HIS HONOUR: Lloyd Edward Haines and Michael Lee have each pleaded guilty to the murder of Daniel McNulty and to the armed robbery with wounding of Brett Fitzgerald on 10 August 2014. Mr Haines entered pleas of guilty to these offences on 21 June 2016. Mr Lee had done so on 16 June 2016. Those pleas were entered in anticipation of a joint trial that was scheduled to commence on 20 June 2016. The maximum penalty for murder is life imprisonment with a standard non-parole period of 20 years. The maximum penalty for armed robbery with wounding is 25 years imprisonment with a standard non-parole period of 7 years.
Each offender is now to be sentenced for the offences to which he has pleaded guilty in accordance with a detailed set of agreed facts. Those facts are as follows.
[2]
Agreed facts
Daniel McNulty and Brett Fitzgerald lived in a unit in Walker Street, Redfern. It was on the ground floor of a multi-block unit complex that contained many such units. Mr McNulty and Mr Fitzgerald had known each other for more than 18 months but had only shared the same premises for about 2 weeks before the commission of the offences that are the subject of these proceedings. Both men were known to supply drugs from their unit.
Mr Haines was dependent on methamphetamine. He had purchased drugs from the Walker Street unit on a couple of occasions before, and had on one occasion gone there acting aggressively to complain about the quality of the drugs that he had purchased. Mr Haines was a friend of Mr Lee who was himself also a drug user. As at 10 August 2014, Mr Lee had been going out with Harriet Wran for approximately 2 weeks. That evening Mr Lee and Ms Wran arranged to meet Mr Haines at Redfern. The three of them went to various units in the Walker Street complex looking to buy drugs. They were unsuccessful.
The three of them then approached the unit occupied by Mr McNulty and Mr Fitzgerald. Mr Lee and Ms Wran did not know these men. Mr Haines told Mr Lee that Mr McNulty supplied drugs, that he had previously had dealings with these men at their unit and that it was unlikely that they would let Mr Haines into the unit or sell him drugs.
Some time after reaching the unit, Mr Haines, Mr Lee and Ms Wran formed an intention to rob the occupants of drugs and money. Ms Wran knocked on the door. Mr McNulty told her to go to a side window. She did so. She then went back to the front door and knocked again. Mr McNulty said, "Don't worry, it's just a girl". Mr McNulty then let Ms Wran into the unit. At that time Mr McNulty and Mr Fitzgerald were both in the lounge room near the front door.
Mr Lee and Mr Haines immediately entered the unit. It was only then that the occupants became aware of their presence with Ms Wran. Mr Lee was in possession of a knife. Mr Haines had his head covered with a balaclava. A violent struggle then occurred involving the offenders and the occupants. It was in the course of this struggle that Mr Lee fatally stabbed Mr McNulty and also stabbed Mr Fitzgerald. Mr Haines hit Mr Fitzgerald with a hammer that he found at the unit.
During the course of the robbery the offenders found a small amount of drugs and approximately $650 in cash. After leaving the unit, Mr Lee and Ms Wran separated from Mr Haines and all three left the area.
Following their departure, Mr Fitzgerald checked on Mr McNulty who was unresponsive. He called an ambulance. Mr Fitzgerald was himself treated by ambulance officers and taken to hospital. Mr McNulty was later discovered in the unit deceased. He had suffered fatal stab wounds to his back and chest, as well as his left thigh. Mr Fitzgerald was found to have sustained five stab wounds and lacerations to his head requiring surgery.
Mr Haines was arrested whilst reporting to a police station on 12 August 2014. Mr Lee was arrested at Liverpool the following day. Mr Haines was interviewed by police and denied his involvement in these events. Mr Lee was interviewed more than once and initially denied his involvement as well. He later told police that he had gone to the unit to buy drugs with the others but was attacked by the victims and so acted in self-defence.
It is accepted that the pleas of guilty to murder are based upon the concept of constructive murder. Mr Lee's act of stabbing Mr McNulty causing his death occurred during the commission by him and Mr Haines and Ms Wran of the armed robbery with wounding.
The agreed facts upon the basis of which Mr Lee and Mr Haines are to be sentenced differ slightly. The differences appear to be insignificant for sentencing purposes. I have combined the agreed facts in the preceding summary but I have sentenced each offender only upon the basis of the facts individually referable to them.
