R v Delaney

The Statutory Regime

1. The Parliament of NSW has fixed in s 3A of the Crimes (Sentencing Procedure) Act the purposes for which a court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of an offender; to prevent crime by deterring others and the offender from committing similar offences; to protect the community from an offender; to promote an offender's rehabilitation; to make an offender accountable for his or her actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of an offender.
2. These purposes obviously overlap and are often in tension: Muldrock at [20]. The purposes of ensuring adequate punishment of an offender and promoting an offender's rehabilitation, for example, are not always compatible. None of the purposes of sentencing can be considered in isolation.
3. Section 21A of the Crimes (Sentencing Procedure) Act also requires the Court to take into account, where relevant, a number of aggravating and mitigating factors in determining an appropriate sentence. The legislation does not require a court to increase or decrease a sentence because of the presence or absence of these factors: s 21A(5).

Common Law Principles

1. Over time, the Courts have developed legal principles to guide the exercise of the sentencing discretion by Judges. These common law principles are to be found in decided cases. Of relevance in these circumstances is the principle of proportionality, namely that the sentence should be proportionate to the gravity of the offence.
2. The common law principles have continuing relevance because s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as being relevant to sentence, such as whether incarceration may be particularly burdensome, are also to be taken into account: Muldrock at [19].
3. What the sentencing task requires of a Judge is that they have regard to the relevant legislation, including the purposes of sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, the aggravating and mitigating factors and the principles of the common law. Against that legal framework, the sentencing Judge has to identify the significance of all the relevant factual circumstances of the offending and the offender. The sentencing Judge is then able to undertake an "instinctive synthesis" whereby he or she "makes a value judgment as to what is the appropriate sentence given all the factors of the case": Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock at [26].
4. As the instinctive synthesis approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence. I will bear in mind the legislation by which I am bound, and the common law principles developed by the Courts, when proceeding on the task of sentencing this Offender.

