244 CLR 120
R v Di Cianni and Pintabona [2013] NSWSC 1328
R v Lane [2013] NSWSC 1808
R v Way [2004] NSWCCA 131
Source
Original judgment source is linked above.
Catchwords
84 NSWLR 328
Kentwell v The Queen [2014] HCA 37313 ALR 451
Muldrock v R [2011] HCA 39244 CLR 120
R v Di Cianni and Pintabona [2013] NSWSC 1328
R v Lane [2013] NSWSC 1808
R v Way [2004] NSWCCA 131
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2005/2831
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Date of Decision: 28 April 2006
Before: Mathews AJ
File Number(s): 2005/2831
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
On 9 December 2005 the applicant was found guilty by a jury of the murder of Lyndsay Van Blanken. The maximum penalty for murder is life imprisonment with a standard non-parole period of 20 years.
On 28 April 2006 the applicant was sentenced by Mathews AJ to imprisonment with a non-parole period of 18 years, commencing 19 May 2004, with a balance of term of 9 years.
The applicant seeks an extension of time for leave to appeal from sentence on the following grounds:
Ground 1 - Her Honour's sentencing discretion miscarried by reason of her:
1. (a) Adopting a two stage approach to sentencing; and
2. (b) Giving determinative significance to the standard non-parole period contrary to the principles identified in Muldrock v R [2011] HCA 39; 244 CLR 120.
Factual background
The victim was born in August 1985 and was a little over 18 years old when she was murdered on 24 November 2003. She was described as shy and introverted but was also a very kindly, affectionate girl with considerable humour and flair. She had great artistic talent. In mid 2003 she was one of a very small number of people who were accepted as apprentice animators at Disney Toons from amongst a large number of applicants.
The applicant was born on 10 August 1982 and was three years older than the victim. He was a skilled cellist, and obtained work as a musician whenever it was available. He and the victim first met on 13 April 2001. The applicant was playing the cello as part of a string quartet which performed at the wedding of the victim's mother to her stepfather. A friendship developed which gradually became closer and more intimate. They used to regularly go out late at night and take long walks together, returning in the early hours of the morning.
At the same time, the victim was developing a close relationship over the Internet with an American, Brandon Leonard. They both became so involved in this relationship that Mr Leonard proposed marriage to her in June 2003 which she accepted. Mr Leonard arranged to come to Australia and arrived in Sydney on 9 September, a few weeks after the victim had commenced working for Disney Toons.
The impending arrival of Mr Leonard meant that the victim was forced to do something about her relationship with the applicant. Two days before Mr Leonard's arrival, she told the applicant that she did not want to see him any more. She did not tell him about Mr Leonard. It did not take long for the applicant to find out about Mr Leonard. Within a few days of the latter's arrival, the applicant followed the victim near her workplace when she and Mr Leonard were walking arm in arm. He later discovered that they were engaged.
The applicant's attitude toward the victim changed dramatically when he realised that there was another man in her life. Whereas previously their relationship, although close, had been a relatively casual one, he became intense and obsessive. He told the victim's sister that he could not live without her. He started to follow her around and was often seen waiting outside her workplace at lunchtime or when she was due to finish work.
On Friday 21 November the victim told her mother how concerned she was about the applicant. She said:
"Mum I don't know what to do about Will, he won't leave me alone and I'm getting very frightened. I don't know what to do about it."
At about lunchtime, on Saturday 22 November the applicant went with his father to the Bondi Junction Shopping Centre where he purchased a very large cricket bag at the Rebel Sports Store.
The victim's relationship with Mr Leonard flourished. They were living together in an apartment directly behind the home where her mother and stepfather lived. It was planned that the victim and Mr Leonard would go to the United States for Christmas.
On the morning of Monday 24 November 2003 the victim went to work as usual. At lunchtime, when she left the Disney building with work friends, the applicant was waiting outside. The victim spent about ten minutes with him and then rejoined her friends. That evening she left work at the normal time (about 5.30pm) and took a train to Bondi Junction. She started to walk home from the station. The applicant was waiting for her outside the Cock & Bull Hotel, not far from the station. He later said that they walked together towards her home and then parted company near Queens Park, which was a few blocks from her home. He himself walked across Queens Park, and went straight to his own home. That night he played the cello in a concert at the Entertainment Centre. Others who were there with him described him as acting quite normally.
