14 The Crown case was essentially circumstantial in nature. There were a number of different strands to it. First, there was the evidence of the presence of the offender's DNA upon the deceased. Secondly, there was the evidence of Mr Small concerning the vehicle which he had seen leaving the scene where the deceased was killed and its obvious similarity to the vehicle owned at the time by the offender. Thirdly, there was Ms Webber's evidence and finally there was the evidence of the offender's telephone conversation with his father.
15 The offender gave evidence denying that he had killed the deceased or that he had accompanied him to Woolloomooloo. The case advanced on his behalf was, as I suggested earlier, that although he did not recall having done so he must have had a sexual encounter with the deceased at the Exchange Hotel. Thereafter the deceased, who was in a vulnerable condition because of his blood alcohol reading of 0.124, must have been set upon by the real perpetrator or perpetrators. Those persons, it was suggested, were most likely to have been a group of men who were antagonistic to gay men and who obtained satisfaction from beating them up. The difficulty which the jury may well have had with that theory is that the window of opportunity for it to have occurred, that is between the last sighting of the deceased at the Exchange Hotel at about 3 am when he was clearly alive and the discovery of his body no more than 30 minutes later, was extremely narrow. No doubt the tight time-line, as well as the other evidence, persuaded the jury to reject the theory which was advanced on behalf of the offender.
16 Although the case was left to the jury upon the basis that a verdict of manslaughter by reason of unlawful and dangerous act was open on the evidence, that was never a realistic option. Indeed the case was conducted upon the basis, in view of the medical evidence, that the perpetrator had clearly had the requisite intention to render him guilty of the offence of murder.
17 The other basis upon which manslaughter was left to the jury was provocation. The evidence revealed that the deceased was carrying the HIV virus. A witness named Mr John Goosens gave evidence that he counselled the deceased very shortly before his death about the importance of engaging in safe sex and about the critical need to inform his sexual partners of his HIV status. Ms Webber gave evidence that the offender insisted that they undergo HIV tests before they commenced their relationship. The offender gave evidence in which he maintained that he was blasé about the risk of contracting the virus. The jury was undoubtedly sceptical of that claim particularly given, as the evidence revealed, the real anxiety which existed in the community in 1991 about the consequences of contracting it. At that stage, it was treated as being tantamount to a death sentence. Moreover, the Crown pointed to the offender's reaction when he found out, on 14 February 1995, that he too had contracted the virus. He then used that date as part of his password for his computer. It was against that background that the Crown invited the jury to consider the real possibility that the offender had lost self-control and had proceeded, whilst in that state, to kill the deceased having ascertained during the course of a sexual encounter that the deceased had the HIV virus. The Crown had other material available to it, in the form of admissions allegedly made by the offender to police, which supported that theory. I nonetheless upheld an objection to the admissibility of that evidence. However, the jury clearly rejected the proposition that the offender had been provoked, and was no doubt assisted in its task by his denial in his sworn evidence that he had been.
18 I have received a victim impact statement from the deceased's sister, Ines Flores to whom he was evidently very close. She said that the deceased was a devoted uncle to her children. The feelings which she has so eloquently and poignantly expressed and the grief which she and her family have suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of her statement. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.
19 Tendered on behalf of the offender were two psychological reports. The first, which was dated 11 May 1994, was prepared by Ms Kathy Barrier and the second, which was dated 17 May 2010, was prepared by Ms Anita Duffy. The evidence reveals that the offender was born in Launceston in March 1963. He has five siblings. His mother, who is described as having an "indigenous background", died in 2003 whilst his father still lives in Launceston. The offender's early life appears to have been relatively uneventful and he left school at the age of 16. Although the offender discovered at a relatively early stage that he was bi-sexual, he nonetheless married at the age of 20. He has two children and five grandchildren to whom he is still close. Although he and his wife did not live together for very long, they still remain friends. The offender has, at various stages of his adult life, lived in Melbourne, Adelaide and Sydney. He has, as I understand the situation, been engaged in regular employment. He has worked in a variety of occupations including in the hospitality industry where he has been employed doing bar and nightclub security work. Prior to his arrest in respect of the present matter the offender was, as I have said, living and working in Launceston. As I understand it, he had returned there to live in order that he could be in close contact with his family.