Lest there be any doubt about it, I note that, in the case of Mr Haines, it is agreed between him and the Crown that his liability for the murder of Mr McNulty is constructive murder arising from the following fundamental facts:
1. The foundational offence was armed robbery with wounding.
2. The plan to commit the robbery only came into being very shortly before Mr Haines, Mr Lee and Ms Wran arrived at the door of the victims' unit.
3. It was not until about that time that Mr Haines first became aware that Mr Lee was in possession of a knife.
4. There was never any intention that the knife would be used although Mr Haines was aware of the possibility that it might be.
5. Mr Haines did not foresee the possibility that Mr Lee would use the knife to inflict injury upon or kill any person inside the unit.
6. Mr Haines did not strike blows that caused Mr McNulty's death.
7. Having regard to the evidence, the possibility foreseen by Mr Haines was that Mr Lee might brandish the knife as some sort of threat to overcome any resistance that may have been encountered to a demand for money and/or drugs.
[3]
Objective seriousness
Mr Lee stabbed Mr McNulty during the course of the aggravated robbery, causing his death. The Crown does not allege and does not need to establish any particular intent with which the fatal blow was inflicted by Mr Lee. The mortal wound occurred during the commission of the aggravated robbery offence. Mr Lee is liable as he struck the fatal blow with a knife. Mr Haines is liable for the death of Mr McNulty upon the basis of his participation in the joint foundational robbery offence during which the act causing death occurred and his contemplation of Mr Lee's use of the knife during the robbery.
In R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462, Wood CJ at CL said this at [332]-[333]:
"[332] Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93.
[333] On any view this was a very serious case of constructive murder, being one in which three men went to the cafe with the intention of carrying out a robbery, where very significant violence was inflicted, where a knife was used and where the victims were callously abandoned at the premises."
To a similar effect, Adams J in Raad v R [2011] NSWCCA 138 referred with approval at [12] to the trial judge's description of the seriousness of the offence:
"[12] In respect of the seriousness of the crime, his Honour said -
'16 The relative seriousness of any crime depends on its own facts and does not depend on some general categorisation. While it is difficult to imagine a murder that involves the requisite intention being less serious than the least serious felony murder, this is not in the category of least serious felony murder. Mr Raad intended to commit an armed robbery. He did so with a loaded gun. He had loaded the gun shortly before the robbery and had his finger on the trigger when he pulled the gun out from his belt.
17 Even though I am not satisfied that he intended to kill or cause grievous bodily harm, he must have understood that committing an armed robbery with a loaded gun, having the safety catch off the weapon and having his finger on the trigger could foreseeably result in serious injury, if not death. The seriousness of the offence, including the armed robbery, must be measured against the regime that existed at the time of the commission of the offence, namely, in 2001.'"
Buddin J added the following comments at [75]:
"…Notwithstanding the primary judge's conclusion that the applicant did not intend to kill or to inflict grievous bodily harm upon the victim, this was nonetheless an objectively serious example of the offence of murder…"
There are certainly varying degrees of constructive murder: see R v JB; R v RJH [1999] NSWCCA 93 per Stein JA at [33] as follows:
"[33] I think it is correct to say that there are degrees of seriousness of felony murder, just as any other serious crime. The starting point was for the judge to determine the objective gravity of the crime. This depends, for the most part, on the nature of the actual acts of the offender which played a part in the death of the victim. His Honour's finding that the applicant participated in an attack on the deceased with an intention to inflict grievous bodily harm on him does not elevate the felony murder into another class of murder. His Honour had to assess the material before him, including the evidence of the applicant, in order to consider what was an appropriate sentence. It is conceded by the applicant that in doing so the judge is entitled to take into account the infliction of grievous bodily harm, but not the intention to inflict it. In light of the facts of this case, it seems to be a distinction without a difference. It is necessary to analyse the conduct involved to ascertain the degree of moral culpability. Even assuming that his Honour was wrong, and I am not convinced of this, it is difficult to see that a re-sentencing would make any difference. Nor do I accept that it has been established that RJH was denied procedural fairness in giving evidence on his plea. I do not see that it can be concluded that his Honour passed sentence on the applicant on the basis of a different factual substratum than that required by the charge of felony murder."
