R v Attwater; R v Maris

The finding on post-mortem

1. On 28 January 2011 Dr Cala, forensic pathologist, reported Ms Daley's death as blunt force genital tract trauma. He identified two lacerations in the vaginal tissue. The first laceration, measuring 12 centimetres, extended from Ms Daley's clitoris through clitoral tissue internal to her labia majora, through her introitus and into the anterior wall of the vaginal canal. A second laceration, measuring 4.5 centimetres, extended from Ms Daley's cervix along the posterior wall of the vaginal canal. Upon removal of the pelvic organs a large area of haemorrhage was noted as roughly contiguous to the lacerating injuries to the vaginal canal.
2. Other areas of recent bruising on Ms Daley's torso and legs were noted, in particular, pressure point bruising on the inner aspect of her upper thighs.
3. In Dr Cala's opinion, the length and depth of the vaginal lacerations would have caused immediate and significant bleeding and, if the injuries were untreated, as they were to his observation, the progressive loss of blood over the passage of hours would have inevitably led to hypovolemic shock and death.
4. Although Dr Cala was unable to appoint the time of death or the time the lacerating injuries were inflicted with any precision, he estimated 2 litres of blood was lost against an estimated total 4.5 litres of blood pre injury, given Ms Daley's height and weight.
5. A toxicology report confirmed Ms Daley's blood alcohol concentration at the time of death as 0.303g/100mL.

The offenders are charged and prosecuted on indictment

1. On 19 April 2011, Mr Attwater was charged by police with Ms Daley's manslaughter and aggravated sexual assault. On 21 April 2011, Mr Maris was charged with accessory after the fact to Ms Daley's manslaughter and aggravated sexual assault.
2. On 31 July 2017, Mr Attwater was arraigned before a jury of twelve on two counts: the first, the unlawful killing of Ms Daley on 26 or 27 January 2011, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (the manslaughter count). That offence attracts a maximum penalty of 25 years imprisonment pursuant to s 24 of the Crimes Act. The second count alleged that he had sexual intercourse with Ms Daley, without her consent, knowing she was not consenting, when in the company of Paul Maris, contrary to s 61J(1) of the Crimes Act (the offence of aggravated sexual assault). That offence attracts a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
3. On 6 September 2017, a jury of eleven convicted Mr Attwater of both counts.
4. The same jury also convicted Mr Maris of having aggravated sexual intercourse with Ms Daley without her consent in the company of Mr Attwater, contrary to s 61J(1) of the Crimes Act. He was also convicted of hindering the discovery of Mr Attwater's sexual offending by burning the blood stained mattress Ms Daley was lying on when she was sexually assaulted by Mr Attwater, in circumstances where it was alleged that he knew that Ms Daley was not consenting to sexual intercourse with Mr Attwater. That offence, contrary to s 315(1)(b) of the Crimes Act, attracts a maximum penalty of 7 years imprisonment.
5. The impact of the delay in the prosecution of the offenders is a factor that I am obliged to consider for sentencing purposes. I will have something further to say about the extent to which delay operates to ameliorate the sentences to be imposed on both offenders later in my sentencing remarks.

Mr Attwater's case at trial

1. It was not in issue at Mr Attwater's trial that the lacerating injuries to Ms Daley's vagina were the direct cause of her death, or that the injuries were inflicted by him during sexual intercourse. What was in issue was whether the Crown could prove beyond reasonable doubt that the sexual intercourse was unlawful, being without Ms Daley's consent in circumstances where Mr Attwater knew she was not consenting and, if the jury were satisfied of that fact beyond reasonable doubt, whether the Crown could also prove beyond reasonable doubt that the unlawful act of sexual intercourse in which the fatal injuries were inflicted was objectively dangerous, in the sense that a reasonable person in Mr Attwater's position would have realised that the repeated and vigorous insertion of his hand or fist into the vagina of a non-consenting woman in Ms Daley's position exposed her to an appreciable risk of serious injury.
2. The jury were directed that if they were not satisfied the sexual offence charged as the second count was proved beyond reasonable doubt, they could nonetheless return a verdict of guilty on the first count if they were satisfied the Crown had proved the elements of manslaughter by criminal negligence beyond reasonable doubt.
3. Since the jury returned verdicts of guilty on both counts it was the agreed position on sentence that Mr Attwater should be sentenced for Ms Daley's manslaughter on the basis that the injuries which caused her death were inflicted during non-consensual sexual intercourse and that the circumstances in which those injuries were inflicted were objectively dangerous. It was also agreed that Mr Attwater should be sentenced for having had non-consensual sexual intercourse with Ms Daley, in circumstances of aggravation, namely whilst in company with Mr Maris.
4. It will be necessary to fix the aggregate sentence to be imposed on Mr Attwater in conformity with totality principles and to ensure against the risk of double punishment in the appointment of the indicative sentences given that the unlawful act causative of Ms Daley's death was the act of intercourse the subject of the sexual assault. The aggregate sentence will also need to reflect the fact that the sexual assault was committed in circumstances of aggravation. The appointment of the aggregate sentence must comprehend the totality of Mr Attwater's offending.

Mr Maris's case at trial

1. It was no part of the Crown case at trial that Mr Maris's non-consensual oral intercourse resulted in the infliction of injury or that he was criminally liable for Ms Daley's death.
2. It was Mr Maris's case at trial that Ms Daley consented to oral sexual intercourse with him and that in answer to the charge of hindering the police investigation he believed at all times that Ms Daley was consenting to vaginal sexual intercourse with Mr Attwater and that he only burnt the mattress on the following morning because it was putrid with Ms Daley's menstrual blood.
3. It was the agreed position that Mr Maris would be sentenced for having non-consensual oral intercourse with Ms Daley in circumstances of aggravation, namely whilst in company with Mr Attwater, and for the distinct offending of hindering the police investigation into Mr Attwater's sexual offending by burning the mattress and Ms Daley's clothing that would have been evidence of the commission by him of that offence. Totality principles will also dictate the appointment of an aggregate sentence to comprehend Mr Maris's overall offending.

The approach of a sentencing court

1. After a jury has returned verdicts of guilty, it is the task of a sentencing court to make factual findings that are essential to the sentencing exercise. Where the facts upon which an offender is to be sentenced are in contest, as they are for the sentences to be imposed on Mr Attwater for both the manslaughter of Ms Daley and the sexual assault in the course of which the fatal injuries were inflicted, any finding which is adverse to him must be a finding I make to the criminal standard of proof, being proof beyond reasonable doubt.
2. Similarly, in assessing the moral culpability of both offenders for each of the offences for which they are to be sentenced, including any aggravating factors either at common law or pursuant to s 21A(1) of the Crimes (Sentencing) Procedure Act 1999 (NSW), any finding which is adverse to them must also be made to the criminal standard. Any matters relied upon by either of the offenders in mitigation of sentence are to be established by them on the balance of probabilities.
3. While I am obliged to sentence the offenders upon an assessment of the facts that is not inconsistent with the jury's verdicts, I am not obliged to make that assessment on a view of the facts that is most favourable to them. I do accept, however, that Mr Attwater is entitled to the benefit of any reasonable doubt I might have in respect of a number of factual findings that he contends were not necessarily resolved by the jury adverse to him.

The assessment of the objective seriousness of all offences

1. The Crown accepts that there are a number of factual matters in Mr Attwater's sentencing proceeding in that category. It is the Crown's submission, however, that each of the disputed facts should be resolved by me adverse to him. In the Crown's submission, that will lead inevitably to a finding that the objective seriousness of Mr Attwater's sexual assault of Ms Daley is in the upper end of the range of objective seriousness and, there being nothing to mitigate his offending, the standard non-parole period of 10 years would guide the sentencing discretion for that offence. It is also the Crown's submission that Ms Daley's manslaughter is an objectively serious example of manslaughter by an unlawful and dangerous act and that the maximum sentence of 25 years is a guide to the sentence that should be imposed for that offence.
2. There will also need to be an assessment of the objective seriousness of each of the offences for which Mr Maris was convicted. In contrast to the approach taken by Mr Steel of counsel on Mr Attwater's behalf, in assessing the objective seriousness of Mr Maris's offending, Mr Wasilenia of counsel did not suggest that there were any facts relevant to sentence that were not resolved by the verdicts of the jury.
3. In Mr Attwater's sentence proceedings, the question of Ms Daley's state of consciousness at the time he inserted his hand or fist into her vagina was in dispute. Mr Wasilenia's concession on Mr Maris's behalf that Ms Daley was unconscious during intercourse with him does not bind Mr Attwater, just as Mr Maris's account to police that Mr Attwater was "fisting" Ms Daley while he was having oral intercourse with her is not evidence available to me in determining whether I am satisfied beyond reasonable doubt that a fist was used by Mr Attwater to repeatedly and forcibly penetrate Ms Daley's vagina.

