McDonald v R

Findings of sentencing judge

1. The sentencing judge set out in his judgment the whole of the statement of agreed facts. [11] These need not be repeated: it is sufficient to identify the key issues of primary importance for present purposes.
2. The case before the sentencing judge required the resolution of three issues relevant to the state of mind of the offender. These were (i) whether the attack involved a significant degree of pre-mediation, (ii) whether it was provoked by conduct of the deceased and (iii) whether, and if so when, the offender formed an intention to kill the deceased.
3. The offender and the deceased knew each other. Both lived in Lalor Park. The offender was living with a companion, one Clayton Martin, who also knew the deceased. Martin and the offender had been drinking together at their home for much of the day when they decided, in the early evening, to visit the deceased. The deceased was alone when they arrived. He let them in and they shared cannabis. After about an hour the offender produced a knife.
4. The reason for the confrontation between the offender and the deceased and the way it came about, as identified by the prosecution, was summarised by the sentencing judge in the following passage: [12] "The Crown points to the origin of the attack upon the deceased being an incident some weeks beforehand when the deceased had apparently assaulted Clayton Martin, the prisoner's friend. The prisoner had armed himself with a 30cm knife late in the afternoon of the day of the offence, with the intention, the Crown submits, of having an altercation with the deceased. He knew that the deceased had an affinity with knives and he told police that he did not normally carry a knife. In these circumstances, the Crown argues that the prisoner must have been aware that any physical altercation was likely to lead to at least very serious injury to one, if not both, of the men. After arriving at the deceased's premises, he waited for nearly an hour before pulling out the knife which had been hidden in his track suit pants. The only available inference, the Crown contends, is that the deceased was taken by surprise when the prisoner pulled out the knife and the suggestion that the prisoner 'showed' the deceased the knife should not be accepted. The only available inference is that the prisoner confronted the deceased with the knife."
5. The trial judge noted that there had been earlier disagreements between the offender and the deceased and accepted the offender's own evidence that he wanted an altercation with the deceased and was angry when he arrived at the deceased's home. [13]
6. There was, however, an issue as to why he had taken the knife with him. The judge noted that he had told police that he "did not normally carry a knife", [14] but that he said to a psychiatrist briefed for the purposes of the sentencing hearing, Dr Bruce Westmore, that "I've always had a knife because I've been in prison, being in protection. You have to carry a knife because you can always have an altercation with someone outside."
7. The trial judge noted that his claim that he always carried a knife gained "some support" from three convictions for carrying a cutting weapon, but nevertheless concluded that he was "being disingenuous" in his statement to Dr Westmore. He noted that, in the course of his police interview, he had explained that the knife was one of 20 which he had stolen about two weeks earlier, to exchange for marihuana. The judge held: [15] "I reject the contention that the prisoner was in possession of the knife on the night of the murder as he always carried a knife. I am satisfied beyond reasonable doubt that he deliberately armed himself with the knife before he went to the deceased's home."
8. The judge also rejected the offender's evidence to the police as to why he had the knife, namely that he "just went there to show him at first and I don't know, he just, … he grabbed it off me". The judge then concluded: [16] "It is plainly untrue that the prisoner just went to the deceased's home to show him the knife. He went there to have an altercation with the deceased with whom he was angry."
9. The offender was in custody from 30 August 2005, being the date of his arrest. As appears from his prison disciplinary record tendered by the Director on the appeal, on 8 March 2006 he was searched in prison and found to be carrying a long piece of sharpened metal described as a "shiv". That evidence, which was not before the sentencing judge, would have given further support to the statement he made to Dr Westmore and might at least have cast doubt on its characterisation as "disingenuous". However, there is no challenge to the factual findings made by the sentencing judge and, in any event, both accounts may well be true. That is, the offender was in the habit of carrying a knife for protection, but on this occasion he deliberately armed himself with a knife because he sought an altercation with a man that he knew had many knives in the house.