The Crown contended that the present case is an objectively serious case of constructive murder, in which Mr Lee entered the unit armed with a knife intending to rob Mr McNulty who he then killed in his own home by stabbing him to effect the robbery. Mr Haines entered the unit for the same joint criminal purpose. Mr Haines was aware that Mr Lee had the knife. Mr Haines participated in the joint robbery, inflicting wounds to Mr Fitzgerald. Mr Haines is liable for murder upon the basis of the actions of Mr Lee committed during the foundational offence.
The Crown contended that the taking of a human life while in pursuit of the unlawful obtaining of drugs and money constitutes an offence that deserves severe punishment.
With respect to the armed robbery with wounding, the Crown similarly contended that the foundational offence was an objectively serious example of aggravated robbery. Both offenders are jointly liable for the invasion of Mr McNulty's home on a Saturday evening. Both were equally involved in the robbery, the motivation for which was the obtaining of drugs and money. In the face of resistance from the occupants of the unit, the offenders chose not to retreat but instead resorted to the use of weapons to overcome it. Each offender is responsible for having created the dangerous risk to the occupants that resulted in the death of Mr McNulty and the serious wounding of Mr Fitzgerald, even though only Mr Lee struck the blows that killed Mr McNulty. Neither offender sought personally to render assistance to the victims or to summon help for them from others.
With respect to both offences, the Crown submitted that the offences were objectively serious but that they fell just below the mid-range. The planning of the robbery offence was minimal, neither offender went to the unit with an intention to kill or even to inflict grievous bodily harm and the killing was not premeditated. The offenders certainly had an opportunity to retreat rather than to continue with the robbery and to inflict violence and they left the victims seriously wounded with no apparent regard for their welfare.
Mr Lee submitted that the offences were below the mid-range of objective seriousness. There was an absence of significant planning of any type. The intention to rob was formed after reaching the victims' unit. It was conceded that Mr Lee's use of the knife set him apart from his co-offender even though he did not plan originally to use it.
Mr Haines submitted to a like effect. His initial motivation was to purchase drugs. The plan to rob emerged in effect at the last minute. The robbery offence escalated quickly and unexpectedly. Mr Haines' knowledge that Mr Lee had a knife extended only to an appreciation of the fact that there was a possibility it might be brandished in the robbery without actual foresight that Mr Lee would actually use it to inflict an injury. Mr Haines had also expected that there would be very little resistance offered by the occupants upon the basis of his previous experience with them.
As I indicated in my remarks on sentence in R v Wran [2016] NSWSC 1015, the facts also reveal that there was initially not even a plan to rob. Once entry to the unit had been gained, the robbery escalated well beyond the scope of the offence to which each offender was a party. Indeed, it escalated unexpectedly and quickly in a manner that neither offender anticipated or foresaw.
I accept that the relevant absence of planning in this case reliably informs the level of objective seriousness of these offences. Mr Lee and Mr Haines attended the victims' unit in the confident expectation that by threat of force rather than its use, together with the advantage of surprise, they could secure their objective of stealing drugs and money from unarmed and compliant individuals. So deficient was the original plan that the prospect of any genuine resistance seems never to have been contemplated. The fact that it developed at all was completely contrary to Mr Haines' original confident prediction.
It is trite to observe that neither of these offences would have been committed if the offenders had not gone to the apartment with the intent to rob in the first place or had sensibly and quickly retreated from that plan when Mr McNulty and Mr Fitzgerald refused to cooperate with it in the second place. That needs to be borne in mind throughout, as well as the callous disregard for their victims, apparent from the fact that the offenders left the scene with concerns only for their own apprehension. However, in the scheme of criminal conduct of this type, the offences have not been made more serious by the existence of a conscious intention to kill or inflict serious injury. They have also not been made more serious by the uncontrolled manner in which the events escalated in the circumstances, to what the Crown accepts to have been the offenders' surprise. The Crown has neither proved nor sought to establish that Mr Lee intended to kill or to inflict serious injury upon Mr McNulty. He and Mr Haines are each guilty of murder notwithstanding. But the objective seriousness of their offending is less than if such an intention were evident.