Issues in dispute in Mr Attwater's sentence proceedings

1. The issue of Ms Daley's intoxication as framed by Mr Steel is whether I am satisfied Ms Daley's consent to sexual intercourse was negatived because the extent of her intoxication rendered her unconscious (as provided for in s 61HA(4)(b) of the Crimes Act), or whether I accept the reasonable possibility that she was conscious at the time of sexual intercourse but that she did not freely or voluntarily consent to intercourse because her level of intoxication was substantial (a finding which Mr Steel concedes is necessarily inherent in the verdict of the jury). The resolution of that question will have an obvious and direct bearing on the assessment of objective seriousness of both offences for which Mr Attwater is to be sentenced.
2. The other questions, also bearing on an assessment of objective seriousness, that Mr Steel asks me to resolve in Mr Attwater's favour include: 1. Whether I am satisfied beyond reasonable doubt that Mr Attwater could have had no honest belief that Ms Daley was consenting to sexual intercourse with him (whether because she was unconscious or in a state of alcoholic stupor or substantially intoxicated) or whether I accept the reasonable possibility that he genuinely believed that she was consenting to sexual intercourse accepting, as he must, that was a belief not held by him on reasonable grounds. 2. Whether I am satisfied beyond reasonable doubt that the vaginal injuries which caused Ms Daley's death were the result of Mr Attwater using his fist to forcefully and repeatedly penetrate her vagina, or whether I accept the reasonable possibility that the vaginal injuries resulted from him only using his flattened hand (not including his thumb), albeit with penetrative force and vigour. 3. Whether, and to what extent, I am satisfied that Mr Attwater's attitude towards Ms Daley generally, including his treatment of her as a casual sexual partner before engaging in the non-consensual sexual intercourse that resulted in her death, and his treatment of her during and after that incident, inform an enquiry into his state of mind at the time of intercourse being the conduct foundational to his offending on both counts.
3. Although these questions are posed by Mr Steel as separate questions (largely, it would seem, because the various expert witnesses who gave evidence at trial were confined to expressing their opinions about some of these issues and not others), it is the evidence led at trial as a whole, including the inferences legitimately drawn from that evidence, which will inform the way I resolve these issues for sentencing purposes. I will have something to say shortly about the extent to which I am prepared to take Mr Attwater's records of interviews with police into account in resolving any of the disputed facts.
4. In determining whether I am satisfied beyond reasonable doubt that Ms Daley was in a state of unconsciousness or an alcoholic stupor at the time of intercourse with Mr Attwater (or that she was otherwise so profoundly incapacitated by alcohol that he must have known she was not consenting), I do not propose to confine myself to the expert opinion of either of the pharmacologists, Dr Perl and Professor Christie, despite what I regard as the overwhelming and combined weight of their evidence that her blood alcohol level at death was such that her cognition and co-ordination would have been profoundly impaired eight to nine hours earlier. Dr Lincoln's evidence, in particular, also informs the question of the extent to which Ms Daley's consciousness at the time the injuries were inflicted might, or even must, have been compromised.
5. Dr Lincoln's evidence was that Ms Daley would inevitably have felt excruciating pain upon the infliction of the 12-centimetre laceration of the clitoral tissue external and internal to her vagina, with the potential for a less immediate pain response on the infliction of the 10-centimetre laceration to the tissue within the vaginal canal posteriorly. Dr Lincoln also gave evidence that the pain would have intensified were friction or other pressure applied to the lacerations either as the penetrative act of intercourse continued or as Ms Daley moved about (if she moved voluntarily) after the injuries were sustained. On the assumption (as I was asked to make it on Mr Attwater's behalf) that Ms Daley did not cry out in pain or flinch at the infliction of the injuries, or for that matter complain of pain at any time over the hours that elapsed after intercourse and before death, Mr Steel invited me to find the explanation for her apparent indifference to pain in the acknowledged anaesthetising effects of alcohol.
6. The Crown submitted that while Dr Lincoln agreed that it was not possible to appoint the order in which the vaginal injuries were inflicted, or when they were inflicted during the repeated penetration of her vagina by Mr Attwater's hand or fist, as Dr Lincoln made clear, any touching of an open laceration, let alone forceful and vigorous movement across the torn tissue, must have elicited an extreme pain response that I would be satisfied would permeate through a state of even heavy intoxication. This, the Crown submitted, supported the finding that Ms Daley was unconscious or stuporous at the time of intercourse and unable to respond in any meaningful or coherent way to what was being done to her.
7. Were I satisfied beyond reasonable doubt of that fact, it would also follow that it would be open to me to be satisfied beyond reasonable doubt that Mr Attwater knew she was not consenting to sexual intercourse given, amongst other reasons, that he would have needed to physically manoeuvre Ms Daley into a position to access her vagina. That finding would, in turn, inform Mr Attwater's attitude to Ms Daley at the time he inflicted the vaginal injuries from which she died, a factor bearing upon his moral culpability both for the sexual assault and for her death.
8. Neither do I propose to confine myself to the combined weight of the expert medical evidence in determining the mechanism which resulted in the infliction of the vaginal injuries, another issue in dispute in Mr Attwater's sentence proceeding. In the event that I am satisfied, from the combined weight of the medical evidence, that vaginal intercourse did incorporate Mr Attwater's fist at some point during that sustained penetrative act, that finding would be further supported by the evidence of both Mr Jarrett and Ms Norman to the effect that Mr Attwater told them he used his fist, assuming I find their evidence honest and reliable.

The evidence referable to which the disputed facts are to be resolved

1. None of the material tendered by Mr Attwater in his sentence proceeding is available to support any of the factual findings he invites me to make in assessing the objective seriousness of either of the offences for which he is to be sentenced.
2. The fact that he told Ms Caroline Hare, the forensic psychologist who was retained to prepare the report which was tendered by him on sentence, that he only noticed a little bit of blood on his hand during intercourse with Ms Daley - intercourse which he told Ms Hare he performed with his flattened hand without incorporation of his thumb and to which he continues to maintain he believed Ms Daley consented - is a hearsay account of no evidential value in resolving any of the factual disputes that arise in his sentence proceeding.
3. Mr Attwater's account to Ms Hare that he was unaware of the extent of Ms Daley's intoxication at the time of intercourse, and his repeated claim that he had no reason to doubt her level of consciousness at that time and, by implication, that he had no reason to check on her wellbeing after intercourse, is also of no weight for the same reason.
4. In addition, I regard Mr Attwater's accounts to police on 27 January 2011 and 3 March 2011 to the same effect of no weight in resolving the facts he puts in issue on sentence. His various accounts to police in both interviews notably include his assertion that he believed Ms Daley had the capacity to consent to sexual intercourse, his claim to have had no knowledge or awareness of the fact that he inflicted serious injuries during intercourse as an explanation for his lack of concern for Ms Daley's wellbeing over the many hours that elapsed after those injuries were inflicted and, finally, his account of Ms Daley's sudden lapse into unconsciousness in the ocean at dawn the following day.
5. These accounts are not only unsworn and untested in cross-examination but, in my assessment, they are contradicted in multiple and material respects by the objective evidence of Ms Daley's injuries revealed on autopsy, her physical condition when she was pronounced deceased by paramedics on the morning of 27 January 2011, and the expert opinions of various medical experts referable to that body of evidence.
6. In addition, by their verdicts the jury must be taken to have rejected critical aspects of both of Mr Attwater's interviews as either deliberately untrue or otherwise unworthy of acceptance and, further, that in finding him guilty of both counts upon which he was indicted they must be taken to have placed very considerable reliance on the probative weight of the full complement of the medical evidence.
7. In my assessment, those aspects of Mr Attwater's account to police on 27 January 2011 which the jury must have rejected also include his claim that Ms Daley enjoyed and actively participated in sexual intercourse with him, including that when he alerted Ms Daley to seeing a little bit of blood on his hand during intercourse she told him she was alright and not to worry about it. The jury must also be taken to have rejected Mr Attwater's claim that although Ms Daley was conscious and communicative before, during and after intercourse, she did not complain of pain at any time and that she showed no signs of being injured or unwell until she suddenly collapsed in the ocean.
8. Additionally, the jury must also be taken to have rejected as deliberately untrue or unworthy of acceptance Mr Attwater's account to police in the interview in March 2011 that upon leaving the campground at Black Rock some time before dawn on 27 January 2011 to make their way in the four wheel drive vehicle to the ocean over the sand dunes, Ms Daley not only showed no signs of being unwell or injured, but that after leaving the location where sexual intercourse had taken place many hours earlier and whilst en route to the camping ground, Ms Daley was sitting in the front seat between him and Mr Maris "drinking … laughing … listening to music … all the way up the beach", without any complaint of pain or discomfort or any indication that she had recently suffered the vaginal lacerations which were the cause of her death.
9. Finally, the jury must have rejected Mr Attwater's account to police that Ms Daley remained in good spirits (albeit after sleeping for some hours on the mattress in the rear of the vehicle) until shortly before Mr Maris made the triple-0 call at 6.01am on 27 January 2011, that she was walking without impairment and talking with him as she undressed and entered the ocean with him for a swim and that it was only whilst in the water that she suddenly collapsed into unconsciousness from which she could not be revived.
10. Independently of the jury's verdicts and what I consider are findings inherent in verdicts of guilty being returned on both counts, I am satisfied, and to the criminal standard, that Mr Attwater's account of these events was deliberately false.
11. I am also satisfied, and to the same standard, that at no time after Ms Daley sustained the vaginal injuries at around 9pm on 26 January 2011 was she sitting in the front seat of the four wheel drive vehicle in communicative and playful engagement with Mr Attwater, or that she undressed and walked into the ocean for a swim with him at or before dawn the following day. I am further satisfied that she did not voluntarily move from the mattress in the rear of the vehicle upon which she was lying when the injuries were inflicted to the front seat for the journey from the camping ground to the ocean at, or just before, dawn on 27 January 2011 but, rather, that she was removed by Mr Attwater or by Mr Maris with his knowledge, or by both of them, to the front seat of the vehicle at Black Rock camping ground after she was found either unconscious or unresponsive in the rear of the vehicle, either still actively bleeding or, more likely, after she had been passively bleeding for many hours.
12. Finally, I am satisfied that Ms Daley did not undress and walk into the ocean but was carried into the ocean by Mr Attwater in a desperate attempt to revive her (and likely to wash some of the blood from her naked body - and perhaps off himself) at a time when Mr Maris was burning the blood-soaked mattress and her clothes on the beach to hinder the discovery of Mr Attwater's sexual offending.
13. While I accept that Mr Attwater made genuine attempts to administer CPR and that his efforts persisted for some time until the arrival of the paramedics, I regard his actions at that time as motivated as much by self-interest as responsive to a belated concern for Ms Daley's wellbeing. I do not accept his conduct in administering CPR attracts any weight in mitigation of sentence.
14. In summary, I am satisfied that Mr Attwater gave a deliberately untrue account to police of the circumstances in which intercourse occurred, and his conduct towards Ms Daley at that time and thereafter was to conceal what he knew had been his disregard or disinterest in Ms Daley's welfare, both at the time when he repeatedly and forcefully penetrated her vagina and generally over the many hours after intercourse and before Mr Maris placed the call to triple-0. While the medical evidence does not enable me to find that Ms Daley was deceased at that time beyond reasonable doubt, I am satisfied, in all the circumstances, of the high probability that was the case and the strong likelihood that she had been deceased for some time before that.
15. I have no doubt that by the time of the first interview with police at 9.55am on 27 January 2011 Mr Attwater knew that he was responsible for Ms Daley's death and that his claim that she had suffered a sudden seizure in the ocean was a lie deliberately told to conceal that fact.
16. Having rejected his account as untrue in these significant respects, where there is a conflict between Mr Attwater's account and other evidence admissible against him, whether as a matter of objective fact or because of my assessment of the probative weight of the expert evidence or a combination of both, the facts that remain in contest for sentencing purposes fall to be resolved solely referable to that evidence and the inferences legitimately drawn from it.