10. Although the judge was satisfied that "he deliberately armed himself with the knife before he went to the deceased's home", [17] he was not satisfied that the offender "pulled out the knife with the intention to kill or to inflict really serious bodily harm." [18] He concluded that the offender "produced the knife with the intention of frightening the deceased which changed when the knife was grabbed from him." [19]
11. The offender suffered cuts to his knee in the course of the struggle which ensued after the deceased grabbed the knife from him. There was an issue as to whether the deceased had slashed at the offender with the knife or whether the cuts had occurred incidentally in the course of the struggle. Counsel for the offender had contended that the offender was slashed, as a basis for a submission that he had been provoked by the deceased, not to an extent relevant to liability, but as a factor mitigating the subsequent assault. The judge was not satisfied that the offender had been provoked in that sense. [20]
12. The final factual issue concerned the offender's intention. After the deceased grabbed the knife, the offender was able, almost immediately, to recover the weapon. The judge succinctly described what then happened in the following terms: [21] "The attack upon the deceased when the prisoner regained possession of the knife was horrifying. He stabbed the deceased a minimum of 15 times to the neck and chest. Such force was used that four wounds cut into bone. The deceased's left carotid artery, left jugular vein, windpipe, left lung and aorta were cut in a frenzied attack. The deceased's pleas for the prisoner to stop were ignored. When he first hit the deceased with the knife, the prisoner knew he had done something bad. When asked by police: [22] 'Q. Why did you continue stabbing him if he was in a lot of pain? The prisoner replied: 'I don't know, I just thought, I don't know, I thought I'd gone that far I may as well keep going.'"
13. Although noting the offender's denial to the police of an intention to kill, the judge concluded that "the only rational inference to be drawn from all the circumstances beyond reasonable doubt is that the intention to kill was formed following the struggle with the deceased over the knife." [23]
14. The sentencing judge was not satisfied that the offending warranted a sentence of life imprisonment. [24] Clearly that finding was appropriate. Despite the frenzied and somewhat inexplicable attack, the fact that the offender went to the home of the deceased in order to frighten him because of an earlier assault on his friend, supports the view that the case does not fall within the worst category of murder. Although the sentencing judge was not satisfied that the offender responded to provocative conduct on the part of the deceased, he did conclude that an intention to kill only arose after the deceased had taken the knife from him and he had then been able to recover it. As the sentencing judge stated: [25] "It is a factor in mitigation that the murder was not planned. The prisoner's premeditation was confined to showing the knife to the deceased to frighten him. The position changed unexpectedly when the deceased grabbed the knife. The intention to kill was not formed until the prisoner regained possession of the weapon."
15. While acknowledging that there had been "no explicit statement of remorse for the murder", the judge accepted that answers given in the course of the police interview involved recognition by the offender that what he did was wrong and "some regret" for his conduct. The judge took into account his "co-operation with the police and his plea of guilty as evidencing contrition for the offence." [26]
16. The judge had regard to the plea of guilty which, although entered only on the first day on which the trial was listed, had been agreed to (and the Court advised) during the preceding week. Counsel for the offender had submitted in writing that "[w]hile conviction for a homicide offence was inevitable that inevitability flowed in some good measure from the admissions made." It was not inevitable, the submission continued, that he would be convicted of murder and the need for relevant psychological and psychiatric evidence, including as to his affectation by drugs and alcohol, were matters properly requiring investigation and consideration by counsel before a plea to murder could be entered." So much was accepted: [27] a discount "for the utilitarian effect of his plea and for his contrition" was assessed at 20%. [28]
17. The conjunction of a discount for the utilitarian value of a plea, being the advantage derived by the criminal justice system from a plea of guilty, and evidence of contrition, is not in accordance with current practice, following the decision of this Court in R v Borkowski. [29] However, Borkowski was handed down some two years after the decision presently under appeal. At the time of sentencing, the relevant principles had been identified in less inflexible language in R v MAK; R v MSK: [30] "[34] It was established in the guideline judgment in R v Thomson and Houlton [31] that an offender is entitled to a discount of the otherwise appropriate sentence of somewhere between 10 percent and 25 percent by reason of the utilitarian value of a plea of guilty. The amount of that discount would largely depend upon the timing of the plea and the complexity of the case. [32] The discount was a discrete factor to be taken into account in determining the sentence to be imposed independent of any remorse or contrition on the part of the offender for the criminal conduct. [33] It was recognised that the plea might also be evidence of remorse, as might the effect of the plea in saving the complainant or other witnesses in being required to give evidence and the trauma that this frequently entails particularly in sexual assault trials. [34] But the discount was based upon public policy considerations in encouraging offenders to plead guilty at an early point in the proceedings thus saving both court time and the limited resources of the State in investigating and preparing allegations of criminal offences for committal proceedings and trial. [35] [35] The guideline judgment itself recognised that it may be appropriate for a sentencing court to quantify a discount flowing from a plea of guilty that transcends its purely utilitarian value. The second paragraph of the guideline is as follows: (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. … [41] In any event it seems to us that events have moved on somewhat since Thomson and Houlton was decided. In particular s 21A of the Crimes (Sentencing Procedure) Act has been enacted and requires the sentencing court to take into account specifically, as matters in mitigation of sentence, not only the plea of guilty but also that the offender is unlikely to re-offend and has good prospects of rehabilitation. In respect of the last two matters it is clear that remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made. Although it is accepted that nothing in s 21A affects, or was intended to affect, the matters that were taken into account in determining the appropriate sentence before the section was enacted, the section does highlight the fact that there is an overlap between various sentencing considerations and has led this Court to be more sensitive to the fact of, or at least the appearance of, double counting either in favour of, or to the detriment of, the offender; see for example Elyard v Regina. [36] [42] Rarely, if ever, at the present time does a sentencing court give a rolled up discount for all aspects of the plea of guilty. Yet this was a practice recognised by the Court when Thomson and Houlton was decided. [37] In this Court's experience the usual practice now is to specify a discount only for the utilitarian value of the plea and then to take remorse into account as it is reflected in the mitigating factors to which reference is made in s 21A(3) of the Crimes (Sentencing Procedure) Act and other considerations such as the absence of any need for specific deterrence."
