be assessed without reference to matters personal to Mr Harding, and is to be assessed wholly by reference to the nature of the offending: Muldrock at [27]. In making this assessment, and concordant with my understanding of Muldrock, I will not take into account the facts and circumstances relating to Mr Harding's alcohol abuse and low intellect, to which I will in due course come. 60In my assessment, the criminality was extremely serious. Mr Harding has murdered a severely disabled woman in her own home by setting her alight and walking out, leaving her to her fate without calling for help. He clearly knew what he was doing, and had done, and then thought about doing something to cover up his offence. 61Ms Anthony was an innocent, unknowing and defenceless woman in her own home. She apparently trusted Mr Harding and regarded him as a friend. She was a woman who had not done anything which warranted the brutal attack to which she was subjected. 62It is hard to imagine a more excruciatingly painful death than that to which Ms Anthony was subjected. She was conscious when she was set alight, and when help arrived, but severely burnt. As the burns engulfed her body, she could feel the physical pain involved, but could do nothing to ameliorate it. Her mental suffering, including her fear of what was to happen, must have been truly awful. 63The Crown submitted that the offence fell within the worst category of offences of this kind. In order to characterise any case as being in the worst category, it must be possible to point to: "... particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed) ..." R v Twala (unreported, Court of Criminal Appeal, 4 November 1994). 64Whilst this crime has a very serious level of criminality, I am not presently persuaded that it should be categorised as falling into the worst case category if for no other reason than that I am satisfied that this was not a premeditated offence and the killing was not surrounded by other unlawful conduct. 65Also, I am not satisfied that the offence was accompanied by an intention on Mr Harding's part to kill Ms Anthony. I am well satisfied that Mr Harding intended to cause grievous bodily harm. I infer this intention from the deliberate nature of what occurred in the context that it must have been obvious to anyone that setting alight to a person covered in methylated spirits would lead to serious physical injury. 66As best as can be determined, in assessing the objective criminality of Mr Harding's conduct, I am persuaded that on the probabilities, he set fire to Ms Anthony because he was in a state of jealous anger which derived from their argument about another man, and whilst in that state, or consequent upon it, he set alight to her intending to cause grievous bodily harm. 67I would assess the objective seriousness of this offence and the criminality involved, as being very high, and approaching but not reaching the worst case category.

Victim Impact Statement 68The Court has heard a statement read by Dee Dickinson, who is the sister of Ms Anthony. Clearly, this crime has touched the members of Ms Anthony's family, and I recognise that it has affected them all deeply. 69I will have such regard to this evidence as the law permits: R v Previtera [1997] 94 A Crim R 76; s 28 Sentencing Procedure Act.

Subjective circumstances of Mr Harding 70Mr Harding is now 59 years old. He was 57 when he murdered Ms Anthony. 71He was born and raised in Mudgee in a stable family. He was the third of 15 children. He left school at about 14 years of age, and then worked as a farm hand, in an abattoir and as a transport driver, or off-sider, delivering hay. In about 1970 he married. The marriage lasted about 20 years, before he separated from his wife in 1990. There have not been any formal divorce proceedings. From that marriage he had two children. He adopted his wife's daughter born to her during a previous marriage. He has no contact with his children or with his former wife. Since this incident occurred, he has not had any contact with his siblings or other members of his family. 72Mr Harding has a lengthy history of alcohol abuse. It seems that he first started drinking alcohol at age 13. At times, he seems to have been drinking as many as 30 standard alcohol drinks in the course of a day or evening. The drinking of alcohol has been associated with many of his past criminal offences, and with his exhibiting violence. He does not seem to have done very much to remediate his alcohol abuse. It is one factor which has contributed to his acquired brain injury. 73In 1985, Mr Harding suffered a traumatic head and brain injury in a motorcycle accident. Recently, an MRI brain scan was completed and reported on as being suggestive of previous trauma. 74I accept Dr Westmore's opinion that Mr Harding's brain scan confirms that he has an acquired brain injury, and that such injury is permanent. I also accept Dr Westmore's opinion that the causes of that acquired brain injury are likely to be multiple, including damage caused by chronic alcohol abuse. Neurological testing demonstrates that Mr Harding operates at a low level of intellectual function, being in either the low average range or the extremely low range. Some of his intellectual function was rated as being in the borderline range. Dr Hepner's opinion, which I accept, is that Mr Harding has impairment evident in his current level of intellectual function attention, memory for spoken lengthy information, processing speed and in the areas of frontal executive function including speed and flexibility of thinking, verbal fluency and planning and organisation. 75However, neuropsychological testing did not reveal any evidence of impulsivity, disinhibition or perseveration. 76As history shows, notwithstanding the effects of his acquired brain injury, Mr Harding has been able to live and function in the community. He has been able to be employed from time to time. In particular, his acquired brain injury and low intellect do not explain his lack of self-control, nor do they provide any basis for excusing impulsive actions as being beyond his control. 77Neither Dr Westmore nor Dr Hepner expressed an opinion that Mr Harding did not know, or was not capable of understanding, the conduct in which he engaged, and the criminality which was involved. 78I accept Dr Westmore's opinion that the probabilities are that the alcohol consumed by Mr Harding is the primary cause of his offending behaviour because the alcohol is likely to have affected his capacity to consider options or alternatives, to exercise self-control, to consider the likely consequences of his actions and to some degree, appreciate the seriousness of his conduct. 79Mr Harding has a long history of being quick to anger. This existed before his acquired brain injury. His tendency to anger has been often seen in conjunction with his tendency for violence. In this case, except for setting Ms Anthony alight, there are no signs of violence. She did not appear to have been physically assaulted. There did not seem to have been any signs of violence in her house. Furniture and fittings were not damaged. When seen in the immediate aftermath of the offence, Mr Harding appeared calm and apparently composed. His tendency to anger does not provide a ready explanation for what occurred, but it does seem that his jealousy provides an explanation for his conduct.