In my opinion, these are serious offences but they nevertheless fall below the mid-range of objective seriousness for offences of their type.
[4]
Mr Lee
Mr Lee was born in August 1979. He is currently 37 years of age. He is one of four children of South Korean parents who came to Australia when he was three years old. His parents separated when he was 17 years old. Mr Lee had a distant relationship with his father, who was a businessman who travelled overseas for most of the year. Mr Lee rarely had any contact with his father, who used physical punishment as discipline from time to time. Mr Lee became used to the fact that he was distant from his father. His parents' separation resulted from his father's unexplained departure leaving his mother in considerable debt. Mr Lee had a positive relationship with his mother who he described, in a report to Danielle Hopkins, a psychologist, dated 24 September 2012, as a "good, traditional" Korean woman.
Mr Lee has a significant criminal history, dating back to his early teens. He has spent several periods in custody throughout his adolescence and adulthood. Offences for which Mr Lee has been imprisoned include aggravated break and enter, larceny, obtain money by deception, possess prohibited drugs, possess safe breaking implements, use false instrument with intent and deal with the proceeds of crime, among others.
Mr Lee would appear to have been an above average student academically but had difficulties adjusting to school. He was suspended on two occasions for fighting in primary school and expelled in year 7 for the same thing. He did not complete his high school education. He completed two years of an apprenticeship as a chef. He has no children.
Mr Lee began to consume alcohol on a regular basis from 12 to 16 years of age. He has been a daily cannabis user since the age of 12 years. He began to smoke heroin at the age of 13. This became a daily habit. He also used cocaine, becoming an intravenous user of cocaine at 18 years of age. He abused various prescription drugs such as Xanax and Rohypnol, which he used as sleeping aids between the ages of 15 and 33. He also used methamphetamine. He developed chronic difficulties with poly-substance abuse. Mr Lee had not, by 2012 at least, had contact with any mental health professionals or received a diagnosis of mental illness or been prescribed any psychotropic medication. I have not been provided with an updated psychological report taking account of any changes that might have occurred since 2012, or any information particularly taking into account Mr Lee's position or mental state since his arrest for the present offences.
By his own account, Mr Lee has led a life entirely consumed by his addiction to drugs and criminal behaviour directly and indirectly associated with it.
[5]
Mr Haines
In the case of Mr Haines, I was provided with a current psychological assessment in the form of a report from Dr Susan Pulman, psychologist, dated 31 August 2016.
Mr Haines was born in April 1985 and is currently 31 years of age. He is the eldest of five children. He has a significant history of substance dependence including heroin and cocaine as well as alcohol from his early teenage years. His childhood was difficult due to domestic violence and being raised by his mother who was by reason of mental illness unable to care for her children. He spent time in foster care. He had a troublesome relationship with his father who was himself substance dependent. Mr Haines was raised in a setting where substance abuse and antisocial lifestyles were normal. He developed problematic behaviours from a young age and lacked direction and guidance throughout childhood and adolescence. He was expelled from school in year 7 and quickly became substance dependent. He has only ever worked sporadically.
Mr Haines has an overall Full Scale IQ within the Borderline range in the Low Average to Average level of functioning. His working and information processing speed were found by Dr Pulman to be significantly abnormal relative to his other cognitive abilities. He has impairments in memory, visuospatial ability, planning and organising as well as mental flexibility, most likely due to traumatic brain injury and acquired brain injury from chronic long term intravenous use of heroin and cocaine and binge drinking. He requires ongoing psychiatric review and treatment.
Mr Haines has a criminal history dating from 1997 in the Children's Court. He has been imprisoned for aggravated break, enter and steal offences and stealing on a number of occasions. His criminal record does not contain any offences similar to either of the current offences. His only convictions for offences involving violence of any sort are for either assaulting or resisting police officers in the execution of their duty, for which sentences of imprisonment were imposed.
[6]
Pleas of guilty
The Crown conceded that the late pleas of guilty in each case by Mr Lee and Mr Haines were of some utilitarian value. The pleas were only days apart. The Crown contended that Mr Lee's plea should attract a discount of no more than 15 percent and that Mr Haines' plea should attract a discount of no more than 10 percent.
