The guilty plea
63In relation to the timing of the offender's plea, on 31 August 2011, I take account of the time taken for the proceedings to complete in the Local Court, namely August 2011. However it is clear from the recorded conversation between the offender and the undercover police officers on 19 May 2011 that the offender had an adequate recollection of the events as to his actions in causing the deceased's death. The autopsy report, as earlier noted, had been received on 4 November 2010. The conclusion in the report was consistent with death by drowning. In the circumstances it was, as the Crown submitted, well open to the accused to admit to having killed the deceased at a much earlier date than 31 August 2011 and indicate that he would enter a plea in due course.
64Remorse as a mitigating factor is qualified by s 21A(3)(i) of the Sentencing Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damaged caused by his actions. By his plea of guilty, the offender has accepted responsibility for the murder. Furthermore, there is his single paragraph letter, exhibit 1, in which he has declared his sorrow for the loss and pain he has caused to the deceased's family. I have taken the statement into account although the weight to be given to it is limited as it is difficult to assess the sincerity with which it was made, given that the offender has not given evidence.
65On the issue of assistance, Mr Young submitted there was evidence of cooperation by the offender with the police investigation.
66The level of assistance provided by the offender is to be evaluated in light of the fact that the police had already identified him as a suspect by CCTV footage recorded in the vicinity of the ATM soon after the offence, that the offender had initially lied to police, that he later stated he "blacked out" and could offer no explanation as to how the deceased came to be in the creek. He admitted to taking the offender's purse and withdrawing money from the account. Police found evidence at the crime scene that incriminated the offender (namely, his finger prints on the deceased's document entitled "Grade training total score 89/90". Although the offender participated in a 'walk through' with police and had earlier led the police to where the deceased's body was found, he did not make any admissions as to how she came to be in the creek. The account of what he said he saw after he "blacked out" at [64] of the Statement of Facts was not one that revealed his true knowledge of relevant events. A close examination of the Statement of Facts indicates that the level of assistance by the offender to police investigations was limited. Its utility was diminished by his failure to reveal the true extent of his knowledge of what occurred.
67I have concluded that the overall discount for the offender's plea and remorse and assistance to police should be 25%. 5% of that discount being referrable to assistance and 20% for his guilty plea.
68The principles that apply to the sentencing of young offenders and the importance of their rehabilitation are well-established and are to be applied in this case in the context of the facts. By reason of an offender's immaturity, an offence can be attended by some excess, or a particular act of sudden violence may occur, which someone who is more mature would not engage in. This may, for example, occur with an immature person has been brought up in a violent environment, where all too readily violence is a first response to any kind of opposition. The evidence does not establish sufficient circumstances to put this case in that category.
69In R v Gordon (1994) 71 A Crim R 459, Hunt CJ at CL with whom McInerney and Sully JJ agreed, addressed the factors relevant to the sentencing of a 19 year old offender in respect of serious offences. The Chief Judge observed in that case:
"Although the respondent was not a person to whom the provisions of s6 of the Children (Criminal Proceedings) Act 1987 applied - namely, someone under the age of eighteen years - his youth is not to be disregarded in the sentencing process. Far from it. But it does mean that general deterrence remains of primary importance and, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth: ... The respondent, moreover, had already accumulated by that age the appalling record to which reference has earlier been made." (at 469)
70See also the judgment of the Court of Appeal in R v AEM & Ors [2002] NSWCCA 58 at [96] to [102] in relation to the interrelationship between general deterrence and the youth of an offender.
71It is necessary at this point to refer to the offender's criminal history. The Crown observed the aggravating factors under s 21A of the Sentencing Act included, firstly, the offender had a previous conviction for a serious personal violence offence and secondly, that at the time of the subject offence, the offender was on conditional liberty in relation to a previous offence.
72The offender had been sentenced in the District Court on 17 December 2009 in respect of an offence that occurred on 15 November 2008. Upon the latter date, the offender and the victim, a 16 year old girl, had recently met. They caught a train to Ingleburn railway station then proceeded to walk along a bush track ostensibly to retrieve the offender's bag that he claimed that he left in that area. The offender approached the victim from behind and physically restrained her. At the time he was holding a knife, it is unnecessary to recite here the full details, other than to say that the sentencing judge noted the seriousness of the offence, that he had been on conditional liberty at the time of that offence and that he had occasioned extreme fear in the victim. In that sentencing hearing, Dr Jeremy O'Dea, a forensic psychiatrist, noted the offender's developmental history, intellectual disability and the problems with anger and treatment for a diagnosis of ADHD. However, Dr O'Dea did not diagnose the offender as suffering from a major psychiatric illness. A copy of Dr O'Dea's report dated 17 December 2009 was included in exhibit A. Professor Greenberg's report dated 4 February 2009, contained a provisional diagnosis which was not dissimilar to Dr O'Dea's conclusions. A copy of Professor Greenberg's report is also included in exhibit in the present proceedings.
73The earlier offence committed by the offender occurred on 1 April 2005. That offence was committed on a lone woman walking in a bushland setting. It also involved the offender's use of a knife. The woman, having been severely threatened and cut with the knife, escaped only because of the oncoming presence of other walkers in the area.
74The learned senior Crown Prosecutor in the present proceedings stated it is clear the judge who sentenced the offender in the District Court on 17 December 2009 had not been made aware of the 2005 offence because a DNA result did come to hand until 23 September 2010. However, it was stated, his Honour was aware of the need for an extended period of treatment and counselling for the offender's psychological problems and made a condition that he continue with counselling that had been in operation up to that time.