20 Whilst on remand late last year, the offender was assaulted by other inmates. His left eye socket was fractured and he spent five days in hospital. He is reported to be still suffering blurred vision in his left eye. In February 2010 the offender fell out of the top bunk in the cell which he was then occupying and sustained further injuries to his neck, shoulders and back. He is still wearing a neck brace as a result of those injuries.
21 Ms Duffy observed in her report that the offender acknowledged that in the past "he had a quick temper and was very impatient and inclined to angry outbursts". She went on to say however that he now "appears to have developed more controls over his expressions of aggression or anger".
22 The offender has a criminal record both in this state and elsewhere. In NSW in 1990 he was dealt with for driving in a speed dangerous to the public and in 1994 for a PCA offence. In the same year he was sentenced to 18 months periodic detention for supplying a prohibited drug. He was subsequently sentenced to a minimum term of 60 weeks with an additional term of 20 weeks when he breached the periodic detention order. In 1989 in Victoria he received a suspended term of imprisonment for a number of offences of obtaining property by deception. He first came to notice in his native Tasmania in 1973 when at the age of 10 he was placed under the supervision of the Child Welfare Department in respect of offences of burglary and stealing. In 1985 he received a suspended sentence of imprisonment in respect of 54 counts of obtaining goods by false pretences. Later the same year he was placed on probation in respect of 2 counts of burglary and 2 counts of stealing. In the Supreme Court later in that year he received a suspended term of imprisonment in respect of 20 counts of defilement. I was informed that the offender was then aged 21 whilst the complainant was aged 13. In 1999 he received a $750 fine for 8 counts of knowingly presenting a false document. In April 2003 he received a sentence of 15 months imprisonment with a non-parole period of 8 months in respect of an offence of maintaining sexual relations with a person under the age of 17. A further term of 15 months imprisonment with a non-parole of 10 months to be served cumulatively upon the earlier sentence was imposed upon him for an aggravated robbery offence. In October that year the offender was sentenced to imprisonment for 1 month in respect of 10 counts of making a false statement.
23 A report from Justice Health prepared by Dr Stephen Hampton was tendered. It indicates that the offender is "generally in good health". The report continues:
[The offender's] main concern is that of HIV infection. He was diagnosed in 1995 and started on Anti-Retroviral Treatment in 1997. He stopped 6 months later due to ongoing problems with side effects. Since that time he has been treated with a number of regimes and he ceased treatment in April 2008 due to the cost of medications.
He entered custody in December 2008 and was seen by the population health nurse soon after. He was referred to the immunologist whom he saw in January 2009. He was commenced on the anti-viral therapy; Kivexa (abacavir sulphate with lamivudine), atazanavir and ritonavir. He was also treated with prophylactic treatment against infections; bactrim and azithromycin. He remains on this management regime.
It is anticipated that he will continue on this treatment at the moment but medication regimes are continually evolving and his medication will continue to be adjusted according to current practices by treating immunologists.
Opinion was sought from the treating infectious diseases specialist in regard to prognosis. Mr Armstrong has an undetectable viral load but has never achieved full immune reconstitution and as such experiences a degree of immunosuppression. Current research suggests that those patients who have access to full modem treatment should have a near normal life expectancy. Mr Armstrong has not fully reconstituted immunologically so is at risk of AIDS events such as infections and cancers and may have some shortening of life expectancy (perhaps in the order of 5 years). However, his life expectancy is still in the order of decades. There have been significant improves (sic) in outcomes of HIV infected patients in recent years and predicting future outcomes is difficult.
Should his condition deteriorate Mr Armstrong would continue to be managed by visiting immunologists and staff doctors. He could be treated in the medical-surgical unit of the Long Bay Hospital and if required there is access to specialised services at the Prince of Wales Hospital.