It does not seem to me that the relative timing of the pleas provides any reliable basis for distinguishing their value. In the case of Mr Haines it is apparent that, for reasons associated with his ability to appreciate or comprehend the basis of his liability for murder in the circumstances of this case, having regard to the fact that he committed no physical act that caused or contributed directly to Mr McNulty's death, some delays were suffered before this could be adequately explained and before he was able finally to understand his correct legal position. The same cannot be said for Mr Lee. However, in the final result a trial of some moderate complexity was avoided, together with the associated benefits to prospective jurors and witnesses, with the simultaneous general facilitation of the course of justice. A discount of 15 percent in Mr Lee's case seems to me accurately to reflect the proper value of his plea. In Mr Haines' case, I consider that a discount of 17.5 percent is appropriate as it is also necessary specifically to include in that discount an additional discount to reflect the limited value of his offer to assist the authorities. This is referred to next.
[7]
Offers of assistance
After their pleas were entered, each offender offered assistance to the Crown in the remaining case against their co-offender Ms Wran. Mr Haines agreed to provide a statement and to be interviewed by the Crown. The statement was provided to Ms Wran's lawyers. Mr Haines' assistance was not utilised by the Crown in the prosecution of its case against her.
Mr Lee made a later and conditional offer to provide assistance. The offer was not considered by the Crown.
The evaluation of offers of assistance is covered by ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1999. It was contended on Mr Haines' behalf that the Crown not only took a statement from him but apparently considered it to have been of sufficient value to serve it on Ms Wran's lawyers. That occurred before Ms Wran finally entered her plea of guilty. Mr Haines submitted that it would in those circumstances be appropriate to conclude that the assistance offered had some contributing impact upon negotiations between the Crown and Ms Wran and her ultimate decision to plead guilty.
Unfortunately, the evidence does not permit me to decide whether or not Mr Haines' offer of assistance was of any utility to the Crown, given its timing and content. The Crown was by then in negotiations with Ms Wran's lawyers and the offer of assistance was in part, at least, in conflict with other evidence upon which the Crown proposed to rely. There is in the circumstances also no suggestion that Mr Haines' custodial conditions will reflect his willingness to assist.
The Crown somewhat generously submitted that Mr Haines would in the circumstances be entitled to some small discount for this offer of assistance in addition to his pleas. Notwithstanding that concession, I have some difficulty accepting that any significant discount should apply. At the heart of a consideration of the value of an offer of assistance must at least be the hypothetical utility of the assistance that is offered. I have no material upon the basis of which to make any such assessment in this case. In so saying I accept and understand that it is not the case that offers of assistance that are not taken up, or which do not ultimately prove to be useful, are to be given very little or no weight: see, for example, what was said by Hunt and Badgery-Parker JJ in R v Cartwright (1989) 17 NSWLR 243 at 252-3 as follows:
"It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.
…
Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely cooperated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities."
However, as the emphasised word in that passage suggests, at least some preliminary or cursory assessment of the assistance seems to be necessary before its value can be determined. In this case I have nothing of the sort to go on. I am prepared to discount Mr Haines' sentence by an additional 2.5 percent to reflect the fact of his offer to assist the authorities, but I am not prepared to do so to any greater extent in the absence of any evidence beyond that fact.
[8]
Contrition and remorse
Mr Lee did not give evidence at the sentencing hearing. He provided me with a letter written by him in the following terms:
"I have written this letter to the court so I can express in my own words as best and as honest as I can just how truly sorry and remorseful I am that due to my actions a person had died and also another person was seriously hurt.
I know that my words are little comfort to Mr McNulty's family but I truly hope believe me when I tell them that I am just so sorry for the pain and suffering that I have caused them and wish there was something I could do or say to make things better but I know there is nothing. I would also like to let Mr Fitzgerald and his family know that I am so sorry for what he has gone through due to my actions. I would do anything to take it all back and change the outcome.
Your Honour, I am 38 years old now and have been using drugs since the age of 12 which means that I have been using drugs now for over 26 years and I know that due to my serious drug problem that's the main reason that I did what I did. I have lived a criminal lifestyle most of my life due to my drug problem. Sadly your Honour drugs have had a hold over me for so long which has ruined my life and I'm just sorry that I didn't wake up to myself sooner and changed my life.
