R v Marcus John Lee

THE FACTS 11The Crown tendered, without objection, the following material on sentence: (a) a statement of agreed facts; (b) a report of Professor Lyons, Forensic Pathologist; (c) statements of a number of witnesses; and (d) a copy of the transcript of the offender's interview with police. 12Leaving aside three discrete matters with which I have dealt separately below, the facts are not in dispute and may be summarised as follows. 13In 2011, the deceased was in the habit of attending the Hamilton Station Hotel on most Saturday evenings, where she was a well known patron. At about 9.15 pm on Saturday 16 April 2011 the deceased walked to the hotel in the company of a friend, Nathan Hill, to whose premises she had gone earlier that evening. The offender arrived at the hotel at about 11:30pm. The deceased and the offender, who were known to each other having been in a relationship some years before, were observed to communicate at the hotel on what appeared to be a friendly basis. 14During the evening, the deceased left the Hamilton Station Hotel and walked to the nearby Kent Hotel with two other persons, one of whom was an acquaintance by the name of Darren Lawrence. She remained at the Kent Hotel with Mr Lawrence and another male for a short time before returning to the Hamilton Station Hotel, telling Mr Lawrence that the offender was "hassling her". Telephone records indicate that there were a number of calls made from the offender's mobile phone to that of the deceased in or about the early hours of the morning of 17 April 2011. 15In the company of the offender and Mr Hill, the deceased left the Hamilton Station Hotel at about 3.30 am on the morning of 17 April 2011 and returned to Mr Hill's premises, where she called a taxi. Mr Hill observed the deceased to be in good spirits when she left. The relevant booking records indicate that the taxi request was logged at 3:32am on 17 April 2011 in the name of Lee, and that the drop off was completed at 3:41am. A taxi driver told police that he had collected a young woman from Hamilton in the early hours of 17 April 2011, and was directed by her to go to "Hooker Street". That was the street in which the offender was residing at the time. 16Mr Hill tried to contact the deceased on her mobile phone on 17 April 2011 but was unable to do so, the call being diverted to voicemail. The last contact Mr Hill had with the deceased was when she left his premises in the early hours of the morning of 17 April 2011. 17The deceased was reported missing by her mother on Monday 19 April 2011. 18On 21 April 2011 the offender stayed with two friends, Elizabeth McGarry and Gregory Hinton. In the course of that stay the offender said to Mr Hinton: "I fucked up, I made mistake, I blacked out and I'm going to hand myself in for it and I'm probably going to see gaol for it." 19The offender also said to Ms McGarry: "I've done something really bad, I'll probably go to court for it, I have to hand myself in and I've got to pay for what I've done." 20Between about 21 April 2011 and 9 May 2011 the offender stayed with Ms McGarry and Mr Hinton intermittently. However, beyond what is set out above, he did not expand upon what he had actually done. 21On 23 April 2011 two persons, Robert Ireland and Christopher Banning,were working in the complex at which the offender was living, when they observed what they thought was blood on the floor. Mr Banning enquired of the offender what it was, and the offender replied: "Its blood from my Uncle's dog. It got hit by a car". 22Two days later, on 25 April 2011, the offender told Mr Ireland that his vehicle had been stolen. On the day before, 24 April, a resident of Hooker Street had observed the offender drive out of the complex in a white/cream coloured sedan. On or about the same date, residents living in the suburb of Lambton observed what was subsequently confirmed to be the offender's vehicle parked in Grainger Street. 23Between about late April 2011 and 9 May 2011, the offender made a number of statements, to both friends and members of his family, in which he made various admissions. On 28 April 2011 he had a conversation with Scott Longworth whom he had known for approximately 10 years. That conversation included the following: "Offender: I think I have done a bad thing. Longworth: What do you mean by that? Offender: I think I seriously hurt or killed someone. Longworth: Well what happened, what did you do? Offender: I caught someone stealing car parts from Chris' yard. Longworth: Oh, what did you do with the body? Offender: I can't tell ya. .... Longworth: Ok, so if you did do this where did you put the body? Offender: Well, I put it in the boot of my car. Longworth: So what happened again? Offender: Someone owed me money and they wouldn't repay me back so I bashed them up and lost it. Longworth: You're joking right? Offender: No Longworth: Do you want me to punch you now or later? Offender: Oh I deserve it. Longworth: So where is the car now? Offender: I drove it to go and dispose of the body but it broke down. Longworth: So is the car hidden or not? Offender: Yeah its well hidden." 