The Facts

1. A signed Statement of Agreed Facts was tendered before me. It is an Exhibit. It is unnecessary to repeat all of the Statement of Agreed Facts here. However, it is necessary to set out the relevant findings of fact which are made for the purposes of sentencing.
2. In setting out the findings of fact which I have made, it is important to note that I am not entitled to make a finding of fact against the Offender for the purpose of sentencing unless I am satisfied beyond reasonable doubt of that fact. Any finding in favour of the Offender needs only to be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
3. Any finding of fact which I make on sentence must be consistent with the conviction for the offence to which the Offender has pleaded guilty: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14] citing R v Isaacs (1997) 41 NSWLR 374 at 377-378.
4. The Offender and the Deceased, who were biological siblings, lived together as the sole occupants of a detached flat at Cambridge Park. Their brother, Daniel, and his wife, Ms Tompkins, lived in the main dwelling house on the same property. Another brother, Jayleb, lived in another unit on the property.
5. On 3 June 2020, Jayleb Delaney came home from work between 3:30pm and 4pm. He went into the flat and spoke with the Offender and the Deceased for five to ten minutes before leaving to go to his unit on the property. That interaction was entirely normal.
6. Later that afternoon, after Jayleb left the flat, the Offender repeatedly struck the Deceased in the head with a hammer, causing fatal injuries. As a result of the blows, the Deceased suffered extensive fractures to her skull and face. The Offender's assault on the Deceased also caused bruising to her arms and legs, broken upper and lower front teeth, lacerations to her neck, and on the top of her skull. The Offender at the time he struck the blows did so with an intention to kill the Deceased.
7. The Offender wrapped the Deceased's body in a blanket on his bed. He took a single armchair from the living room and placed it upside down on the bed, on top of the Deceased's body.
8. The Offender went to Jayleb's unit and said he would be going "out for a couple hours, days". Jayleb suggested he would go and see the Deceased, to which the Offender responded that she had gone to a friend's place. The Offender also refused Jayleb's offer to care for their dogs while he was away.
9. That night, the Offender went a friend's house and smoked methamphetamine (ice). He did not sleep. The following day, he checked into a motel where he stayed the night.
10. The Offender then caused $5,300 to be transferred from the Deceased's bank accounts to his bank account. Over the next few days, he withdrew a further $4,000 in cash and paid for two nights of accommodation out of this money.
11. On 4 June 2020, Jayleb attempted to contact the Deceased. Ms Tompkins entered the flat and called out to the Deceased and the Offender, but she received no answer. Ms Tompkins noticed that the dogs were locked in the flat.
12. On 5 June 2020, the Offender went back to the flat, showered and changed his clothes. He left and encountered Ms Tompkins along the road, who commented on his absence from the property. He dismissed her comments and said he would be away for a number of days.
13. The Offender checked into a hotel, where he met two friends, with whom he smoked ice and cannabis.
14. On 6 June 2020, the Offender again stayed away from the flat in a different motel.
15. On 7 June 2020, he presented himself to Cumberland Hospital where he was voluntarily admitted in connection with his drug use. Jayleb visited the Offender at the Cumberland Hospital. In response to a question, the Offender said he hated leaving the Deceased "at home with the dogs all weekend all the time".
16. On 8 June 2020, Ms Tompkins entered the flat again. She noticed the flat was very messy and smelled very bad. Ms Tompkins attempted to enter the Offender's bedroom, where the Deceased had been left, but the door was difficult to open because items had been left stacked behind it. She obtained help from Jayleb to open the door, and the two of them then observed the Offender's bedroom to be messy and that it had a bad smell. They noticed several items stacked on top of the bed. They collected some personal items for the Offender and left.
17. When Jayleb delivered the Offender's personal items to him at the Cumberland Hospital, Jayleb asked the Offender whether he knew where the Deceased was. The Offender denied knowing where she was.
18. Later that evening, Aaron Delaney, another of the Offender's brothers, entered the flat to look for the Deceased. He spoke with Jayleb who indicated that the Deceased was missing. Another family member telephoned the police and reported the Deceased missing.
19. Aaron went back to the flat to search for an indication as to where the Deceased might be. He removed some items from the Offender's bed and noticed an object that looked like a silhouette of a body under a blanket. He realised that it was the Deceased's body and reported his discovery to the rest of the family and to the police. Police attended as did an ambulance officer who confirmed that the Deceased was dead.
20. On 9 June 2020, the following morning, the Offender was arrested and taken into custody from the Cumberland Hospital for the murder of the Deceased. After he was cautioned, he expressed surprise that his sister was involved and asked whether she was dead.
21. Since he has been in custody, he has apologised to his family members for his acts.

Objective Seriousness

1. The nature of the murder of the Deceased was objectively very serious. It was a vicious, brutal and very violent assault by the Offender, with a weapon, upon a member of his family in their home. The assault caused extensive head, facial and bodily injuries. There is not said to have been anything done by the Deceased to have caused the attack. No reason is proffered for the Offender to have killed his sister.
2. This brutal killing was aggravated by the fact that the Offender used a weapon and that the offence occurred in the house of the Deceased where she was entitled to feel safe.
3. In his submissions, the Offender drew attention to the mitigating factor that the offence was not part of a planned or organised criminal activity. I take that into account in accordance with s 21A of the Crimes (Sentencing Procedure) Act, but in the circumstances here, it carries little weight.
4. I accept the Crown's submission that the objective seriousness of this offence falls in the middle of the range for offences of murder.

Personal History

1. The Offender was born in December 1989 and was 30 years old at the time of the offence. As I have said, he was living in a flat with the Deceased on a property which was inhabited by other members of his family, who supported him. The Offender was educated and completed his Higher School Certificate at Blue Mountains Grammar School. He was employed in various roles since graduating but in more recent years his work was insecure and infrequent.
2. The Offender grew up as one of nine siblings in a family which was described as always having shelter, food, clothing and transport. The family environment was also "very tense, very stressful" in that the Offender's parents were said to be "very angry". The Offender reported that his father grew up around drugs and alcohol and "bikies" but had subsequently transitioned to a Christian lifestyle. His father was said to be violent and had used alcohol heavily until the Offender was around 5 years old, at which point the alcohol use ceased but the violence continued.
3. The Offender was sexually abused by his stepbrother between the ages of 5 and 10 years. He also reported that he had been sexually abused by an adult man while he was at primary school.
4. The Offender has not apparently had any long-term relationships. He has a half-brother who has been diagnosed with bipolar disorder and another brother who has previously used drugs.
5. Although the Offender had these difficulties, they do not amount to circumstances which would constitute profound deprivation of the kind considered in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The Offender did not submit that they did.

