39 The offender has a criminal record dating back to 1988. Although it contains a number of entries, the offender has never previously been sentenced to a term of imprisonment. He has twice been convicted for driving with the high range prescribed concentration of alcohol and twice for driving whilst disqualified. He has several convictions for relatively minor matters of dishonesty, the last of which was in 1998. He also has a number of convictions for street offences such as offensive behaviour, not leaving licensed premises, resisting arrest, damaging property and possessing a prohibited drug. Of more significance for present purposes are convictions in the Local Court in 1993, 1995 and 2001 for offences of common assault. The first two of those offences attracted pecuniary penalties, whilst for the 2001 matter the offender received a community service order. Breaches of apprehended domestic violence orders, in 1996 and 2001 respectively, attracted pecuniary penalties. The most serious offence on the offender's criminal record is the assault occasioning actual bodily harm which, as I have said, he committed upon the deceased in 2007.
40 The offender's record, along with the other material which is before the court, suggests that most, if not all, of his offending behaviour has occurred against the background of his excessive consumption of alcohol.
41 I have received victim impact statements from one of the deceased's sisters and from one of her daughters. The feelings which they have so eloquently and poignantly expressed and the grief which they and their families have suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.
42 In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case.
43 Although there remains considerable uncertainty as to the precise circumstances in which the deceased was killed, there are a number of aspects of the case about which there is agreement. First, the Crown realistically acknowledges that the offence is not in the worst category such as to warrant the imposition of the maximum penalty. That being so, it is appropriate to impose a determinate sentence. Secondly, the parties are in agreement that the evidence supports the proposition that the offender intended to inflict grievous bodily harm upon the deceased but did not intend to kill her. Thirdly, it is common ground that the fatal incident was not premeditated and that the offence is not to be treated as being "part of a planned or organised criminal activity" within the meaning of s 21A(2)(n) of the Act. Fourthly, the Crown concedes that it is unable to establish to the criminal standard that a weapon was used in the commission of the offence. Although there is evidence available which suggests that the offender may have had resort to the axe handle during the course of the fatal incident, the Crown accepts, in light of the somewhat tentative opinion expressed by Dr Cala, that it cannot prove beyond reasonable doubt that it was in fact used. Fifthly, it is common ground that the fact that the fatal incident occurred within a home should not be treated as an additional aggravating factor within the meaning of s 21A(2)(eb). Although the deceased was accustomed to staying at the offender's premises, it was not her home. Nevertheless she was entitled to feel safe and secure in those premises and the fact that she was not, is a relevant factor in assessing the overall objective gravity of the offence. Finally, it is accepted on behalf of the offender that it was a matter of considerable aggravation that he was on a bond at the time of the offence, particularly as it had been imposed for an assault upon the deceased.
44 That said, the circumstances surrounding the offence reveal criminality of a most serious kind. The nature and extent of the injuries which the deceased sustained reveals that the blows which the offender inflicted upon her were administered with very considerable force. It is not possible to determine precisely when the various blows, including the fatal injuries which the deceased sustained, were inflicted. It can however be reasonably inferred that the attack upon her occurred over a not insignificant period of time and that it consisted of a number of blows. Moreover, the deceased endeavoured unsuccessfully to escape from the offender. Dr Cala formed the opinion that the bruises which were located on the deceased's right shoulder, arm, elbow and wrist suggested that she had been restrained by the offender. Finally, given the physical disparity between them, it seems clear that the deceased was in no position to adequately defend herself in the face of the offender's violent conduct.
45 On the other hand, there are a number of mitigating factors upon which the offender is entitled to rely. A significant factor to be weighed in his favour is his plea of guilty: see s 21A(3)(k) and s 22. I was informed that sometime before the trial the offender offered to plead guilty to manslaughter. That offer however was rejected. I was also advised that the offender's legal representatives obtained a further report from a forensic pathologist, and also explored other possible defences, before indicating to the Crown shortly before the trial commenced that the offender would plead guilty to murder. It was submitted that the offender should not be disadvantaged by the fact that steps taken on his behalf by his professional advisers had delayed the entry of his plea of guilty. I have given that matter due consideration and recognise that it is no small matter to plead guilty to the most serious offence in the criminal calendar. Although the plea of guilty could hardly be described as being entered at the first available opportunity, there was still some significant saving of the resources of both the State and the Court. I was informed that the trial had been set down for three weeks and that the Crown intended calling 40 witnesses. The offender's plea has spared them from the ordeal of having to give evidence.
46 In the circumstances the offender has "facilitated the course of justice": Cameron v the Queen (2002) 209 CLR 339. Accordingly, and because his plea of guilty has utilitarian value, he is entitled to a discount which I assess to be worth 15%, in accordance with the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383.