24I should note that the offender's reference in that conversation to having caught someone stealing car parts was, in light of what he later told police, obviously untrue. 25On 28 April 2011 the offender had a conversation with Martin Elliott, whom he had known for some years. That conversation included the following: "Offender: Looks like I'm going to gaol. I can't say too much, the phone could be tapped. Elliott: What's the problem? Offender: I've murdered somebody, I've put the body in the boot of the Hyundai and dumped the car a couple of suburbs away. My boss and his girlfriend helped me clean up the scene. The boss knows all about it. The workshop had been closed up for a week because of what happened. No one has been coming to the shop. The boss put a car on the back of a tow truck and burnt it. All I am waiting for now is for the cops to find the car with the body in the boot. Elliott: What happened? Offender: I woke up and there was a person standing over the top of me. I thought something had been stolen and I scitzed out and I stabbed 'em and they were dead. I had to get rid of the body so I rang me boss and me boss came over and helped me clean everything up." 26As was the case with the earlier conversation, the references by the offender to the involvement of "his boss" were also untrue. 27On 6 May 2011 the offender had a conversation with his brother in the course of which he said: "I've fucked up...I've knocked somebody off...A person owed me money. I asked them for the money back that they owed. They turned around to go to their wallet and hit me on the head. Then I blacked out." 28On 8 May 2011 a resident of Lambton contacted police about an abandoned motor vehicle in Grainger Street. On the same day the offender's brother Michael received a message from the offender to the effect that the offender was proposing to "hand himself in" to police on the following day. Also on that same day the offender had a conversation with an aunt in the course of which he said: "I wanted you to hear this from me before you hear it on the news. I've done something bad. I've done something really bad. I'm going to hand myself in with Michael today. I'm sorry." 29On the afternoon of 9 May 2011 the offender attended the Newcastle Police Station in the company of his brother Michael. Upon arrival he spoke to an officer at the front desk and said: "I have spoken to a solicitor and I was advised to attend Newcastle Police Station because there is a dead body in the boot of a car and its parked at Lambton. I have been told not to say anything more until I have legal representation and can I speak to a police officer?" 30The offender subsequently participated in an electronically recorded interview with police. It should be noted that although the deceased had been reported missing some three weeks prior to the offender's attendance at the police station, and although there was obviously an ongoing investigation in relation to her disappearance, there is no evidence that the offender was a person of interest at that time or, if he was, that he was aware of that being the case. 31When asked to explain what had happened, the offender told police (at Q and A 116): "A The 16th, which was a Saturday night, me and Trisha came back from being at Hamilton. When she was in the premises at the industrial complex at Hooker Street I had asked her about some money she had owed me in the past. She called me a prick. I went to go to her bag to have a look in her purse to see if she had my money there, which she owed me, and I was struck in the head, and that is all what I can remember. Woke up in the early hours next morning, and Trisha Cobeanou was deceased on me floor, and I panicked. Q117 Yeah. Go on. A At that stage, with me being in panic not thinking clearly, I bagged up the body with duct tape and garbage bags, had it underneath the bed for that day until it was night-time and I put it in the boot of my Hyundai Lantra. Q118 Go on, mate. A The day before, I reported the Hyundai Lantra stolen. I had driven the vehicle from the industrial complex at Hooker Street towards Lambton way when the vehicle broke down. I pulled into a side street off, I am not quite sure what the name of the main drag which goes towards Jesmond, but I was on the main drag, and I pulled off in there into this little side street near Croudace Road, dumped the car there, and walked back to the complex. And I've just been out and about, just trying to get me head right." 