R v Hines

The circumstances of the offence 10This is an intensely sad case. The citizens of Wilcannia had on the day before the murder buried a young man called Jason Wilson. Around the town groups of people had gathered to remember him and to mourn his loss. Two such gatherings were at 12 Hood Street (the home of Teegan Jones and the offender) and 13 Hood Street (the home of Owen Whyman). 11Some time around midnight the offender, who had had a great deal to drink, became agitated and attempted to get people at his home to leave. In the course of that activity he became engaged in an argument with his de facto wife. He assaulted her by throwing a chair which hit her and caused bruising to her back. The offender admits that offence, along with an offence two days earlier, and asks that that they be taken into account pursuant to the provisions of s 32 of the Crimes (Sentencing Procedure) Act. I indicate that I have taken those offences into account in determining the appropriate sentence to impose upon Mr Hines. 12The evidence was scanty as to what occurred between the time of the assault of Ms Jones and the time of the murder of her brother. There is no evidence to suggest that Mr Hines was in an aggressive frame of mind for that whole period. It was upon this basis that I came to the conclusion that the count should be severed. 13However at some time around 1:30 am an argument developed between Mr Hines and two of his sisters during which Mr Hines became abusive towards them. It seems that the argument arose because one of the sisters attempted to retrieve a mobile telephone from Mr Hines' house. For reasons that are unexplained and inexplicable, he became enraged. He used words of abuse, telling her to "get your black cunt out of my house". 14It is clear that by 1:30 am Mr Hines was, as he was described by the learned Crown Prosecutor in his closing address, "an angry man". Why he became so angry is a mystery to me. His anger appeared to be quite irrational and I have little doubt that it was fuelled to a significant degree by a combination of grief and alcohol. 15Alice Shepherd, the half sister who was involved in the argument with Mr Hines, was in a de facto relationship with the deceased at the time of his death. It seems that Mr Jones intervened in order to protect his partner. In any event the situation was soon out of hand. The evidence of precisely what happened at this point is confusing and contradictory but what is clear is that Teegan Jones and Alice Shepherd became involved in a physical fight which was described in various ways by the witnesses. That fight included Alice Shepherd throwing a can of Jim Bean bourbon and Aaron Jones throwing a bottle of Mishka vodka at Teegan. 16It was at about this time that Aaron Jones and Alan Hines came into conflict. It seems that each man was intervening on the part of their respective de facto partners. 17Within minutes Aaron Jones was dead. 18In the course of the confrontation between the deceased and the offender the deceased both threatened and abused the offender. The accused conducted his case partly on the basis that the words of abuse and threats would lead the jury to reduce the crime of murder to manslaughter either on the basis of provocation or on the basis of excessive self-defence. 19It is tolerably clear that the deceased said words to the effect of "don't be a big man mooch" and "I'll bash you" or "I'll bash the both of you." Some of the witnesses heard him say that the bashing would take place tomorrow. Teegan Jones gave evidence that poor Aaron Jones called the offender a "pussy". It seemed that her memory was that this occurred later in the incident. 20Almost immediately the offender ran across the road to his house and retrieved a kitchen knife. While the evidence is not certain, it seems that this involved running for something like 20 or 30 metres across the road, entering the kitchen, retrieving the knife and running back again. 21While the precise timing of events is unclear, the deceased at about that time went to the rear of 13 Hood Street and retrieved a large iron bar. That iron bar was something like a metre and a half in length and was part of a trampoline that had been dismantled and was lying against the fence at the side or rear of the premises at 13 Hood Street. 22Neither Mr Jones, with his one and a half metre iron bar, nor Mr Hines with his large kitchen knife thought it appropriate either to stay at their respective premises or to retreat from the area altogether. On the contrary they then approached one another outside the premises at 13 Hood Street. 23Once again the evidence is unclear as to precisely what happened but the preponderance of evidence is that it was the deceased, not the offender, who attempted to strike the first blow. 24I am satisfied that the deceased raised the iron bar either above his shoulders or to the side and swung the bar at the offender. I am satisfied (on the basis of some medical evidence) that the iron bar struck a glancing blow on the offender. It did not strike him hard and in swinging the bar the deceased fell to the ground. He was, in that moment, helpless and alone. 25There was a conflict in the evidence as to whether Mr Hines then fell on top of the deceased or whether he leapt down onto him and deliberately stabbed him. The defence argued that the "stabbing" occurred as a result of the offender falling or stumbling. In my opinion, the verdict means that the jury rejected the suggestion that Mr Hines fell. In any event, giving effect to the jury's verdict, I am satisfied beyond a reasonable doubt that once Mr Jones struck the blow with the bar and fell to the ground, that Mr Hines immediately jumped on top of him and stabbed him in the chest. 26Nobody at the scene knew that Mr Jones had been stabbed, let alone that he had been fatally wounded. The offender jumped to his feet, grabbed the iron bar and swung another blow up a blow at the deceased. Again the medical evidence supports the proposition that this blow made contact with the deceased's arm. There was a fracture to his right ulna (which is the bone in the forearm) and a slight abrasion to the skin in that area. It seems most likely that the injury was a defensive one in the sense that Mr Jones was attempting to shield himself from the blow which he must have seen coming. 27The offender then ran from the scene. Friends and relatives of Mr Jones went to his aid and when they rolled him over they realised that he had been stabbed. They attempted to stop the bleeding by using items of clothing. They were unsuccessful. A short time later, perhaps 15 to 20 minutes, an ambulance arrived. Mr Jones was showing no sign of life. He was taken by ambulance to Wilcannia Hospital where he was pronounced dead. According to the pathologist, death was caused by the loss of blood haemorrhaging from the heart. This was caused by a single stab wound.

