The offender's background
57The offender's father gave evidence before me. A statement prepared by him was admitted without objection and he was cross-examined by the Crown. The offender is now 26 years of age and was 24 years of age at the time of the commission of the offence. His parents separated when he was 12, at which time he remained living with his mother although his father saw him regularly. His father has since formed the view that the separation had a greater effect upon the offender than may have been appreciated at the time.
58The offender left school without completing Year 9 and was initially employed by his mother working in a nursery. His mother then formed a new relationship and moved to Queensland. The offender remained in NSW living what appears to have been a nomadic existence without a fixed address. At the age of 19 he moved back to live with his father. An attempt to attend TAFE for the purposes of obtaining his School Certificate was unsuccessful and he abandoned his studies. He obtained employment as a process worker and later as a fork lift driver before problems emerged in relation to his being able to retain his employment. This, it seems, was the first indication that the offender was drinking to excess. He obtained an apprenticeship as a cabinet maker before returning to his previous job as a process worker but fell into a routine of spending the entirety of his wages on alcohol. His difficulties with alcohol appear to have continued, largely unabated, since his late teens.
59The offender's father described the offender as "beside himself" and "a visual and mental wreck" when he first saw him following his arrest. He also gave evidence of the remorse expressed by the offender to him on more than one occasion since that time.
Medical evidence
60Tendered in the offender's case was a report of Anthony Diment, Consultant Psychologist, dated 3 December 2013. The offender's history to Mr Diment as to his upbringing was generally consistent with the evidence of his father.
61The history provided by the offender to Mr Diment also included an assertion that in his early 20s he had consulted a General Practitioner who "thought he had psychiatric problems" and who "said (he) might have schizophrenia". The offender told Mr Diment that he felt "bad" about that suggestion and ceased attending the doctor. No other medical evidence has been tendered to support these assertions.
62The offender also asserted that whilst in custody he had consulted a psychiatrist who "said (he) had bipolar" for which he was prescribed anti-depressant medication. According to the offender, the side effects of that medication caused it to be replaced by a form of anti-convulsant medication which, according to Mr Diment, is also prescribed in cases of Bipolar Disorder. No evidence from Justice Health was tendered in support of this history or treatment.
63Having conducted formal testing, Mr Diment concluded that the offender presented with DSM5 diagnostic criteria for the following:
(i)generalised anxiety disorder;
(ii)panic disorder;
(iii)persistent depressive disorder (moderate, chronic)
(iv)substance-related and addictive disorder (alchohol/cannabis)
64Mr Diment also expressed the view that the offender exhibited criteria consistent with a diagnosis of Bipolar Disorder. He appears to have based this opinion, at least in part, upon the history provided to him by the offender and, in particular, upon the offender's assertion that he is currently taking prescribed medication which is used to treat that illness. However, Mr Diment acknowledged that he would "require further psychiatric/medical opinion" in relation to this issue. In circumstances where the offender's history to Mr Diment in respect of his medical history is not corroborated, and given the qualification expressed by Mr Diment, I am not satisfied that the offender suffers from Bipolar Disorder.
65I accept Mr Diment's diagnoses of the conditions set out in [63] above. Although it was not suggested that the offender's mental state was causally related to his commission of the offence, it was submitted on his behalf that the court should nevertheless have regard to such matters on sentence. The Crown conceded that the offender's mental state was relevant in the overall assessment of his subjective case, but submitted that I would conclude that the source of the offender's current depression and anxiety was, in large measure, his present circumstances and, in particular, his incarceration. In those circumstances, it was submitted that general deterrence remained an important consideration.
66Even where an offender's mental state is not causally connected to the commission of the relevant offence, it may remain the case that such condition renders the offender an inappropriate vehicle for general deterrence (see R v Engert (1995) 84 A Crim R 67 per Allen J at 72). However, that is not to say that evidence of a mental disability inevitably leads to the conclusion that general deterrence is of less significance. In Engert (supra) Gleeson CJ said (at 68):
"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise".
67The decision in Engert was referred to by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 where his Honour (commencing at [177]) set out a number of principles relating to the sentencing of mentally ill offenders. More recently, the decision in Engert was expressly applied by the Court of Criminal Appeal in Iskandar v R [2013] NSWCCA 235. In that case, the Court determined that the sentencing judge had not erred in concluding that in the circumstances of that case general deterrence remained an important consideration notwithstanding the offender's mental illness.
68I am satisfied that general deterrence remains an important consideration in the present case, and that its importance is not lessened by the conditions diagnosed by Mr Diment. There remains, in particular, a necessity to make it abundantly clear that the unprovoked perpetration of violence by persons who are grossly intoxicated has no place in the community. That said, and although there is no evidence which would suggest that the offender's mental state renders his conditions of custody more onerous, I have taken that mental state into account in my overall assessment of his subjective case. Mr Diment expressed the view that the offender's depression and anxiety (and, if it exists, his Bipolar condition) required treatment, and that the offender would benefit from programs designed to address issues of drug and alcohol abuse. I have also taken these matters into account, along with the offender's reported expressions of willingness to undergo such treatment.
