R v David Comber

Supreme Court of NSW|2012-11-30|Before: Bellew J, Mr P

Mr H White - Offender Director of Public Prosecutions NSW - Crown

Stuart Percy and Associates - Offender File Number(s): 2011/3544

INTRODUCTION 1On 22 August 2012 David Roland Comber ("the offender") pleaded guilty to an indictment alleging that on 29 October 2010, at Red Range in the state of New South Wales, he did murder Adrian Trevett ("the deceased"). I will refer to this as "the murder offence". 2In addition to the murder offence, the offender appears for sentence in relation to 17 back up offences of dishonestly obtaining property by deception contrary to s. 192E(1)(a) of the Crimes Act ("the Act"). Those matters are annexed to a certificate issued pursuant to s. 166 of the Criminal Procedure Act 1986 ("the Procedure Act"). I will refer to those matters as "the dishonesty offences". 3Further, the offender pleaded guilty before me to an indictment containing two offences pursuant to the provisions of the Criminal Code Act 1995 (Cth) ("the Code"), namely an offence against s. 400.5(1) and an offence against s. 400.6(1). Pleas of guilty had earlier been entered to those matters before the Local Court. I will refer to those matters as "the Commonwealth offences". 4The offender had previously been committed for sentence to the District Court in relation to the Commonwealth offences. However, when the District Court was made aware of the fact that he was facing the murder offence, the matters were referred to this Court to be dealt with, pursuant to the provisions of s128(2) of the Procedure Act. 5As to the Commonwealth offences, s400.5(1) of the Code is in the following terms: 400.5 Dealing in proceeds of crime etc.--money or property worth $50,000 or more (1) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is, and the person believes it to be, proceeds of crime; or (ii) the person intends that the money or property will become an instrument of crime; and (c) at the time of the dealing, the value of the money and other property is $50,000 or more. Penalty: Imprisonment for 15 years, or 900 penalty units, or both. .... 6Section 400.6(1) of the Code is in the following terms: 400.6 Dealing in proceeds of crime etc.--money or property worth $10,000 or more (1) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either (i) the money or property is, and the person believes it to be, proceeds of crime; or (ii) the person intends that the money or property will become an instrument of crime; and (c) at the time of the dealing, the value of the money and other property is $10,000 or more. Penalty: Imprisonment for 10 years, or 600 penalty units, or both. ....

MAXIMUM PENALTIES 7The maximum penalty for the murder offence is one of life imprisonment pursuant to s. 18 of the Act. A standard non-parole period of 20 years imprisonment is prescribed for that offence. 8Each of the dishonestly offences carries a maximum penalty of 10 years imprisonment. No standard non-parole period is prescribed. Having regard to the provisions of ss. 183 and 267 of the Procedure Act, I am restricted to the powers of a Magistrate in the Local Court in dealing with the dishonesty offences and the maximum penalty that I may impose for each offence is one of 2 years imprisonment. 9In respect of the Commonwealth offences, the maximum penalty for the offence under s. 400.5(1) is imprisonment for 15 years, a fine of $99,000, or both. The maximum penalty for an offence under s. 400.6(1) of the Code is 10 years imprisonment, a fine of $66,000, or both.