32The offender again told police (at Q and A 243 and following) that he had an argument with the deceased about money which she had allegedly owed to him, and of which he had sought the return. When asked (at Q and A 251) how the argument had made him feel, the offender told police he was "angry". He then said the following: "Q252 Yeah. And do you recall any of the conversation, any of the words that were said to each other during this argument? A I think she called me a cunt, and at that stage I had hold of her bag, going to retrieve her purse out of her bag, to have a look to see if she had any money in there to pay me back, and she hit me in the head, up around me temple." 33The offender then told police (at Q and A 299 and following) that as a consequence of being struck by the deceased he had suffered "a severe migraine for a week and a half" as a consequence of which he saw "red dots all the time". He confirmed (at Q and A 305) that he did not suffer any visible injury, although he asserted (at Q and A 307) that the area where he was struck was "swollen". 34The offender then said the following to the police: "Q311 Do you remember... A"'Cause at that stage, I did have a bit of a rage in me 'cause I was upset that she had done this to me in the past, and that she was going to do it again. And when I got hit in the head I think that was just the final straw me body could take, and I just snapped and went to a different personality. Q312 Can I just clarify, when you say she'd done this to you before, do you mean that she borrowed money... A She has ripped... Q313 ... or ... A ...me off with money in the past... ... DETECTIVE SENIOR CONSTABLE ELLIOTT Q317 I'll take you back there. You just stated that you had a bit of rage in you, and you snapped, went to a different personality. What do you mean by that? A It's like it's a different side of me which I, I have never been able to remember what I have done when I have, am in that personality. I don't ... is there any paperwork or something which I can sign for you guys to have a look at me medical history or ... Q318 Yeah. A 'Cause youse, able to understand it a bit more better that what I can, explaining it youse... Q319 Yeah. A Because there's a whole heap of disabilities rolled into bloody one. Q320 So from that, are you saying to us that you're of the belief that you didn't fall down, and something else occurred as a result of being hit? A Yes. Q321 Yeah. And what do you believe it was that occurred? A I think I ended up snapping, and got violent. Q322 And when you say, got violent, what do you mean by that? A With me hands, fists. I don't know. I do different things. I could've picked up something. I don't know. That's what I mean. Q323 Yeah. A I do not have any memory of what happened from when I blanked out. Q324 Yeah. A But when I woke up, I panicked --- Q325 Yeah. A ---and, yeah". 35The offender was then asked by police what he remembered after waking up: "Q340 Mr Lee, what's the next thing you remember then? A I remember waking up the next morning, early hours, around half past 5, 6 o'clock. I had seen the body, body on the floor beside at the end of the bed, when I had woken up. I had panicked, got some big garbage bags, around 3 or 4 garbage bags. At that stage there was a bag on her head before I bagged her up fully. Q341 Uh-huh A Bagged her up, duct tape, put her underneath the bed, up against the wall so I'd and, yeah, I waited until dark until no one was in the complex and I put the body in the boot of my Hyundai Lantra." 36The offender told police (at Q and A 370) that the purpose of his actions as described was to dispose of the deceased's body. When asked (at Q and A 384) why he wanted to dispose of the body the offender said: "Because I had panicked, and I didn't know what else to do, whether to ring up the cops, if they were going to believe me story that I got hit in the head or, so I tried to get rid of it." 37The offender admitted (at Q and A 462) that he had reported his vehicle stolen in an attempt to conceal his actions, although he maintained that he was attempting to conceal his actions not from police but from a friend. When asked how he was attempting to dispose of the body the offender said: "Q475 So where were you intending to go when you, when you left the property with Trisha in the boot, where were you attending to drive to? A Bush Q476 And what were you intending to do once you got to the bush? A Dispose of the body. Q477 When you say, the body, who are you talking about? A Trisha Cobeanou. Q478 And, what would be the purpose of disposing of the body? A To try and clear my conscience. Q479 Is it also fair to say that you were going to dispose of the body to avoid police detection? A Yes Q480 Did you have an area of bush in mind? A Not really." 