Findings inherent in the jury verdict 28I have already said that the verdict of the jury means that the jury rejected the proposition that the stabbing was caused as a result of the offender falling onto the deceased. In summing up I directed the jury that unless it excluded that possibility, it could not convict the offender of murder. 29In the manner in which the trial was conducted the following findings are inherent in the jury's verdict of guilty of the crime of murder. 30FIRST, the jury must have found that the accused had an intention to kill or to inflict grievous bodily harm upon Mr Jones. Mr Wilson SC attempted to raise a reasonable doubt as to this issue by reference to the evidence of a child (SJ) who said that he had seen the offender slip and fall. SJ also said that he had not seen a stabbing motion. The case was put to the jury on the basis that it was an essential component of the Crown case that the action was a deliberate stabbing one and that if there was any doubt as to whether the offender had fallen it should find him not guilty of murder. Accordingly, the jury must have concluded that SJ's evidence of the fall was wrong or that he simply did not see the stabbing motion. Two other children (CJ and OW) described a stabbing motion. The jury must have reconciled that evidentiary conflict in favour of the Crown. I am bound to give effect to that finding. 31SECOND, the jury must have rejected the suggestion that the offender acted in self defence. Self defence was put to the jury on the basis of Mr Jones's threats to bash the offender and also on the basis of his action in swinging the iron bar at him. The defence placed reliance on the relative sizes of the men. The evidence showed that Mr Jones was significantly larger than the offender. The verdict means that the jury rejected self defence. In particular the jury must have rejected the assertion that the offender believed that it was necessary to do what he did in order to defend himself. No doubt, the jury was influenced by two significant matters of evidence. First, the uncontested evidence that the offender ran across the road and obtained a knife. Second, the fact that having swung the iron bar, the deceased fell to the ground and was at that moment defenceless. 32THIRD, the jury must have rejected provocation. Provocation was put to the jury on the basis of the words of abuse and threats that had preceded the two men arming themselves and also on the basis of the abuse and actions immediately prior to the stabbing. Plainly the jury rejected provocation as a defence. The most likely basis upon which the jury rejected the defence of provocation was in relation to the third component of that defence - namely that an ordinary person in the offender's position could have so lost their self-control as to form an intention to kill or inflict grievous bodily harm. Whilst care must be taken in attempting to divine the jury's reasoning by reference to its questions, it is consistent with that conclusion that the jury asked a specific question as to the meaning of "ordinary person". 33In any event, the evidence that Mr Jones conducted himself in a provocative manner is very strong, if not overwhelming. The evidence that the offender lost self-control was not overwhelming but the evidence was clear that his action followed immediately after the words of abuse and violent actions of the deceased. I am satisfied that the accused lost his self control as a result of the provocative conduct. In coming to that conclusion I am conscious of the fact that the offender was already angry.

Objective seriousness 34There is no offence more serious than murder. The law holds human life to be sacred. The taking of human life recklessly or negligently is met with condign punishment. When life is taken intentionally, or when it is taken with an intention to inflict really serious injury, the community expects that offenders will be subject to extremely lengthy terms of imprisonment. 35The seriousness of the offence is reflected in both the maximum penalty of life imprisonment and the standard non-parole period of 20 years. My observations as well as the statistics and case law show that there has been an increase in sentencing for murder since the introduction of the standard non-parole period. 36I take both the maximum penalty and standard non-parole period into account in concluding that the offence of murder is at the very top of the pyramid of offences contemplated by the criminal law. 37However, objectively this case has a number of significant matters of mitigation. 38First, the offence occurred over a very short space of time. Whilst it could be said that going and obtaining the knife showed a degree of planning and premeditation, I am of the view that any such planning or premeditation was minimal. In fact I am inclined to the view that there was no planning or premeditation at all. The offender snapped and lost control in the face of the abuse that he was receiving and the assault (as he perceived it to be) on his partner Teegan. 39Secondly, I must consider whether the offender intended to kill or to inflict grievous bodily harm. The prosecution submits that the offender acted with an intention to kill. It relies on the action in obtaining the knife and in stabbing Mr Jones with sufficient force to penetrate his sternum. It also relies on the fact that the offender has previously been convicted of murder and that the cause of death in the earlier homicide was a single stab wound to the chest. The prosecutor submits that Mr Hines was "in a unique position of well knowing the consequences of stabbing a person in the chest." Mr Wilson SC submits that I should not find an intention to kill. 40The fact that there was a single wound militates against a finding that the offender intended to kill. On the other hand the location and force of the stab wound gives rise to an inference that there was an intention to kill. The fact that he went to get the knife and the fact that he struck the deceased with the bar after the stabbing are, at most, neutral. Hitting him with the bar (again, on one occasion) suggests that the offender did not believe that he had fatally wounded the deceased. The state of the offender's intoxication and the suddenness of the act itself are also important considerations. In referring to the state of intoxication, I am not in any way taking it into account as a mitigating factor per se. Rather, it is one of many facts that have to be considered in determining whether there was an intention to kill. A critical point made by Mr Wilson SC is that there was ample opportunity for the offender to stab Mr Jones more than once and he failed to do so. 41The question must be resolved by circumstantial reasoning and by reference to the criminal standard of proof. If there is a reasonable inference or hypothesis inconsistent with the offender having formed an intention to kill, I should draw the alternative inference. 