R v Michael KUTSCHERA

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Apps v R [2006] NSWCCA 290 Knight v R [2006] NSWCCA 292; 164 A Crim R 126 Murnin v R (Court of Criminal Appeal, 16 August 1985, unreported) CASES CITED : R v Hall [2001] NSWCCA 202 R v Holton [2004] NSWCCA 214 R v Nguyen [2007] NSWCCA 363; 180 A Crim R 267 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES : The Crown Michael Kutschera

COUNSEL : P Barnett SC (Crown) P Winch (Offender)

SOLICITORS : Director of Public Prosecutions (Crown) Nicolas Moir & Associates (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

REMARKS ON SENTENCE 1 HER HONOUR: On 10 September 2008 the Crown presented an indictment charging the offender, Michael Kutschera, with the murder of Lukas Gleeson. The Crown alleged that he murdered the deceased by deliberately driving over him as he lay prone on a footpath in Sydney Street, Muswellbrook in the early morning of 21 July 2007. The offender entered a plea of not guilty. On 24 September 2008 the jury convicted him of murder. 2 The forensic and scientific evidence established that it was the offender's Nissan Patrol that killed the deceased. The defence did not challenge that evidence. The single issue in dispute at the trial was whether the offender was the driver of the Nissan Patrol. 3 The defence case was that a man, bearing an uncanny likeness to the offender, took the Nissan Patrol from where it was parked at the rear of the offender's home in Sydney Street at around 2.50am on 21 July 2007, drove it a short distance towards where the same man had earlier been involved in a fight with one of the deceased's friends and then, after killing the deceased, drove back to the offender's house, washed the front wheels of the car with a view to removing any evidence that may have associated the car with the murder, and left. 4 The offender gave evidence that he was not that person and not the person who was involved in the fight in Sydney Street. He said that when his car was taken and used to kill the deceased he was not at home but out walking. 5 By its verdict the jury must be taken to have rejected the offender's evidence as untrue. The pre-trial proceedings

6 On 25 August 2008 the Crown presented an indictment jointly charging this offender and Adam Newbold with the deceased's murder. Both men entered pleas of not guilty. This offender then applied for a separate trial on the basis that were he to be tried jointly with Mr Newbold, highly prejudicial and inadmissible evidence would be introduced and that an unfair trial would result. That evidence consisted of a lengthy record of interview in which Mr Newbold nominated the offender as the driver of the Nissan Patrol and recounted, in detail, the events that culminated in the deceased's death. He gave a graphic account of seeing the deceased killed and what the offender said both at the time that he drove over the deceased and afterwards. I directed that the two men be tried separately and, since it was the Crown's intention to try this offender first, I directed that there be no publication of the pre-trial proceedings or their outcome. 7 On 9 September 2008 Mr Newbold was re-arraigned before me and entered a plea of not guilty to murder and not guilty to a charge of affray laid pursuant to s 93C(1) of the Crimes Act 1900. He entered pleas of guilty to failing without reasonable excuse to provide information to police to secure the apprehension and prosecution of this offender in relation to the death of the deceased contrary to s 316(1) of the Crimes Act, and an assault occasioning actual bodily harm of the deceased contrary to s 59(1) of the Crimes Act. The Crown accepted his pleas of guilty in full discharge of the indictment. In passing sentence in accordance with the provisions of s 10 and s 10A of the Crimes (Sentencing Procedure) Act 1999, I took into account the fact that Mr Newbold agreed to give evidence against this offender at his trial, consistent with his account to police on his arrest. The facts 8 On the evening of 20 July 2007 the deceased met with a number of his friends at the Railway Hotel in Muswellbrook to celebrate the 18th birthday of a young woman. The deceased arrived with Tony Matthews. The offender and Mr Newbold also went to the Railway Hotel that night. They had known one another in a work-related capacity over the previous twelve months but did not share anything other than a casual friendship. This evening was the first occasion that they had socialised together. Although the offender, Mr Newbold, and the deceased and his party of friends were together in the hotel over an extended number of hours they did not intermingle as a group.

9 At some point in the evening the deceased confronted Mr Newbold over some unwanted attention he was showing the young woman whose birthday was being celebrated. She was also Michael Matthews' girlfriend. Michael Matthews is Tony Matthews' younger brother. One of the deceased's friends intervened and the matter was apparently settled without the argument descending into any violence. I am satisfied that the offender was not involved in the incident. I am also satisfied that he did not know the deceased or his friends.