The medical evidence

1. Each of Drs Bland and Lincoln are highly qualified medical specialists. Dr Bland is a gynaecologist and obstetrician while Dr Lincoln's PhD in Forensic Medicine focused on injuries sustained in consensual and non-consensual sexual intercourse. Each of Dr Cala and Professor Ellis are highly qualified forensic pathologists. Dr Perl and Professor Christie are highly qualified and respected pharmacologists.
2. I should say at the outset that I regard the combined weight of the medical and pharmacological evidence adduced at trial as compelling evidence of Mr Attwater's guilt on both counts as it was of Mr Maris's guilt on the count alleging that he had non-consensual sexual intercourse with Ms Daley knowing she was not consenting.
3. Each of the expert witnesses addressed, from their different areas of expertise and experience, the nature and extent of the vaginal injuries identified at autopsy and the likely or probable mechanism of those injuries, including: the amount of force that must have been applied for the vaginal tissue to be deeply lacerated in two distinct locations, external and internal to the vaginal canal; the pain that Ms Daley would likely have experienced upon infliction of either or both the injuries even were the alcohol she had consumed to have had an anaesthetising effect; Ms Daley's likely state of consciousness at the time of intercourse given the concentration of alcohol in her blood at death and the extent of blood that would have been shed both on infliction of the injuries and over the many hours that elapsed before her death.

The issue of intoxication

1. Having rejected Mr Attwater's account to police as untrue in a range of respects, the evidence relevant to an assessment of Ms Daley's level of intoxication at the time of intercourse is limited to the account of those who saw her during the afternoon of 26 January 2011 before she was last seen at approximately 6pm in the local shopping area in the company of the two offenders, and the assessment of those people of the extent of her intoxication at that time, coupled with her blood alcohol concentration at post-mortem and the analysis Dr Perl and Professor Christie applied to that evidence in assessing her likely level of intoxication at 9pm on 26 January 2011 (the time it was generally agreed at trial that intercourse occurred).

Observations of Ms Daley on 26 January 2011

1. Ms Tina Daley gave evidence that at 5am on January 26 2011 Ms Daley and the two offenders came to her house. She said her sister stumbled out of the car smelling of alcohol and appeared to be slurring her words. She was still able to have a coffee and hold a conversation despite the effects of alcohol at that hour.
2. Mr Peglar gave evidence that Ms Daley and the two offenders came to his house at Iluka later on the morning of 26 January 2011 en route to Ten Mile Beach. Mr Peglar had not met Ms Daley before that morning. He said that Ms Daley did not appear intoxicated at that time. Later in the afternoon, at about 3.30pm, he saw them again at which time Ms Daley was stumbling and appeared to be drunk. He said the offenders did not appear to be "that intoxicated".
3. Mr Gallagher was with his wife in the front of the Foodworks store at Iluka at 4.30pm when he saw the two offenders and Ms Daley. He described Ms Daley at that time as "pretty well intoxicated". He assessed her level of intoxication "near high" on a scale of low to medium to high. He said, "her eyes were glazed, her head was nodding, her eyes a little bit shut and every so often she'd have a bit of a giggle".
4. Mr Lester, the part owner of the service station next to Foodworks, said he saw a person at 5pm (who the evidence revealed was Mr Gallagher) with two men and a woman who "appeared to be unsteady on her feet". He said the woman and the man who was walking with her (revealed by the evidence to be Mr Maris) was also unsteady on his feet. When Mr Lester was asked to assess their level of intoxication as low, middle or high, he said they were both in the high range.
5. Ms Colette was working at the Foodworks store at Iluka at 6pm when Ms Daley and Mr Maris walked into the store. Ms Colette described Ms Daley as appearing to be "well affected by alcohol" and that she was unsteady on her feet. She said that she did not hear her speak and did not hear the man speak to her. She watched them as they made their way back to the vehicle at which time she saw Mr Maris pull Ms Daley's track pants down to her knees. She said that she stood there without flinching and that they both laughed and she pulled her pants up again with one hand. She was not wearing any underwear.
6. Ms Kennedy, who was working with Ms Collete, said that she saw the same two people in the Foodworks store. She said the woman did not respond to her greeting, but just looked at her blankly. She said she thought that the woman was "either drunk or had something else wrong with her". She also saw the woman's pants being pulled down at the back of the car.
7. Mr Newton saw the four wheel drive vehicle parked outside the Foodworks store. He said the driver called out to him when he was about to get into his car. He said there were three people in the front seat. He said the driver said, "Hey mate, can I see you for a minute?". The evidence revealed that person to be Mr Attwater. As he walked over to the driver's window he saw another two people in the car - one man in the passenger seat (the evidence identified that person as Mr Maris) and a woman between the two men (being Ms Daley).
8. When Mr Newton arrived at the driver's window and asked what Mr Attwater wanted, he did not respond but Mr Maris said, "Mate can you do us a favour … Can you drop this thing down the road for us?" (referring to Ms Daley). Mr Newton said that the woman was "very, very intoxicated" and did not really know where she was. He said she was sitting in the middle seat with her head forward and her chin on her chest. He said that she lifted her head up and opened her eyes wide when Mr Maris asked him to "drop this thing down the road" but made only an incoherent sound.

The evidence of Dr Perl and Professor Christie

1. Dr Perl, who was called by the Crown at trial, and Professor Christie, who was called by Mr Attwater, were both invited to take into account the observations of those who observed Ms Daley in the late afternoon of 26 January 2011 as one objective mark in time which might inform the question of her level of intoxication at about 9pm when it was likely intercourse occurred, and her blood alcohol concentration at death the following morning as a further objective marker.
2. Dr Perl and Professor Christie gave evidence that Ms Daley would likely have had a high level of tolerance to alcohol (even a very high level of tolerance) having been a regular drinker, and often to excess, over a period of years preceding January 2011. It is unnecessary for sentencing purposes to dwell on Ms Daley's drinking habits, save as to note that the academic literature reports that people who have a high tolerance to alcohol have a demonstrated capacity to maintain levels of coherence and coordination under the influence of alcohol in contrast to less tolerant people who, with the same concentration of alcohol in their blood on testing, would be grossly impaired. The same body of literature confirms the self-evident proposition that at extremely high concentrations of alcohol, even the most alcohol tolerant person will be incapacitated, even to the extent of unconsciousness or alcoholic stupor.
3. The state of alcoholic stupor was defined by Dr Perl (and accepted by Professor Christie) as: A semi-conscious state where a person is normally only aroused through persistent shaking or prodding or pain. She went on to add: … that level of stupor can vary because you can fall into a stupor when you're no longer starting to respond to pain and then you become unconscious.
4. It was agreed between all of the medical experts that alcohol can have an analgesic effect lessening the subjective experience of pain, and that Ms Daley's level of intoxication would have had some impact upon her perception of pain on infliction of the vaginal lacerations and thereafter were she conscious, although the actual impact of alcohol on levels of extreme pain is impossible to quantify. However, there was no evidence at trial as to how tolerance to alcohol might interact with its known analgesic effects, that is, there was no evidence that a person with a higher tolerance to alcohol would have an increased tolerance to pain.
5. On the assumption that Ms Daley consumed more alcohol after leaving the Iluka Foodworks store at 6pm and before intercourse at 9pm (that is, after the vehicle was positioned on the sand dunes and preparations made for staying there for some part of the night - an assumption that I consider, as did the experts, a reasonable assumption in all the circumstances) Dr Perl was of the opinion that Ms Daley would have been approaching a state of semi-consciousness by 9pm if not a comatose state, given her patent appearance three hours earlier, while Professor Christie agreed that Ms Daley would have been very severely intoxicated by that time.
6. Both of the experts confirmed that a person in Ms Daley's physical condition as at January 2011, as a regular drinker, would be likely to eliminate alcohol from her bloodstream at an estimated rate of 0.02mg per hour. Both experts were also of the view that if Ms Daley did not consume any alcohol after intercourse at 9pm (which is also an inference I am prepared to safely draw for sentencing purposes) then, having regard to the concentration of alcohol in her blood post-mortem, her blood alcohol level at the time of intercourse would have been in the region of 0.46. Professor Christie agreed that would have resulted in the state of "profound impairment" while Dr Perl was of the view that she would likely have been unconscious.
7. Despite the difficulty the pharmacologists acknowledged in appointing with precision Ms Daley's blood alcohol concentration at the time of intercourse (based, as their opinions were, upon a range of assumptions defence counsel asked them to factor into their analysis, largely drawn, I should emphasise, from the accounts given to police by Mr Attwater and Mr Maris of Ms Daley's state of consciousness and cooperation with them during intercourse and after intercourse), for the purposes of Mr Attwater's sentence proceedings I am satisfied that if Ms Daley were not unconscious when he inserted his hand or fist into her vagina, she was so profoundly affected by alcohol at that time that both her capacity for any coordinated physical movement as a willing partner in sexual intercourse, and any responsive levels of cognition or reasoning would have been so severely compromised that it would have been obvious to anybody in her company who was paying her due attention and regard that she could not freely and voluntarily consent to intercourse.
8. The extent to which Mr Attwater moved Ms Daley's body to accommodate his hand or fist on repeated insertions into her vagina does not need to be resolved for sentencing purposes, save as to note Dr Cala's evidence as to the providence of the bruises on her thighs being strongly persuasive of Mr Attwater applying fingerprint pressure to those parts of her body. Dr Cala said: [It is a] very unusual location for accidental trauma and they're a series of very small bruises and they're symmetrical, in other words they're on both sides of the upper thighs at approximately the same level. I think, although I can't absolutely exclude a number of accidental scenarios causing them, I still maintain that it's most likely that some sort of fingertip pressure to … those parts of the thighs has caused those injuries.
9. I return to emphasise Dr Lincoln's evidence that were a fist or a hand repeatedly inserted after the infliction of the external aspect of the 12-centimetre laceration the pain would be "excruciating". In addition, on the further assumption that Ms Daley did not complain of pain, it was Dr Lincoln's evidence that given the degree of sensitivity in the clitoral tissue, and the depth of the injury inflicted into the tissue, intoxication to the point of unconsciousness would be the only thing that would numb that pain.
10. Dr Lincoln went on to give evidence that even with what she described as "a significant amount of alcohol on board", Ms Daley would not have been able to move comfortably or sit comfortably in a car that was being driven over rough ground and, if she were conscious during that driving episode, she would have been asking for assistance and complaining of pain.
11. In light of what I am further satisfied from the medical evidence was the rapid, immediate and either profuse or significant bleeding on the infliction of the vaginal injuries (at least until the natural effect of blood clotting operated to stem blood flow without stopping it entirely), there is no room for doubt in my mind that Ms Daley would have suffered the progressive and predictable symptoms of blood loss, although given her compromised state of consciousness at and after intercourse, it is clear that what would otherwise have been experienced by her as dizziness, light headedness, confusion, sleepiness and quickness of breath would not have been felt. That said, the amount of blood shed on the infliction of the injuries and progressive loss of blood as she bled to death would have been obvious were Mr Attwater paying her the slightest attention.