The victim was never seen alive again. When she failed to come home that night and her mobile telephone did not respond to calls, the police were called. By Wednesday 26 November the matter was being treated very seriously. That day the police conducted an electronically recorded interview with the applicant, who described his movements on the Monday, and confirmed that he had last seen the victim at the corner of Edmund and Victoria Streets, Queens Park, which was not far from her home. He was asked about his relationship with the victim and he said that he was naturally upset when she broke it off, but that they had remained friends since then and had seen each other at least once a week. He said that the victim seemed perfectly normal when he last saw her. She was very excited about her proposed trip to the United States with Mr Leonard.
The police investigations as to the whereabouts of the victim were unsuccessful until 10 January 2004. On that day, complaints from residents of an apartment block at 52 Queens Park Road, about a very bad smell in the building, led to investigations being conducted. In a storeroom off a car park on the ground floor of the building a large cricket bag was discovered containing the heavily decomposed body of the victim. Cable ties were found around her neck, indicating that the cause of death was strangulation.
When the applicant heard of the finding of the victim's body he became extremely disturbed. On 12 January he was admitted to the "Kiloh" Unit, which is the Psychiatric Unit of the Prince of Wales Hospital. He was in a state of great distress: weeping and incoherent and talking about suicide. He was diagnosed as suffering from possible schizophrenia and/or possible schizotypal personality disorder, accompanied by depression. He was placed on medication for these conditions but it took some time for his condition to stabilise.
It was not until 22 March that the applicant's treating psychiatrist said that he was fit to be interviewed by the police. Police attention was focused on the applicant at this point. Inquiries revealed that only one cricket bag of the relevant type had been sold in the whole of Sydney's Eastern Suburbs in the previous six months. The applicant's father told the police that his son had purchased such a cricket bag.
On 22 March 2004, a further electronically recorded interview took place between the police and the applicant. He repeated the account he had given earlier of his movements on 24 November. The police then asked him about the sports bag which he had with him when he rejoined his father on 22 November. The applicant said that he had found it in the street, and he described the precise location where he said he had found it. However, film that was taken on a security camera outside the Cock & Bull Hotel at Bondi Junction clearly contradicted this version. This film footage showed that the bag which was placed in his father's car was the bag which had been purchased only a few minutes earlier at the Rebel Store, being the same bag which was later found to contain the body of the victim. The film demonstrated that the applicant had lied about how he acquired the bag.
On 19 May 2004 the applicant was arrested and charged with the murder of the victim. He has been in custody ever since.
Sentence proceedings
The primary judge reviewed the applicant's subjective case. The applicant described himself as having a relatively happy childhood and a "wonderful" relationship with his parents.
Her Honour noted that there were some very disturbing events during this childhood. When he was nine, his brother and only sibling, who was then seventeen years old, committed suicide by jumping off the top floor of the Prince of Wales Hospital. His brother was suffering from schizophrenia. The applicant's parents also had a history of psychiatric problems. His father, a retired school teacher, was said to have a schizotypal personality disorder and his mother also suffers from a form of personality disorder. Following her older son's death, the applicant's mother was involuntarily committed to a psychiatric institution for a period of time. The household was described as extremely disorganised.
The applicant completed his secondary schooling at Waverley College. This was not an enjoyable experience for him and he was the butt of serious bullying and clearly felt himself to be an outsider. Although he was said to be of above average intelligence, his scholastic results were poor to average. He remained at school for his Higher School Certificate but obtained a poor result. The one field in which he excelled was music. His mother was an accomplished cellist and he also was very skilled in this instrument.
After leaving school the applicant worked for a time as an apprentice doing panel van conversions, but was not interested in this work and left after six months. Between then and when he was sentenced, he did no fulltime work, but did play the cello in orchestras or groups when called on to do so. When he was about thirteen or fourteen, the applicant had a period when he took cannabis in quite large doses. His auditory hallucinations commenced not long after he ceased using this drug. He had no other history of substance abuse.
The applicant continued to take anti-psychotic and anti-depressive medication throughout his time in custody up to when he was sentenced. He was placed into protection within a few days of going into custody and her Honour found that he was likely to remain there for the foreseeable future. The applicant had been maintaining his studies in music and Latin and had regular visits from his parents.