18. In any event, the purpose is not to criticise the sentencing judge for the approach adopted in granting the discount, but rather to understand its effect. As he referred to MAK and MSK in the following paragraph of the reasons for judgment, it may be assumed that the discount was primarily intended to reflect the utilitarian value of the plea.
19. The sentencing judge described the offender's criminal history as "unattractive". He was correct to conclude that it warranted little by way of leniency. Apart from convictions for possession of drugs and dishonesty, he had been convicted of carrying a cutting weapon, possession of an unlicensed pistol, together with offences of violence (assault, May 1983), maliciously inflict grievous bodily harm (December 1989) and robbery (August 1996). This record required weight to be given to considerations of personal deterrence and protection of the community. [38]
20. The judge also noted that he had been on three bonds at the time of the offending and had been subject to conditions that he accept drug and alcohol counselling. [39]
21. The account given by the sentencing judge of the offender's personal circumstances is deeply depressing. As the judge noted, he was 40 years of age at the time of the murder and 42 years of age at the time of sentencing. The judge continued: [40] "He is the only child to his parents union and his mother was fourteen when he was born. He does not know his father. He has two half siblings from his mother's second relationship and who he said suffer some type of schizophrenia. He claimed that his stepfather who died when he was thirteen used to bash him. The prisoner was educated to year 8 and has only basic literary skills. He was frequently expelled or suspended from school and was placed in juvenile facilities. He escaped from Mt Penang to Queensland where he lived until apprehended. The prisoner started smoking cannabis at the age of thirteen and later used other drugs mainly heroin. He has a work history limited to short periods in casual employment. Due to his frequent periods of imprisonment, he told Dr Westmore that he had become 'institutionalised'. Dr Westmore thought he was of below average intelligence and had probably suffered periods of depression in his past, probably from his childhood years. His psychiatric diagnosis included alcohol and substance abuse. When in the community, he said he would drink alcohol on a daily basis. Following his release from custody on 17 December 2004, he was becoming intoxicated on a daily basis and was abusing minor tranquillisers and Rivotril. He currently takes methadone. The prisoner reported an extended period of nocturnal enuresis which lasted into his early twenties. Dr Westmore observes that this is a most unusual history and suggests significant psychological disturbances when the prisoner was a boy, adolescent and young adult. … His frequent incarcerations and his own observations about probable institutionalisation are all matters, Dr Westmore states, which will need to be carefully considered when he is eventually provided with some counselling and rehabilitation. He was, Dr Westmore opines, probably a very disadvantaged child and that early disadvantage has impacted very adversely on his subsequent personality development and the later life style he adopted."
22. The judge concluded: [41] "I accept that the prisoner's personal circumstances have been difficult and disadvantaged. It appears, however, that he has done little in the past to assist in his own rehabilitation. His failure to take advantage of the drug, alcohol and psychiatric counselling opportunities which have been previously available to him as conditions of release on parole or on a bond and his history of re-offending lead me to conclude that his prospects of rehabilitation are poor."
23. The judge concluded that an appropriate (undiscounted) sentence was imprisonment for 30 years. That would have given a non-parole period of 22.5 years. Although not a life sentence, the sentence would have extended until he was 70 years of age; the non-parole period would have extended until he was over 62. The discount of 20% was applied to reduce each period.