10 The hotel closed at around 2am. The offender gave evidence that he left well before closing time and walked home alone, where he remained for a short time before leaving to visit his girlfriend. The jury must also have rejected this evidence as untrue. I am satisfied that he left the hotel at or around closing time and that once outside he was involved in a minor incident with another patron in the course of which he was punched to the face by Tony Matthews. Mr Newbold intervened on his behalf and they walked away together in the direction of Sydney Street.

11 As the offender and Mr Newbold were making their way along Sydney Street in the direction of the offender's home, they were verbally and then physically accosted by the deceased, Tony Matthews and two other men who approached them from behind. Although it is not clear whether the deceased was the aggressor in a physical sense, it would appear that the source of the renewed conflict was Mr Newbold's behaviour earlier in the evening and that either the deceased called on the others to support him in confronting Mr Newbold, or the other men took it upon themselves to assault Mr Newbold in defence of the deceased. At this point, the offender became embroiled in the fight either defending himself against a renewed attack by Tony Matthews, or defending Mr Newbold, or both. I am satisfied that Tony Matthews, the deceased and the two other men were both well affected by alcohol at this time. I am also satisfied that Mr Newbold, on his own admission, was well affected by alcohol. I am not in a position to make any positive finding as to whether, or to what extent, the offender was affected by alcohol.

12 In the course of the fight the offender was again punched to the face by Tony Matthews. This time he had his head forced into an electricity box. Mr Newbold managed to wrest himself free of his attackers and ran off along Sydney Street. The other two men pursued him. He hid in a house in a side street. His attackers did not find him and they left the area. It would appear that soon thereafter the offender managed to escape from Tony Matthews and ran off along Sydney Street directly to his house, at number 98 Sydney Street, about 300 metres away. Once there he got the Nissan Patrol and headed back along Sydney Street at high speed.

13 Meanwhile Tony Matthews and the deceased continued to walk down Sydney Street. They left the footpath a short distance from where the fight had taken place to urinate in a side alley. 14 The deceased emerged from the alley before Tony Matthews at which time, and it would seem quite coincidentally, Mr Newbold also emerged from the nearby side street where he had been hiding. The two men confronted one another outside the Sydney Tyre Centre. The yard was not lit but there was a streetlight close by. Despite what I am satisfied were Mr Newbold's attempts to bring the dispute to an end by the offer of a handshake, the deceased swung at him. Both men fell or wrestled each other to the ground in the process of which the deceased's head struck the footpath. Mr Newbold succeeded in gaining the advantage over the deceased by pinning his shoulders to the ground. The two men were in this position as the offender drove up Sydney Street in the Nissan Patrol. Did the offender intend to kill the deceased?

15 Whatever the offender's intentions might have been in getting his car and driving back along Sydney Street, there is nothing to suggest that he had any particular animus towards the deceased. At worst he may have intended a retaliatory attack on Tony Matthews as the person who had assaulted him twice within the space of less than an hour. Importantly, when he ran off and when he returned with the car he could not have known there was any resumption of the conflict between the deceased and Mr Newbold. I am further satisfied that it was only when he saw the two men fighting on the footpath (and likely identified Mr Newbold as one of them) that he made the decision to involve himself, and to use the car as a weapon of intervention. Were his intentions otherwise I fail to see how, in one continuous driving sequence, he would have crossed to the incorrect side of Sydney Street, mounted the footpath at the point where the driveway to the tyre yard crossed the footpath, ordered Mr Newbold to get out of the way and, by extending his head from the driver's window, deliberately manoeuvre the front driver's wheel at and over the person on the ground. When he saw Mr Newbold jump clear of the car he must have been aware that the deceased could not, or did not, move out of the way and, since he did not pause at this point, but instead accelerated at and across the deceased's upper body as he lay prone on the footpath, I am satisfied that he did so with the intention of killing him. I am also satisfied that Mr Newbold gave truthful and reliable evidence when he described that driving manoeuvre. He also described seeing the deceased being effectively shunted under the front wheel along the footpath such as to end on his stomach with his left cheek against the footpath and his neck at an acute angle. It is not clear, from his evidence, whether the rear wheels also came into contact with the deceased at that time.

16 Mr Newbold's eyewitness account is supported by the injuries revealed on autopsy. The forensic pathologist, Dr Lyons, described ground impact abrasions with an overall dimension of 210 by 150 millimetres on the left cheek of the deceased. There was also significant subcutaneous haemorrhaging into the outer aspect of the left shoulder and the left upper arm. Dr Lyons also observed abrasions and deep scratches measuring 300 by 110 millimetres in the region of the deceased's lower abdomen and hip. 17 Over the front of the upper trunk of the deceased, above the neckline and below the collarbone, Dr Lyons observed an area of faint stippled imprint bruising and abrasion consistent with pressure marks from clothing with the same general pattern of injury across the back and directly beneath the deceased's shoulder blades. This was associated with tyre imprints consistent with the tyres from the Nissan Patrol which were revealed on the deceased's outer clothing under ultra violet light. So far as the bruising was concerned, Dr Lyons was of the view that it was associated with the application of moderate to severe force. 18 There were no bony injuries below the abrasions in the deceased's hip region. Dr Lyons was of the view that were a vehicle to have driven over the upper or lower limbs of the deceased he would have expected fracturing or, at the very least, significant soft tissue injury. He saw neither.