75The Crown submitted in the light of these two earlier offences, the Court would make as far as possible an assessment of future dangerousness. It was submitted that it is open to the Court to take the view that there is a significant risk of this offender re-offending when released. The Crown referred to relevant authorities, in particular, to the observations of Gleeson CJ in Fardon v Attorney General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 at [12] in which the Chief Justice stated:
"[12] ... No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release."
76A finding of future dangerousness does not need to be established beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. It is sufficient if the Crown establishes on the balance of probabilities that there is a "risk" of re-offending: R v Harrison (1997) 93 A Crim R 314. In the present case, unless the offender has appropriate treatment and support, the risk of future dangerousness to the community will remain, although that risk may moderate naturally with advanced age.
77I have, however, kept in mind the relevant principle of proportionality namely that the sentence is not to be increased beyond that which is proportionate to the crime: Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465.
78The present case presents a difficult exercise given the seriousness of the offence and the offender's criminal record on the one hand and the offender's relative youth and disadvantage on the other. The balance to be achieved in giving effect to the purposes of sentencing set out in s 3A of the Sentencing Act, in a case such as the present, in particular between retribution and rehabilitation, can give rise to divergent views as to where the proper balance lies in a particular case. That said, the youth of an offender is a factor that can mean less weight is to be given to deterrence and more to rehabilitation.
79In considering the sentence to be imposed, I have had regard to the documents constituting exhibit 2, including the letter from Fr. Peter Carroll, Catholic Chaplin, dated 28 April 2012, which deals with the offender's participation in programmes offered by chaplaincy and his growing awareness of his responsibility for his offending. I note the evidence as to the offender's participation in a TAFE First Aid Course. Finally, I note the offender's admission and treatment for an act of deliberate self-harm on 30 March 2012.
80In considering an appropriate penalty for an offence of murder the Courts recognise the starting point is that it involves the felonious taking of a human life: R v Kilmore (NSWCCA, 13 August 1998, unreported) at [4] applying R v Low (1991) 57 A Crim R 8. The sanctity of human life is of course of great significance: Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. The law recognises, without specific evidence the value which the community places upon human life that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 502; R v MacDonald (NSWCCA, 12 December 1995, unreported) at 8; and R v Previtera (1997) 94 A Crim R 76.
81On the question of special circumstances, a matter relevant to the length of the non-parole period, Mr Young submitted that all the experts make clear the high level of assistance the offender requires and that this could constitute special circumstances. However he, with respect, properly acknowledged that when the statutory ratio of the non-parole period to the parole period is applied to the inevitable length of the sentence to be imposed, an adjustment may not be appropriate.
82The Crown submitted that there was nothing about the circumstances personal to the offender that is sufficiently special to vary the statutory proportion. That submission was reaffirmed in the Crown's oral submissions (at 10).
83I do not consider that a finding of special circumstances should be made. There is no recent psychiatric evidence that identifies a need or basis for such a finding. Clearly, the offender will require support and counselling during the term of his imprisonment in order to assist him to maximise his rehabilitation prospects in light of his psychological and other deficits as revealed in the evidence.
84I note Mr Young's observation that the offender is currently held in custody where developmentally disabled prisoners are housed and that there is a significant degree of restriction on his movements there. The document under Tab 5 of exhbit 1 contains details of his placement having regard to the intellectual disability aspects. Mr Young stated that there is no material available as to what is likely to happen with the offender's specific placement following sentence. However, as observed in submissions, the restricted access provision under the middle level of protection is very likely to continue. I have taken these matters into account in determining sentence.
85I acknowledge receipt of the statement, dated 14 February 2012, written on behalf of Nona Belomessoff's direct family, which conveys their reactions to the murder expressed in moderate and compassionate terms. The statement cannot by law be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. That said, I acknowledge the grief and distress of the deceased's family and express, on the community's behalf, sympathy and compassion for them.
86Taking into account all factors that are relevant to sentence, the appropriated undiscounted starting point of the overall sentence, taking into account the Form 1 matters, I conclude is 36 years. The overall sentence is reduced by 25 percent to 27 years. In determining the non-parole and parole period for the sentence, which I will announce, I have taken into account the particular ratio the non-parole period bears to the total sentence. The balance of 7 years is a sufficient period under supervision to enable the offender to adjust to community life and to establish an effective support regime.
87The standard non-parole period for the offence of murder is 20 years. I have determined that the minimum period for which the offender must be left in detention in relation to the offence is 21 years. The prescribed standard non-parole period for an offence of murder is, I have earlier stated, a period of 20 years. I accordance with s 54B(3) and (4) of the Sentencing Act, I record that the longer non-parole period of 21 years to be imposed for the subject offence has been determined taking into account the offender's previous conviction for a serious personal offence within s 21A(2)(d) and that the subject offence was committed while the offender was on conditional liberty within s 21A(2)(j).
88Christopher James Dannevig for the murder of Non Belomesoff, I convict you. I sentence you to a term of imprisonment with a non-parole period of 21 years, which is to commence on 8 August 2011 and is to expire on 7 August 2032. I set a balance of term of 7 years, which is to commence on 6 August 2032 and is to expire on 5 August 2039. In determining the non-parole period the earliest date of eligibility for your released to parole is 7 August 2032.
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Decision last updated: 31 August 2012