Resentencing

1. The factual findings set out above not being challenged must form the basis of resentencing. The standard non-parole period provides a guide post. The objective seriousness of the crime is a central factor in determining an appropriate sentence, but no assessment by reference to the uncertain statutory concept of "the middle of the range for objective seriousness" is required. The objective seriousness of the conduct is closely bound up with, and the primary evidence of, the offender's state of mind at various points in time. His moral culpability must be assessed by reference to these matters, in the light of his personal circumstances.
2. Because a lengthy sentence is inevitable, if only to reflect strong disapprobation of a brutal killing, the community has a large interest in its likely consequences. However, to characterise prospects of rehabilitation over such a long period is an exercise in speculation. It is undoubtedly true that he is likely to be "institutionalised" when released, to a greater extent than is presently the case. On the other hand, he will not become inebriated on a daily basis, as appears to have been his custom in recent years when at large. Although it is likely that he would have some access to drugs in prison, it is unlikely that his psychiatric diagnosis will continue to include alcohol and substance abuse. That he will be released at some stage during his life expectancy, should be accepted. Nor, in fixing a determinate sentence, is the Court to assume that he will necessarily be released on the expiration of his non-parole period, a consideration which is not to deny usual expectations. In reality, the effect on the offender, in terms of rehabilitation and deterrence is unlikely to be affected greatly, even if the sentence imposed were significantly reduced.
3. The most powerful determinant of the sentence in the present case must be an expression of the community's revulsion at what became, if initially unintended, an horrific and vicious attack upon a man who had offered the offender no proportionate provocation and from whom both the offender and his companion Martin could have kept their distance if indeed they had reason to dislike him.
4. The circumstances warranting a severe sentence, and having regard to the possible maximum sentence and the standard non-parole period, would be satisfied by imprisonment for 25 years. Giving a 20% discount in accordance with the finding of the sentencing judge, there should be a non-parole period of 15 years with a balance of term of five years. The overall sentence would thus be 20 years. The sentence should be fixed to have commenced on 30 August 2005; the non-parole period will expire on 29 August 2020.

Orders

1. The Court should make the following orders: (1) Extend time for the filing of an application for leave to appeal up to and including 28 June 2013. (2) Allow the appeal and set aside the sentence imposed by Price J on 27 July 2007. (3) In place thereof, sentence the applicant to a non-parole period of 15 years fixed to have commenced on 30 August 2005 and expiring on 29 August 2020. Impose a balance of term of five years to expire on 29 August 2025. (4) The applicant is eligible to be released on parole on 29 August 2020.
2. R A HULME and ADAMSON JJ: As noted in the judgment of Basten JA at [5] and [9], the sentencing judge had specific regard to the judgments of this Court in R v AJP [2004] NSWCCA 434 and R v Simon [2005] NSWCCA 123. Before coming to the significance of this it is first appropriate to have regard to the fact that in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [68] it was held that "the standard non-parole periods in the Table [to Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)] must also be taken as having been intended for a middle-range case where the offender was convicted after trial". A plea of guilty was taken to be a reason not to impose the standard non-parole period.
3. Price J's reference to R v AJP included specific reference to paragraph [18] of the judgment of Simpson J. To provide some context it should be noted that the case involved a Crown appeal against a sentence imposed for a standard non-parole period offence (sexual intercourse with a child under the age of 10) following a plea of guilty. The sentencing judge assessed the offence as falling within the middle of the range of objective seriousness. The Crown contended that, upon the sentencing judge having determined not to impose the standard non-parole period, he then disregarded it completely. The error identified in R v AJP was that the sentencing judge had failed to have regard to the standard non-parole period although it was a relevant consideration.
4. Simpson J stated: [18] I have come to the conclusion that the Crown contention is correct. There is nothing in the remarks on sentence to indicate that the sentencing judge had regard to the standard non-parole period as a reference point, benchmark, sounding board or guidepost. And the sentence itself, being so disproportionate to the standard non-parole period, strongly suggests that the standard non-parole period was simply put to one side once the decision was made to set a non-parole period shorter than that prescribed in the Table.