Two psychiatrists gave evidence on sentence, Dr Michael Giuffrida and Dr Stephen Allnutt. Dr Giuffrida noted a marked improvement in the applicant's mental state between 8 March 2005 and 3 January 2006, being the two dates on which he had seen him. In March 2005 the applicant had presented as cautious and vague with a remarkably poor recollection of events and times in the past and a significant paucity of understanding as to the meaning and significance of issues. By January 2006 Dr Giuffrida noted that he was relaxed, polite and co-operative and not at all guarded or cautious as he had been previously. Dr Giuffrida diagnosed the applicant as suffering from schizophrenia on this second occasion. Although the condition had responded reasonably to medication, a number of symptoms were still continuing.
The applicant always maintained that he did not kill the victim and said that he had no memory of anything unusual happening between the two of them on the evening that she went missing. Dr Giuffrida posited two explanations - either the applicant was suffering from schizophrenia or due to the horrific nature of the events themselves, the applicant had developed a psychosis.
Dr Giuffrida gave evidence in the sentence proceedings. When asked about the various elements of planning associated with the offence, such as the purchase of the sports bag two days before the murder, Dr Giuffrida agreed that this would "tend to go against the likelihood that there was a psychotic mechanism involved in the killing." Dr Giuffrida said that the degree of planning described to him was inconsistent with the applicant being severely psychotic, because a severely psychotic person's capacity to organise and plan was impaired.
Dr Allnutt did not believe that the applicant's psychiatric condition was as serious as diagnosed by Dr Giuffrida or that it played any causative role in the killing of the victim. Dr Allnutt saw the applicant on three occasions in February and March 2006. In his report and in his evidence, Dr Allnutt expressed scepticism about the diagnosis of schizophrenia in the applicant's case. He preferred a diagnosis of schizotypal personality disorder. Dr Allnutt noted that the ERISP between the police and the applicant on 26 November 2003 provided significant insight into his mental condition, less than two days after the killing. Having viewed that interview, Dr Allnutt saw little or no evidence that would lead him to conclude that the applicant was suffering from a major mental illness. Dr Allnutt noted that later on the night of the killing, the applicant went home, got changed and went to the Entertainment Centre where he played the cello in a public performance.
Her Honour set out her conclusions as follows:
"32 In my view Dr Allnutt's analysis is very compelling. In the end, I find that whatever psychiatric condition the offender was suffering from at the time had little causative effect upon this killing. It might have and probably did produce some impairment of judgment, but its ameliorating effects were of a minor order only.
33 Where does all this lead to in the sentencing process? The sentencing legislation requires that the court first set a non-parole period and then the balance of the sentence which, in the absence of special circumstances, is not to exceed one third of the non-parole period. The standard non-parole period for the crime of murder is twenty years. This is applicable to offences in the middle of the range of objective seriousness for the crime in question. The objective circumstances of this case must, in my view, put it in the more serious range. Lyndsay's killing was clearly premeditated and planned. Both the buying of the sports bag and the preparation of the cable ties with which she was strangled, bear testament to this. It is therefore difficult to see it as a "crime of passion", as urged by the defence. The killing itself was brutal and cruel to the extreme. The cable ties used to strangle Lyndsay were such that, once in place, they could only be tightened. It was impossible to loosen or release them. We will never know the ruse by which Matheson lured Lyndsay to the place where she met her death. Once there, when she realised what was going to happen, one can only start to imagine the horror she must have suffered. It is a horror which haunts her mother and her sister to this day, as attested in their very moving victim impact statements.
…
35 All these matters lead me to conclude that the objective circumstances of this killing brings it above the mid-range of seriousness, even for the crime of murder. This is, however by no means the end of the matter. I am also obliged to take into account aggravating and mitigating features under s 21A of the relevant legislation and under the common law. The aggravating features under s 21A which are relevant to this case (and which are not inherent in the charge of murder) are, under paragraph (c), that it involved the use of a weapon, and under paragraph (n) that it was part of a planned or organised criminal activity.