42Having considered the evidence closely, I find that the evidence does not exclude the alternative inference namely that the act was committed with intention to inflict grievous bodily harm rather than to kill. 43Accordingly, the offender will be sentenced on the basis that he intended to inflict grievous bodily harm. 44In Versluys v R [2014] NSWCCA 98 I said at [21]: "While every case will turn on its own facts, and while no categorical proposition can be discerned from past murder cases, it is generally the case that murders involving a lack of intention to kill and a lack of premeditation are likely to be less serious than those in which there is established premeditation and an intention to kill." 45I do not understand that to be a controversial proposition and the learned Crown Prosecutor has not contended otherwise. Indeed he referred to the case of R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [34] in support of the proposition that a murder involving an intention to kill is generally regarded as more serious than one involving an intention to inflict grievous bodily harm. 46The third significant issue in mitigation of the objective seriousness of the offence is that, while the jury rejected the legal defence of provocation, I am satisfied that there was a substantial degree of provocation on the part of Mr Jones and that accused lost control as a result. As I have said, I am of the opinion that the jury's rejection of the defence was based on its rejection of the suggestion that an ordinary person could have lost control and formed a murderous intention. 47There are many cases which indicate that provocation falling short of a defence under s 23 of the Crimes Act 1900 (NSW) remains and important matter of mitigation: see, for example, R v Bell (1985) 18 A Crim R 19; 2 NSWLR 466 at 485 (Lee CJ at CL); R v Heffernan [2005] NSWSC 739 and R v Borg [2010] NSWSC 951. Section 21A(3)(c) of the Crimes (Sentencing Procedure) Act provides that if the "offender was provoked by the victim" this is to be taken into account as a mitigating feature. 48The lack of planning and premeditation, the lack of intention to kill and the degree of provocation amount to significant matters of mitigation. The fact that the offender was drunk at the time does not. The offender's intoxication is relevant to an analysis of these three mitigating features but the fact that an offence is fuelled by alcohol is not a mitigating feature and in some circumstances is considered to be an aggravating feature: R v Loveridge [2014] NSWCCA 120 at [94]-[101] and see also s 21A(5AA) Crimes (Sentencing Procedure) Act. 49The prosecution submitted that the offence falls "slightly below the middle level of objective seriousness". Mr Wilson SC submitted that "the offence lies in the lower range of objective seriousness". In so far as it is useful or necessary to use relative terms such as mid range, upper range and low range, it is my view that the present offence falls substantially below the mid range of objective seriousness for the crime of murder. However, it is not in the lowest range. 50Having said that, there is no offence of murder that is not, by its very nature, extremely serious and requiring of extremely severe punishment.

Criminal and custodial history 51A disturbing feature of this case is that the offender has previously been convicted and sentenced for murder. While the circumstances were entirely different and while the offender was a juvenile at the time, it is the fact that the injury causing death and the manner in which it was inflicted was exactly the same as in the present case. That is to say the victim of the offender's previous murder charge died as a result of a single stab wound to the chest. 52The offender also has a record including a number of offences of violence. His criminal history commences when he was a child of 15 and he had a number of offences dealt with in the Children's Court. At the age of 17 years he was sentenced to a control order for assault and breaching an apprehended domestic violence order. The most serious offences on his record were committed in 1994 when he murdered his girlfriend who he suspected of being unfaithful and in 1996 when he was convicted of aggravated sexual assault. He received a minimum term of 2 years for the sexual assault and the sentence for murder commenced at the expiration of that period. In approximate terms it seems he was in custody for around 11 or 12 years between 1995 and 2006. He was released to parole in April 2007 but committed an assault on his partner for which he received a bond under s 9 of the Crimes (Sentencing Procedure) Act. He was also returned to gaol for a time because that offence was committed while on parole. His parole was revoked on other occasions based on allegations of assault. I note that the criminal history refers to only one proven allegation of assault since his release to parole although the custodial history suggests that there was another allegation. What happened to those is unclear although the prosecution accepts that it was not proved. 53It needs hardly be said that this criminal record disentitles the offender to leniency. It also makes it impossible rationally to come to a conclusion that he has good prospects of rehabilitation. 54The prosecution contends that the offender's criminal history should lead me to conclude that the offender presents a future risk of danger to the community and that this would lead me "to impose a sentence greater than that required by the objective seriousness of the offence alone". I will return to this submission in due course.