Your Honour, during my sentence I plan to make sure that I do as many courses and programmes that I can so I will better myself to make sure that I have a very long look at myself and also reflect on what I've done and much pain I've caused to Mr McNulty, Mr Fitzgerald and also my own family."
Mr Lee's expressions of regret and remorse were not tested in cross-examination. It was not however suggested by the Crown that what Mr Lee has written should be disregarded as being insincere or disingenuous. I have given them as much weight as they deserve in the circumstances. Mr Lee's pleas of guilty are an acceptance of his responsibility for these offences and demonstrate some remorse in addition to what is contained in his letter. I am however ultimately left with the difficulty that Mr Lee's concern to avoid being cross-examined about his role in these tragic events has significantly occluded my ability to appreciate the genuineness of his expressions of sorrow.
Mr Haines also provided me with a letter in his own handwriting. It was in these terms:
"I wish more than anything that I could go back and change what happened that night, the only excuse I have for my actions is that my mind was clouded by the drug ice.
I know that this is a poor excuse when someone's life has been taken but it is the only excuse I have because I never meant for this to happen. It's been almost two years and I still have nightmares about what happened. I know that I have to live with my mistakes.
I just wish that I could show everyone that has been affected by my actions how ashamed of myself and truly sorry I am."
Mr Haines gave evidence at the sentencing proceedings. He confirmed and expanded upon the sentiments expressed in his letter. Mr Haines' pleas of guilty are also an acceptance of his responsibility for these offences and demonstrate some remorse in addition to that contained in his letter and elaborated upon in his evidence.
[9]
Prospects of rehabilitation
In the case of Mr Lee I have no expectation that he will avoid the prospect of reoffending when he is ultimately released to parole. He has led an unfortunate life chronically afflicted by drug use and criminal behaviour. His history of incarceration and reoffending does not confidently suggest that this pattern will change in the future. Against that somewhat pessimistic prediction is the fact that Mr Lee has never before spent long unbroken periods in gaol of the type he now faces, and his determination to improve his prospects through education has to be respected.
Mr Haines suffers from the difficulty that his intellectual and cognitive abilities are likely always to limit his progress both within and outside the prison environment. Mr Haines' limited capacity to acquire any new skills will constrain his progress in my opinion and reduce his practical access to courses and educational opportunities while in custody. In contrast, however, his relatively moderate criminal history would not in my view appear to present an insurmountable obstacle in the way of concluding that he has reasonable prospects of returning to life without crime in the future.
[10]
Disparity
Mr Lee carried a knife to the victims' unit and produced it at or about the time the offenders entered it. Mr Lee is directly responsible for the stabbing murder of Mr McNulty. By his plea, Mr Haines has accepted responsibility for the foundational offence during which Mr Lee killed Mr McNulty. The Crown submitted in these circumstances that it would be appropriate for there to be some disparity in the non-parole periods and the total terms of imprisonment to be imposed on Mr Lee and Mr Haines respectively for the offence of murder having regard to their roles.
On Mr Lee's behalf it was conceded, uncontroversially, that the authorities recognise that a distinction can be made upon the basis of separate and different roles. It was ultimately submitted on Mr Lee's behalf, however, that "there may be little differentiation in the total effective sentence as between the offenders". No further elaboration of that submission was made.
It was submitted for Mr Haines that I should in this context proceed to impose a shorter sentence upon him than upon Mr Lee.
[11]
Deterrence, punishment and retribution
In the course of my sentencing remarks when recently sentencing Ms Wran for her involvement in these events, I passed some particular remarks about deterrence. It is appropriate to repeat some of them here:
"[68] I was urged by the Crown to take account of the need to recognise general deterrence as an important aspect of the sentencing exercise. I have on more than one occasion expressed some personal concern about the role of general deterrence in formulating what is a proper sentence for offenders, having regard to what I consider to be the very real prospect that potentially similar offenders would be highly unlikely to notice. I also remain to be convinced that such prospective offenders would in any event be likely to give measured consideration to the consequences of their actions, far less a thoughtful review of the comparative criminal sanctions that might attend their apprehension.