36 There are no mitigating features whatsoever in relation to this offence. However there are a number in relation to the offender himself. He is still a very young man, only twenty-three years old. He was a person of prior good character with no record of previous convictions. Whilst his mental disorder may have had little causal relationship with this killing, it is still a highly relevant matter in relation to other aspects of the sentencing process, particularly relating to risk factors and to his need for continuing treatment and supervision. In this regard it is worth noting that Matheson's presentation has visibly changed since his first ERISP in November 2003. In later ERISPs his affect has been much flatter, and he has put on a great deal of weight. I can only assume that this is the product of the medication he has been taking.
37 Imprisonment is particularly harsh for this offender. Since very shortly after going into custody he has been kept in protection, and he is likely to remain there for most of, if not all, his sentence. His present regime allows him only about two hours each day outside his cell.
38 Assessing the offender's risk factor is a very difficult exercise given that we know so little about what motivated him to carry out this brutal and apparently senseless killing. Dr Giuffrida assessed it in the middle range, and in the absence of any contrary evidence I think I should accept this as generally correct. There is no doubt that Matheson will need to continue his medication, probably for the rest of his life. This, if nothing else, provides "special circumstances" which entitle me to vary the normal proportion between the non-parole period and the total sentence, so that his medication regime can be supervised for a significant period after his return to the community.
39 The objective seriousness of this killing is, as I have already said, above the mid-range of seriousness even for an offence of murder. On the other hand, the mitigating features relating to the offender personally, as opposed to the offence, require a significant reduction in what would otherwise be the appropriate non-parole period. …"
Events which have occurred after sentence
The applicant has now been in prison for almost 11 years. Attempts were made to adjust his medication in 2008. This was unsuccessful and in early 2009 the applicant was moved to the Long Bay Prison Hospital, where he remained for 3 months. Thereafter, he returned to the Lithgow Correctional Centre and has continued to maintain a regime of medication which involves an Avanza tablet daily and Risperidone injections fortnightly. The likelihood is that the applicant will need to follow this regime for the rest of his life.
There was no further psychiatric evidence available that addressed the applicant's future risk of offending. The evidence on this issue remains the same as it was before the sentencing judge.
The applicant has completed a number of courses while in prison. These include trade courses and educational courses such as Visual Art, Literature and Italian. In the applicant's own words, as set out in his affidavit of 30 January 2014:
"I think that I have now taken a more peaceful and pragmatic approach to life. As an example, I remember that I was greatly depressed when I came into custody and could not play the cello. Before coming to custody, music and playing the cello was my life. I now accept that I exist as I exist and while I am in custody that means that I don't have the same access to music."
The applicant has the unwavering support of his parents. It is regrettable that the constraints of being in custody prevent him being allowed to play the cello.
The restrictions, to which the applicant was subject when he was first imprisoned, have been moderated somewhat. Since 2007 he has been housed on a SMAP placement (Special Management Area Placement). Inmates housed in the SMAP area have full access to all services provided by Corrective Services, such as Education, Psychology, Welfare and Chaplain. The applicant since that date has been employed fulltime in the textile workshop. He has access to approximately 40 other inmates and when in his housing unit, he mixes with about 40 other inmates. The applicant is allowed out of his cell for 7 hours per day (i.e., 8.30am - 3.30pm). Inmates housed in the SMAP area have access to the gym, table tennis courts and basketball courts, as well as other activities.
Procedural history
On 5 May 2006 the applicant filed a Notice of Intention to Appeal in respect of his conviction and sentence. An application for Legal Aid, dated 20 May 2006, was received by Legal Aid NSW. Various extensions of the Notice of Intention to Appeal were granted, the last being on 2 August 2007. Legal Aid was refused on 4 July 2007, part of the reason being based on the law at the time relating to standard non-parole periods.
On 5 October 2011 the decision in Muldrock v R [2011] HCA 39; 244 CLR 120 was handed down. On 29 January 2013 a merit advice was received from counsel in relation to "Muldrock error". On 25 February 2013 Legal Aid NSW received an application for Legal Aid from the applicant, dated 18 February 2013.