Family and personal history 55Tendered on behalf of the offender were a number of affidavits and reports that were prepared for his sentencing proceedings in 1995. In my estimation, that body of evidence goes a very long way to explaining how it is that the offender came to spend a large amount of his late adolescence appearing before the Children's Court in places like Bourke, Broken Hill and Lake Cargeligo. 56The affidavits were sworn by his Grandmother, Eileen Hines, his mother Susan Hines, his foster father, Peter Hines and his auntie (and foster mother), Josephine Wightman. Each of those people played a part in "rearing up" the offender. He moved between them from time to time and moved with their families from town to town. He lived at Wanaaring with his grandmother and mother for a time. His mother recalls that it was a tin house down the back of another family's house. There was no bathroom or water connected - they used the kitchen and bathroom of the other family. His mother said she used to drink a lot in those days. Her sister and mother used help look after Mr Hines when he was a child. 57He moved to the Bourke Mission and into a new house. This house had utilities. However, his grandmother said "it was a terrible life for the kids in Bourke". The family moved to Dubbo for a while when Mr Hines was about 7 or 8. They only stayed there for a few months before moving back to Bourke. His mother said they "didn't really settle down" and were back and forth between Bourke and Wanaaring. He lived between his mother, his aunty and his grandmother. He stopped going to school at about 13 years of age. 58Peter Hines gives a slightly different history but its central and critical features are the same. He recalled that the offender came to live with him and Joesphine Wightman when he was still a "little fella - couldn't walk". That was in Wanaaring and in a two bedroom tin hut. There was no electricity and the only running water was a tap outside. To take a bath, people went down to the river. To cook, they had an open fire outside. Not long after the family "got Alan" they moved to a bigger new house with "everything on - hot water, electricity". The family then moved to Bourke because Peter Hines' old mother was sick. They lived in a tin hut with no water and electricity. At some stage they got "a good house with everything on - electricity and hot water". 59I pause to note that the housing conditions that I am describing existed in a first world country in the late 1970s and early 1980s. 60A report of Dr Richard Furst was prepared to explore the offender's fitness to plead and the defence of substantial impairment. I accept the history provided in that report. A similar history was provided by the offender to an experienced psychologist, Ms Robilliard.The material in those reports is hearsay but it is generally consistent with the direct evidence from the offender's family. I accept as fact the history provided by the offender. 61The offender started drinking daily when he was just 14 years old. He was exposed to alocohol and some violence from an early age. There is little evidence of his obtaining gainful employment. This is not surprising given the towns that he was living in, the itinerant nature of his family life and his lack of education. However, he sometimes got work with the Commonwealth Development Employment Program (CDEP) and cleaned up the Bourke reserve. I note in passing, and with unqualified dismay, that I have been informed that this programme has recently been abolished.This information came from elders of the Kamilaroi people on a Judicial Commission visit to Walgett on 13-14 September 2014. The Kamilaroi elders expressed their deep concern at the closing of the programme that had provided youth in towns like Walgett, Wilcannia, Brewarrina and Bourke with a rare opportunity to do work of which they were justifiably proud. 62The case gives rise to a consideration of the recent High Court cases of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600. In R v Booth [2014] NSWCCA 156 I discussed those cases noting that each of them "gave rise to similar and profound issues concerning the sentencing of Aboriginal offenders who come from deprived, dysfunctional and marginalised backgrounds". The present case, and the evidence to which I have just referred, also gives rise to those issues in a stark and distressing way. I reproduce what I said in Booth from paragraph [20]: "20. The High Court emphasised in both decisions that offenders are not to be treated differently because of their ethnic or racial background. Unlike the situation in Canada, there is no legislative warrant to do so: contra R v Gladue [1999] 1 SCR 688, R v Ipeelee [2012] 1 SCR 433. 21. In Bugmy v The Queen French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said at [36]: 'There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.' 22. In Munda v Western Australia French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [53]: 'Mitigating factors must be given appropriate weight, but they must not be allowed 'to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.' It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.' 23. The reference to the 'principle stated by Brennan J' is a reference to what his Honour said in Neal v The Queen (1982) 149 CLR 305 at 326: 'The same sentencing principles are to be applied ... in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.' 24. Similar sentiments were articulated by Wood J in R v Fernando (1992) 76 A Crim R 58 at 63: '[I]n sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.' This passage was referred to with approval in Munda v Western Australia at [51]. 25. In Bugmy v The Queen the joint reasons at [37] commended the following observations of Simpson J in Kennedy v The Queen [2010] NSWCCA 260 at [53]: 'Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.' 26. The High Court observed at [37] that "an Aboriginal offender's deprived background may militate the sentence that would otherwise be appropriate" noting that the same principle applies to a non-Aboriginal offender. The joint reasons went on to say at [43]: 'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.' 27. And at [44]: 'An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.' The Court adopted remarks that had been made by Gleeson CJ in this Court in relation to the sentencing an offender with a mental condition: R v Engert (1995) 84 A Crim R 67 at 68." 63In helpful written submissions both the Prosecutor and Mr Wilson SC provided similar summaries of the effect of the High Court's decision in Bugmy v The Queen and Munda v Western Australia. 64I accept that the offender's personal history of social deprivation and early exposure to alcohol and violence explains to a significant degree his criminal history and the unfortunate path that his life has taken. The public, fully apprised of the circumstances, would understand that he is not an ideal vehicle through whom to send messages of general deterrence. In Munda v Western Australia the majority said at [55]: "It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion." 65In making those remarks I record that I am conscious of, and have applied, the provision in s 21A(5AA) of the Crimes (Sentencing Procedure) Act. I have not taken into account Mr Hines' self-induced intoxication as a mitigating feature. However, his history of deprivation and exposure to alcohol and violence are so intrinsically connected to his current predicament that his moral culpability is diminished. These matters are relevant to a proper assessment of an appropriate and just sentence in accordance with what has fallen from the High Court in both Bugmy v The Queen and Munda v Western Australia. 66On the other hand, the offender has now murdered two members of his own community, who no doubt lived similar lives of social deprivation, alienation and dysfunction. The case is one where both general and personal deterrence remain relevant in assessing the appropriate and just sentence for the terrible crime that he has committed. More importantly, sentencing is about more than sending messages. The state has a "long-standing obligation to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community": Munda v Western Australia at [55].