[69] That is not to say that the Courts have no role to play in educating the community about the consequences of crime. I am however unconvinced that the length of sentences has much, if anything at all, to do with that process. Having regard to the particular circumstances of this case, the more important message, deserving of wide dissemination, is that drugs and drug addiction do not discriminate between or among sections of society. Every family in Australia today is a potential target for direct and vicarious disruption and sadness caused by crimes related to illicit drugs. The combination of mental illness and drug addiction do not in my experience respond well to either punishment or logic.
[70] By way of contrast, special deterrence may have a more important function in crafting the proper sentence for vulnerable individuals. That is particularly so in cases where some glimmer of insight appears to be evident. Conditional bonds and suspended sentences have an important role to play in such cases."
Mr Lee and Mr Haines are in differing degrees exemplars of this idea. Mr Lee has been imprisoned on many occasions for a wide series of offences in cascading degrees of seriousness. Mr Haines has also been incarcerated more than once but for less time than Mr Lee and over a shorter period. It is not easy to discern in their respective criminal histories any tangible indication suggesting the imprisonment of others has influenced their own criminal conduct. Indeed, the pattern of reoffending and reimprisonment suggests otherwise. Nor is there for similar reasons any evidence that either man was specifically deterred from reoffending by his own particular custodial history. Mr Lee was only released from prison shortly before these crimes were committed and was in effect sentenced to 6 months imprisonment for other offences dating from 13 August 2014 when he was arrested. Mr Haines had been sentenced to a non-parole period of imprisonment commencing on 12 June 2014 and was on bail for an offence committed on 26 February 2014. Each offender has previously had the benefit of drug rehabilitation programmes through parole conditions or Drug Court intervention.
What does appear to be clear is that these present offences were committed in circumstances where each offender was determined to obtain drugs for his own use. I have no way of knowing for sure, but it seems likely that these offenders gave no consideration at all to the consequences of their actions at the time. That is additionally so in this case where those consequences were unrelated to anything that had been consciously planned, but were instead consequences that exploded uncontrollably and unexpectedly in the ways that are now so tragically understood.
Punishment and retribution are in my view far easier concepts to understand as important aspects of the sentencing exercise. They also operate coextensively with deterrence as they serve to inform the imposition of what is a proper sentence in any particular case. What is very clear is that Mr Lee and Mr Haines are to be punished for their crimes in a way that marks out the community's disapprobation for the senseless death of Mr McNulty and the serious wounding of Mr Fitzgerald in the course of a robbery that went wrong.
[12]
Special circumstances
It does not seem to me that the statutory parole to non-parole ratio requires variation in either case as the periods of parole to which each offender is likely to be released will provide adequate opportunities for the type of post-release supervision that Mr Lee and Mr Haines might be expected to require.
[13]
Commencement of sentences
Mr Lee was sentenced in April 2016 to concurrent terms of imprisonment totalling 6 months for drug-related matters, commencing on 13 August 2014 and expiring on 12 February 2015. Therefore six months of his post-arrest custody for the current matters is referable to these other offences.
On 22 October 2014, Mr Haines was sentenced for the break and enter offence for which he was on bail at the time of the commission of the current matters. He was sentenced to a 6 months non-parole period commencing on 12 June 2014, which is not referable to the offences for which he is now to be sentenced.
Notwithstanding these matters, I propose to commence the sentences in these proceedings from the dates upon which each offender was arrested and taken into custody. The offenders each stand to be sentenced for serious crimes. The pernicious role of drug addiction is significant in each case. What would amount to minor variations to the commencement date of the sentences to take account of time being served for other drug related offences does not seem to me to be particularly important in these circumstances. I acknowledge that it would be otherwise if the offenders were disadvantaged by, for example, a failure to give credit for time served.
[14]
Accumulation and totality
The Crown emphasised that even though the offences arose out of the same criminal enterprise, there were separate victims and separate criminality. In those circumstances the Crown maintained that there should be some accumulation of the sentences to be imposed for each offence. The fact that one offence is the foundational offence for murder does not preclude a separate sentence being imposed: R v McGarritty (NSWCCA 10 June 1994 unreported).
It was conceded on behalf of Mr Lee that there should be some limited, partial accumulation between the sentences to give effect to the fact that there were separate victims.