Medical Evidence

1. Two medical professionals prepared reports for other purposes and their reports were tendered and relied upon for the purpose of sentencing.
2. The Crown tendered the report of Associate Professor Anthony Samuels, a Consultant Psychiatrist, who interviewed the Offender on 24 February 2022. The Offender tendered the report of Dr Adam Martin, a Forensic Psychiatrist, who interviewed the Offender on 20 September 2021.
3. The Offender first presented to Cumberland Hospital with mental health concerns in 2012. He was treated with antidepressant and antipsychotic medication. He was diagnosed with alcohol dependence, Bipolar Disorder Type II and Substance Induced Mood Disorder/depression. At that presentation, it was noted that he had previously attempted suicide on multiple occasions, and that he had a long-term background of drug and alcohol dependence. He was noted to have "borderline personality disorder/traits". Dr Martin indicated that his review of the notes suggests that the Offender did not present with overt psychotic symptoms during this admission.
4. In 2013, the Offender took an overdose of drugs and was admitted again to Cumberland Hospital. He was noted to have a background of suicidal ideation and had been using alcohol and cannabis. There was no clear diagnosis made at this time but he was admitted as mentally disordered.
5. In 2018, whilst in Perth, the Offender was admitted to hospital, where he was diagnosed with schizophrenia and cannabis misuse.
6. In 2019, whilst still in Perth, he was taken by police to hospital again, due to concerns that he was walking into traffic and had become aggressive with police. He was treated with antipsychotic and antidepressant medication. There are notes that he presented with a "situational crisis" following family conflict relating to his drug use.
7. The Offender described to Associate Professor Samuels and Dr Martin his memories surrounding the offence. He says that he recalls smoking cannabis with a person whom he thought he had met online, that he tried to get them to leave him, but that they became angry and changed from a normal person to "a tall person like a demon". He described the person as walking through walls and the furniture. He said he took tools which were available and hit the "demon" with them, but that the demon just laughed and was not affected by his attack. He said his sister was asleep on the couch at this time and was unaware of his conflict with the person. He said he does not recall much else from around the time of the offence and said he "came to" at a hotel days later, at which point he felt unsafe and so went to the Cumberland Hospital.
8. To the extent that the factual account given to his doctors contradicts the Offender's plea and the Agreed Statement of Facts, it must be ignored. As I have earlier said, I am satisfied that the Offender intended to kill the Deceased.
9. Upon his admission to Cumberland Hospital on 7 June 2020, following the offence, the Offender was diagnosed as experiencing a drug-induced psychosis and was treated with antipsychotic medication. He was reviewed over a number of days and by 9 June 2020, there was no evidence of any active psychopathology involving his mood, thought or perceptions. There was no evidence of acute delirium on his mental state examination and his judgment did not appear compromised.
10. On 10 June 2020, a Clinical Director of the Mental Health Services assessed the Offender in custody and concluded that there did not appear to be convincing evidence of ongoing psychosis, despite his self-reporting of ongoing hallucinations. However, he had been treated with antipsychotic medication in custody since his arrest.
11. The Offender reported to Dr Martin that he had smoked cannabis on a daily basis in large amounts from the age of 14. He previously smoked synthetic cannabis heavily, over four years, to 2015. He smoked ice for three years including a period of one year when he smoked ice on a daily basis before reducing to just weekend use. He reported using cocaine and MDMA occasionally and smoking heroin once. He described previous phases of daily and heavy alcohol use but over the last few years had only drunk more occasionally.
12. Dr Martin diagnosed the Offender with schizophrenia and substance use disorder relating to cannabis and methamphetamine.
13. Dr Martin's opinion was that the offence most likely occurred in the context of acute drug use and cannot be attributed to a mental health impairment within the meaning of that term in the relevant legislation.
14. Based on a similar history to that of Dr Martin, Associate Professor Samuels diagnosed the Offender with a schizoaffective disorder or schizophrenia. Associate Professor Samuels also diagnosed the Offender with a substance use disorder, predominantly cannabis but also methamphetamine.
15. Associate Professor Samuels agreed with Dr Martin in finding that it was difficult to determine any mental health-related cause for the offending behaviour. However, Associate Professor Samuels concluded that it was likely that the Offender was acutely intoxicated by cannabis and possibly methamphetamine which resulted in paranoia, hallucinations, and aggression at the time of the offence.
16. In light of the Offender's plea, and consistently with the Agreed Statement of Facts, and the available medical evidence, I find that, at the time of the offence, the Offender was impaired solely by the temporary effect of ingesting a substance, namely cannabis or methamphetamine, or both.
17. I also find that the Offender was addicted to cannabis and methamphetamine in the lead up to, and at the time of, the offence. But I am not satisfied that the Offender's diagnosed mental health conditions were causally related to the offending.
18. The self-induced intoxication of the Offender at the time the offence was committed may not be taken into account on sentence as a mitigating factor: s 21A(5AA) of the Crimes (Sentencing Procedure) Act. Nor is Offender's addiction to drugs itself a mitigating factor. However, clearly, the Offender's addiction is a relevant circumstance to be taken into account on sentence: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [171]-[208]. It provides an explanation of the offending, especially in the absence of any motive, premeditation or planning.
19. I note in this context that the post-offence conduct by the Offender, including in relation to his movement and withdrawal of funds, his superficial concealing of the body, his movements between locations and his lies to family members about the whereabouts of the Deceased, confirm my conclusion that the effect of the drugs was merely a temporary one.
20. The Crown submits that the medical evidence shows that prior to this offence, the Offender had been given opportunities to deal with his drug addiction but chose not to. The Crown also submits that the Offender must have been aware that his use of drugs may result in adverse behavioural changes.
21. I accept those submissions and have taken those matters into account as contextual facts relevant to the sentencing of this Offender. I note, however, that no submission is made, and there is no evidence, that the Offender knew that his use of drugs might lead to an act of violence: cf R v Gagalowicz [2005] NSWCCA 452 at [36].
22. The Crown initially submitted that there is a paucity of evidence about the Offender's current mental condition and that therefore I should not find that his time in custody will be any harsher as a consequence of his mental ill-health. At the sentencing hearing, I was urged to accept that there was no evidence of the current condition of the Offender's mental health. However, I was informed that it was agreed between the Crown and the Offender that Corrective Services records show that the Offender has been continually assessed, and that the Offender is and remains on anti-psychotic medication for the treatment of his mental illness.
23. I do not accept the Crown's submission, in light of the agreed current treatment regime, and having regard to the medical evidence, including the relatively recent diagnoses by Associate Professor Samuels of schizophrenia or a schizoaffective disorder which was made almost two years after the offence, a significant period during which the Offender was in a controlled custodial environment and had been receiving ongoing treatment.
24. I am satisfied that, having regard to the Offender's diagnosed mental illnesses, and his ongoing medication, his time in custody will to a limited extent be more onerous that it would otherwise be. I also take into account the Offender's mental illness when considering the weight that ought to be given to specific and general deterrence in considering the appropriate sentence to be imposed.