The murder offence 10A statement of facts, and a copy of the offender's Record of Interview with Police, were tendered by the Crown on sentence. Counsel for the offender informed me that the facts were agreed, and he made submissions to me regarding the findings I should make, based upon those facts, as to the circumstances of the offending. 11The facts of the murder offence may be summarised as follows. 12In October 2010, Karen Dawson ("Dawson") was a neighbour of the deceased. Mathew Aquilina ("Aquilina") is the adult son of Dawson and is the father of two young boys under the age of 3 years, and a step-father of a third boy under the age of 3 years. Those three boys stayed with Dawson for a period of a few weeks in October 2010. 13Deborah Grant ("Grant") was, in October 2010, the de-facto partner of Aquilina. She resided with him, and her six children, in Casino. 14Kristine Weston ("Weston") was, at the same time, the offender's de-facto partner and resided with him in Casino, in premises next to those of Aquilina and Grant. It was in these circumstances that the offender became acquainted with Aquilina. 15At the time of his death, the deceased resided alone in a caravan on a block of land at Red Range, a small village east of the township of Glen Innes, in northern New South Wales. The deceased was a bachelor, but had strong family connections in and around the Glen Innes area through, in particular, a nephew and a brother. He operated a small fruit and vegetable business from a street cart in Glen Innes in order to supplement his income. He was well known in the local area, was an avid cycling enthusiast, and being unlicensed, used a bicycle as his main mode of transportation. 16Dawson was an openly homosexual single mother who, with her 12 year old son Brandon, lived on a property at Red Range, the boundary of which adjoined that of the deceased. As a consequence, Dawson and the deceased became close friends. They often socialised together, and drank heavily in each other's presence. Due to the fact that the deceased did not have a driver's licence, Dawson would sometimes be observed driving with the deceased in her car in and around the local area. 17On 28 October 2010, Dawson drove the deceased to the "Jackadgery" Caravan Park located on the Gwydir Highway, approximately 120 kilometres east of Glen Innes. The deceased intended to stay the night at the caravan park, and then cycle across the Gibraltar Range back towards Glen Innes the following morning. Dawson arranged to collect the deceased the next day from a location known as "Ranger's Hut" which was about 70 kilometres east of Glen Innes. That evening, whilst at the caravan park, the deceased made a number of telephone calls to friends, informing them of his intentions to "ride the summit" the next day. 18At the time of being taken to the caravan park the deceased had in his possession an "Apollo" brand road bike, a black backpack and a bicycle helmet. The owner of the caravan park told police that at the time the deceased paid for his accommodation, he was observed to have a substantial amount of money in his possession, amounting to at least $1,000.00. 19On the morning of 29 October 2010 the deceased had coffee at the kiosk at the caravan park, purchased sweets for the ride, and left the caravan park at around 8:30am. At approximately 11:30am, he reached Ranger's Hut where he made a number of telephone calls to friends, indicating that he had arrived. A recipient of one of those calls told police that during the conversation with the deceased she heard a female voice in the background, at which time the deceased said that he had to leave because his "lift" had just arrived. The deceased was identified by a number of witnesses as having cycled along the Gwydir Highway that day. He was also identified as being at a public telephone box at Ranger's Hut. 20On the same morning Dawson had driven to Casino to see Aquilina. Aquilina then approached the offender asking him to travel with him to Red Range. Aquilina told the offender that Dawson was having troubles with her neighbour (the deceased) and that he (Aquilina) was proposing to go over there and "sort it out". The offender initially expressed some concerns about going, referring to the fact that he had only recently been released from gaol. He nevertheless agreed to go. The offender saw his role, at that point, as one of "back up" in the event that the deceased was to "get the better" of either Aquilina or Dawson. 21Dawson then drove Aquilina and the offender to her property at Red Range, stopping en route in Glen Innes to purchase a quantity of alcohol. During the journey, Dawson spoke of the difficulties she had been having with the deceased. 22After arriving at Red Range, Dawson left Aquilina and the offender at her property in an area known as The Old Butter Factory which housed an open shed. Dawson then drove to the top of the Gibraltar Range and collected the deceased, before returning to Red Range. Whilst Aquilina and the offender were at Red Range awaiting the arrival of Dawson and the deceased, Aquilina gave the offender a carving knife. 23The deceased and Dawson returned to Dawson's premises at Red Range. When they arrived, the deceased went to the area where the offender and Aquilina were waiting, at which time the offender approached him and they greeted each other. Simultaneously, Aquilina approached the deceased from behind and struck him to the back of the head with an iron bar, causing a laceration to his head. The deceased, who had been stunned by the blow, was assisted by the offender who proceeded to explain to the deceased why he had been struck. 