19 The most significant injury was a complex pattern of injuries in the deceased's head and neck region. Dr Lyons identified very substantial injuries to his facial bones and the base of his skull. He described a complex fracture of all the facial bones, associated with a vertical fracture of the mandible in the midline and on the left hand side. There was also a complex hinge type skull fracture through the middle and anterior cranial fossa associated with the transection of the upper pons - the area where the spinal cord enters into the main cerebral hemispheres of the brain. Dr Lyons was of the view that the pattern of the injuries to the head and neck would have caused immediate death.

20 Dr Lyons also identified internal injuries to the deceased's lungs and heart and some tears to the spleen and organs under the rib cage without associated fracturing of the ribs. These were features of a major crush injury. Dr Lyons could not discern any mark from a tyre of a vehicle on the upper head and neck of the deceased associated with the complex of injuries to that region. He was nevertheless of the view that the injuries may very likely have been caused by a motor vehicle being driven in the way the Crown contended in that a vehicle passing over the upper body of a person lying prone on the ground would very likely force the head against the ground and, dependent upon the degree of pressure and the position of the deceased at that time, the injury to the lower part of the skull would also likely have been sustained in that way.

21 After driving over the deceased the offender drove off the gutter, stopping momentarily to order Mr Newbold into the car, before he executed a sweeping u-turn and drove back to his house. I am satisfied that at this time the offender was intent on ensuring that Mr Newbold did not contact the police or the ambulance and disclose what he had witnessed. The offender could not have known at this time that Tony Matthews was hiding in the alley and was also a witness to the killing.

22 What occurred from the time he drove away, until the offender was arrested at 9.10am that morning, is relevant to sentence as much for what it reveals about the offender's intentions at the time he killed the deceased as it does about his determination to avoid the consequences of his actions.

23 After killing the deceased he drove into his front yard and went into the house with Mr Newbold. Mr Newbold was extremely agitated and upset. The offender, on the other hand, left not long after in the Nissan Patrol telling Mr Newbold he was going back "to find the other guy". After the offender drove away Mr Newbold made his way home on foot. Did the offender drive over the deceased a second time?

24 Although I am satisfied that the offender drove back to where he had killed the deceased, and that consistent with the police scientific evidence, he mounted the gutter and passed along the footpath a second time, I am not satisfied beyond reasonable doubt that he ran over the body a second time. I do not regard the forensic evidence as compelling that finding. Tony Matthews was the only witness to what occurred when the offender returned and, while he claimed the Nissan Patrol, driven by the offender, struck the deceased a second time, I am unable to rely upon his evidence for sentencing purposes. Not only was his view of the footpath and the deceased obscured by having taken up a fresh hiding place at the rear of the front yard of the Sydney Tyre Centre, but his state of inebriation or shock, or both, renders his account unreliable. I accept that he was an honest witness but that in critical respects he was mistaken as to what he saw.

25 Assuming that the offender returned to the scene with the intention of finding Tony Matthews (as he announced to Mr Newbold) I am satisfied that when he found the scene apparently deserted he took the opportunity to see whether the person he had run over was dead or injured. Since I am satisfied that Mr Gleeson was deceased at that time (and that this would have been obvious to the offender given that his head was lying in pooled blood and that he was motionless) it is unnecessary for me to consider what the offender would have done were he to have found Tony Matthews, or were he to have found Mr Gleeson alive. Suffice to say that quite apart from his chilling lack of empathy for the deceased, who he not only killed but who he had left lying on the footpath a second time, to be found, so far as he knew or cared, by a casual passer-by, his motives from this time and in the events that followed displayed nothing short of a calculated self interest.

26 When he arrived back at his home a second time he washed the front wheels of the car and left it parked at the rear of his house. I am satisfied that he then drove to Mr Newbold's home in a different car, with renewed concern that Mr Newbold would either volunteer information to police or that he would be unable to withstand any police questioning were he spoken to by police as a result of someone informing them that he had been seen fighting earlier in the evening with the person who the offender knew then to be dead. I am satisfied that despite telling Mr Newbold that he "struck him again" the offender was telling a lie. Whether he did so out of bravado or to convince Mr Newbold that Mr Gleeson was in fact dead, I cannot say. I am satisfied however that he then persuaded Mr Newbold to accompany him to where he had left the deceased with a view to pretending to be a curious observer of a hit and run accident and to thereby deflect any unwanted attention in the event that the police were in attendance. Again, I emphasise the offender could not have known Tony Matthews had witnessed the killing.