5. R v Simon was an offender's appeal against the severity of a sentence imposed for a standard non-parole period offence (inflicting grievous bodily harm with intent to cause grievous bodily harm). One of the grounds of appeal involved a contention that the sentencing judge had found special circumstances but had used that finding to increase the balance of the term of the sentence rather than reduce the non-parole period. It was in the context of dealing with that ground that Howie J said the following in the paragraph specifically referenced by Price J in the present case: [30] True it is that during the course of his sentencing remarks the Judge noted the standard non-parole period prescribed for the offence and indicated that he believed that the non-parole period to be specified in the present case should be greater because of the seriousness of the particular offence. But his Honour was doing no more than later decisions, such as R v Way and R v [AJP] [2004] NSWCCA 434, stressed, that is that significance has to be granted to the standard non-parole period even in a case, such as the present, where it does not strictly apply because the offender pleaded guilty. In my opinion the first ground of the appeal has no merit.
6. By his specific reference to these paragraphs in R v AJP and R v Simon, we take Price J to have been acknowledging the then perceived orthodox approach in relation to sentencing for offences for which there is prescribed a standard non-parole period: that in cases where the standard non-parole period does not apply because there was a plea of guilty, it remains relevant as a benchmark or guidepost.
7. What was held in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 to be an erroneous approach was to give a standard non-parole period "primary" or "determinative significance" (at [26]) or "to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period" (at [28]).
8. Muldrock held (at [27]) that the obligation of a sentencing court was "to take into account the full range of factors in determining the appropriate sentence for the offence", adding that "[i]n so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period".
9. This is what we believe Price J did in the present case. He made an assessment of the objective seriousness of the offence. Having concluded that it was "in the upper half of the middle range of objective seriousness" he did not then inquire whether there were matters justifying a longer or shorter non-parole period than the standard prescribed. He immediately turned to note the maximum penalty of life imprisonment (the maximum penalty being the other of the two relevant legislative guideposts) and concluded that it should not be imposed. He then proceeded to a consideration of various subjective matters and made findings in relation to each: remorse; the plea of guilty; co-operation with the police; the discount for the utilitarian value of the plea and contrition; the applicant's criminal history; the relevance of alcohol consumption prior to the offence; the applicant's most unfortunate life history; Dr Nielssen's assessment; and the applicant's prospects of rehabilitation.
10. Senior counsel for the applicant submitted that his Honour's approach was "formulaic" and exhibited "all the signs of a 'two stage' approach to sentencing the applicant with the standard non-parole period holding centre stage" (AWS [13]). With respect, we cannot discern his Honour having adopted such an approach at all. It ought not, in our view, be lightly inferred that a judge has acted otherwise than in accordance with the then applicable law: Williams v R [2012] NSWCCA 172 at [2] - [4] per Allsop P.
11. This Court's authority to intervene depends on the demonstration of error: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [11]. As we do not discern error arising from the sole proposed ground of appeal, there is no warrant for this Court to interfere with the sentence passed.
12. Despite the Crown's concession, we would refuse the application for an extension of time on account of there being no merit in the proposed ground of appeal.
13. We propose the following order: Refuse application for an extension of time in which to give notice of application for leave to appeal against sentence.

Endnotes

1. Regina v McDonald [2007] NSWSC 813.
2. [2011] HCA 39; 244 CLR 120.
3. [2004] NSWCCA 131; 60 NSWLR 168.
4. Sentencing Procedure Act, s 44(2).
5. Judgment at [31].
6. [2004] NSWCCA 434; 150 A Crim R 575 at [18].
7. [2005] NSWCCA 123 at [30].
8. Judgment at [32].
9. [2014] HCA 37; 88 ALJR 947.
10. Kentwell at [40]-[42], [44].
11. Judgment at [8].
12. Judgment at [9].
13. Judgment at [12].
14. Judgment at [13].
15. Judgment at [14].
16. Judgment at [15].
17. Judgment at [14].
18. Judgment at [19].
19. Judgment at [21].
20. Judgment at [28].
21. Judgment at [29].
22. (ERISP Q/A 617).
23. Judgment at [30].
24. Judgment at [34]-[35]; Sentencing Procedure Act, s 61(1).
25. Judgment at [32].
26. Judgment at [36].
27. Judgment at [38]-[39].
28. Judgment at [40].
29. [2009] NSWCCA 102; 195 A Crim R 152 at [32].
30. [2006] NSWCCA 381; 167 A Crim R 159 (Spigelman CJ, Whealy and Howie JJ).
31. (2000) 49 NSWLR 383.
32. Thomson and Houlton at [154] to [155].
33. at [122].
34. at [117] to [121].
35. at [122], [133].
36. [2006] NSWCCA 43; 45 MVR 402.
37. Thomson and Houlton at [162].
38. Judgment at [41].
39. Judgment at [42]-[43].
40. Judgment at [44].
41. Judgment at [46]. 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: 01 May 2015