24The deceased was thereafter questioned by Aquilina and Dawson, in the offender's presence, concerning his behaviour towards Dawson. He repeatedly denied the allegations which were put to him. At some point, the offender and Aquilina walked away, at which time Aquilina told the offender he was intending to kill the deceased. The offender replied: "What? ... Dude, don't need to do that shit, talk to the bloke and try and get him to just stay on his property". 25Aquilina and the offender then returned. The deceased was then assaulted by Dawson and Aquilina in the presence of the offender. Dawson and Aquilina told the deceased that he could not leave, as they wanted to "sort everything out". The deceased walked past the offender, who was seated at the time. The offender got up and told the deceased to remain and "sort things out". 26At one point during the assault by Dawson and Aquilina, the deceased fell over and hit his head on a table, following which he hit the ground. During the fall, the deceased's glasses were broken and he sustained a cut across the nose which drew blood. When the deceased was on the ground, he was further assaulted with the offender watching. It must have been apparent to the offender at this point that he was unlikely to be required to perform any "back up" role as he had originally thought. I am satisfied that the offender was in a position to stop the violence perpetrated on the deceased, but did not do so. 27When the deceased was lying on the ground, Aquilina located a thick piece of rope that was nearby. He used it to fashion a noose which he placed around the neck of the deceased who was still lying on the ground. Aquilina commenced pulling on the rope and continued to do so for 15 to 20 minutes before handing the rope to the offender. Aquilina then grabbed the rope back from the offender, telling the offender that he was not pulling it tightly enough. Aquilina proceeded to pull the rope until such time as the deceased was blue in the face, and obviously dead. 28I am satisfied that the offender was aware that the deceased was going to be killed when Aquilina was pulling on the rope. I am also satisfied that the offender held onto the rope for some short period and pulled on it. However, I am satisfied that the physical act of choking the deceased was that of Aquilina. 29The body of the deceased was then loaded into the rear of Dawson's vehicle by herself, Aquilina and the offender, with the aid of a wheel barrow. The deceased's bike was placed on top of him. The area where the violence had occurred was then cleaned with bleach and hosed off. 30In the company of the offender and Aquilina, Dawson then drove the vehicle, containing the body of the deceased, to an isolated location known as Sandy Hill, located approximately 27 kilometres east of the township of Tenterfield. The body of the deceased was disposed of near a dirt fire trail at that location, and covered with sticks and leaves. All three persons then left the area. 31On 31 October 2010, Dawson, the offender and Aquilina returned to Sandy Hill There, the offender and Aquilina dragged the body of the deceased through a fence line, and rolled it down a steep slope until it hit a fallen tree, where they used sticks and branches to cover it. They then returned to the car and left the area with Dawson, in her vehicle. 32On Monday 15 November 2010, the deceased's brother attended the Glen Innes Police Station and reported the deceased's disappearance to the police. A police investigation was then commenced, and evidence was obtained detailing events leading up to what were the last public sightings of the deceased on 29 October 2010. The police investigation included the use of warrants authorising the interception of telephone services, as well as the use of listening devices at the premises occupied by the offender and Aquilina. 33The use of the listening devices, in particular, provided the investigating police with evidence linking Dawson, Aquilina and the offender to the death of the deceased. Other evidence obtained by the police established that between late October and early November 2010, bank accounts of the deceased were accessed, and the contents used to purchase a variety of items at locations in Northern New South Wales. The police investigation in this respect revealed that the transactions were conducted by the offender, in the company of other persons. 34The offender was arrested on 5 January 2011 at premises in Grafton, New South Wales. He participated in a electronically recorded interview, which has been tendered before me on sentence, in which he made various admissions relating to the deceased's death. 35The body of the deceased was located on 1 January 2011 down an embankment at Sandy Hill. His decomposed remains were still clothed in his bike riding apparel. A length of rope was tied around his neck and had wrapped around his torso, which had been crudely covered by sticks and branches, and left exposed. 36A post mortem was conducted by Professor Tim Lyons, Forensic Pathologist. The ultimate opinion of Professor Lyons was that the noose around the deceased's neck gave rise to neck compression and asphyxia, causing his death. He said that when pressure is applied to the neck area, there are three common mechanisms which can be associated with resultant death, namely: (a)restriction of the airway; (b)obstruction of the blood supply; (c)the application of pressure to nerves of the neck. 37Professor Lyons described the noose as being 40 centimetres in circumference, and found that it had been wrapped twice around the deceased's body. Leaving aside detected defects in the soft tissues of the clavicle, Professor Lyons also observed that there was a defect in the deceased's body consistent with his genitalia being absent. However, he was not able to come to a definitive conclusion as to whether the deceased's genitals had been removed by a person, or whether they had been removed as a consequence of animal predation or heavy maggot infestation. 