The pain and suffering of victims 67I turn to consider the pain and suffering that has been caused by the offender's actions. 68I have received evidence from Aaron's mother, two of his sisters and his partner of 10 years who is also the mother of two of his children. To Brenda Riley, Teegan Jones, Leteesha Jones and Alice Shepherd I say thank you for your courage in providing me with at least some understanding of the pain that this terrible crime has caused you and your loved ones. 69I have learned from you that Aaron Jones was a greatly loved son, father, nephew and uncle. He was a shy kid growing up and a gentle giant as an adult. He was a good footballer and a role model in the community. His youngest daughter (Ashantie) has a severe disability. She cannot speak or walk or crawl and she will need to be cared for throughout her life. Aaron was the only one who could make her make her laugh and smile. Even now, Alice says he sometimes "shows himself" to Ashantie and Ashantie will look over Alice's shoulder and smile. 70Mrs Riley, I acknowledge your grief. An American President (Dwight D Eisenhower) once said: "There's no tragedy in life like the death of a child. Things never get back to the way they were." And he was right. I hope in time you will find peace. 71Teegan, I acknowledge the pain that Aaron's death has caused you, your loss of trust in people and your judgment and the horrible memories of your father's death that all of this has brought back. 72Leteesha, you say that you will never get over Aaron's death. I can only hope that you do. If you follow through on your decision to get counseling, I hope that it helps. 73Alice, I wish you strength in caring for the children you had with Aaron. Cherish your memories of him and I hope he will continue to show himself to Ashantie and that his memory brings you and your children some joy. 74To each one of you: I know that nothing that I do in sentencing Alan Hines will ease your pain. I can only hope that you find some closure and that your grief and anger subsides over time. 75The law now allows me to take your statements into account in determining the appropriate penalty if I consider it appropriate. The harmful impact of this murder - like the harmful impact of all violent deaths - "is an aspect of harm done to the community": s 28 Crimes (Sentencing Procedure) Act. The Crown has asked me to take the impact on each of you into account in determining the appropriate penalty. This is because your harm is an aspect of the community's harm. Alan Hines, through his senior counsel and experienced solicitor, agrees that I should take it into account. He recognizes that Aaron was the father of two little girls, one of whom is severely disabled and that the whole community will be affected in the long run by the care required for Ashantie. He acknowledges that Wilcannia is a small, close-knit community and that Aaron was admired as a good football player and young member of that small community. 76I accept that your grief and the harm that you have suffered is an aspect of the harm done to the community. I accept that it is appropriate to take your suffering into account in determining the appropriate sentence and I will do so.

The new legislation 77It is appropriate that I say something, briefly, about the amendments to s 28 Crimes (Sentencing Procedure) Act. The legislation is in the following terms: "28. When victim impact statements may be received and considered (1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. (2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule. (3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. (4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community. (4A) Subsection (4) does not affect the application of the law of evidence in proceedings relating to sentencing. (5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate. (6) Despite any other provision of this section, a court must not consider or take into account a victim impact statement under this section unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor." 78Nothing in the legislation explains how a sentencing Judge is to determine when it is "appropriate" to take into account the harmful impact on a victim's family the "determination of the punishment" in a homicide case. Nor does it shed any light on when a victim's suffering is "an aspect of harm done to the community". I have read the second reading speeches and find no guidance there. Those speeches make it clear that the amendment is designed to "change the law" as it was declared by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76. However, the second reading speeches did not address the observation by his Honour (at 86) that: "It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another". 79This statement reflects the notion that all human life is precious and goes back to biblical times. The Bible said (Galations 3:28): "There is neither Jew nor Gentile, neither slave nor free, nor is there male and female, for you are alone in Christ Jesus." 80Pope Francis said in September last year "there is no human life more sacred than another". 81All civilised societies treat all life and all people as equal. As Thomas Jefferson put it in drafting the United States' Declaration of Independence: "We hold these truths to be self evident that all men are created equal ... and endowed with certain inalienable rights: that among these are life, liberty and the pursuit of happiness." 82This became the cornerstone of Dr King's "I have a dream" speech in 1963. 83In R v Dang [1999] NSWCCA 42 Adams J contemplated the position of a friendless man without a family and said at [25]-[26]: "Assume the deceased was friendless; assume the deceased had no family. It would be monstrous to suggest that that meant for some reason killing her should attract a lesser sentence than would be the case if, as is the situation here, she had a loving family and grieving relatives. Essentially, then, the reason that victim impact statements in cases involving death are not taken into account in imposing sentence is that law holds, as it must, that in death we are all equal and the idea that it is more serious or more culpable to kill someone who has or is surrounded by a loving and grieving family than someone who is alone is offensive to our notions of equality before the law." 84The reality is that homicide and other crimes where people are killed have devastating and long-term effects in every case. The exception may be a friendless or homeless member of the community. Is the law to regard a homeless, unloved person's life as less valuable than another's? This strikes me as being philosophically offensive. 85However, it is unnecessary for me to enter further into that debate in the present case. I am satisfied that I should accept the thoughtful, considered and most decent concession made by Mr Hines. I am particularly persuaded by the fact that the small and isolated community of Wilcannia is greatly affected by the needless cutting short of Mr Jones' life and by the fact that he brought joy to the life of a disabled child whose future care will now be much more reliant on the resources of the state.