24 In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case.
25 The starting point for any assessment of the objective gravity of the offence, as Mr Haesler candidly acknowledged, is the fact that a human life has been needlessly taken. As I have said, there is no evidence that a weapon was used in the fatal attack. It is nonetheless apparent from the injuries which he suffered that the deceased was subjected to a savage and sustained beating. Although I do not think that it makes a great deal of difference in the circumstances of the present case, I am not inclined to conclude that the offender acted with an intention to kill. Mercifully, it would appear that Felipe Flores died almost immediately following the attack upon him.
26 That said, there is no evidence of premeditation. On the contrary, the evidence suggests that the offender acted spontaneously. Indeed it appears to be common ground, as Mr Haesler submitted, that some allowance, albeit modest, should be made for the fact that the offender in all likelihood reacted as he did after having lost his self-control following a disclosure by the deceased during the course of their sexual encounter that he had the HIV virus. Furthermore, it seems likely that the deceased and the offender went to Woolloomooloo for the purpose of having a sexual encounter.
27 I also accept the fact that the offender faces a somewhat uncertain future because of his HIV status. Furthermore, it is quite possible that the stresses associated with serving a lengthy sentence may well increase the risk that his condition will further deteriorate. Accordingly, I am prepared to find that the circumstances under which the offender will serve his sentence are likely to be somewhat more burdensome that might otherwise be the case, especially given the physical injuries from which he is also suffering.
28 The fact that the offence was committed nearly 20 years ago gives rise to two further sentencing considerations. First, there is the question of the delay which has occurred in bringing these proceedings to finality. I accept that, as a consequence, an appropriate measure of understanding and flexibility is called for: R v Todd [1982] 2 NSWLR 517 at 519. Secondly, it is plainly apparent that the sentencing regime that now exists would expose the offender to a decidedly more severe penalty than the one which prevailed at the time of the offence. However, it is common ground that I must sentence the offender in accordance with sentencing practices and patterns which prevailed at the time the offence was committed: see R v MJR (2002) 54 NSWLR 368. Although caution must be exercised in relying upon statistical material, I have nonetheless derived considerable assistance from the Judicial Commission's report entitled "Sentenced Homicides in New South Wales 1990-1993". I have had regard only to the sentences imposed upon the offenders to whom s 19A of the Crimes (Life Sentences) Act 1989, which was inserted on 12 January 1990, applied. 93 such offenders were sentenced in the period covered by the study. 43% of those offenders received a minimum term greater than 8 years but not exceeding 12 years, whilst 35.5% of offenders received a minimum term greater than 12 years but not exceeding 16 years. 64.5% of offenders received a full term greater than 14 years and up to 20 years. The authors of the monograph conclude that "the typical sentence for murder under s 19A might be described as a minimum term of 12 years and an additional term of 6 years, making a total sentence of 18 years". In so concluding, it would appear that the authors made no differentiation between those offenders who pleaded guilty and those who did not.
29 I referred earlier to the offender's criminal record. It contains some entries for matters which the offender committed prior to the present one. They merely operate to deprive him of the type of leniency that might otherwise be afforded to him. On the other hand, his antecedents since 1991 do him no credit at all. Nor do they suggest that he has demonstrated any basis for the contention that he has good prospects of rehabilitation. Nevertheless, particularly bearing in mind Ms Duffy's observation which indicates a change in the offender's attitude towards controlling his temper and the age which he will have reached by the time he is eventually released on parole, I would not regard his prospects as having completely evaporated.
30 The material contained in the Judicial Commission monograph reveals that the relationship which the minimum term or non-parole period bore to the head sentence during the relevant time period was usually less than the normal statutory proportion of 75% which now exists. The parties agreed that that consideration provides a sufficient basis for making a finding of "special circumstances". Nevertheless in setting the non-parole period, I have borne in mind the need to fix the minimum period which the offender must spend in custody.