I propose to accumulate the sentences for each offence in the case of both offenders by one year. The foundational offence is an objectively serious example of an offence of its type. The separate offences under consideration manifestly arose out of associated events. However, it is to an extent somewhat artificial to revisit those chaotic and frenetic events now with a view to apportioning penalties dispassionately by reference to the relationship that each offence bears to the other. It must necessarily be acknowledged that there were two victims who were the subject of these crimes. Mr Fitzgerald survives to contemplate the appropriateness of the sentences imposed upon the offenders for the way in which the violent events that occurred at his unit personally affected him. Where the foundational offence is separately charged, a sentence sufficient to recognise that fact both generally and in practical effect should be imposed. The extent of the accumulation for which I have provided is not intended in this case to detract from that fact.
I have also paid particular regard to the principle of totality. In my opinion, any greater degree of accumulation of the sentences than that indicated would distort the comparative value of the individual sentences in the context of the offenders' respective acts of criminality as a whole. I have therefore attempted to mark out the seriousness of the foundational offence without simultaneously according it disproportionate significance in all of the circumstances that give rise to these proceedings.
[15]
The proper sentence
As I have already observed, the Crown concedes and the offenders accept that these offences fall below the middle of the range of objective seriousness for offences of their type. It is, however, important to understand that such a conclusion is not a dismissive comment upon the sanctity of Mr McNulty's life or upon Mr Fitzgerald's right to live free from the threat of serious assault. It is no more than the need in a sentencing exercise to give expression in comparative terms to the seriousness of the crimes objectively assessed.
The law sensibly recognises that there is a difference between crimes that are cynically planned to exact revenge or achieve financial gain or that are associated with some aggravating feature such as gratuitous cruelty on the one hand and those that result from circumstances that are unanticipated or unexpected on the other hand. That difference is to be reflected in sentencing outcomes. Mr Lee and Mr Haines did not go to the Redfern premises intending to kill Mr McNulty or to assault Mr Fitzgerald. They went there in the feeble hope of scoring a small amount of drugs for their personal use which they expected to achieve without the use of actual force. They were mistaken. They remain, however, criminally responsible for what occurred but their culpability for murder, by way of example, is treated for sentencing purposes differently to a murder that was carefully planned or that was accompanied by features that are absent here.
I consider that Mr Haines' moral culpability for the murder of Mr McNulty is less than that of Mr Lee. Mr Lee went to the premises armed with the knife that caused the death. The ultimate use and physical control of the weapon was literally and figuratively in Mr Lee's hands. His decisions about its use were made without reference to Mr Haines. He is directly responsible for the stabbing murder of Mr McNulty. In contrast, Mr Haines' role in the murder of Mr McNulty and his liability for it are factually and legally derivative. Mr Haines went to the premises unarmed. He was not physically in contact with Mr McNulty at all. The difference between the respective involvements of the two men should be reflected in the sentences to be imposed upon each of them.
By reason of the offences for which Mr Lee and Mr Haines are to be sentenced, they are each a person who has committed a "serious violence offence" for the purposes of the Crimes (High Risk Offenders) Act 2000. That Act establishes a regime by which such offenders may become the subject of extended supervision orders or continuing detention orders before the expiration of their sentence. I am required by s 25C(1) of the Act to warn Mr Lee and Mr Haines of the existence of the Act and its application to them.
Lloyd Edward Haines, for the offence of armed robbery with wounding I sentence you to a fixed term of imprisonment of 5 years commencing on 12 August 2014 expiring on 11 August 2019. For the offence of murder I sentence you to imprisonment for 14 years and 8 months consisting of a non-parole period of 11 years commencing on 12 August 2015 expiring on 11 August 2026 with a balance of term of 3 years and 8 months expiring on 11 April 2030. The first day upon which you will become eligible for release on parole is 12 August 2026.
Michael Lee, for the offence of armed robbery with wounding I sentence you to a fixed term of imprisonment of 5 years commencing on 13 August 2014 expiring on 12 August 2019. For the offence of murder I sentence you to imprisonment for 17 years and 6 months consisting of a non-parole period of 13 years and 6 months commencing on 13 August 2015 expiring on 12 February 2029 with a balance of term of 4 years expiring on 12 February 2033. The first day upon which you will become eligible for release on parole is 13 February 2029.
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Decision last updated: 29 September 2016