Future dangerousness 86It is very difficult when an offender is to be sentenced to an extremely long sentence for a court to come to any conclusions, let alone any certain conclusions, as to the likelihood that they will offend again. As Kirby J said in Fardon v Attorney General (Qld) [2004] HCA 46; 223 CLR 575 at [124]: "Experts in law, psychology and criminology have long recognised the unreliability of predictions of criminal dangerousness." 87However, in the same case Gleeson CJ said at [12]: "No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles ... permit or require such predictions at the time of sentencing, which will often be many years before possible release." 88Plainly, the fact that this offender has previously been convicted of murder raises the question in a particularly stark way. The Crown contends that the sentence on the offender should be extended because he poses a future risk to the community. Mr Wilson SC says that before I could come to such a conclusion, I need be satisfied beyond reasonable doubt that the offender presents - or more correctly, will present - a significant risk to the community. The Crown says that the criminal standard does not apply to this issue. He relies on the case of R v SLD [2003] NSWCCA 310 and particular the judgment of Handley JA at [40] where his Honour said: "A sentencing judge is not bound to disregard the risk that a prisoner would pose for society in the future if he was at liberty merely because he or she cannot find on the criminal onus that the prisoner would re-offend. The view that the risk of future criminality can only be determined on the criminal standard is contrary to all the High Court decisions since Veen (No 1)." 89Mr Wilson SC relies on the fact that this is an "aggravating feature" because it centres around the provision in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act which refers to an aggravating feature as existing where an offender has a record of previous convictions, particularly in cases where an offender is being sentenced for a serious offence of violence and has a record for such offences. As an aggravating feature, Mr Wilson SC says the matter must be established beyond reasonable doubt. He relies on Olbrich v The Queen (1999) 199 CLR 270 and Aslett v R [2006] NSWCCA 360. 90The matter is not free of controversy as the following passage from R v McNamara [2004] NSWCCA 42 shows: "20. The raising of this issue led to debate about the standard of proof to be applied by a sentencing judge in order to make a finding of future danger to the community which an offender represents. Observations by members of this Court, differently constituted from time to time, are not entirely harmonious. 21. In R v Barton, unreported, NSWCCA 28 July 1995 Kirby ACJ (Dowd J concurring, Allen J in a separate judgment making no reference to onus) said: 'However, individual deterrence may take into account, in a general way, the need to protect the community from the propensities demonstrated, or the character manifested, by the particular crime which brings the prisoner before the court. It is important that this Court should say firmly that such use of deterrence should never be expanded into orders in the nature of preventive deterrence by the back door. Proof of matters relevant to deterrence are factors which may aggravate the seriousness of the case. The onus of establishing the nature of the deterrence alleged and the level of any propensity lies on the prosecution. It must establish contested matters to the criminal standard of proof. When I look at what Badgery-Parker J said in the course of his reasons I consider, with respect to his Honour, that he may have fallen into error. His Honour said this: 'The savagery of the killing suggests the need for a substantial sentence not only because of the need from the community point of view to punish such behaviour but because it is strongly suggestive that she is likely after her release to represent a source of danger to others. It is always difficult to predict dangerousness, and particularly to predict what such a person as this may be like when released into the community at the end of a necessarily fairly substantial period of imprisonment. The same lack of maturity and control which led to this killing could all too easily recur should she at some future time find herself under threat. The question of possible future dangerousness was examined at length in the course of the sentencing proceedings, and three psychiatrists gave oral evidence, Dr Barclay and Dr Lucas called on behalf of the prisoner and Dr Shand called on behalf of the Crown.' It seems to me that it is here that his Honour may have taken an approach which led him to take into account his perspective of future dangerousness by a standard which was less rigorous than that which the law requires.' 22. In R v Gieselmann, unreported NSWCCA 13 July 1998 Mason P (Wood CJ at CL and Sperling J agreeing) remarked: 'In considering the significance of the evidence touching on whether the applicant would remain a danger to others in the future by reason of her mental disorder, and for how long in the future, the learned judge reminded himself that the Crown must prove this matter beyond reasonable doubt.' 23. However in R v SLD [2003] NSWCCA 310 Handley JA (Sully and Buddin JJ agreeing) after reference to authorities including Veen v The Queen (No 1) 1979 143 CLR 458; Veen v The Queen (No 2) 1988 164 CLR 465; Chester v The Queen 1988 165 CLR 611; Bugmy v The Queen 1990 169 CLR 428; Mitchell v The Queen 1996 184 CLR 333 and Boughey v The Queen 1986 161 CLR 10 concluded: 'Thus a finding that a prisoner is likely to re-offend does not even require a finding that it is more probable than not that he will do so, let alone a finding that this has been established beyond reasonable doubt.' 24. Counsel for the respondent referred to The Queen v Olbrich 1999 199 CLR 270 where in the joint judgment (Gleeson CJ, Gaudron, Hayne and Callinan JJ) there was express adoption of what was said by a majority in R v Storey 1998 1 VR 359 that a sentencing judge "may not take facts into account adverse to the interests of the accused unless the facts have been established beyond reasonable doubt". 