38The offender was also asked about his motivations for attending upon the police: "Q541 You say that you've then decided to come and tell us, to get your head right. What made you come in and tell us today? A What made me come in today was I've been thinking about it for a bit too long. I should've done something about it earlier. Q542 Yeah. A Thought it was about time that I did the right thing for a change, instead of just being a fuck-up all me life. Q543 Have you happened to see the media release where police are looking for a missing person by the name of Trisha? A No." 39Later in the interview, the police returned to the subject of the offender's state of mind: "Q602 OK. Mr Lee, I just want to ask you, when you said, and we're talking about the incident you said you went into a rage. I think I use your words there. A Mmm. Q603 Is that correct? A Yes. Q604 When you say, and I think you described earlier that you said this is something that, that does happen to you. A Yes. Q605 Can you tell us just generally --- A When its happened previously? Q606 When its happened, or any medical diagnosis that you've had in regards to that? A Going back, I think, 5 or 6 years ago, I had a run-in with the Rutherford boys out at Metford ...and all what I can remember of that day was being hit up around here, and that's it. I ended up being told from my friend and her auntie, I just, I, I just turned into a different person, like, someone who you wouldn't want to meet in a dark alley, put it that way. Q607 Alright. So you've indicated that this had happened to you before, this --- A Yes. Q608 ---this rage. I use your words, if that's alright. A And apparently I went up to the position where I had the butcher's cleaver and the claw hammer at the time, and lucky enough my friend's auntie had moved them, 'cause I would've 'em. Q609 Do you remember when this type of incident where you don't remember, you get, and I'll use my words, and you can correct me... A Blank out. Q610 ...if I'm wrong, where you blank you because you get so angry? Do you remember how long ago this first started happening? A This has been happening the majority of my life, fellas. Q611 OK. So have you sought medical or professional treatment in regards to these, these episodes? A I've tried to, but no-one will help me. I've tried to put meself in James Fletcher and they won't even admit me. ... Q616 And you indicated earlier in the interview, Mr Lee, that you're happy for police, you're willing to sign a form in regards to allowing us access to your medical records is that still the case? A Yes." 40On 9 May 2011, the badly decomposed body of the deceased, contained in plastic garbage bags, was located in the boot of the offender's vehicle parked in Grainger Street, Lambton. 41On removal of the plastic bags it was observed that the hands of the deceased were folded across her chest at the level of her breasts, such that her left hand lay above her right hand. The deceased's wrists had been bound together by duct tape. Over her head was a black plastic bag bound tightly to her face by circumferential duct tape which had been placed around her neck, and over which lay a leather belt which had been constructed into a noose with a granny knot, such that the granny knot lay in the centre of the belt on the left hand side of the neck. A second granny knot had been constructed at either end of the belt, and the belt buckle and tapered ends were located on the right hand side of the neck. 42Upon removal of the black plastic bag there was a sheet of cling film over the deceased's face. Placed in a "criss-cross" fashion over the front of the deceased's face and covering her eyes, nose and mouth were multiple pieces of grey duct tape. Upon removal of the duct tape from the deceased's face, a half calf length sock was revealed as having been placed in the deceased's mouth. 43At post mortem examination Professor Lyons identified three mechanisms all of which, in his opinion, could have individually led to asphyxial death. Those mechanisms were: (a) gagging of the deceased's mouth by the sock; (b) the application of a plastic bag, cling film and duct tape to the deceased's facial area, the plastic bag being held in place around the neck by duct tape; and (c) the placement of a leather belt around the neck. 44It is not possible to separate the effects that each of the items which were found affixed to the deceased's body would have independently played in causing an asphyxial death. I am, however, satisfied on the basis of the report of Professor Lyons that the deceased died due to the combined effects of neck compression, gagging and plastic bag asphyxia. 45Having killed the deceased, the offender placed her body in the boot of his vehicle, intending to dispose of it in an area of unidentified bushland. Having changed the registration plates on his vehicle in an effort to avoid detection, he commenced to drive to bushland but because his vehicle broke down en route, his plan for disposal did not come to fruition. The offender's vehicle was left abandoned on the side of a residential street, with the deceased's body left to decompose in the boot.