Sentence 80In considering the appropriate sentence to be imposed on Mr Harding, I commence with the reminder that murder involves a criminal taking of a human life. It is a violation of the sanctity of human life which is a concept at the heart of a civilised community. 81Ordinarily, a conviction for murder warrants a substantial sentence because the demands of punishment and the deterrence of the broader community against similar conduct are of significant importance. Mr Harding's limited intellect provides a reason to mitigate the need for specific deterrence. 82I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Sentencing Procedure Act. Mr Harding submitted that special circumstances existed because of his need for rehabilitation upon release back into the community. Mr Harding's past history of offending, the significant periods of time which he has spent in custody, and his low prospects of rehabilitation, all tell against his future reintegration into society as constituting an adequate basis for a finding of special circumstances. 83I have discussed all of the facts which are relevant to this decision, and it is now necessary to make a value judgment as to what is the appropriate sentence. 84This was a very serious offence involving the killing of a vulnerable woman in her own home, in a way which involved gratuitous cruelty. The killing was committed by a friend with a lengthy previous criminal history, who could have attempted to save his victim from her excruciatingly painful ordeal, but abandoned her to her fate, and did not call for medical help. 85Mr Harding's history of chronic alcohol abuse and low intellectual function provide only a context to the events, but do not explain or justify his cowardly conduct. 86There is nothing which adequately explains or justifies the conduct. It would be inappropriate to speculate about why Mr Harding did what he did, but I am satisfied that an argument arising from jealousy must have had a role to play in what happened. In short, the Court must proceed to impose a sentence for a very serious and largely, although not entirely, unexplained offence. 87Any sentence which is to be imposed is mitigated only by his plea of guilty and the substantial facilitation of the course of justice which that involves. 88I determine the appropriate sentence to be one of 36 years imprisonment. However, Mr Harding is entitled to be given an appropriate discount for the fact that he has pleaded guilty to the offence. In the circumstances here relevant, that discount ought be 25 per cent. Accordingly, the total appropriate sentence is one of 27 years imprisonment. Of that sentence, I determine that Mr Harding must spend 20 years and 3 months in jail before being eligible for parole.

Offence of Serious Personal Violence 89I am required to warn Mr Harding, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of which he has been convicted, and for which he is to be sentenced. At some future point in time, an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought be detained in ongoing custody, or else ought be the subject of an extended supervision order, impacting upon his liberty.

Sentence 90Mr Harding, I sentence you to the following term of imprisonment: (a)A non-parole period of 20 years and 3 months commencing on 14 February 2011 and concluding on 13 May 2031. (b)A balance of term of 6 years and 9 months commencing on 14 May 2031 and concluding on 13 February 2038. The first day upon which you will be eligible to be released is 13 May 2031.

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: 18 June 2013