The mechanism employed in the infliction of the vaginal injuries

1. The use of a person's clenched fist and forearm in sexual intercourse (both consensual and non-consensual) was referred to in the evidence at trial as the sexual act of "fisting" or "fist fucking".
2. Adam Jarrett, a paramedic who attended on the deceased on the morning of 27 January 2011, gave evidence that Mr Attwater demonstrated this physical action when referring to the "wild sex" he said he had with Ms Daley. Gail Norman, a friend of Mr Attwater who also gave evidence at trial, said that Mr Attwater told her on 29 January 2011 that he had "fist fucked" Ms Daley.
3. Mr Attwater's case at trial was that both Mr Jarret and Ms Norman had given deliberately false evidence when attributing to him an admission to having "fisted" or "fist fucked" Ms Daley, and that his account to Detective Burke on the morning of 27 January 2011, when properly understood in the context of the traumatic events of that morning, was entirely consistent with his later account to police on 3 March 2011 that he did not insert his fist or make a fist in the course of having vaginal intercourse with Ms Daley, and that he did not employ force in using his flattened hand in a sideways movement.
4. Mr Steel conceded that by their verdict the jury must have rejected Mr Attwater's claim not to have used force when engaging in sexual intercourse with Ms Daley using his hand. Mr Steel conceded that whether Mr Attwater used his hand or his fist, or a combination of both at different intervals, the jury must have been satisfied that he did so repeatedly and vigorously.
5. Accordingly, the only remaining aspect of the mechanism of sexual intercourse put in issue in Mr Attwater's sentence proceedings is whether I am satisfied beyond reasonable doubt that he incorporated his fist into the penetrative act of non-consensual sexual intercourse.
6. Mr Steel submitted that, while all of the medical experts considered that the most probable cause of Ms Daley's injuries, when viewed in their entirety, entailed the utilisation of Mr Attwater's fist at some point in the course of intercourse, they also conceded the possibility that the injuries could have been inflicted by the use of his open palm, with the important qualification that the hand would need to have been manipulated forcefully and vigorously during the act of intercourse, including the application of force to enter the vagina. I do note and accept Dr Lincoln's evidence that were Mr Attwater's fist to have been punched or forcibly inserted into Ms Daley's vagina she would have expected to see more evidence of blunt force trauma on the external genitalia.
7. Self-evidently, the medical experts were not invited to take into their consideration Mr Jarrett's evidence and or Ms Norman's evidence.
8. Despite the fact that Mr Jarrett first reported that Mr Attwater used a fisting gesture when he was interviewed for the Four Corners program in 2016, and despite the fact that Ms Norman first told police about the conversation she had with Mr Attwater on 29 January 2011 only a few months prior to trial, having had the opportunity to consider their demeanour in the witness box, their explanations for the delay in reporting what they knew and the way they dealt with the challenge to their evidence as deliberately untruthful, I am satisfied both witnesses gave accurate, honest and reliable evidence.
9. Their evidence carries weight on the question whether Mr Attwater used a fist at some point in the course of what Mr Steel concedes was the repeated and forceful penetration of Ms Daley's vagina.
10. After considering all the evidence, I am satisfied beyond reasonable doubt that Mr Attwater did use his fist at some point during intercourse, although I accept that he may have affected penetration of Ms Daley's vagina in the first instance with the fingers or flattened palm of his hand incorporating his fist on the repeated penetrations of Ms Daley's vagina that followed.
11. As the Crown emphasised in submissions, it is critical to an assessment of the objective gravity of Mr Attwater's offending on both counts that he inserted a large object (be it a hand or a fist or a combination of the two) into the vagina of a woman who, because of her patent state of extreme intoxication, he must be taken to have known could neither consent to intercourse in that way (or at all for that matter), or manoeuvre herself to accommodate penetration of her vagina with his hand or fist. Further, as the Crown submitted, he must be taken to have known that Ms Daley was not only unable to offer any resistance to intercourse but were she to have sensed the risk of injury or experienced pain she would have been unable to make that known to him.

Conclusions as to the matters in dispute

1. In the result, each of the matters which Mr Attwater put in issue in the sentence proceedings has been resolved adverse to him. I am satisfied beyond reasonable doubt that he did use his fist in the course of the non-consensual act of sexual intercourse in the way I have explained. I am also satisfied beyond reasonable doubt that because Ms Daley's consent to sexual intercourse was effectively negatived because of the extent of her intoxication, he must have known she was not freely or voluntarily consenting. However, despite his awareness of that fact, I am satisfied he commenced and continued to penetrate her vagina forcefully, vigorously and repeatedly in the process of which he caused the injuries from which she died.
2. Neither Mr Attwater's intoxication nor that of Mr Maris is of any relevance in mitigation of the objective seriousness of their respective offending (see s 21A(5AA) of the Crimes (Sentencing Procedure) Act) and, in Mr Attwater's case, it has no bearing on his state of knowledge or awareness of Ms Daley's lack of consent, being one of the matters he has put in issue for sentencing purposes (see s 61HA(3)(e) of the Crimes Act).
3. Given my further finding that upon infliction of the injuries and for some time thereafter there would have been immediate and significant bleeding, coupled with the fact that Mr Attwater provided her with no treatment of any kind either at that time or over the hours that followed as he and Mr Maris drove along the beach and traversed the sand dunes, I am driven to conclude that his attitude towards Ms Daley at the time of his offending was one of callous indifference.

The aggravated sexual assault committed by both offenders

1. Mr Wasilenia invited me to sentence Mr Maris on the basis that because the evidence allowed me to be satisfied that Ms Daley was either unconscious or in an alcoholic stupor during the brief episode of oral sexual intercourse with him, she would not have experienced any humiliation or emotional harm. In his submission, that finding, together with the absence of any evidence that Mr Maris verbally or physically threatened Ms Daley before or during oral sexual intercourse, would appoint his sexual offending as below the mid-range of objective seriousness, thereby displacing the standard non-parole period of 10 years as a legislative guidepost for sentencing purposes.
2. In the Crown's submission, while the sexual assault for which Mr Maris was convicted was objectively less serious than the sexual assault perpetrated by Mr Attwater (being of a lesser duration and, in relative terms, less physically intrusive), the circumstances in which the oral intercourse occurred, including Ms Daley's compromised state of consciousness at that time and the fact that it occurred whilst in company with Mr Attwater who was having vaginal intercourse with Ms Daley, position his offending in the mid-range of objective seriousness and, as such, the standard non-parole period of 10 years continues to operate as a legislative guidepost to the imposition of sentence for the aggravated sexual assault committed by him.
3. I accept that because Mr Maris's knowledge of Mr Attwater's sexual offending is an element of the offence of hindering there should be no double counting of that feature of his offending in the sentence to be imposed on the aggravated sexual assault, although it will need to be reflected in the aggregate sentence.
4. The Crown submitted that Ms Daley's impaired consciousness does not diminish the seriousness of Mr Maris's offending and, further, that the fact that Ms Daley may not have subjectively experienced humiliation or emotional distress at being simultaneously sexually assaulted by two men (because, in the Crown's submission, I would be satisfied she was oblivious to that fact) is irrelevant to an assessment of the objective seriousness of Mr Maris's sexual offending, as it is to an assessment of the objective seriousness of Mr Attwater's sexual offending.
5. Although different forms of sexual intercourse must not be ranked hierarchically in determining their objective seriousness, less intrusive penetrative acts of sexual intercourse are generally regarded as less objectively serious when compared with the range of other penetrative acts that fall within the definition of sexual intercourse in s 61H of the Crimes Act.
6. Relevant considerations in these proceedings to the assessment of the objective seriousness of the aggravated sexual assaults of both offenders against s 61J(1) of the Crimes Act, include the degree of violence involved, provided that it does not involve the intentional or reckless infliction of actual bodily harm which was not the particular of aggravation that was alleged by the Crown and, if taken into account in fixing Mr Attwater's sentence, would infringe the De Simoni principle (R v De Simoni [1981] HCA 31; 147 CLR 383) - see R v Johnson [2005] NSWCCA 186. An assessment of objective seriousness can also include the circumstances of humiliation.
7. I accept that Mr Maris's penetration of Ms Daley's mouth by his flaccid penis - the account he volunteered to police and which is not capable of being contradicted by the objective evidence - was, prima facie at least, less intrusive than Mr Attwater's repeated insertion of his hand and fist into Ms Daley's vagina. However, since the account of fellatio is wholly dependent on Mr Maris's account to police, it is also not possible to determine the extent to which Mr Maris either had to manoeuvre himself or physically manoeuvre Ms Daley to achieve intercourse in the way he described. There is nothing in the evidence at post-mortem suggestive of any physical harm inflicted in the course of that assault.
8. On the evidence that is available, I regard the seriousness of Mr Maris's offending as less objectively serious, both when compared to the sexual offending of Mr Attwater and to other offending on a notional spectrum of offending against s 61J of the Crimes Act.
9. The objective seriousness of the sexual offending of both offenders must also reflect the jury's verdict that the circumstance of aggravation in each offence, in that they each performed a different act of intercourse upon an unconscious woman, not only in one another's company but at the same time, was proved beyond reasonable doubt.
10. In the result, my assessment of the objective seriousness of the sexual offending of both offenders, referable to the various findings I have made adverse to both offenders concerning the facts, matters and circumstances in which the offending occurred and without reference to any matters personal to either of them, is that the moral culpability of both offenders for the aggravated sexual assault which they were each convicted is high, although Mr Attwater's sexual offending is by far the more serious.
11. The standard non-parole period and the maximum period of imprisonment are both of significance in guiding the exercise of my sentencing discretion for that reason.
12. The sentencing principle of long-standing that non-consensual sexual intercourse is itself a form of violence which must be loudly denounced by sentencing courts does not require restating.

The hindering offence

1. The objective seriousness of the offence of hindering the discovery of evidence is to be assessed both in the context of the seriousness of the serious indictable offence the subject of the police investigation (in this case the sexual assault by Mr Atwater) and the fact that although remnants of the blood-soaked mattress and Ms Daley's clothing were recovered, police were nonetheless deprived of forensic evidence which I am well satisfied would have supported the prosecution case against Mr Attwater for the sexual offence for which he was ultimately convicted. I am unable to make any categorical finding as to whether the burning of the mattress and clothing impacted on the decisions of the Director of Public Prosecutions not to prosecute at an earlier time, or any categorical finding as to what motivated Mr Maris to act as he did, since he has not acknowledged responsibility for any criminal conduct in the burning of the mattress or sought to explain it. That being the case, the comparative cases which I was asked by Mr Wasilenia to consider are of no utility.