THE OFFENDER'S INTENTION 46It was submitted on behalf of the offender that in circumstances where "the factual basis for the offence comes entirely from the admissions of the offender" I should conclude, on the balance of probabilities, that he acted: (a) impulsively and spontaneously; (b) without planning or pre-deliberation; and (c) with an intention to inflict grievous bodily harm, as opposed to an intention to kill. 47The Crown, on the other hand, submitted that the evidence established beyond reasonable doubt, that: (a) the offender intended to kill the deceased; (b) the killing was not the result of a sudden loss of control or rage; and (c) the killing involved some degree of deliberation. 48As to the first of those matters, the Crown submitted that the evidence of the state in which the deceased's body was found, along with the evidence of the cause of her death, was inconsistent with the actions of a person who was simply trying to seriously injure another. He further submitted that such evidence exhibited a degree of effort having been expended by the offender, directed towards ensuring that the deceased could no longer breathe. 49As to the second and third of those matters, the Crown did not submit, to use the Crown's words, that I would be satisfied that the offender "lured" the deceased to his premises out of some pre-meditated intention, in circumstances where "everything was set up and ready to go". However, the Crown submitted that there was necessarily a degree of deliberation in what the offender had done, as evidenced by his use of the various items which were found to have been applied to the deceased's body. 50In my view, it is not correct to say that the offender's admissions to police constitute the sole evidence upon which I can reach factual conclusions in relation to the circumstances of the deceased's death generally and, in relation to the offender's intention in particular. As I have indicated, there is a detailed report of Professor Lyons in evidence which establishes that: (a) the wrists of the deceased were bound with duct tape; (b) a half length sock was placed in the deceased's mouth as a gag; (c) multiple pieces of duct tape were placed over the eyes, nose and mouth of the deceased; (d) a sheet of cling film was bound tightly around the head and neck of the deceased, and was bound at the neck with duct tape, over which was wrapped a knotted leather belt; and (e) over the sheet of cling film was wrapped a black plastic garbage bag bound tightly to the face by circumferential duct tape applied around the neck. 51I do not accept the submission advanced on behalf of the offender that the offender's actions in killing the deceased were spontaneous, nor do I accept the submission that in acting as he did, the offender intended to inflict grievous bodily harm upon the deceased, as opposed to kill her. 52In order to bind the deceased's body in the manner in which I have described, the offender was firstly required to obtain a number of separate items, namely the sock, the cling film, the duct tape, the belt and the plastic bags. It is obvious that having done so, the offender went to considerable lengths to utilise those items, a fact evidenced by the state of the deceased's body when found. 53In my view, the offender's utilisation of those multiple items evidences an intention on his part to ensure that the deceased stopped breathing. The numerous steps which were taken by him establish, in my view, substantially more than simply an intention on his part to restrain the deceased, or to inflict grievous bodily harm upon her, I am satisfied, beyond reasonable doubt, that in acting as he did, the offender intended to kill the deceased. 54On the basis of the same evidence, I am also satisfied beyond reasonable doubt that the offender's actions were carried out with some deliberation, although degree of that deliberation cannot be precisely determined. It was not suggested by the Crown that such deliberation constituted a planned or organised criminal activity, so as to render it an aggravating factor pursuant to s. 21A(2)(n) of the Sentencing Act. Indeed, the Crown submitted that there were no statutory aggravating factors at all.