25. In regard to Olbrich, I agree with Handley JA's observation in SLD that the decision should be seen as limited to "facts" and that future probabilities or possibilities are not "facts" in any meaningful sense. 26. I record that the Court has been informed that application by the offender SLD for special leave to appeal to the High Court is presently pending. 27. Counsel for the respondent contended that the test is "whether the offender poses the risk of relevant future conduct" and that the correct approach is for a judge to determine whether he is satisfied beyond reasonable doubt that such risks exist. With respect to the contender, I do not find that formulation useful. 28. In the span of human affairs risk can always be postulated and of its mere existence there can be no doubt. For example, there is risk that an aircraft may crash, that a ship may sink, that motorcars may collide, that a person of previously unblemished character may commit a crime, that a convict may offend again. The elimination of risk is something which is viewable only from hindsight. The aircraft did not crash etc. The convict, to the end of his life, did not re-offend. What is of concern to a sentencing judge is, in my opinion, not the existence of risk - that I would see as a given - but a degree of risk. That does not require the certitude of proof beyond reasonable doubt nor the exercise of balance to determine what is more probable than not. 29. On that approach, references to proof beyond reasonable doubt or proof on the balance of probabilities become otiose. This is demonstrable by reference to the latter. That a mere "tilt" on the balance of probabilities would lead to one offender having the likelihood of future offence taken into account (adversely) but another, falling just short of a "tilt," being found unlikely to offend does not reflect an even handed application of justice. 30. It follows that I prefer the views expressed by Handley JA in SLD to the contrary expressions in Barton and Gieselmann." 91The fact that Mr Hines has a prior record for serious offences of violence is not in dispute. This includes, critically, a previous offence of murder. He has also been convicted of rape and offences of assault occasioning actual bodily harm. He has admitted two separate offences of assault occasioning actual bodily harm to be taken into account in these proceedings. This satisfies me beyond a reasonable doubt that the aggravating feature under s 21A(2)(d) is established. 92However, that finding does not change the assessment of the objective gravity of the present crime. It is that for which the offender is to be sentenced. 93I find difficult the assessment of the offender's future dangerousness and the extent to which I should, as the Crown submits, "impose a sentence greater than that required by the objective seriousness of the offence alone". I feel that I am bound by the preponderance of authority to approach the matter in the way discussed in SLD and McNamara. To be clear, I am unable in the face of the authorities to accept the submission that I must be satisfied to the criminal standard that Mr Hines presents a future risk to the community. Both parties urged on me the question posed by McCallum J in R v Gittany (No. 5) [2014] NSWSC 49 at 58: "The critical question is whether the prior offences inform the extent to which a sterner sentence may be required in order to meet the objects of sentencing, including deterrence and the protection of the community." 94Dr Furst has assessed the offender as being "probably in the high range" of risk of future violence. Ms Robilliard has administered a self appraisal test which placed the offender in the "High to Moderate risk of re-offending range". I find neither of those assessments of much help but I take them into account. 95Of more assistance is the analysis of Ms Robilliard who notes Mr Hines' deep regret at Mr Jones' death, his sound intelligence and inquiring mind and the absence of violent infractions during his period in custody. Ms Robilliard is of the view that he will benefit by learning vocational skills. I agree with the psychologist that his prospects are linked closely with his ability to abstain from alcohol or to control his drinking. Both experts agree that he will require structured programmes while in custody and will benefit from supervised support when he comes to re-enter the community. I also note that neither Dr Furst nor Ms Robilliard has found any evidence to suggest that the offender suffers from a psychiatric or other condition that makes him more prone to violence. This distinguishes the case from cases such as Veen v The Queen (No. 2)(1988) 164 CLR 465 and Potts v R [2012] NSWCCA 229. 96Taking all relevant factors into account I have reached the conclusion that Mr Hines presents a significant risk of committing further offences of violence particularly if he returns to similar patterns of drinking which preceded both this offence and the murder of his partner in 1994. 97However, for the reasons articulated in the submissions of Mr Wilson SC and the report of Ms Robilliard, he has some prospects of rehabilitation. In considering the protection of the community, I will do two things. First, I will slightly increase the total sentence that I would otherwise have imposed. Secondly, I will find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act and adjust downwards the custodial component of the sentence. In my view, the community's interest and protection lies in the rehabilitation of this man after he serves what will be a very long time in gaol. That objective will best be served by a longer than usual period of parole. The Crown Prosecutor fairly concedes this may be appropriate. 98I am conscious of the length of the parole period, or balance of term, that I will impose and have come to the conclusion as to the appropriate proportions after considerable and troubled contemplation. 99Further, risk assessments will obviously need to be made by the relevant authorities when the question of the offender's parole comes to be assessed. There is also the prospect that he will be subject to the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). I am required by statute to advise Mr Hines that he may be subject to applications for orders under that Act.