38It is evident from his statements to the police when interviewed that the offender, from the outset, had some concerns about what might occur if were to go to Red Range. That, in my view, is the only reasonable construction which can be placed upon his reference, when Aquilina asked him to go with him, to the fact that he had only recently been released from gaol. However, I am satisfied that at least at that point, the offender saw his role as being that of a back up for others, rather than the instigator of any violence. 39It was submitted on behalf of the offender that I should find that his involvement commenced at or about the time he was given the rope by Aquilina. However, such a finding would, ignore what had occurred up to that point. Although I am not satisfied that the offender knew that Aquilina was going to assault the deceased with the iron bar upon his arrival, he was necessarily aware, from the point at which that assault occurred (particularly in circumstances where he had been given a knife by Aquilina) of the likelihood of violence being perpetrated on the deceased. Contrary to the submission made on behalf of the offender, I do not regard the fact that the offender chose to come to the deceased's aid at that time as affecting, in any way, the offender's awareness of the likelihood of violence. 40More significantly, as a result of his subsequent conversation with Aquilina, the offender became directly aware of Aquilina's intention to kill the deceased. Whilst the offender's attempt to dissuade Aquilina from carrying out his stated intention was laudable, the fact is that thereafter, and with direct knowledge of Aquilina's intention to kill the deceased, the offender remained present, observing gratuitous violence being perpetrated upon the deceased who was largely defenceless. The offender conceded to police that he had been in a position to stop that violence, but did not do so. Not only did he not stop the violence, he prevented the deceased from leaving the area. 41Counsel for the offender submitted that because a period of time had elapsed following the offender's conversation with Aquilina when no violence was perpetrated on the deceased, the offender was entitled to assume that Aquilina had decided not to take his stated intentions any further. That may be so. However, the submission overlooks the fact that when the violence resumed, the offender observed it, took no steps to stop it, and assisted by preventing the deceased from leaving. He had no reason to think at that point that Aquilina had been dissuaded in any way from his stated intentions. 42Moreover, having been present when Aquilina fashioned the noose, the offender must have been acutely aware, at that point, that Aquilina's previously stated intentions were about to be carried out. There is no suggestion that the offender tried to dissuade Aquilina at that point. Indeed on the evidence, the offender stood by, watching Aquilina choke the deceased with the rope, in circumstances where he was ready, willing and able to assist as and when required. 43The offender himself told police that Aquilina had given him the rope, and that that he (the offender) had then held on to it before Aquilina grabbed the rope from him, telling him that he was 'not holdin' it tight enough'. I am satisfied that the offender pulled on the rope when he was holding it, although it is evident from Aquilina's statement to him that he was doing so with limited force. I am satisfied that in terms of the pulling of the rope, the offender's role was minimal compared with that of Aquilina. However, the offender remained nearby, willing and able to assist. 44The offending had a number of aggravating features. The use of a ligature has been treated as a form of weapon (as to which see Versluys v R [2008] NSWCCA 76) and accordingly this is an aggravating feature pursuant to s21A(2)(c) of the Sentencing Act. Further, the offence was committed in company (s21A(2)(e) of the Sentencing Act). 45The offender has a lengthy history of previous convictions dating back to 1987, recorded in New South Wales, Victoria, Queensland and Western Australia. Whilst those convictions are not on the scale of the present offending, the offender's criminal history is nevertheless an aggravating factor under s. 21A(2)(d) of the Sentencing Act. 46Further, the offender's criminal history establishes that only 9 days prior to the commission of the murder offence, he had received the benefit of a suspended sentence following an appearance at the Southport Magistrate's Court on a charge of possessing a dangerous drug. Accordingly, the offender was on conditional liberty at the time of the murder offence which is an aggravating factor under s21A(2)(j) of the Sentencing Act. 47The offender's participation, on two separate occasions, in the treatment of the deceased's body at Sandy Hill following his death is also an aggravating factor (see for example Knight v R [2006] NSWCCA 292; R v Yeo [2003] NSWSC 315). 48Having regard to the fact that Professor Lyons was not able to come to a definitive conclusion about the matter, I am not satisfied the deceased's body had been mutilated by the removal of his genitalia. Even if I were in a position to be satisfied of that fact, there is no evidence at all which would link that mutilation to any conduct on the part of the offender. In any event, the general principle that treatment of the body of the deceased (of a kind in which the offender was involved) is capable of amounting to an aggravating factor has been extended to cases where such treatment did not involve any form of mutilation: R v Goundar [2010] NSWSC 1170; R v Dong [2010] NSWSC 1242. 49In my view, taking into account all of these factors, the offending falls at the mid range of objective seriousness.