THE REASONS FOR THE OFFENDING 55The more difficult question in the present case is what caused the offender to act in the manner in which he did. The offender did not give evidence before me on sentence. As is evident from the extracts of his interview with the police, he maintained that he had an argument with the deceased about an amount of money which was said to be owed to him, following which he "blacked out". He also told police that at one point he descended into what he described as a "rage". To the extent that he told police that he had argued with the deceased over money, that is, at least in part, inconsistent with some statements he made to other persons prior to attending upon the police. In the course of submissions Mr Fitzgerald confirmed his instructions that the offender could remember nothing more of the incident over and above which he had told the police. 56Although there were references in the interview to the offender providing an authority to enable police to obtain access to his medical records, no evidence has been tendered before me in the Crown case in relation to any mental health issue from which the offender may have been suffering at the time of his commission of the offence. Equally, no such material has been tendered in the offender's case. 57In circumstances where the offender's accounts of the incident have not been consistent, where he maintains that he "blacked out" such that he has no memory of the incident, and where he has not given, or tendered, any evidence before me, I am not able to reach any conclusion as to why the offender acted as he did. The reasons for his actions remain unexplained.

THE OFFENDER'S DISPOSAL OF THE DECEASED'S BODY 58I have already outlined the circumstances in which the offender disposed of the body of the deceased. The Crown submitted that these actions constituted an aggravating factor. On behalf of the offender, it was submitted that this was not so because his actions in this regard were "post factum". It was further submitted that such actions were limited in any event. 59It is well established that an offender's treatment of a deceased's body can amount to an aggravating factor: see for example Knight v R [2006] NSWCCA 292; R v Yeo [2003] NSWSC 315. This principle has been extended to cases where the treatment of a deceased's body by an offender did not involve any form of mutilation: R v Goundar [2010] NSWSC 1170; R v Dong [2010] NSWSC 1242. By its very nature, any such treatment will necessarily be post factum. 60In my view, the offender's treatment of the deceased's body, which on his own admission was carried out in an effort to avoid detection, is an aggravating factor. However, the degree of aggravation is obviously less than would have been the case had there been evidence of mutilation.

CONCLUSIONS AS TO OBJECTIVE SERIOUSNESS 61The Crown submitted that the offence was one to be regarded as falling within the mid range of objective seriousness. I did not understand Mr Fitzgerald to cavil with that general proposition, although he did raise some issue of precisely where, within that range, the offender's actions might be said to fall. 62In my view, taking all of the relevant matters into account, the offence is one which falls squarely within the mid range of objective seriousness, as identified by the parties.

THE OFFENDER'S SUBJECTIVE CIRCUMSTANCES 63As I have noted, the offender did not give evidence on sentence, nor was there any evidence given or tendered on his behalf. The evidence as to his background is limited to what is contained in his interview with police, namely that he is presently 32 years of age (having been born on 20 December 1979), that he was not employed at the time of commission of the offence, and that he has a son aged 13 with whom he was not residing at the time of the offence. I know nothing more about his background. In particular, no evidence regarding his educational or employment history has been tendered before me. Similarly I have not been provided with any medical evidence, be it from a treating medical practitioner or a medical practitioner retained for medico legal purposes, in relation to the matters raised by the offender in the course of his interview with the police. 64The written submissions provided by Mr Fitzgerald made reference to the fact that the offender has the continued support of his family. Those submissions were prepared in anticipation of such evidence being called on sentence, but this did not eventuate. Mr Fitzgerald explained that this was due to the fact that the offender had asked his family not to attend as he did not wish to expose them to any further stress over and above that to which they had already been exposed as a consequence of his offending. I accept that explanation. 65It is, of course, the case that an offender is under no obligation at all to place any evidentiary material before the court on sentence. At the same time however, the fact that the present offender has not done so renders it difficult for me to assess some aspects of his subjective case. 66The offender's criminal history is limited to: (a) an entry in 2002 in respect of a charge of goods in custody which was dismissed pursuant to s. 10 of the Sentencing Act; (b) an appearance before the Newcastle Local Court in November 2006 in respect of a charge driving whilst unlicensed, for which he was fined; and (c) an appearance before the Maitland Local Court on 6 March 2008 in respect of a similar offence for which he was also fined. 