The manslaughter

1. The objective seriousness of the manslaughter offence is, on any view, an example of manslaughter by an unlawful and dangerous act in the upper end of the range of seriousness for manslaughter committed in that way. I was not invited by any of the parties to consider any comparable cases and have not undertaken that exercise myself. Suffice to say that the extent of the lacerating vaginal injuries, the circumstances in which they were inflicted and the resultant hypovolemic shock from the progressive loss of blood from Ms Daley's untreated injuries are a dominating feature of the objective seriousness of that offending. I am satisfied it is an offence of extreme objective seriousness reflecting a high level of moral culpability.

Victim Impact Statements

1. The following persons read a victim impact statement, in order: 1. Thelma Davis, mother of Lynette Daley. Ms Davis' statement was read by Helen Brown, a close friend of Ms Davis. 2. Pauline Daley, sister of Lynette Daley. 3. Tina Daley, sister of Lynette Daley. 4. Joanne Daley, sister of Lynette Daley. Ms Daley's statement was read by Ms Brown. 5. Quelena Daley, daughter of Lynette Daley. 6. Gordon Davis, stepfather of Lynette Daley and carer for her children.
2. The Crown made an application that I take the victim impact statements into account under s 28(4) of the Crimes (Sentencing Procedure) Act as an aspect of harm to the community.
3. Mrs Thelma Davis, Ms Daley's mother, described in graphic and heartfelt terms her shock upon being told on the morning of 27 January 2011 that her daughter was deceased. She said she has continuing nightmares about what happened to her daughter and has fears that her grandchildren will also have nightmares now that they are getting older and are asking more questions about the circumstances in which their mother died. Mrs Davis said it has been very hard over the last six and a half years to protect the children from the horrific details of what happened to their mother and that this has been an added stress on the adults in her family.
4. She said not only has she had to deal with the grief and horror of her daughter's death, but she has had to, as she described it, fight for justice for her. She says she has persevered in that fight, despite what she says were the struggles and heartache of that long journey, and the added stress associated with her determination to see justice done whilst her family were grieving the loss of a much loved family member.
5. She said her daughter was a "happy-go-lucky kid, very active and enjoyable to be around" and that when she sits back now and remembers her daughter and her respectful attitude to her elders her loss is compounded.
6. Mr Gordon Davis is Mrs Davis' husband. Although he is not Ms Daley's biological father, he treated her as his daughter, as he did all of Mrs Davis's children.
7. From his position within the family and the extended family, Mr Davis's insights into the impact of Ms Daley's death, as he has personally experienced it and as he witnessed its impact on others over the last six years, were insights that were as deep as they were considered, and as heartfelt as they were powerful.
8. He told me that he and his wife had assumed the care of Ms Daley's seven children progressively over the years before her death because, as he described it, "sometimes young Aboriginal people lose their way for short periods of their life". He said as an Aboriginal man he understands what it is like not to cope in a wider social environment where support is not always available and where, in his experience, the same opportunities and leniency are not always afforded Aboriginal people who lose their way as they are afforded to other members of the community.
9. He acknowledged that Ms Daley had a problem with alcohol but he believed that she would have eventually found her way and that she would have come to terms with her inner turmoil as she got older, as he had done.
10. I accept without reservation that, despite Ms Daley's addiction to alcohol and the seemingly transient lifestyle she chose to live from time to time over the years before her death, she loved her children unconditionally and that she maintained and enjoyed a close relationship with all her family, her children in particular.
11. Mr Davis told me that on Ms Daley's death, life for everyone in the family changed. He said his life, and that of his wife, started to unravel as their health needs competed with the need for the children to be supported as they dealt with the trauma of their mother's death. He told me that in the months after his daughter's death he and his wife got through each day and felt a little stronger each day because they believed that the judicial system would deal appropriately with the men who he came to learn had been charged. He told me that for the past six years, as the judicial system failed his expectation, he felt that no one truly comprehended or understood the depth of the family's grief and how powerless they have been made to feel.
12. Mr Davis said his eldest grandson has become a recluse and his eldest granddaughter has gone from a confident Year 12 graduate to a withdrawn young woman who has issues with socialisation. Ms Daley's youngest son dropped out of high school in Year 8 because he could not come to terms with his mother's death.
13. Mr Davis said he was grateful that the broadcast of the Four Corners report in 2016 generated public recognition of the situation his family had been forced to endure privately, but that he wanted me to understand that what happened to his daughter and what his family has gone through as a result was something that he believed should not happen to anyone, regardless of their nationality and regardless of whether they are indigenous or non-indigenous Australians.
14. Each of Ms Daley's sisters, Tina, Pauline and Joanne Daley, and one of Ms Daley's daughters, Quelena, also provided statements in which they detailed a range of emotions they experienced in the immediate aftermath of Ms Daley's death. They told me of their love for her and what they miss of the range of ways she contributed to family life, in particular the life of each of her sisters and her children. They told me of the pain and grief they continue to experience because of her death, a pain which has been compounded by the protracted process in which they were each engaged in ensuring, as best they could, that the criminal justice system dealt with those they believed were responsible for what happened to their sister.
15. While Tina Daley has not sought medical help for her grief, deciding to take each day as it comes in order to deal with what she describes as "the pain on the inside and the outside", Pauline and Joanne Daley have both suffered serious mental health complications for which they continue to receive medical treatment. I do not draw any distinction between the impact of Ms Daley's death on her sisters for any reason otherwise than to emphasise the differing ways in which the violent death of a family member can have differing impacts on individual family members, a harm which is ultimately suffered by the community at large with community resources of many kinds committed to assisting family members to address and deal with their grief and its consequences.
16. Quelena Daley, who spoke on her own behalf and on behalf of her six brothers and sisters, told me in frank and touching terms about her life and the lives of her brothers and sisters without their mum, both over the last six years and how they will all feel it into the future. She said: We don't show much but we struggle at times, we get upset at times and frustrated with all the other things going through our minds…We only had a short amount of time in our lives with her …
17. Quelena said that while she felt that "getting justice was a relief", it would do nothing to bring her mother back.
18. I accept Ms Daley's death and the circumstances in which she died have impacted upon her parents, her sisters and her children physically, psychologically and emotionally. I can only hope that at the culmination of these proceedings they can resume their lives as individuals and surviving members of a loving and supportive family and retain an untarnished memory of Ms Daley as a loved daughter, sister and mother. A sentence of imprisonment cannot compensate for the loss of the life of a loved one; neither can it redress the grief and sadness or the understandable anger of those who knew and loved that person. I sincerely hope that the circumstances in which she died will recede from their collective memory, although I accept the reality that they will never be erased entirely.
19. I am satisfied, on the Crown's application under s 28(4) of the Crimes (Sentencing) Procedure Act, that it is appropriate in this case that the statements from the members of Ms Daley's family, considered both individually and collectively, be taken into account by me in the determination of the sentence to be imposed on Mr Attwater for the death of Ms Daley. I am of that view because the impact of her death on each of them is, in this case, an aspect of harm done to the community. To the extent that it is necessary for me to find in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act that I should only have regard to the harmful impact of Ms Daley's death on the members of her immediate family as reasonably foreseeable by Mr Attwater, given the circumstances in which the fatal injuries were inflicted and his knowledge of Ms Daley as a mother and a member of her extended family, I am so satisfied.
20. On behalf of the Court and on my own behalf, I extend my deepest sympathies to Ms Daley's immediate family, her extended family and others from her community who knew her and loved her.

Subjective circumstances of Mr Attwater

1. Mr Attwater relied upon the following documents on sentence: 1. A Report prepared by Caroline Hare, forensic psychologist, dated 26 October 2017; 2. A character reference by Mary Anne Stone dated 23 October 2017; 3. An affidavit affirmed by Martin Bernhaut dated 31 October 2017; 4. An affidavit affirmed by the offender dated 31 October 2017.
2. Mr Attwater was aged 43 at the time of sentence and 36 at the time of the offending.
3. He was raised in Yamba where his parents continue to reside. He was the middle of three children and reported having enjoyed a positive and happy childhood. He maintains good relations with his parents and his siblings.
4. He left school having achieved his Year 10 school certificate after which he gained employment as an apprentice chef. Prior to completing his apprenticeship he worked as a deckhand on his father's fishing boat for a short time after which he did not actively seek work until he moved to Sydney in 1999 intending to gain employment to support his young family.
5. His relationship with his partner did not survive his absence and on his return to the Clarence Valley he resumed residence with his parents and was unemployed again for a number of years.
6. Between 2004 and 2011 he worked as a concreter. After moving to Queensland in 2012 he was employed as a concreter in the mining industry. He has been unemployed since 2014 after sustaining a work-related back injury. He was in the process of being assessed for the Disability Support Pension prior to trial.
7. Mr Attwater met his current partner after he relocated to Queensland after the offence to avoid adverse publicity and public commentary. In a letter from his partner tendered on sentence, she says the offences she understands he was convicted of are inconsistent with her knowledge of him. She describes him as a loving and gentle family-oriented person who has contributed to her life and that of her children and grandchildren. She confirms that she will continue to support him throughout the period of his incarceration.
8. Mr Attwater has had no previous intimate relationships that persisted for more than a short time. The evidence at trial was that he was in a casual, non-exclusive sexual relationship with Ms Daley at the time of her death. He told Ms Hare that it was often his partners who terminated the relationship although he was unable to identify any common themes in their reasons for doing so.
9. Mr Attwater has had an unremarkable medical history prior to sustaining his back injury in 2014. He told Ms Hare he has not experimented with illicit drugs beyond his early 20s, but commenced drinking at the age of 18, engaging in daily alcohol use when he was not working and would consume up to a cask of wine daily. He reported continuing to drink reasonably heavily throughout his life and, prior to his current remand, he maintained a pattern of drinking approximately six cans of full strength beer three times a week. Although he denied having any alcohol-based issues, he accepted, upon reflection, that most of his past criminal convictions were linked to him being intoxicated.
10. Mr Attwater reported no current or historic symptoms of psychosis. He denied problems regulating his temper and has not sought psychological counselling until his remand in custody when he saw a mental health practitioner to assess his depressed mood and anxiety about his physical safety in custody. I note he is currently housed in protective custody.
11. Based on his presentation in the course of interview and his self-reported symptoms of anxiety, Ms Hare formed the opinion that Mr Attwater was experiencing difficulty adjusting to his current circumstances and that he would meet the diagnostic criteria for Persistent Adjustment Disorder. In order to further explore his psychological profile, psychological testing was administered which, in Ms Hare's view, generated a profile which indicated some anomalies although nothing that reflected any personality patterns that suggested a problematic personality type or disorder.
12. Application of the STATIC-99R testing to assess Mr Attwater's current risk of sexual reoffending were he to re-enter the community at this time, placed him at average risk of being charged with or convicted of another sexual offence.
13. Ms Hare emphasised that the STATIC-99R test results evidence a moderate level of predictive accuracy but they are not intended to be a comprehensive assessment of actual rates of recidivism. She recommended that Mr Attwater be referred for structured assessment of his dynamic psychological risk factors to determine offence-specific programming to meet his treatment needs in custody. She was also firmly of the view that Mr Attwater will require treatment to address alcohol misuse.