Other Subjective Matters

1. I take into account as a mitigating factor that the Offender had no significant record of previous convictions.
2. The Offender submits I should also make a finding that he was a person of good character. He relies on four character references from people who all described the offending as out of character. They variously reported his good work history, his intelligent mind, and his willingness to assist others. The Offender also relies on a letter written by his father to the Court. In it, the Offender's father sets out a detailed account of the family's history and describes the Offender favourably.
3. I accept that the Offender was a person of good character. However, the weight to be given to his previous character is significantly impacted by his continued drug use despite being given opportunities to deal with his addiction. Subject to these matters, I take into account the Offender's prior good character.
4. The Offender tendered a letter addressed to the Court in which he wrote that he "[accepted his] role in this devastating event" and that he "[knows] that drug abuse, untreated mental health issues, incorrect doses and unsuitable medications all played a part that terrible day". His letter contains various apologies to his family members. He records that he regrets deeply his actions. He records his hopes for the future and his commitment to abstaining from drugs.
5. The Offender did not give any evidence under oath or affirmation at the sentencing hearing. His statement of remorse was untested. It cannot be given substantial weight.
6. The Offender submits that in fact he is remorseful. He points also to Associate Professor Samuels' report, which records that the Offender "clearly has enormous feelings of guilt and remorse". He also relies on his father's letter to the Court, which records expressions of remorse which were made by the Offender to his father.
7. In my view, although the Offender has expressed his regret and remorse for what has happened, which I take into account, his remorse does not amount to a mitigating factor of the kind contemplated by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, because I am not satisfied in the absence of sworn evidence from him that he has actually accepted responsibility for his conduct.
8. In light of the role occupied in the offending by the substance abuse of the Offender, I am unable to make any finding about the likelihood of the Offender engaging in further criminal offending. Much will depend on the amelioration of the Offender's drug addiction.
9. I am satisfied that the Offender's present custodial circumstances and the restrictions imposed over the last two years or more to keep correctional centres free of COVID-19 have made the Offender's imprisonment more harsh than usual.