67Accordingly, the offender has no significant record of previous convictions. That is a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act. 68The absence of any relevant criminal history on the part of an offender may be a factor which is capable of pointing to a conclusion that he or she has good prospects of rehabilitation and is unlikely to re-offend. A plea of guilty may also be a factor capable of pointing in the same direction. However, in circumstances where the present offender has committed such a serious offence, and where the evidence does not permit me to reach any conclusion which might explain why he acted in the manner in which he did, I am unable to reach any affirmative conclusion as to his prospects of rehabilitation. 69For the reasons previously outlined, the commission of the offence was not part of a planned or organised criminal activity in the sense contemplated by s. 21A(3)(b) of the Sentencing Act. That is a further mitigating factor. 70There is no dispute that the offender pleaded guilty when the matter was before the Local Court. The Crown's written submission was that having regard to the utilitarian value of the plea it would be open to me to consider a reduction towards the upper end of the range and in the "vicinity" of 25%. However in the course of oral submissions, the Crown did not argue against the proposition that in circumstances where the plea had originally been entered before the Local Court, a reduction of 25% was warranted. In my view, there is no reason why the offender should not be afforded the benefit of a reduction of 25% on account of his plea of guilty in reflection of its utilitarian value, and I propose to take that course: see R v Thomson and Houlton (2000) 49 NSWLR 383. 71It was submitted on behalf of the offender that he has demonstrated contrition and remorse. Whilst the offender has not given evidence before me, counsel cited the offender's admissions to police, and his admissions to others prior to attending upon the police, as evidence of contrition and remorse. In Butters v R (2010) NSWCCA 1 Fullerton J observed (at [16]): "The applicant submitted, and correctly, that the prosecutor misstated the law when he submitted that s 21A(3)(i) of the (Sentencing Act) requires an offender who is claiming the benefit of remorse in mitigation of sentence to give evidence in the sentence proceedings and that in the absence of such evidence little weight ought attach to out of court statements of remorse by the offender. Contrary to the prosecutor's submission, there is no statutory requirement that an offender give evidence before remorse can be taken into account in the calculation of sentence. Furthermore, the prosecutor's reliance on R v Thomas [2007] NSWCCA 269 as authority for the proposition he advanced was in error. [17] On a proper construction, s 21A(3)(i) requires an offender to provide evidence that he or she has accepted responsibility for his or her actions and acknowledged any injury loss or damage caused by his or her actions or any reparation for such injury, loss or damage (or both), as a statutory pre condition to any reliance on remorse as a mitigating factor. The requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section. This much is clear from Thomas at [18] - [19] per Basten JA..." 72Some of the statements made by the offender to friends and family prior to his attendance on the police were, in light of what he later told police, not accurate. However, I accept that some partial admissions were made by the offender on those earlier occasions, and that in the course of his conversations with others he acknowledged his responsibility for the death of the deceased. Further, those statements were followed by more expansive admissions to the police. I accept the submission made on behalf of the offender that this is evidence of contrition and remorse which the offender is entitled to have taken into account in his favour. 73Quite apart from the offender's admissions, a further matter arises from the fact of his voluntary presentation to police. The evidence establishes that the deceased had been reported to the police as a missing person on 19 April 2011. Although there is no evidence before me as to what occurred after that, it obvious that some investigation had been commenced upon the deceased's disappearance being reported, and that such investigation was ongoing at the time the offender presented to police. The Crown submitted that in these circumstances, and having regard to the fact that it would have become evident (if it were not already so by 9 May 2011) that the offender was one of the last persons to see the deceased alive, it was inevitable that any investigation would have led to the offender. Accordingly, the Crown submitted that the offender's voluntary presentation to police should be regarded as a case of the offender having come forward to the police in recognition of, albeit before, the inevitable. 