Mitigating Factors
55As I have repeatedly explained the offender is entitled to a discount on the sentence that would otherwise be imposed because he pleaded guilty at the first available opportunity; s 21A(3)(k) and s22 Sentencing Act. This is because of the utilitarian value of the plea. Contrary to the Crown's argument in the present case, this utilitarian value is not reduced to take into account the strength of the prosecution case as a factor inducing the plea: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32]). Nor is there any component in this discount for remorse. In due course, I will allow the offender the usual discount for a plea entered at the first available opportunity of 25 per cent.
56I turn then to the consideration of remorse. The Crown argued that I should not be satisfied on the balance of probabilities that the offender is remorseful. At best the evidence, such as it is, was said to be equally consistent with him feeling sorry for himself and regretting his present circumstances. I am not persuaded by this argument. It seems to me on the evidence that he accepted responsibility for his crime immediately, and in my view, this is relevant to remorse. He rang his uncle and informed him that he had done something bad to his wife. He cuddled his children, I infer to comfort them and say goodbye. He did not ring the police, but I accept this was because of his bad English. He clearly knew they were going to be called. When they arrived he did not try to hide what had happened, and, in my judgment, co-operated fully with them in the interview process even if he could not fully articulate the number of times he stabbed Ms Batirau. As I have said, I think there were difficulties with communication. The interpreter provided was not a trained, skilled, official interpreter but an ordinary member of the community doing his best to help.
57He expressed remorse to Dr Furst. In my view, it is not to the point that Dr Furst refers to this as "some remorse" at one point in his report. In his conclusions Dr Furst did not so qualify it. The offender said that he was sorry for what he did. He described it as an accident. In using this expression he was not downplaying his responsibility for a dreadful crime. Rather, as I heard during the proceedings on sentence, the word translated from Fijian into English as "accident" does not carry the English meaning of an untoward, unlooked for, or unintended event. It simply means an event that was not planned. I accept this explanation. Moreover, I have found, as the Crown also accept, that the offence was not planned nor premeditated.
58An affidavit by the offender's uncle was read. He said that the offender said to him "uncle, can you come and look after the children, I have accidentally done something to [Ms Batirau]".
59The translation of a letter, and it's Fijian original, from the offender was tendered. In his letter, the offender refers to his wife as his "beloved" and "the mother of his children". He said "I do not want to do to my wife anything such as happened that day". He asked for forgiveness from his children and from all who were present in Court at the time of the proceedings on sentence. He asked the Court to forgive him.
60Of course, forgiveness is beyond the power of the Court. But I took those statements together with the other evidence I have referred to, on the balance of probabilities, as evidence of the genuine expression of remorse on the part of the offender.
61It was argued on behalf of the offender that he was provoked by Ms Baitrau's insult. Although not mentioned to the police, I accept the evidence of the offender's uncle that the offender told him about the insult. I am not persuaded that what is said about the insult is a recent invention. On the balance of probabilities, I accept that it was said and I accept the evidence of the uncle that in Fijian culture, such a statement is very insulting because it offends the parents as well as their offspring. I accept the statement was offensive, but I am not satisfied on the balance of probabilities that it was provocative in the statutory sense. Rather, the explanation for what happened lies with the offender's changed circumstances and the changed dynamic of their relationship. The previous history of some violence cannot be overlooked. I find that the offender was not provoked by the insult. Rather, he seems to have lost a degree of control because he felt threatened, especially in his changed circumstances, by the idea of his wife leaving him and taking the children with her.
62That the offender was generally a person of good character is of less significance in a murder case because of the inherent seriousness of the crime of murder, but it should not be overlooked. Moreover, I am persuaded that the offender is unlikely to re-offend. There is no mental disorder suggesting he might be a risk to the community upon his release. His acceptance of his guilt and his expression of remorse are genuine, as I have said. As one might expect, having regard to his previous character, he has conducted himself well in custody and attends church services each Sunday. I accept the opinion of Dr Furst that he has good prospects of being successfully rehabilitated.
63Before turning then to the imposition of the sentence I consider appropriate, I should say something about the argument advanced on behalf of the offender that I should make a finding of special circumstances. It is argued that I should find special circumstances "because the offender will require re-adapting to society on release and a longer period of supervision would benefit both the offender and the community in light of issues identified in the psychiatrist's report". I am not satisfied that special circumstances have been demonstrated on this ground. I have taken the psychiatrists' views into account in mitigation of the sentence already. Because of the length of the sentence I will impose, the statutory non-parole period is likely to provide an adequately long period of supervision for readjustment or readaptation into society if the offender is released on parole when eligible.