The dishonesty offences 50Whilst at Red Range, the offender took a backpack belonging to the deceased, from which he removed the deceased's wallet. He removed a sum of $500.00 in $50.00 notes which he held up before Aquilina, who took them. The offender then took possession of credit cards, key cards and a cheque book belonging to the deceased. 51In the days following, the offender used the credit cards to make purchases of various kinds. He also forged two cheques, one of which was successfully negotiated. It was these activities which finally brought the offender to the attention of the police. 52The dishonesty offences were committed over a short period between 30 October 2010 and 1 November 2010. The items purchased included mobile telephones, running shoes and alcohol. There is no specific information before me as to the value of the property which was obtained but having regard to the nature of the items which were purchased, the total sum would seemingly be relatively modest. That said, multiple offences were committed over several days and the offending is aggravated by the fact of the offender's criminal history, which includes numerous entries for offences of dishonesty.

The Commonwealth offences 53On 29 May 2008 a bank account ("the CBA account") was opened at the Casino branch of the Commonwealth Bank. On 2 July 2008 an account at the Greater Building Society ("the GBS account") was opened at the Casino branch. 54Centrelink documents, each bearing the number 403342082s, were used to open each of the CBA account and GBS account. That number was registered with the Australian Taxation Office ("ATO") as having been allocated to the offender. 55The ATO operates a system of self-assessment, by which it is assumed that taxpayers are honest, and provide information that is true, unless there is material to show otherwise. Assessments are made on the basis of the information provided in a taxpayer's return and in these circumstances, returns are not generally examined in detail before assessments are made. The ATO conducts various audit programs to monitor taxpayer compliance with the law. 56Consistent with the self-assessment system, Income Tax Returns ("ITRs") are electronically scanned onto the computer system operated by the ATO. To expedite the processing, payment summaries are not required to be attached to paper income returns, with employer details being subsequently matched for audit purposes. 57On 5 June 2008, three ITRs, each for the year ending 30 June 2007, were lodged with the ATO in the names of: (i)Andrew Duncan; (ii)Mitchell Sonnex; and (iii)Kristine Weston. 58A review of those returns established the following: (i)each statutory declaration within each return was identical. This included the period of employment of 2 June 2007 to 28 December 2007 the majority of that period being in the 2008 financial year, and not the 2007 financial year to which the return related). Whilst the statutory declarations were identical, the employers listed in the ITRs in the name Duncan and Sonnex were different to the employers listed in the statutory declarations; (ii)each of the three ITRs was received by the ATO on the same day; (iii)each figure in the body of each ITR was identical to the corresponding figure in the other ITRs; (iv)each of the three ITRs nominated the CBA account into which any refund was to be paid. 59Refunds for the ITRs in the names of Duncan and Sonnex issued on 24 June 2008. The refund for the ITR in the name Weston issued on 26 June 2008. Each refund was for a sum of $7,014.30, and each was paid into the CBA account. 60On 10, 11 and 14 July 2008, a further ten ITRs for the year ended 30 June 2008 were received by the ATO in the names of: (i)Christopher Barnard; (ii)David Comber; (iii)Selena Randall; (iv)Adam Richards; (v)Helen Richards; (vi)Peter Richards; (vii)Mitchell Sonnex; (viii)David Wells; (ix)Kristine Weston; and (x)Susan Williams. 61Once again the figures in the body of the returns were identical to each other, as well as being identical to those in the 2007 returns. 62A review of these additional ten ITRs established the following: (i)five of the ITRs listed the relevant employer as Enviro Green Pty Limited, whilst five listed the employer as Hans Continental Small Goods Pty Limited; (ii)there was a variation of one day in the starting period of employment; (iii)five statutory declarations were purportedly witnessed by a Queensland police officer at Upper Mount Gravatt Police Station, and another five by a Queensland police officer at Ferny Grove Police Station; (iv)eight returns listed at the GBS account as that into which any refund was to be paid, whilst the remaining two listed the CBA account for that purpose. 63Refunds issued from the ATO to the relevant nominated account between 29 July 2008 and 4 August 2008. Each refund was for a sum of $8114.30, with the exception of that relating to the ITR submitted in the name of Helen Richards. The refund in relation to that ITR was in the sum $8614.30, the additional rebate being paid on the basis that the nominated taxpayer was purportedly a senior citizen. 64Overall, thirteen returns were processed by the ATO resulting in total refunds of $102,685.90. 65The statutory declarations contained in each ITR listed two employers, either Enviro Green Pty Limited, or Hans Continental Small Goods Pty Limited. Offices of each organisation confirmed that none of the nominated taxpayers had ever worked for them. Moreover, both of the two Queensland Police Officers whose names appeared on the statutory declarations confirmed that they did not witness them. 66Nine of the thirteen persons in whose names the ITRs were lodged denied any involvement in their lodgement. 67An analysis of the GBS account established that after its opening deposit of $1.00 on 2 July 2008, the only deposits up until 6 August 2008 were deposits constituted by eight refund cheques issued from the ATO in respect of ITR's lodged in the names of David Comber, Adam Richards, Mitchell Sonnex, Selan Randall, David Wells, Helen Richards, Kristine Weston and Peter Richards. 68An analysis of the GBS account demonstrated that withdrawals commenced on 29 July 2008, coinciding with the date on which the first of the refunds from the ATO had been credited to the account. The analysis also demonstrated that various cash withdrawals, as well as a cheque withdrawal in favour of the offender, were made from the account. The offender was identified, from still images obtained from CCTV footage, as the person responsible for those withdrawals. 69A similar analysis was conducted in respect of the CBA account. It demonstrated that the only deposits to the account between 24 June 2008 and 4 August 2008 were the five ATO deposits in the names of Andrew Duncan, Mitchell Sonnex, Kristine Weston, Susan Williams and Christopher Barnard. The only other deposits, which were each cheques drawn on the GBS account, were for $20,842.90 and $12,500, which were carried out on 29 and 30 July 2008 respectively. Withdrawal slips in relation to the CBA account were each signed in the name of the offender. 70Pursuant to s. 16A(1) of the Crimes Act 1914 (Com) ("the Commonwealth Act") I am required to impose a sentence for the Commonwealth offences that is of a severity which is appropriate in all of the circumstances. Pursuant to s. 16A(2), I am required to take into account such of the matters enumerated in that section as are relevant, together with any other relevant factors. Some of the matters in s16Aare relevant to an assessment of the objective gravity of the offence, whilst others go to subjective considerations. I have dealt with all of these matters separately below.