Rehabilitation

1. Section 21A(3) of the Crimes (Sentencing Procedure) Act provides that: The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, …
2. Mr Steel submitted that I would be satisfied that Mr Attwater is unlikely to re-offend and that he has sound and demonstrated prospects of rehabilitation. In particular, it was submitted that Mr Attwater has "essentially lived a pro-social life" since 2011. Between 1993 and 2010 Mr Attwater was convicted of a number of relatively minor offences consisting of one drug-related offence, three offences of assaulting or obstructing police officers, and nine alcohol or driving-related offences. In 1994 he was sentenced to four months periodic detention following a conviction for driving whilst disqualified and in 2010 he received a suspended sentence for assaulting a police officer in the execution of duty.
3. Mr Steel submitted, and I accept, that Mr Attwater has not been convicted of any criminal offence of any gravity since committing the offences for which he is to be sentenced, although the conviction for trespass and possession of a knife in a public place in 2013 are not to be ignored. He has also committed to a stable relationship with his current partner. He has no major mental health issues and was assessed by Ms Hare as being, at this time, at an average risk of further sexual offending. Mr Steel noted that Mr Attwater has not committed any sexual offences prior to or since the offending the subject of the current proceedings, and has participated in programs related to sexual offending offered by Corrective Services.
4. The Crown submitted that there is no evidence to support a favourable finding in relation to Mr Attwater's prospects of rehabilitation or that he is unlikely to re-offend. In particular, the Crown submitted that Ms Hare's report raised very real questions as to Mr Attwater's insight into his attitude toward sexual partners and that he has not demonstrated any remorse or willingness to take responsibility for his offending.
5. What is of significance in my reading of Ms Hare's report on the question of Mr Attwater's prospects of rehabilitation is her assessment of Mr Attwater as lacking insight (even in a sober state during her interview with him) into the prerequisite need for some level of enquiry by him into whether a sexual partner consents to sexual intercourse. Ms Hare's further assessment that Mr Attwater showed no understanding of how Ms Daley's intoxication impacted on her ability to consent to intercourse is also of significance. While I am not obliged to accept Ms Hare's insights, based on the materials she was given by Mr Attwater's lawyers for the purpose of preparing her report and her interviews with him, she concluded that Mr Attwater failed to afford Ms Daley due care, consideration and attention as an intoxicated person with whom he was obviously desirous of having sexual intercourse. I have come to the same conclusion.
6. I also regard Ms Hare's report as providing a valuable forensic insight into Mr Attwater's actual state of mind at that time. Again, based on her assessment of him in the course of interview and his account of relevant events, she noted: … Mr Attwater's lack of concern for [Ms Daley's] active consent speaks to violation of her rights and possible underlying attitudes that reflect male prerogative; he reported that they had engaged in similar behaviour with [Ms Daley] previously (putting his whole hand up to his thumb in her vagina), and despite [Ms Daley] being intoxicated and unable to actively consent, he seemingly assumed he had the right to engage in similar behaviour at the time of the offence.
7. In expressing that opinion, she went on to note that: … Mr Attwater's interest related to engaging in 'threesomes' remains unexplored at the time of writing. I acknowledge that he was disinclined to discuss this aspect of his sexual behaviour further in interview, which means I do not have any understanding of what the dynamics of group sexual behaviour means for him, or how it fits with his views of power/dominance during sexual activity with women, and the requires further exploration.
8. Ms Hare's insights into Mr Attwater's attitude to sexual relations with women generally, and to Ms Daley as a casual sexual partner in particular, sheds light on his attitude towards Ms Daley at the time of intercourse as it does his current lack of insight into the conduct that resulted in her death. I regard his prospects of rehabilitation as guarded at best.

Subjective circumstances of Mr Maris

1. Mr Maris relied upon the following reports on sentence: 1. A report prepared by Dr Sathish Dayalan, forensic psychiatrist, dated 30 October 2017; 2. A pre-sentence report prepared by Christine Barnes, Community Corrections Officer, dated 1 November 2017. An attached case note prepared by Simon Burns, a Corrective Services NSW senior psychologist, dated 4 October 2017, was tendered by the Crown.
2. Mr Maris was aged 47 at the time of sentence and 40 at the time of the offending.
3. In reviewing Mr Maris's psychiatric history, Dr Dayalan noted symptoms associated with inattention, hyperactivity and poor impulse control from an early age, all of which operated to impact adversely on his early education. Mr Maris completed Year 10 but has only worked intermittently in various forms of employment related to the motor trade since that time.
4. He told Dr Dayalan that he started drinking alcohol at the age of 12 and has been drinking heavily since the age of 17, almost on a daily basis. He reported drinking alcohol to reduce the severity of his anxiety attacks which are characterised by palpitations, nausea and dizziness. He also described a tendency to avoid socialising with people other than those who were well known to him unless he was intoxicated. He gave a history of alcoholic blackouts and suffering from alcohol withdrawal symptoms in the past. Dr Dayalan considered Mr Maris's chronic use of alcohol has impacted on his cognitive functioning, exacerbating his anxiety symptoms and mood instability. In Dr Dayalan's view, this has, in turn, impacted on Mr Maris's socialisation as he has struggled to achieve stable employment.
5. Mr Maris has had a number of brief relationships in the past marred by domestic violence.
6. Mr Maris also reported use of amphetamines in the past but with diminished use in the eight years prior to his offending. Dr Dayalan confirmed from materials furnished to him his understanding that Mr Maris has recently been diagnosed with ADHD for which he was prescribed dexamphetamine before entering into custody following the trial. He is currently under referral to the CSNSW psychological Justice Health services for management of his condition. It would appear that he is not receiving dexamphetamine in custody which, given his past substance abuse issues, is not unexpected.
7. In preparation of the pre-sentence report, Ms Barnes made enquiries of Mr Maris's psychiatrist. He also confirmed that Mr Maris had been diagnosed with an alcohol misuse disorder in 2011 following his admission to the inpatient psychiatric unit at Coffs Harbour Emergency Department after presenting on 27 January 2011. In Dr Dayalan's view, Mr Maris's presentation to the Emergency Department was consistent with alcohol use contributing to his reported and observed signs of confusion and vagueness. Mr Maris told Ms Barnes that he had consumed two full-size bottles of whiskey, a small amount of wine and several cans of vodka as a premixed drink on the day and evening of 26 through 27 January 2011.
8. In Ms Barnes's opinion, Mr Maris's claim that he had a high tolerance to alcohol, coupled with his continuing inability or reluctance to appreciate its negative impacts, contributed to his lack of insight into the impact of excessive alcohol use by himself, Mr Attwater and Ms Daley as the context in which his offending occurred.
9. Ms Barnes reported that Mr Maris continued to deny any responsibility for his offending and he did not acknowledge to her Ms Daley's inability to give consent to oral intercourse with him (or with Mr Attwater it must be assumed) despite Mr Maris apparently accepting that she was heavily intoxicated. Ms Barnes also expressed the view that Mr Maris presents with a lack of insight into what she described as a derogatory attitude to Ms Daley at the time of offending and, additionally, he appeared to condone what he described as Mr Attwater's "degrading and disrespectful attitude towards women" by choosing to "go with the flow" rather than challenge Mr Attwater's behaviour as unacceptable. Although Mr Maris described himself to Ms Barnes as having a "placid" attitude towards women, Ms Barnes considered that questionable.
10. Mr Maris was also assessed as having an average risk of sexual recidivism according to the STATIC-99R actuarial risk assessment. Mr Burns, the senior psychologist who administered the test, noted that as Mr Maris is yet to participate in a sex offender program his individual dynamic risk factors have yet to be examined. In Mr Burns' view, Mr Maris requires referral to the sex offender therapeutic programs unit for an assessment of his suitability for specific treatment interventions and a referral to drug and alcohol therapeutic services to address his alcohol and other drug issues.
11. Ms Barnes reported that Mr Maris was willing to participate in an assessment and treatment program geared to address his sexual offending, his attitudes toward women and substance abuse issues, both whilst in custody and on his release. She also noted that Mr Maris had the ongoing support of his mother and his partner who indicated she will resume her relationship with him upon his release.
12. The Crown submitted that despite Mr Maris not being charged with any criminal offences since 2011, the offences of violence committed between 1995 and 2015 and, in particular, an offence in 2015 of being armed with intent to commit an indictable offence and for malicious damage for which he was sentenced to imprisonment for one year with a non-parole period of six months indicated that past efforts at rehabilitation had not been successful. In addition, as noted in the pre-sentence report, Mr Maris has previously required case management to address domestic violence issues. The Crown also noted that Ms Barnes reported that Mr Maris claimed he had a "placid attitude towards women" but denied the concession made by his counsel in the sentence hearing that Ms Daley's level of intoxication negated her consent. The Crown submitted that Mr Maris's failure to take responsibility for his offending and the lack of insight into his offending is "disturbing".
13. Mr Wasilenia submitted that given Mr Maris's assessment by the author of the pre-sentence report as at a medium risk of re-offending, and that the actuarial risk assessment indicated that he has an average risk of sexual re-offending, his compliance with treatment recommendations outlined in Dr Dayalan's report would advance his prospects of rehabilitation. Counsel submitted that Mr Maris has responded positively to treatment for his mood fluctuations and his ADHD before entering custody. I note that Dr Dayalan considered Mr Maris would be less likely to relapse into an alcohol use disorder if his anxiety is reduced and that he appeared to be motivated to refrain from excess alcohol use in the future.
14. While I accept that Mr Maris has not committed any further offences since 2011, a period of not insignificant length considering his personal and criminal history, I am unable to find his prospects of rehabilitation as other than guarded.