Contrition and remorse 100Part of my reason for coming to the conclusion that there is some prospect of rehabilitation is the fact that Mr Hines has shown a degree of insight into his actions and has also demonstrated some remorse. When he first went into custody, an officer observed that "he was coping okay but was very upset over the death of the victim". He has at all stages during these proceedings acknowledged his responsibility for the death of Mr Jones. He pleaded guilty to manslaughter on arraignment and his demeanour, as I observed it, during the reading of the victim's impact statement showed genuine empathy. I have taken this into account in assessing his prospects of rehabilitation. 101However, I am unable positively to be satisfied on balance that the mitigating feature under s 21A(3)(i) is established. Mr Hines has not fully accepted responsibility for his actions. He appears to deny the intention required for a conviction for murder. He described his action in getting the knife as no more than a "stupid" act.

The use of a weapon 102I accept the Crown Prosecutor's technical submission that the use of a weapon is an aggravating feature for the purposes of s 21A(2)(c). However, that is a matter of very little moment in this particular murder case. I agree with the comments of RA Hulme J in R v Aytugrul [2009] NSWSC 275 at [23].

Statistics and other sentencing cases 103I have received the statistics relating to offences for murder since the introduction of the standard non-parole period. They provide very little guidance due to the vast range of sentences imposed. 104Counsel have tendered summaries of cases that provide some guidance as to sentences that have been passed in cases with some common features to the present. In Versluys v R [2014] NSWCCA 98 at [35] I considered the sentences imposed in a number of murder cases where there was no premeditation and no intention to kill. 105The correct approach to such material was articulated by the High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 and by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [304]-[305]. In Hili and Jones, it was said at [54]: "In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'." As the plurality said in Wong; "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." 106R v Potts (supra) was a case involving somewhat similar offending although there were some particularly troubling aspects of the offence, some of which occurred after the victim was dead. The case concerned a dispute with a prostitute over money and, while the victim first produced the knife, the offender overpowered her. The offender had previously been convicted of manslaughter on the basis of substantial impairment. His significant psychiatric condition made him a high risk of future violent conduct. 107The closest cases are probably R v Anthony Jones [2012] NSWSC 1433, R v Beldon [2012] NSWCCA 194 and R v Barlow [2013] NSWSC 217. 108None of these cases are on all fours with the present case. There were different pleas and different subjective circumstances. None relieve me of the duty to synthesise all of the relevant evidence and information and to determine intuitively the sentence to be imposed for this most serious offence on this individual offender.

Sentencing 109I have taken into account the principles of sentencing developed by the common law over many years, the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, the maximum penalty and standard non-parole period and the provisions of s 21A of the Act. 110I have read the facts of the two offences on the Form 1. Each is a reasonably serious offence of domestic violence which, if charged alone, would carry a maximum penalty of 5 years when prosecuted on indictment or 2 years if dealt with summarily. In accordance with the Attorney General's Reference No 1 of 2002 [2002] NSWCCA 518 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, I have taken them into account in considering questions of retribution and personal deterrence. I have not added any additional penalty to the sentence specifically referable to them. I have been careful about this because the offences have formed part of my consideration of the question of future dangerousness which has resulted in a slight increase in the total sentence. 111But for the matters giving rise to a reduction in the penalty under s 22A, I would have imposed a total sentence of 25 years. I have reduced that by 1 year to reflect the degree to which the administration of justice has been facilitated by the conduct of the defence. By the standard operation of s 44 the non-parole period would be 18 years. I have found special circumstances for the reasons I have earlier identified and made a significant adjustment to the non-parole period. The non-parole period will be 16½ years and will be back-dated to the date that the offender went into custody. 112Before I pass sentence I wish to place onto the record my appreciation to the four legal practitioners who have appeared for the prosecution and defence. I have been greatly assisted, as was the jury, by their diligence and cooperation throughout the trial and sentencing proceedings. Each is to be commended. 113Alan John Hines for the murder of Aaron Jones you are sentenced to a non-parole period of 16½ years commencing on 19 February 2013 and expiring on 18 August 2029. I set a balance of term of 7½ years commencing on 19 August 2029 and expiring on 18 February 2037. You will become eligible for release on parole at the expiration of the non-parole period. 114Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act I advise you of the existence of that Act and the fact that it applies to you and to this offence.

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: 17 September 2014