THE OFFENDER'S SUBJECTIVE CIRCUMSTANCES 71The offender pleaded guilty to the murder offence only a matter of days prior to the scheduled commencement of the trial. A number of submissions have been made in relation to the circumstances which led to the entering of that plea. The Crown sought to emphasise that an application for a separate trial, and an application for the exclusion of the offender's record of interview, were foreshadowed but were not ultimately pursued. The Crown suggested that this was because the applications were futile. I am not aware why they did not proceed but in my view, that is of limited significance. The more significant issue is that the plea was entered at what was, on any view, a very late stage. 72In the circumstances, I have applied a discount of 10% to reflect the utilitarian value of the plea to the murder offence, having particular regard to the time at which it was entered (see generally R v Thomson; R v Houlton (2000) 49 NSWLR 383). 73The pleas entered in respect of the dishonesty offences are in a different category. They were entered in the Local Court and in my view there is no reason why the maximum discount of 25% should not be applied. 74 Counsel for the offender relied on a number of other statutory mitigating factors. The first was pursuant to s. 21A(3)(b), namely that the offence was not part of a planned or organised criminal activity. I accept that it was not until after the offender attended Red Range that he contemplated that serious bodily injury may be inflicted upon the deceased and that it was not until his conversation with Aquilina that he was aware of any intention on the part of Aquilina that he (Aquilina) intended to kill the deceased. I accept the submission on behalf of the offender that the offence was not part of a planned or organised criminal activity. 75Counsel for the offender also submitted that the offender had shown remorse within the meaning of s. 21A(3)(i). That section provides that remorse shown by the offender for the offence is a mitigating factor 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). 76Counsel for the offender submitted that by virtue of his co-operation with the police and his plea of guilty to the charge, I should infer that the offender had accepted responsibility for his actions, and had acknowledged the loss suffered by the death of the deceased. Counsel referred me, in particular, to the offender's answers to questions 471 and 479 of his interview with police. In the course the first of those answers, the offender had said that he wanted "to get this off (his) chest". In his answer to question 479 the offender said to police: "I wish it never happened. I can't believe I did, when out and did somthin' stupid tryin' to help a mate, like someone that I thought was a mate." 77It should also be noted that the report of Mr Champion, psychologist, which was relied upon by counsel for the offender, contained the following observation: "In relation to the issue of remorse/contrition it would be difficult to suggest that Mr Comber expressed much in the way of regret other than a general comment that he felt "bad" it happened. When asked again how he felt about what happened he commenced that it was 'hard to say ... I didn't know the bloke ...not much I could do ...not in my hands. He commented at a later stage that he 'turned off quicker now ... don't feel as much', this I think reflecting my earlier comments about blunted sensibilities and emotional detachment". 78These observations do not assist the offender. It would be incorrect to confuse expressions of regret, with expressions of genuine remorse of the kind to which s. 21A(3)(i) is directed. However on balance, I am satisfied that a combination of the circumstances relied upon by the offender constitutes remorse of the kind to which the section in directed. 79Counsel for the offender further submitted that the circumstances of the present case fell within the provisions of s. 23(1) of the Sentencing Act which is in the following terms: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. 80Counsel submitted that because the offender had agreed to take part in a record of interview where he made admissions in relation to the offence, and because he agreed to assist the authorities in recovering the credit cards and identification documents belonging to the deceased, his actions in this regard constituted assistance of the kind which s. 23 was directed. I do not accept this submission. 81In my view, the assistance to which this section is primarily directed is the type of assistance considered in cases such as R v Ellis (1986) 6 NSWLR 603 and R v Cartwright (1989) 17 NSWLR 243. Acceptance of the submission advanced on behalf of the offender would give rise to a situation where each and every offender who had taken part in a record of interview would be entitled to the benefit of a lesser penalty by virtue of the provisions of s23. In my view, that is not how the section ought be construed. 82In further support of his submission in relation to s23, counsel submitted that in the absence of the admissions made by the offender, the Crown would have been "left with a weak circumstantial case". The Crown took issue with that proposition. Whilst I accept that without the offender's admissions the Crown case would necessarily have been a wholly circumstantial, I am not in a position, on the evidence which has been placed before me, to make any determination beyond that. I have, however, previously noted (at paragraph [32]) that there were conversations, to which the offender was a party, which were recorded by listening device and in which the murder of the deceased was discussed. 83As I have noted, counsel for the offender relied upon a report of Peter Champion, Clinical Psychologist, of 14 September 2012 which contained information concerning the offender's background. The offender is presently 38 years of age and has little formal education. He reported a history of poly substance abuse to Mr Champion in respect of which he was, until recently, in receipt of methadone. The offender provided a history to Mr Champion of having been adopted at about the age of 2, and asserted that he had been exposed to abuse and neglect as a result. 84Mr Champion did not conclude that the offender was mentally ill and in relation to the risk of re-offending and prospects of rehabilitation, Mr Champion reported in the following terms: "In regards to his prognosis there are a range of risk factors present which include substance abuse, a pattern of chronic offending, emotional detachment and distorted personality functioning which includes anti social features, and institutionalisation. Whether these risk factors would necessarily lead him to commit this sort of offence (murder) again is not clear, though one thinks that the risk of future offending behaviour in general would be significant, particularly if he continues to have no motivation for change; and his prognosis would seem poor overall". 85In these circumstances, I am unable to come to any conclusion in favour of the offender regarding his prospects of rehabilitation. Quite apart from the opinion expressed by Mr Champion, the offender's criminal history provides me with no confidence in that respect. That record extends across a number of states of Australia, and includes a range of criminal offending and at least one breach of probation. The Crown submitted that the offender's criminal history indicates that he is completely unresponsive to supervision, post release counselling and assistance, and has been consistently so for more than 20 years. I accept that submission. There is no support for a finding that the offender's risk of re-offending is low, or that his prospects of rehabilitation are good. 86Counsel for the offender also submitted that because of the offender's criminal history, there was a significant issue in relation to institutionalisation which should be taken into account on sentence. There is certainly authority for the proposition that a risk of institutionalisation is a basis for a finding of special circumstances (see Jackson v R [2010] NSWCCA 162 at [24] per Fullerton J and the authorities cited therein). However, I am not prepared to find special circumstances within the meaning of the Sentencing Act. In my view, the period of parole that I propose to impose will be sufficiently lengthy to make allowance for the offender's need for rehabilitation.