Remorse

1. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides that: The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), …
2. Mr Steel relied upon that part of Ms Hare's report where she described Mr Attwater "presenting as remorseful regarding his conduct in what appeared [to her] to be a frank display of emotion regarding the victim's death" as satisfying the requirements of s 21A(3) of the Crimes (Sentencing Procedure) Act. Ms Hare was not called to give evidence to explain the basis upon which she interpreted Mr Attwater's presentation as remorseful or the extent to which what she described as a "frank display of emotion" regarding Ms Daley's death was what she interpreted as remorse. Elsewhere in the report, Ms Hare referred to Mr Attwater feeling "shattered" and when questioned by her as to the cause of his distress, he said "a good friend died".
3. Ms Hare's reference to Mr Attwater presenting as "remorseful" does not equate with a finding of remorse as a mitigating factor on sentence under s 21A(3) as to which the offender bears the onus and, further, absent any acceptance by him then or now of criminal responsibility for Ms Daley's death, or any acknowledgment of the gravity of the impact of her death on her immediate or extended family, it is not open to him to rely on remorse as a mitigating factor on sentence.
4. While Mr Maris expressed some empathy to the author of the pre-sentence report for Ms Daley's family and her friends and the wider community because of the circumstances in which she died, there is nothing in that report or the other reports tendered on sentence suggestive of him having taken responsibility for, or having any appreciation of, the seriousness of his sexual offending or his conduct in hindering the discovery of the evidence of Mr Attwater's sexual offending. When he was asked about Mr Attwater's sexual offending, Mr Maris's only response was "it is because of him that I am here".
5. He has not discharged the onus of demonstrating remorse in mitigation of sentence.

The issue of delay

1. In paragraphs 2 to 22 of his affidavit of 31 October 2017, which was read without objection in the sentence proceedings, Mr Bernhaut, solicitor, sets out a chronology of events dating from 19 April 2011, when Mr Attwater was charged by police with the offences for which he is to be sentenced, through to 2 December 2016 when he was arraigned in this Court on an indictment charging the same two offences.
2. The chronology also includes reference to the fact that Mr Maris was initially charged by police with being an accessory after the fact to Ms Daley's murder, an offence which was not ultimately proceeded with at trial.
3. The chronology of relevant events as it relates to both offenders can be summarised as follows: 19 April 2011: Mr Attwater was charged with aggravated sexual assault and manslaughter. 21 April 2011: Mr Maris was charged with aggravated sexual assault and accessory after the fact to manslaughter. 12 March 2012: After referral of the charges to the Director of Public Prosecutions for his consideration, the Director directed that no further proceedings be taken in respect of any of the charges against either of the offenders. 11-15 August; 26-27 November 2014: A Coronial Inquest into the death of Ms Daley was convened at Grafton Local Court. It was the agreed position on sentence that Mr Attwater and Mr Maris were subpoenaed to give evidence at the Coronial Inquiry. Mr Attwater was legally represented; Mr Maris was not. It was also the agreed position on sentence that through his legal representatives Mr Attwater indicated to the Coroner that he intended to claim privilege against self-incrimination if he was called as a witness. He was not ultimately called. Mr Maris was apparently asked some questions by the Coroner about his conduct on 26 and 27 January 2011 as to some of which he claimed privilege. The transcript of their evidence was not tendered on sentence. 27 November 2014: The NSW State Coroner referred the matter to the Director of Public Prosecutions pursuant to s 78 of the Coroners Act 2009 (NSW). Section 78 operates in the following way: where the Coroner is of the opinion that the evidence adduced in a coronial hearing is capable of satisfying a jury that a known person has committed an indictable offence of a kind which raises the question whether that person has caused the death of a person, and there is a reasonable prospect that a jury would convict the person of that offence, s 78 obligates the Coroner to refer the matter to the Director of Public Prosecutions. It was the agreed position on sentence that the Coroner's findings, including the referral under s 78 of the Coroners Act, were published on the Coroner's website. No further detail was adduced on sentence. On an unspecified date following receipt of the referral, the NSW Director of Public Prosecutions directed that no criminal proceedings would be instituted against either of the offenders for the indictable offences that were the subject of the Coroner's referral. Although there was no public pronouncement by the Director of that determination it was agreed for sentencing purposes that the offenders were informed of it. February 2016: The then NSW Attorney General, Ms Upton, requested that the Director of Public Prosecutions review his decision that no criminal proceedings would be instituted against either or both of the offenders. Although there was no evidence led on sentence of the Director's response to that request, it would appear that no action was taken by him to review the matter until the ABC's Four Corners program broadcast an episode on 9 May 2016 entitled "Callous Disregard" in which questions were raised about the investigation into Ms Daley's death and the Director's decision not to prosecute either of the offenders. 11 May 2016: The Director of Public Prosecutions issued a media release stating that he had sought independent legal advice in relation to the matters raised by the Four Corners program. 23 June 2016: Court Attendance Notices were filed at Grafton Local Court charging Mr Attwater and Mr Maris with the same offences they were charged with by police in April 2011. 2 August 2016: The criminal proceedings were listed for mention at Grafton Local Court and adjourned for further mention to 6 September 2016. 6 September 2016: The proceedings were adjourned for further mention to 8 November 2016. 26 October 2016: The Director of Public Prosecutions requested an exemption from the Chief Justice of the Supreme Court of NSW permitting him to file an ex officio indictment against Mr Attwater and Mr Maris in the Supreme Court. 8 November 2016: The Local Court proceedings were adjourned to 6 December 2016 pending the Chief Justice's determination. 15 November 2016: The Chief Justice granted the exemption application and the Local Court proceedings were discontinued. 2 December 2016: Mr Attwater and Mr Maris were arraigned in this Court on an indictment charging Mr Attwater with manslaughter and aggravated sexual assault and charging Mr Maris with accessory after the fact to manslaughter and aggravated sexual assault as to which they both entered pleas of not guilty. 24 July 2017: The Crown presented an indictment on the first day of the trial of Mr Attwater charging him with the same two offences as those upon which he was charged in March 2012 and upon which he was arraigned in December 2016. On the same day the Crown applied without objection to amend the charges upon which Mr Maris had been arraigned by withdrawing the charge of accessory after the fact to Ms Daley's manslaughter and substituting the offence of hindering the police investigation into Mr Attwater's sexual offending. Mr Maris was subsequently arraigned on the amended indictment. 6 September 2017: The jury returned verdicts of guilty on all counts.
4. There is settled authority that in appropriate circumstances a lengthy delay in the sentencing of an offender can attract a measure of leniency. In Todd v R [1982] 2 NSWLR 517 at 519 Street CJ said: … [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
5. Todd was later referred to by the High Court in Mill v R [1988] HCA 70; 166 CLR 59, where the plurality said (at [14]): … The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raises considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. …
6. In Hurst v R [2017] NSWCCA 114, Hoeben CJ at CL, with whom Price and Lonergan JJ agreed, considered the circumstances in which delay in either the prosecution or the sentencing of an offender will be taken into account as an ameliorating factor on sentence. His Honour said: [133] Where there is unexplained delay of a lengthy period during which there has been progress towards rehabilitation, and/or a change of circumstances that increases the hardship brought about by a custodial sentence, it is often appropriate for a court to impose a sentence that would otherwise be considered to fall below the range of an appropriate sentence, taking into account all other matters (Hughes v R [2013] NSWCCA 129 at [58]). A comprehensive review of the law on this issue was set out by Bellew J in Sabra v Regina [2015] NSWCCA 38 at [28] - [41]. [134] As Bellew J said in Sabra v Regina (citing Wood CJ at CL in Blanco v R) the authorities establish that delay may be taken into account on sentence for three reasons. • Because the uncertainty occasioned to the offender constitutes a detriment suffered. • Because it is relevant to the issue of rehabilitation. • Because a "stale crime" calls for a measure of understanding and flexibility of approach, it being in the public interest that those suspected of serious crime be brought to justice quickly.
7. In Coles v R [2016] NSWCCA 32 at [19] in a judgment I wrote (and with which Hoeben CJ at CL and Adams J agreed) I emphasised that it was for the offender to discharge the evidential burden of satisfying the sentencing court of the nature and extent of what are said to be the adverse consequences he or she has experienced where there is a delay between the commission of an offence and when the offender is ultimately sentenced for that offending, whether that be following a plea of guilty or after trial. It is not every case where a delay in the prosecution and subsequent sentence of an offender warrants a reduced sentence. As Simpson J (as her Honour was) said, and with whom Davies and Adamson JJ agreed, in McKittrick v R [2014] NSWCCA 128 at [17], each case depends on its own particular circumstances.
8. The authorities to which I have referred reflect the legitimate public interest in any alleged criminal conduct being thoroughly investigated by police before charges are preferred. There was no evidence adduced on sentence, and no evidence in the trial to which the parties referred in submissions, that suggested the police investigation into the circumstances of Ms Daley's death was other than thorough and comprehensive before the offenders were charged in April 2011, or other than focused and thorough over the course of the investigation that extended beyond that date as the matter was prepared for trial.
9. Although the referral of the charges to the Director of Public Prosecutions for his consideration at some unspecified date after charges were laid contributed to the delay in the matters being prosecuted, that referral was in accordance with established protocol.
10. Where the sufficiency of evidence to support a charge involving a homicide is referred by investigating police to the Director of Public Prosecutions for his consideration as the responsible prosecuting authority for offences on indictment, there is a clear public interest in those questions being assessed within the Director's office with a level of efficiency, thoroughness and dispatch commensurate with the overriding principles inherent in the administration of criminal justice. Adherence to those principles also requires the prosecuting authorities to invoke the jurisdiction of the criminal courts without delay. That not only ensures that those alleged to have committed criminal offences have the question of their guilt determined according to law, it also ensures that those whose lives are directly impacted by the alleged criminal offending of others, and the community generally, can participate in an appropriate way in a system of public justice.
11. Not infrequently there will be some delay in an accused person being ultimately brought to trial as both the Crown and the accused discharge their obligation to the Court to ensure that the matter is in a state of readiness to proceed. This includes, so far as the Crown is concerned, marshalling all the available evidence and, where necessary, obtaining expert evidence to be adduced in proof of guilt. However, a lengthy or unexplained delay in the decision to prosecute is unacceptable. In this case, there is no explanation from the Director of Public Prosecutions, or by senior counsel who appears on his behalf, for the delay in prosecuting the offenders on indictment, or any explanation for the reversal of his earlier decisions that neither of the offenders would be prosecuted. The delay in the prosecution of the offenders has not only operated unfairly on them but it has also operated to the direct detriment of the family of the deceased and has had the potential to undermine public confidence in the administration of justice generally.
12. Before considering whether, and to what extent, either of the offenders have established that they have suffered a detriment of a relevant kind such as to attract some leniency in the ultimate appointment of the aggregate sentences because of the delay in the decision to prosecute them, the impact of delay on members of Ms Daley's family, as one of the features of the harm done to them and to the community, are factors I have already determined are to be taken into account on sentence in the way provided for in s 28(4) of the Crimes (Sentencing Procedure) Act.
13. Mr Steel submitted that Mr Attwater has been the subject of a protracted investigation (with the Coronial inquiry in 2014 occurring roughly in the middle of that timeframe) into what was, until he was convicted by the jury in September 2017, an allegation that he was criminally involved in the circumstances in which Ms Daley died. He submitted that after the Director of Public Prosecutions directed in May 2012 that the charges laid by police would not be prosecuted, Mr Attwater was entitled to proceed on the understanding that he would never be held criminally accountable for Ms Daley's death or for circumstances in which she died. Mr Steel submitted that for a period of two and a half years after that date Mr Attwater was entitled to assume that he was free to make decisions about his future without factoring in the prospect of being implicated in any curial criminal process and that he did so by moving to Queensland, gaining work and forming a relationship.
14. In his affidavit of 8 November 2017, read on sentence without objection, Mr Attwater said that when he was notified in March 2012 that the criminal charges laid in April 2011 would not be proceeded with, he "thought that it was all over" and in order to "make a fresh start" he moved to Queensland. Although he did not elaborate on what he was referring to when he said he thought "it" was all over, it is reasonable to assume that he believed that he would not be held criminally accountable for having inflicted the injuries which he must have known by that time were the cause of Ms Daley's death. In his affidavit Mr Attwater went on to say: The stress of this event being present in my mind for all these years has had a big effect on me. I've been really stressed and worried ever since it happened. Things were going OK in Queensland until the police charged me again in 2016. I couldn't believe the whole thing was starting all over again and I was so anxious not knowing what would happen.
15. It was unclear whether the "event" Mr Attwater nominates as the source of continuing stress, was the stress associated with living with the memory of what he had done in inflicting the fatal injuries, or whether "the stress of the event" was associated with the prospect of some future action being taken to re-initiate charges alleging his criminal responsibility for that conduct. Read in context, I have taken him to mean his stress at various intervals was associated with both. I also accept that those same concerns were a source anxiety when, upon being charged a second time in June 2016, he was confronted with the reality that he may be convicted of Ms Daley's manslaughter and of the sexual assault in the course of which the fatal injuries were inflicted.
16. Mr Attwater described to Ms Hare having low mood, tearfulness, sleeplessness and low appetite prior to moving to Queensland, which he attributed to verbal and some physical abuse (including spitting and pushing) and threats of harm he received from time to time, most intensely in the immediate aftermath of Ms Daley's death. He said the intensity of these symptoms dissipated after he moved to Queensland in 2012 but that they returned consequent upon being what he described as "repeatedly investigated", including, it would seem, being required to appear in the Coronial Inquiry in 2014 and then again in the Local Court at Grafton after he was re-charged in 2016.
17. I accept that from the announcement of the inquest some time in 2014 and during the course of the those proceedings, at least until the filing of the Court Attendance Notices in Grafton Local Court in June 2016, Mr Attwater would have been in a state of uncertain suspense as to whether he would be prosecuted, a state of uncertainty first brought about by the referral of the matter to the Director of Public Prosecutions by the NSW Coroner in November 2014 and then again in February 2016 after the Attorney General requested that the Director review his restated determination that no criminal proceedings be instituted. Mr Steel submitted that the delay and the uncertain suspense has been to Mr Attwater's detriment in the sense that his decision to start a new life in Queensland and the benefits of a stable relationship with his new partner over the last few years has been compromised by the fact that he now faces a lengthy period in custody and this is a personal cost which he may not have had to contend with had the criminal charges been prosecuted to verdict in 2012 or 2013.
18. The Crown submitted that although Mr Attwater relocated to Queensland in 2012 in the expectation that he would not be prosecuted, there was little in the evidence other than his decision to resettle interstate to avoid adverse attention in his local community and forming a relationship with his current partner to support a finding that he has taken positive steps to advance his rehabilitation in circumstances where, as Ms Hare has reported, even after trial he has demonstrated no insight into his past sexual offending and has taken no responsibility for Ms Daley's death. While I accept he has been subjected over a period of years to a state of uncertainty as to whether he would be prosecuted, in circumstances where he has not in the interim or after conviction apparently reflected on the fact that he caused Ms Daley's death, it would appear that he also proceeded in the hope that he would never be called to account for it. Consistent with the authorities to which I have referred, the ameliorating impact of delay on the sentences to be imposed for both offences is moderated significantly for that reason.
19. In an affidavit initially sworn in February 2017 in support of an unsuccessful application to change the venue of the trial but also relied upon on sentence, Mr Attwater said that upon leaving the Grafton Local Court in August 2016 after he was charged he was grabbed and hit and punched by a crowd of people who threatened him with physical harm using extremely aggressive and abusive language. He said this caused him to fear for his physical safety and that of his family. He did not seek treatment for any physical or psychological effects of the abuse or the harassment on that occasion or previously at the hands of members of the public.
20. I note that the outburst in August 2016 at Grafton was not repeated in the lead up to trial at Coffs Harbour in July 2017, or during the currency of the trial proceedings, no doubt in recognition of the fact that members of the public and others appreciate it is not for them to exact retribution or revenge for any actual or perceived wrongdoing and that where that does occur the Court may take that into account as extra curial punishment on sentence.
21. The abuse that Mr Attwater was subjected to was largely verbal, albeit accompanied by threats of harm, rather than the infliction of any actual bodily injury. In the absence of any evidence that these encounters have been repeated or any evidence that they have impacted adversely on his emotional state in any lasting way, I do not regard them as warranting a reduction on sentence.
22. Mr Wasilenia submitted that the delay of four and a half years from the date Mr Maris was charged by police to the time of his arraignment was in the context of Mr Maris effectively having been "brought to the barrier" three times. The first was the initial Local Court proceedings which commenced in April 2011 and which were withdrawn in March 2012; the second, the Coronial Inquiry which commenced in August 2014 and which culminated in a referral to the Director of Public Prosecutions in November 2014; and the third, the present proceedings, which Mr Wasilenia submitted effectively commenced with the commencement of Attorney General Upton's enquiry of the Director of Public Prosecutions in February 2016.
23. He submitted that even without any evidence from Mr Maris as to the direct impact of delay on him, it must have had the effect of putting him in suspense over a lengthy period of time. Mr Wasilenia relied on Mr Maris's pre-sentence report where the efforts he has taken to gain meaningful employment since the proceedings were withdrawn in March 2012 were noted, as was the stable relationship which at the time of the pre-sentence report, prepared after the trial, had been current for five months.
24. Mr Wasilenia submitted that the lack of any explanation by the Director of Public Prosecutions for his failure to initiate and maintain criminal proceedings in 2012, or in 2014 upon the matter being referred by the Coroner, is productive of an inherent unfairness of a kind that should ameliorate the sentences to be imposed on Mr Maris to some degree.
25. While the delay in bringing both of the offenders to trial is not a delay for which they are responsible, the impact of the delay (for which I am satisfied the Director of Public Prosecutions is solely responsible) has been productive of effects of differing kinds on the offenders and in differing degrees.
26. In giving consideration to the impact of delay, it is wholly inapposite to refer to Ms Daley's death in 2011 or the sexual assaults that she suffered at the hands of the offenders at that time as "stale crimes" which might otherwise call for some flexibility in the approach to a sentence where the particular offending has none of the lasting and deleterious effects of an unlawful killing occurring in the context of the infliction of sexual violence.
27. In the result, delay is but one factor which, together with all factors relevant to the exercise of the sentencing discretion, will need to be reflected in the aggregate sentences to be imposed on both offenders, albeit to a moderate degree.