74It was submitted on behalf of the offender that his presentation to police amounted to the disclosure of an otherwise unknown offence and should "attract significant discount on sentence". It was submitted, in particular, that until the offender presented to police the deceased's death (although it might have been suspected) was unknown to the authorities, and that the Crown case was thereafter founded upon the offender's confessional disclosures. The decision in R v Ellis (1986) 6 NSWLR 603 was cited in support of that proposition. 75As I understood it, counsel for the offender ultimately accepted that the facts of the present case are markedly different to those considered by the Court in Ellis (supra). Moreover, there is some force in the Crown's submission that in circumstances where the deceased had been reported missing, and where she was last been seen alive in the company of the offender, there was an inherent likelihood that any investigation would have ultimately led to the offender being, at the very least, identified as a person of interest. 76However, it does not follow from those circumstances that the offender's voluntary presentation to the police is entirely irrelevant. Even in circumstances where lines of inquiry might ultimately have led to the offender, his voluntary surrender, and his subsequent admissions to police, are matters which he is entitled to have taken into account in his favour. In R v Hasan [2005] NSWCCA 21 Dunford J observed (at [22] - [23]): "[22] With all due respect to his Honour the applicant's admissions did not limit the significance or value of his pleas of guilty but considerably enhanced them. These were not mere pleas exhibiting a degree of contrition, but the applicant had voluntarily surrendered to police and confessed at a time when they were apparently not aware of his identity and, as his Honour said, if he had not done so he may never have been prosecuted for these offences. [23] This factor of itself entitled the applicant to some degree of leniency in accordance with the principles set out in R v Ellis (1986) 6 NSWLR 603. But, the facts of this case are very different to that in Ellis. There, the applicant had made voluntary disclosure of his involvement in armed robberies of which the police had no knowledge. Here, on the other hand, the police had information in respect of the robberies, they had identified and arrested his co-offender and there was a real risk, it would seem, that the co-offender may identify the applicant, particularly bearing in mind that he confessed after speaking to the co-offender. But he did voluntarily surrender and confess and is entitled to some recognition and leniency on that account." 77Mr Fitzgerald submitted that I should find special circumstances for the purposes of s 44(2) of the Sentencing Act. The matters relied upon in support of that submission were principally, the age of the offender, his plea of guilty and his disclosure to police. The Crown submitted that the evidence did not justify such a finding. In particular, the Crown submitted that there will necessarily be a number of years remaining at the end of any non parole period imposed. I understood Mr Fitzgerald to ultimately accept that to be the case, although he did not abandon the submission that a finding of special circumstances should be made. 78In 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 observed that the evidence in this case does not enable me to reach a definitive conclusion in the offender's favour regarding his prospects of rehabilitation. 79Further, it has been observed on several occasions that circumstances which are not properly regarded as being special should not be elevated into that category in order to support a finding pursuant to s. 44(2): see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]. 80In my view, the factors which are relied upon by the offender do not, either singularly or in combination, constitute special circumstances so as to attract the provisions of s 44(2). 81Finally, I should note that Mr Fitzgerald referred me, in the course of submissions, to the decisions in R v Bennett [2009] NSWSC 1392 and R v Day [2010] NSWSC 983. It was submitted by Mr Fitzgerald that these decisions involved, in some respects, factual circumstances which were comparable to the present case. To the extent that the accused in each of those cases pleaded guilty to an offence of murder there is some comparison to be drawn. Other than that, the circumstances of the offending in each of those cases were quite different to those in the present case. As I observed in the course of hearing submissions, each case turns on its own facts. Obviously, the particular facts of this case are those to which I must have regard in determining an appropriate sentence. 82The offender has been in custody since 9 May 2011 and the parties agree that any sentence should be backdated to that time. I record the fact that but for the offender's plea, the total term of the sentence would have been one of 24 years imprisonment.

THE TOTAL SENTENCE 83Marcus John Lee, for the offence of the murder of Trisha Cobeanou, you are convicted. 84You are sentenced to a non parole period of 13 years and 6 months imprisonment, commencing on 9 May 2011 and ending on 8 November 2024, with an additional period of 4 years and 6 months imprisonment commencing on 9 November 2024 and ending on 8 May 2029. 85The total term is one of 18 years imprisonment. 86You will be eligible for release on parole on 9 November 2024 and your sentence will end on 8 May 2029.

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