Background and personal circumstances of the offender
The offender, as I have said, provided an unsworn affidavit which he affirmed to be truthful and accurate in his oral evidence. From that and other material, I derive that he was born in Townsville in 1980. He is now aged 39.
He has a criminal history that comprises nil in New South Wales but two instances of appearing in the Hughenden Magistrates Court in 2001 and 2004, but that was in respect of minor offences for which fines were imposed.
The offender was married but separated at the time of the offence from his wife, Camille Boon. He grew up in Hughenden, which is a small outback town in North Central Queensland. His grandparents looked after him through the week as he was growing up whilst his parents were away working. His parents separated when he was aged about eleven. He then lived with his father in Proserpine. His father entered a new partnership with Ms Gail Woods. He has a brother who is aged seventeen and a sister who is aged twenty. His father separated from his new partner when his sister was aged three and he has hardly seen her since.
He attended Proserpine State School for Year 7 but did not fit in as he came from the bush and he was bullied. He then attended boarding school for Grades 8 and 9 at Charters Towers. He was lonely there and did not receive any visits from family because of the great distance. The family could not afford to keep him at that school and his grades were not good, so he returned to Hughenden and finished Year 10 in 1995. At that time, he was living with his father.
On leaving school, he went to the Northern Territory for twelve months where he worked on a cattle station with an uncle. He got homesick and returned to Hughenden. He obtained work on a sheep and cattle station near there for a couple of years and then on another property nearby for a further 18 months.
Around this time, his paternal grandfather became sick and died when he was about 19 years old. He said he became depressed around that time as a result of his grandfather's death and he turned to cannabis and it became a habit.
He had a job working with the railways for about a year and then worked on a property again just north of Hughenden. It was a very large property and he remained there for 10 years until he was 31 years old. He stayed with his mother in Hughenden when he went there for weekends. He says that he had a good relationship with his mother which exists to this day. He met his wife Camille in 2010, and she came to work with him at this property for some time.
In 2013 and 2014, both of his grandmothers died from cancer. He was close to his grandmother Jessie, who died in March 2014, and he became depressed after that and started using ice.
He worked for a time with the Flinders Shire Council as a front-end loader operator and his wife was working in a hotel at the time. They both lost their jobs and moved away to get work, and in 2015 moved to Condamine in Queensland and got work there as station hands. He said that he separated from Camille at the start of 2017. He described them having slowly drifted apart. She had been working in a hotel and they worked different hours and did not see so much of each other. He said he became broken hearted and felt betrayed in relation to this.
The offender set out in the affidavit a more detailed account of his use of ice. As mentioned above, the death of his grandmother was in March 2014 and he first turned to ice after that. He blamed ice in part for the breakdown of his marriage. He said he was only using socially about once a month when he had been offered it, and gradually increased his frequency, and he used throughout 2016.
He described himself as deriving energy from ice in order to work. He would work in Wee Waa, finishing on a Friday, drive five hours to Condamine, arriving in the evening and then sleep for some time and then drive to Chinchilla, arriving at about 4am on a Saturday and work through to 7pm at night. He was burning himself out and using ice to stay awake.
He was challenged in cross-examination about his drug use. He said he was using because his friends were using, but he accepted that he had a choice about the friends he associated with. He also accepted that it was his choice to resume taking drugs after a period of abstinence in 2015.
As to his life in gaol, he said he is finding it difficult. He is on anti-depressant medication which he doubts is effective. He has been working in the furniture shop building bed frames. He is more happy to be working; I take it making the best of a bad situation. There are documents from Corrective Services confirming that he is regarded as a competent and productive worker and he is courteous to staff and punctual in attendance.
He describes being clearer in his mind now that he is no longer using drugs. He says he is motivated never to use drugs again.
He has not been able to access any rehabilitation courses but is willing to do them, if they become available. However, he has done some vocational courses and there is a Statement of Attainment confirming his engagement in an automotive workplace course which included servicing outdoor power equipment engines and he hopes to use those skills finding employment on release.
He says he wants to return to Queensland when he is released, ideally to the community of Hughenden, where he has significant support. His father has a farm and needs assistance, and his parents are generally in need of him as they grow older. He is committed to not further offending and says he will stay away from friends who he formerly associated with in using drugs.
There is other evidence before the Court comprising an affidavit by his father and letters from friends and people he has worked for, or with, over the years and from a general practitioner in Hughenden. In the main, there is shock, disbelief, and devastation expressed about them learning of what the offender had done. The descriptions of his offence being out of character are repeated. People write of never knowing him to be aggressive or violent. He is described as a hard worker, dedicated and reliable, well-mannered, and respectful to others.
Dr Farrar made the diagnoses of "Cannabis Use Disorder, in remission in a controlled environment (custody)" and "Methylamphetamine use disorder, in remission in a controlled environment (custody)". She said that the offender did not meet the diagnostic criteria for any mood disorder, anxiety disorder, or psychotic disorder.
[2]
Subjective mitigating features
There are a number of subjective mitigating features in this case.
[3]
Remorse
In the offender's affidavit, he said that he knew what he had done was wrong and devastating. He said it is not in his nature to have ever done anything like this before, but he accepted responsibility for his actions. He understood the seriousness of what has happened and the consequences that will affect not only his life, but others, immensely. He said:
"The sadness and grief that I have caused Fred's family to a friend will haunt me for the rest of my life. I had only known Fred for about two months. He was my boss but also a friend.
The nightmares still wake me up every night. There are no words that will say how sorry I am for what I have done."