Custody

1. I note that each of the offenders has been held in protective custody since their remand after trial due to concerns for their safety. I also accept that the conditions of custody in that regime for an extended period of time is onerous and can result in a compounding of the capacity of an offender to adjust to a custodial environment.
2. However, it is by no means clear at this stage in the sentence that is yet to be served by each of the offenders that those conditions of custody will continue. In those circumstances, I do not propose to factor in their future custodial conditions as an ameliorating factor in the sentences to be imposed.

The sentences to be imposed

1. The sentencing principles embodied in s 3A of the Crimes (Sentencing Procedure) Act must be given effect in the sentences to be imposed on both offenders, including, in particular, the need for the sentences on the individual counts and the total effective sentence after application of the principles of totality to reflect general and specific deterrence and denunciation and the recognition of harm done to Ms Daley's family and the community.
2. Although I have found the prospects of rehabilitation of both offenders to be guarded, largely because of their current and persisting lack of insight into the circumstances which were contextual to their offending and their lack of remorse, there is at least some prospect of the custodial-based treatment programs which are designed to encourage sex offenders to take responsibility for their past conduct being of benefit as they progress through their sentence.
3. No other matters in their personal circumstances operate in mitigation of sentence.
4. I make no finding of special circumstances.

Adrian Attwater

1. In respect of the offence of aggravated sexual assault I indicate a sentence of imprisonment of 12 years. I am required under s 54B(4) of the Crimes (Sentencing Procedure) Act to specify a non-parole period for that offence because it is an offence which attracts a standard non-parole period. I specify a non-parole period of 9 years. For the offence of manslaughter I indicate a sentence of 18 years imprisonment. I fix an aggregate sentence of imprisonment for 19 years to commence from 5 September 2017 with a non-parole period of 14 years and 3 months. You will be eligible to be considered for release to parole on 4 December 2031. The term of the aggregate sentence will expire on 4 September 2036.

Paul Maris

1. In respect of the offence of aggravated sexual assault I indicate a sentence of 8 years imprisonment. I am required under s 54B(4) of the Crimes (Sentencing Procedure) Act to specify a non-parole period for that offence because it is an offence which attracts a standard non-parole period. I specify a non-parole period of 6 years. For the offence of hindering the police investigation I indicate a sentence of 4 years imprisonment. I fix an aggregate sentence of imprisonment of 9 years to commence from 5 September 2017 with a non-parole period of 6 years and 9 months. You will be eligible to be considered for release to parole on 4 June 2024. The term of the aggregate sentence will expire on 4 September 2026.

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: 08 December 2017