FACTORS IN RELATION TO THE COMMONWEALTH OFFENCES 87As I have previously noted, s. 16A(2) of the Commonwealth Act sets out a number of factors which I am required to take into account, in so far as they are relevant, in determining the appropriate sentence for the Commonwealth offences. I note that counsel for the offender did not address me specifically in respect of these factors, other than those which were common to those to relevant to the other offences.

The nature and circumstances of the offence (s. 16A(2)(a)) 88The facts before the court indicate that the offender opened two bank accounts which, I am satisfied, were opened for the sole purpose of facilitating the receipt of the monies gained from his criminal activity. The amount of money involved in the commission of the offences was significant and the offences were, for the reasons that I have already expressed, the subject of some degree of pre planning. The offending was systematic, and the offender used the money for his own benefit.

Course of conduct (s. 16A(2)(c)) 89The offending constituted a course of conduct which occurred over a period of more than two months. It involved the creation of a number of false documents, the forging of signatures, the setting up of two bank accounts solely for the purposes of providing a vehicle to receive money which had been obtained dishonestly. The offender then withdrew the entirety of the money so obtained.

Contrition and remorse (s. 16A(2)(f)) 90The offender has pleaded guilty to the offence, a matter which I have discussed in further detail below. I regard this as some evidence of contrition and remorse on his part.

The plea of guilty (s. 16A(2)(g)) 91In respect of the Commonwealth offence, a plea of guilty should be taken into account subjectively as a mitigating factor, on the basis that it demonstrates a willingness to facilitate the course of justice (see Cameron v R (2002) 209 CLR 339 at 343; Tyler v R; R v Chalmers (2007) 173 A Crim R 458). 92As is the case with the other offences, a significant factor relevant to an assessment of the discount is the timing of the plea. I am also entitled to consider whether or not the offender's plea was motivated by a willingness to facilitate the course of justice, or was simply a recognition of the inevitable (see for example Danial v R [2008] NSWCCA 15 at [28]). Further, although the scale in Thomson (supra) does not expressly apply to Commonwealth offences, it has been observed that the principles stated in that case are generally applicable to sentencing for Commonwealth offences, such that the range of discount of 10 to 25 percent is reasonable to adopt (see for example R v Otto (2005) 157 A Crim R 540). 93In the present case, it has been submitted that the plea was entered in the face of a strong Crown case and was, in those circumstances, a recognition of the inevitable. On this basis, it has been submitted that the offender is entitled only to a limited discount. 94It is difficult for me on the evidence before the court to determine the strength of the Crown case. The pleas were, on the information available to me, entered before the Local Court and in my view, should be regarded in those circumstances as having been entered at the first available opportunity. In my view, there is no reason why the offender ought not have the benefit of a reduction of 25% in these circumstances.

Deterrent effect (s. 16A(2)(j)) 95There is evidence in the present case that the offender used the money for his own benefit and there is evidence that his criminal history contains a number of previous offences of dishonesty. In these circumstances, specific deterrence is necessarily a consideration.

The need for adequate punishment (s. 16A(2)(k)) 96I accept the submission on behalf of the Crown that the offender's conduct in the present case constitutes a serious breach of the law, and that regard must be had to the need for general deterrence.