He said also:
"I do not expect to get forgiveness from Fred's family but I hope my sentence will give them justice".
This is something that he articulated today in his evidence, as he turned to face those sitting in the public gallery.
He concludes his affidavit by saying:
"I am very sorry for the death of Fred. I wish this never happened and will regret it for the rest of my life."
I am satisfied that the evidence provided by the offender justifies a finding that he was genuinely remorseful.
[4]
Other mitigating factors
Other subjective mitigating factors are that he has no significant record of previous convictions; he is of prior good character; he is unlikely to re-offend; and he has good prospects of rehabilitation.
[5]
Utilitarian benefit of the offender's plea of guilty
The offender's plea of guilty came on arraignment, but 12 months after he was committed for trial. It was submitted that the sentence should be reduced by 20% to reflect the utilitarian benefit flowing from that plea of guilty.
The delay after the committal for trial was said to be explained because there was a need to explore issues such as whether he was fit to be tried and whether he had a partial defence of a substantial abnormality of mind available. But that was all resolved by the time of Dr Farrar's second report of 30 August 2018, and any issue as to his culpability on the basis of possible drug induced psychosis was removed by that second report and, even further, if it needed to be, by the decision of the Court of Criminal Appeal in Fang v R [2018] NSWCCA 210 which was handed down on 28 September 2018. The plea was not forthcoming for another seven months.
I am of the view that 15% is the appropriate reduction to allow for the applicant's plea of guilty. There will be some rounding down in the sentence to achieve a practical result.
[In relation to the delay in the entry of the plea of guilty I was mindful of the submission by counsel about the offender having changed lawyers and, I infer, having been given more realistic and practical legal advice. I was also mindful that there has never been any suggestion of him denying criminal responsibility for causing the death of the deceased. These are factors that were taken into account, although they could not be factored into the quantification of reduction of sentence for the utilitarian value of the plea of guilty. [3] ]
[6]
Special circumstances
It was submitted that I should find that there are special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole component. They were said to include that the applicant would need assistance when he is released on parole to reintegrate into the community and to assist him maintaining his resolve to abstain from using illicit drugs.
I have considered that submission, but I am satisfied that imposing a sentence with the usual proportions is appropriate in this case. The parole period allowed for by that means will allow more than sufficient time, I would think, to achieve the ends suggested by counsel. I have also borne in mind that the non-parole period of the sentence must appropriately reflect the minimum period that I consider the offender should be held in custody.
[7]
Crimes (High Risk Offenders) Act 2006 (NSW)
I am required by the terms of the Crimes (High Risk Offenders) Act 2006 (NSW) to ensure the offender is made aware of the potential application of that Act to him. In that respect, I ask that the offender's solicitor explain to him how that statute might apply to him when he gets towards the end of his sentence.
[8]
Sentence
For the murder of Mr Fred Tuffs, for which you have pleaded guilty, you are convicted.
You are sentenced to imprisonment comprising a non-parole period of 13 years and 10 months with a balance of the term of the sentence of four years and eight months.
The sentence will date from 13 June 2017 when you were taken into custody.
You will become eligible for release on parole when the non-parole period expires on 12 April 2031.
That is a total sentence of 18 years and 6 months. Without your plea of guilty it would have been a sentence of 22 years.
[9]
Endnotes
Affidavit, Patrick Allen Boon, affirmed 28 June 2019 at par 54.
Ibid at par 60.
Inserted during revision of these ex tempore sentencing remarks later on 28 June 2019.
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Decision last updated: 01 July 2019
As to the objective seriousness of the offence, the Crown contends that the offender acted with an intent to kill and the Crown bases that submission on the offender's actions themselves, and on statements he made in the police interview. The particular portion the Crown emphasised is included in the agreed facts and was quoted earlier.
On behalf of the offender, it is submitted that I should have a doubt that there was an intention to kill, but I would be satisfied, as the plea recognises, that there was an intention to inflict grievous bodily harm.
In my view, the offender's actions were clearly irrational. They were consistent with a person described in the agreed facts as behaving in a most bizarre way and saying the most bizarre things before and after the incident. But being irrationally motivated does not mean that the attack upon Mr Tuffs was not accompanied by an intention to kill.
Dr Farrer says that he had an impaired judgment and would not have fully understood the consequences when he struck Mr Tuffs. I am not clear whether Dr Farrer means he did not fully understand that striking Mr Tuffs multiple times to the head would kill him, or did not fully understand the consequences of killing a person. There is force in the submission by the Crown Prosecutor that the offender's judgment being impaired is more likely acquainted with disinhibition.
In any event, in my view, beating the deceased so savagely with two blunt instruments, first with a hammer, and then in a second phase to continue the attack with a reasonably heavy wrench, with every one of the blows with those implements directed to the head of the deceased, bespeaks an intention to kill, even if it was, as I accept, not premeditated.
Even if I am wrong about there being an intention to kill, I do not think it really matters in the circumstances of this case. As counsel for the offender pointed out, as a general proposition, an offence involving an intent to kill makes a crime of murder more serious than one involving an intention to inflict really serious bodily harm. But counsel quite appropriately reminded me of R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at [16]-[17] which makes clear that the general proposition does not always apply. In this case, the deceased was killed as the result of an attack of such savagery and ferocity that even if there was a reasonable doubt that he intended to kill, the objective gravity is not any the less.
The Crown submits that I should find the offence is, objectively, in the upper end of the mid-range and counsel for the offender submits it is in or around the mid-range. I agree that it is in the mid-range.