Victim Impact Statements

1. The Court heard a number of victim impact statements from the family of the Deceased. Those statements made clear that the death of the Deceased has caused significant harm and distress to them.
2. Pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act, I consider that it is appropriate to take these statements into account. I do so on the basis that the harmful impact on the family of the Deceased is an aspect of the harm done to the community as a whole by the Offender.

Discount

1. As I have noted, the Offender is entitled to a reduction of 25% on any sentence which I would otherwise impose, for the utilitarian value of his early plea: s 25D(2)(a) of the Crimes (Sentencing Procedure) Act.

Sentencing

1. In considering the appropriate sentence to be imposed on the Offender, I commence with the reminder that the offence of murder involves the criminal taking of a human life. It is a violation of the sanctity of human life which is a concept at the heart of a civilised community. Any conviction for murder warrants a substantial sentence because the purposes of punishment and general deterrence are of significant importance. In the Offender's case, the purpose of punishment having regard to his moral culpability for the offence is significant but, because of his particular subjective circumstances, I place less weight on general deterrence. However, the circumstances of this offence of murder are such as to require careful attention being paid to the importance of denunciation of the Offender's conduct in the circumstances. Ultimately, the sentence imposed must be one which reflects the gravity and seriousness of the offence.
2. I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crime (Sentencing Procedure) Act. In my view, the usual period of parole will be adequate to assist the Offender to reintegrate into the community on the completion of his non-parole period. There is no other sufficient reason which has not already been taken into account to find special circumstances.
3. I have now discussed all of the facts relevant for sentence, including the relevant subjective circumstances of the Offender, and it is necessary to make a value judgment as to the appropriate sentence to be imposed for the offence.
4. The offence of murder was very serious and fell in the middle of the range for the offence of murder. It was constituted by a vicious, violent and brutal assault for no reason at all on his sister in their own home. It caused extensive head, facial and bodily injuries.
5. The Offender has had a difficult life which included being sexually abused by a family member when he was very young. He has struggled with mental health issues and drug addiction for many years. All of these matters are to be weighed when considering his moral culpability. However, as is clear from his plea of guilty to the offence of murder and also from the medical evidence available to me, the aberration in the Offender's behaviour which led to the death of the Deceased was caused solely by the temporary effects of the voluntary ingestion of drugs by the Offender. He is criminally responsible for his actions and is to be sentenced on that basis.
6. I determine the appropriate sentence for the offence, after the application of the discount, to be 21 years imprisonment with a non-parole period of 15 years and 9 months.
7. It is appropriate to commence the sentence on 9 June 2020, so as to reflect the period of time which the Offender has spent in custody prior to his conviction.

Offence of Serious Personal Violence

1. I am required to warn the Offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006 and the fact that that Act applies to the offence of murder of which he has been convicted and for which he is about to be formally sentenced. At some future point in time, an application may be made that, notwithstanding the completion of his sentence, the Offender should continue to be detained or else be subject to an Extended Supervision Order impacting upon his liberty.

Sentence

1. Lucas Delaney, I impose the following sentence upon you: 1. For the offence of the murder of Gabriella Delaney, I impose a sentence of imprisonment comprising a non-parole period of 15 years and 9 months with a balance of term of 5 years and 3 months to commence on 9 June 2020. 2. The first date upon which the Offender will be eligible to be released on parole is 8 March 2036.

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: 19 October 2022