Character and prior convictions (s. 16A(2)(m)) 97I have already observed when dealing with issues in relation to the other matters for which the offender faces sentence that he has a criminal history and is adversely recorded in four separate States in Australia. Whilst I do not propose to set out in detail his criminal history, it is sufficient for present purposes to note that it contains a number of offences of dishonesty. That history gives rise to a need for personal deterrence. 98I have taken all of these matters into account in determining the appropriate sentence. 99I further note s. 16A of the Commonwealth Act provides that the court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence. In all of the circumstances of the present case, and having regard to the various matters to which I have referred, I am of the view that a period of full time imprisonment is the only appropriate sentence for the Commonwealth offences. 100My attention has also been directed to s. 19 of the Commonwealth Act which is in the following terms: Cumulative, partly cumulative or concurrent sentences (1) Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that: (a) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (b) if a non-parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period. (2) Where: (a) a person is convicted of 2 or more federal offences at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences. (3) Where: (a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each federal sentence commences but so that: (c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (d) if a non-parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period. (4) For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence. 101My attention has also been drawn to the provisions of s. 19AB of the Commonwealth Act which is in the following terms: When court must fix non-parole period or make a recognizance release order (1) Subject to subsection (3), where: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) a court imposes on the person a federal life sentence, or a federal sentence that exceeds, or federal sentences that, in the aggregate, exceed 3 years; and (c) at the time the sentence or sentences are imposed, the person is not already serving or subject to a federal sentence; the court must either: (d) fix a single non-parole period in respect of that sentence or those sentences; or (e) make a recognizance release order. (2) Subject to subsection (3), where: (a) while a person is in prison and is serving or subject to a federal sentence, a further federal sentence is imposed on the person; and (b) the result is that the person is to serve or to complete a federal life sentence or federal sentences the unserved portions of which, in the aggregate, exceed 3 years; and (c) at the time the further federal sentence is imposed, the person is not already subject to a non-parole period or recognizance release order in respect of a federal sentence; the court imposing the further sentence must either: (d) fix a single non-parole period in respect of all federal sentences the person is to serve or complete; or (e) make a recognizance release order. (3) Where, but for this subsection, a court would be required by this section to fix a non-parole period, or make a recognizance release order, in respect of a person, the court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate. (4) Where the court decides that neither a non-parole period nor a recognizance release order is appropriate, the court must: (a) state its reasons for so deciding; and (b) cause the reasons to be entered in the records of the court. 102In terms of s. 19AB, the Crown in respect of the Commonwealth offences conceded that it would be open to me not to impose either a non-parole period or a recognisance release order. In the circumstances I do not propose to impose either. My reason for taking that course is because the offender will, as a consequence of the sentence that I propose to impose in respect of the murder offence, be subjected to a lengthy period of custody which will be far in excess of that which I propose to impose in respect of the Commonwealth offences. 103Notwithstanding the fact that they constitute offending which is quite separate from both the murder offence and the dishonesty offences, the Crown in respect of the Commonwealth offences submitted that I should structure the matter such that the sentences imposed for those offences would run wholly concurrently with the sentence imposed in respect of the murder offence. In circumstances where, had the matter proceeded in the normal course, the Commonwealth matters would have been dealt with to finality some time ago, I propose to accede to the Crown's submission. 104There will be some partial accumulation in respect of the sentences imposed for the dishonesty offences with that imposed for the murder offence.

Commonwealth offences 105In respect of each of the Commonwealth offences, being the offence pursuant to s. 400.5 of the Code and the offence pursuant to s. 400.6 of the Code, the offender is convicted. 106In respect of each of those matters, the offender is sentenced to a fixed term of imprisonment of 18 months commencing on 5 January 2011 and ending on 4 July 2012. 107I decline, for the reasons I have previously stated, to fix a recognisance release order or a non-parole period in respect of either of those sentences.

The dishonesty offences 108In respect of each of the offences pursuant to s. 192E(1)(a) of the Crimes Act, which are annexed to the certificate issued pursuant to s. 166 of the Criminal Procedure Act, the offender is convicted. 109In respect of each of those matters I impose a fixed term of imprisonment of 6 months. Each of those terms of imprisonment will commence on 5 January 2011 and conclude on 4 July 2011.

The murder offence 110In respect of the murder offence, the offender is convicted. 111The offender is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 5 April 2011 and concluding on 4 October 2028, with an additional period of 5 years and 10 months imprisonment commencing on 5 October 2028 and ending on 4 August 2034. 112The total term of imprisonment imposed in respect of the murder offence is one of 23 years and 4 months imprisonment. 113The offender will be eligible for parole on 5 October 2028 and his sentence will expire on 4 August 2034. 114I record the fact that but for the offender's plea of guilty, the appropriate sentence for the murder offence would have been a non-parole period of 19 years and 6 months with an additional term of 6 years and 6 months, that is, a total term of imprisonment of 26 years.

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: 10 December 2012

(Com) Criminal Code Act 1995(Cth)

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