The plea of guilty
69The offender was first arraigned on 5 April 2013 at which time he entered a plea of not guilty. The matter was then listed for trial commencing on 12 August 2013. The matter came before the court again on 5 July 2013 at which time the trial date was confirmed. There was no suggestion on that occasion that a plea of guilty might be entered.
70The matter first came before me on 23 July 2013 for the purposes of ascertaining (inter alia) the proposed length of the trial. On that occasion, an indication was given that it was likely that the offender would plead guilty. The matter was adjourned until 30 July 2013, at which time the plea of guilty was entered. That was only two weeks prior to the proposed commencement of the trial.
71It was submitted on behalf of the offender that there had been indications prior to 23 July that the matter would not proceed to trial and that in these circumstances, the appropriate discount to reflect the utilitarian value of the plea was 20%. The Crown's position was that what might be described as a vague indication of a plea was given shortly before the matter first came before me on 23 July. However, the Crown pointed out that trial preparation continued until such time as the plea was entered on 30 July. In these circumstances, the Crown submitted that the range of appropriate discount was between 12% and 15%.
72It is well established that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10% - 25% discount on sentence. The primary consideration which determines where, within that range, a particular case should fall, is the timing of the plea (see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418, 419; [152], [154] and 160 per Spigelman CJ). A discount towards the bottom of the range is appropriate for late pleas unless there are particular benefits arising from the prospective length and complexity of the trial (Thomson at 418; [155]). In circumstances where the offender's plea was entered virtually on the eve of an estimated three week trial, a suggested discount of 20% is, in my view, wholly inappropriate. Bearing in mind that timing of the plea primarily determines where, within the range, a particular case falls, I take the view that the appropriate discount is one of 12.5%.
Remorse
73The actions of the offender in depositing the deceased's body at the home of his brother, after his request for assistance in disposing of the body was rejected, were not consistent with genuine remorse. However, as I have noted, the offender's father gave evidence that from an early stage following his arrest, the offender expressed his remorse for the offending. Those expressions have, according to the offender's father, continued. I formed the view that the offender's father was a truthful witness and I have no reason to doubt his evidence. I am satisfied that the applicant is remorseful and I take that into account as a mitigating factor.
The offender's youth
74The offender was aged 24 at the time of the offence. It was submitted on his behalf that whilst he was "not a child he nevertheless should be regarded as a youth and some allowance made in reduction of his sentence for the impulsiveness of his youth". I am unable to accept that submission. Whilst an allowance can, in an appropriate case, be made for an offender's youth as opposed to just his or her biological age (see R v Hearne (2001) 124 A Crim R 451 at [25]) the offender in the present case was clearly an adult at the relevant time. There is no evidence that immaturity, or for that matter impulsivity, played any part in his offending.
The offender's criminal history
75The offender has a criminal history dating back to 2005. There are some offences of violence, and others which are obviously alcohol related. In particular, and as previously noted, he was dealt with in 2008 on a charge of being armed with intent to commit an indictable offence and was given a bond under s. 9 of the Sentencing Act, which carried with it, in effect, a condition that he address his drug and alcohol addiction. By virtue of his criminal history, the offender is not a person of prior good character and is not entitled to leniency on that basis.
The offender's prospects of rehabilitation
76As I have previously noted, Mr Diment thought that the offender required treatment to address his mental state, and thought that he would benefit from undertaking remedial programs. He reported that the offender had expressed a willingness to undertake such treatment. The offender's prospects of rehabilitation are necessarily dependent, at least in part, upon him successfully addressing his alcohol addiction. Although he has expressed a willingness to undertake treatment, it is of concern that he has previously been given the benefit of a bond designed to address that very issue. The commission of the present offence makes it clear that his efforts on that occasion fell short of what was required. In these circumstances the offender's prospects of rehabilitation remain uncertain.
The commencement date of the sentence
77The offender was arrested on 4 May 2012 and was refused bail. There were, at that time, warrants for his arrest in respect of other charges including escaping from lawful custody as well as firearms offences. Following his arrest for the deceased's murder, he was sentenced in respect of those outstanding matters. Those sentences expired on 3 December 2013. In those circumstances, the Crown submitted that the sentence in respect of the present matter should commence on 4 December 2013. It was submitted on behalf of the offender that if such a course were taken a finding of special circumstances should be made.
78In my view, there is no reason why the Crown's submission as to the starting date should not be accepted. As to the submission made on behalf of the offender, circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]). I have already reached the conclusion that the offender's prospects of rehabilitation are uncertain. Accordingly, I do not find special circumstances. The period in which the offender will be on parole will be significant in any event.
79In sentencing the offender I have had regard to the provisions of s. 54B of the Sentencing Act as amended by Schedule 1[3] of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act NSW 2013 ("the Amendment Act"). In particular:
(i)I have taken into account the applicable standard non-parole period as required by s. 54B(2); and
(ii)I have set out above my reasons for the sentence I propose to impose as required by s. 54B(3).
ORDERS
80The offender is convicted.
81The offender is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 4 December 2013 and ending on 3 June 2031, with an additional term of 5 years and 10 months imprisonment, commencing on 4 June 2031 and ending on 3 April 2037, a total sentence of 23 years and 4 months imprisonment.
82The offender will be eligible for parole on 4 June 2031.
83The total sentence will expire on 3 April 2037.