On 22 May 2013 the decision in Achurch v R (No 2) [2013] NSWCCA 117; 84 NSWLR 328 was handed down stating that the appropriate avenue of appeal in relation to "Muldrock error" was by way of leave to the Court of Criminal Appeal. On 28 June 2013 the applicant filed an Application for Leave to Appeal Against Sentence and an application for extension of time in which to seek leave. Further delay occurred while the decision in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 was considered by the High Court. The effect of the High Court's decision in Kentwell was to overrule Abdul v R [2013] NSWCCA 247 insofar as it imposed restrictions on applications for extensions of time in appeals against sentence. Following the decision in Kentwell, steps were taken to obtain a hearing date for this matter.
Did "Muldrock error" occur?
I am satisfied that "Muldrock error" has occurred in this matter. When one looks at what the primary judge said (at [33] and [35] of her sentencing judgment) it is clear that her Honour took as a starting point the standard non-parole period and then adjusted it by reference to other considerations. This constitutes a clear example of the two step sentencing process which was expressly disapproved in Muldrock. The Crown conceded that "Muldrock error" has occurred. Accordingly, the applicant has been successful in establishing error.
Should an extension of time be granted?
In view of the applicant's particular circumstances, i.e. his psychiatric issues and his lack of knowledge of legal matters, there can be no personal responsibility on his part for the delay. Of necessity, he has relied entirely upon his legal advisers to progress the matter.
By reference to the procedural history, I am of the opinion that the applicant's legal advisers have behaved reasonably in taking the steps which they have on his behalf. Despite the substantial length of the delay, its occurrence is readily explainable. While the law was as set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168 the approach followed by the primary judge was unexceptionable and any appeal was doomed to failure. That situation changed following Muldrock and was further refined by the decision in Kentwell. The steps taken by the applicant's legal advisers, following the decision in Muldrock, were reasonable in the circumstances.
Taking those matters into account, and also that "Muldrock error" has been established, I am satisfied that an extension of time for the seeking of leave to appeal against sentence should be granted. This is in accordance with the guidance provided by Kentwell, i.e., that the interests of justice require that an extension of time be granted.
Is a lesser sentence warranted in law?
Since error has been identified in the sentence proceedings, s 6(3) of the Criminal Appeal Act 1912 applies. Explicit guidance was provided in Kentwell as to how s 6(3) should be applied in circumstances such as these:
"42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …
43 After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. …
44 … The issue for the Court's consideration was whether upon the hearing of the appeal it might conclude, taking into account the full range of factors including the evidence of the appellant's progress in custody and current mental state, that a lesser sentence is warranted in law."
Applicant's submissions
The applicant submitted that he was a young man of 21 years with no criminal antecedents. His mental illness not only produced some impairment of judgment at the time of the offence but meant that custody would weigh more heavily upon him. These he submitted, were material factors on sentence, despite the seriousness of the offence. The applicant relied upon his conditions of custody which were still more onerous than those of the normal prison population.
The applicant submitted that a head sentence of 27 years was inappropriate, bearing in mind his mental state at the time of the commission of the offence, and thereafter while in custody. He submitted that regard should have been had to his very dysfunctional upbringing. He submitted that by taking into account as an aggravating feature that the offence was "pre-meditated and planned", her Honour was double counting in that she had already taken those matters into account when assessing the objective seriousness of the offence at "above the mid range of seriousness".
The Court's attention was specifically drawn to the sentence judgments in R v Di Cianni and Pintabona [2013] NSWSC 1328 (RS Hulme AJ) and R v Lane [2013] NSWSC 1808 (Hidden J).
In Di Cianni the offender was convicted of the murder of the deceased and his brother following a trial. The intended victim and the offender had been in business together for a period of time. From about 2002 the offender suspected that the intended victim was defrauding him as regards their business. Both the offender and the intended victim commenced a number of court proceedings against each other between March 2006 and April 2009.
The offender engaged in an appreciable degree of preparation and planning before the offence. Some two days before, the offender conducted some surveillance of the premises and five minutes before the attack, the offender was observed walking up the front path of the premises disguised as "an elderly lady".
The offender entered the premises waiting for the intended victim to return home. The intended victim's brother arrived first and the offender stabbed and killed him. He then moved the brother's body out of sight. The intended victim then entered the premises where the offender killed him. As with his brother, the offender inflicted a number of stabbing wounds and blunt force injuries.