47 The Crown accepts that it is appropriate to allow a further reduction of sentence to the offender on account of the contrition which he displayed both in his conduct and by his utterances at the time of, and shortly after, the offence was committed: s21A(3)(i). Furthermore, by pleading guilty the offender abandoned any chance that a jury may have returned a verdict of manslaughter upon the basis that the Crown had not established, in the light of his state of intoxication, that he had formed the requisite intention for the crime of murder.
48 As I have said, the offender has been in protective custody whilst on remand. The authorities make it plain that the circumstances in which an offender who is on protection is serving, and is likely to serve, his or her sentence should be carefully scrutinised by a sentencing court: see R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168 at 199-200.
49 I accept that the offender entertains reasonable fears for his well-being. In any event, it is highly likely that he will remain in some form of protective custody for the remainder of his sentence, a period of time which will, of necessity, be very lengthy. Those factors will mean that his time in gaol will be more burdensome than would be the case for a mainstream prisoner: see generally Durocher-Yvon (supra) at 587. Nevertheless, as best one can tell at this stage, it seems that the offender is likely to go to a facility which is predominantly a protection gaol and so his access to facilities and programs should not be unduly interfered with.
50 The offender does not have the benefit of a clear criminal record. In approaching this issue, I have borne steadily in mind the principles enunciated in R v McNaughton (2006) 66 NSWLR 566. He has a number of convictions for offences of violence, although none of them of course even remotely approach the seriousness of the present offence. However, in light of all the material which is before the court, it is appropriate to have some, albeit limited, regard to the need for personal deterrence. It is also important to acknowledge that considerations of general deterrence must also take their place in the sentencing process. The present offence, seen against the background of the offender's overall history, would suggest that the offender's prospects of rehabilitation must, at first blush, be approached with considerable caution. However, there remains some room for optimism, particularly in view of his acceptance of responsibility for the current offence. Moreover, by reason of the sentence which I shall impose, the offender will, by the time he is released into the community, have reached an age at which it can be reasonably anticipated that he will have attained a measure of maturity. His rehabilitation will also depend very largely upon whether he can overcome his dependency upon illicit drugs and alcohol.
51 As I observed earlier, the offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness". In approaching this aspect of the matter, I have had regard to the principles set out in Way (supra) especially at pars 117-124; 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v MLP (2006) 164 A Crim R 93.
52 It was submitted on behalf of the offender that the offence should be assessed as falling "in the low or at worst the low to mid-range". The Crown submitted that it fell into "the mid-range of seriousness". In my view, the circumstances which I earlier outlined demonstrate that the offence should be characterised as approaching, but falling a little below, the "middle of the range of objective seriousness". In coming to that conclusion, I have had regard amongst other things, to the fact that the offender did not intend to kill the deceased, the fact that the offence was not premeditated and that it was not established that a weapon was used. In any event, it is common ground that I should impose a non-parole period which is shorter than the standard non-parole period. I intend to do so particularly because of the offender's plea of guilty, the contrition which he has demonstrated and the other favourable subjective features of the case to which reference has been made. I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance "as a reference point, benchmark, sounding board or guidepost".
53 It was also submitted, although somewhat faintly, that I should make a finding of "special circumstances". I am not inclined to do so because the factors upon which the submission is based, are matters which I have already taken into account in arriving at the appropriate sentence. In that respect I have given due weight to the issues raised by Dr Delaforce in his report concerning the offender's disadvantaged background. Moreover, to the extent that it is appropriate to do so, I have had regard to the principles enunciated in R v Fernando (1992) 76 A Crim R 58. The effect of the overall sentence which I shall impose will, in any event, enable the offender to have an extended period of supervision in the community whilst on parole.
54 In written submissions filed on behalf of the offender a possible range for the present kind of offence was suggested. That submission however was somewhat refined in oral submissions presumably because the initial range was based largely upon cases which were decided before the introduction of standard non-parole periods. Reliance was placed in oral submissions upon the decision in R v Vu [2005] NSWSC 271 as providing a useful comparable authority. That offender received a non-parole period of 13 years 6 months with an overall term of 18 years imprisonment. In response, the Crown drew my attention to R v Thompson [2008] NSWSC 109 in which a non-parole period of 15 years with an overall term of 20 years imprisonment was imposed.
55 Whilst I have derived some assistance from a consideration of other decisions, and in particular from the two authorities which I have just mentioned, the extent of any such assistance is necessarily limited given the inevitable differences between those cases and the facts of the present case: see R v Trevenna (2004) 149 A Crim R 505. In the final analysis, I must exercise my own sentencing discretion having had proper regard to the relevant sentencing principles to which I have referred and having considered the salient features of the present case: see R v Markarian (2005) 228 CLR 357.
56 Because a human life has been needlessly and unlawfully taken, it is necessary to impose a sentence which properly reflects the objective gravity of the offence. It must also give effect not only to the various matters referred to in ss 3A and 21A of the Act but also to the maximum penalty prescribed by the legislature. In setting the effective non-parole period, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.