The offender was found to have intended to kill both deceased. Both offences were assessed at "marginally above mid range". The offences were aggravated because they were committed in the home of the deceased brothers. The offender was 66 at the time of sentence (63 at the time of the offences). The offender was assessed as unlikely to re-offend and was otherwise a man of prior good character. The finding was made that "personal deterrence, protection to the community and probably rehabilitation do not have anything like the same weight they have in the case of most murders". The offender's age upon his release was not taken into account as a mitigating factor. For each murder the offender was sentenced to imprisonment with a non-parole period of 20 years and a balance of term of 4 years. After allowing a degree of concurrency, the total sentence was imprisonment with a non-parole period of 30 years and a balance of term of 4 years.
In R v Lane the deceased, who was aged 33 at the time of his death, had been in a long term relationship with Renae Burns. There had been difficulties in that relationship and in 2008 Ms Burns developed an intimate relationship with Ms Lane (the offender). The offender's motive was to enable her relationship with Ms Burns to be pursued openly without interference from the deceased.
Between 2008 and 2010 the offender had approached a number of people about obtaining a gun. In January 2010 she obtained a flare gun, which could be converted into a firearm by fitting a sleeve over its barrel. The deceased was shot with that weapon at close range. His body was found in a shallow grave in a nearby forest. The offender was aged 25 at the time of the murder and 29 at sentence.
The offender had a difficult childhood and was sexually abused at the age of six. At the time of the murder she was suffering from epilepsy, post-traumatic stress disorder and depression. These conditions were thought to have had some causative effect on the offending.
The offender was found unlikely to re-offend and her prospects of rehabilitation were good. She had no prior criminal history. She was entitled to some leniency because her mental problems would have affected her judgment to some extent. The murder was found to have been premeditated and planned over a significant period of time. But for the offender's plea of guilty, the court would have imposed a head sentence of 25 years with a non-parole period of 18 years and 6 months.
Consideration
Little assistance is provided by the two sentencing judgments to which the applicant referred. The offence of murder, just like the offence of manslaughter, is protean in nature with a wide array of factual circumstances. Each case is different and has to be decided on its own particular facts. These cases despite any similarities they may have with this offence, do not determine a sentencing range.
In any event, the particular facts of these cases are quite different to those which were before the primary judge. The sentence in Di Cianni is significantly complicated by the offender's age and the fact that two murders were involved. Similarly, the facts in Lane were quite different, except that the motivation was the elimination of a romantic rival.
Senior Counsel for the applicant in oral submissions placed some reliance upon JIRS statistical data which formed the basis for an analysis of sentence severity - the median length of both the full term and the non-parole periods in respect of the offence of murder following the prescription of standard non-parole periods commencing on 1 February 2003. This data revealed that the median length of the full term and non-parole periods for the offence of murder was longer in the period in 1 February 2003 - 31 December 2007.
The statistical data on which Senior Counsel for the applicant relied does not assist on the question of re-sentencing in this case being a case that requires the determination to be based upon unique circumstances of the applicant's offending behaviour and those concerning the applicant himself, including his psychiatric condition and associated issues of risk of re-offending.
As was made clear in Kentwell, when applying s 6(3) this Court has to independently exercise its discretion. In doing so, it is clear that the objective circumstances of this case place it in the more serious range. The element of planning and premeditation add to that conclusion. The method of killing was brutal and cruel. It follows that the overall assessment of the culpability and criminality in this offence which I have arrived at, is similar to that of the primary judge. I would certainly not interfere with the finding of a non-parole period of 18 years.
Where I have some difficulty is with the head sentence of 27 years. Even allowing for the findings made by the primary judge and my own assessment of the facts, I have concluded that the head sentence should be one of 25 years.
It follows that the orders which I propose are as follows:
1. (1) An extension of time for the application for leave to appeal against sentence is granted.
2. (2) Leave is granted to appeal against sentence and the appeal is allowed.
3. (3) The sentence imposed by Mathews AJ on 28 April 2006 is quashed and in lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years, and a balance of term of 7 years. The non-parole period is to commence on 19 May 2004 and expire on 18 May 2022, with the balance of term to expire on 18 May 2029.
HALL J: I agree with Hoeben CJ at CL.
McCALLUM J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 22 May 2015