27 Between the time when the offender drove back to the scene in the Nissan Patrol a second time, and when he walked into the scene with Mr Newbold, Tony Matthews had called 000. The police and ambulance were in attendance as the offender and Mr Newbold walked into the area. Tony Matthews had apparently already nominated Mr Newbold, by name, as a person of interest and he was arrested. The offender walked away and went home. He was arrested later that morning after Mr Newbold was interviewed. Relevant principles 28 In sentencing the offender for murder it is necessary for me to have regard to s 19A of the Crimes Act and s 21 and s 61 of the Crimes (Sentencing Procedure) Act ("the Sentencing Act"). 29 Section 19A of the Crimes Act provides: "(1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)." 30 Section 21 of the Sentencing Act provides: "(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. (2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term." 31 Section 61 of that Act provides: "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 32 The Crown did not submit that a sentence of life imprisonment should be imposed in this case conceding (appropriately in my view) that the offence did not fall within the worst category of case of murder for which the maximum penalty is prescribed (see Knight v R [2006] NSWCCA 292; 164 A Crim R 126). 33 The offence of murder is however an offence to which a standard non-parole period of 20 years is prescribed pursuant to the provisions of Div 1A of Part 4 of the Sentencing Act. 34 As interpreted by the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; 60 NSWLR 168, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of its type after trial. In Way the Court also held that the assessment of objective seriousness is to be made by reference to the circumstances in which the offence was committed and not the circumstances of the offender, other than those causally connected to the commission of the offence. In Apps v R [2006] NSWCCA 290 at [50] Simpson J quoted the following extract from Way's case to make clear the distinction:

"86 Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness ), and mental illness , or intellectual disability, where that is causally related to the commission of the offence , in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected ..." (italics added)

35 On the offender's behalf it was conceded that of the three alternate states of mind that constitute the offence of murder, an intention to kill is a consideration tending to greater objective seriousness. It was then submitted that even were I to find that the offender intended to kill the deceased I should nevertheless be satisfied that the offence was less than mid range because I could not be satisfied that the killing was premeditated. The case of R v Nguyen [2007] NSWCCA 363; 180 A Crim R 267 was cited in support of that proposition. In that case Smart AJ was satisfied that the primary sentencing judge had erred in holding that the murder for which the appellant was sentenced was substantially above the mid range in objective seriousness. The deceased was killed when four men entered a billiard hall in Cabramatta armed with pistols and a samurai sword. The first man pointed at or in the direction of one of the patrons and then fired the pistol at close range. Another of the patrons was shot fatally in the chest and another wounded in the upper body. The primary judge was satisfied that the actions of the gunman left no room for doubt that his intention was to kill and that his actions were premeditated, irrespective of who was the intended victim. Although Smart JA was of the view that an intention to kill and premeditation are usual elements in a murder of mid range objective seriousness, and that there was nothing in the surrounding circumstances of that case that placed the offending above the mid range despite the grave nature of the killing, I do not understand his Honour to have intended to specify an intention to kill and premeditation as requisite elements of mid range offending generally. Is the offence within the mid range? 36 Despite the fact that I am satisfied that the offender only formed the intention to kill the deceased when he decided to manoeuvre the car at and over the upper body of the deceased, the fact that he used the vehicle at that time with deliberation and determination, coupled with the fact that he must be taken to have known that the deceased was vulnerable and unable to defend himself, is sufficient, in my view, to characterise the offending as within the mid range. I am conscious in so finding that I am required to hypothesise as to what an abstract offence in the middle of the range of objective seriousness for an offence of this kind would be. Although I am satisfied that there was no premeditation or planning involved, and that the probabilities favour a finding that the offender's decision to drive over the deceased was impulsive and reactive to the circumstances in which he came upon the deceased and Mr Newbold, I am satisfied that this offence nevertheless falls within the mid range. His conduct and behaviour after the deceased was killed confirm my view that having formed the intention to kill he did so with a cold and calculated detachment and not as a result of loss of self control. 37 Furthermore, I am not satisfied that there is anything personal to this offender that would, in any relevant sense, reduce the offending to less than mid range. In particular, to the extent that the offender ran and got his car in a state of fury because he had been attacked by Tony Matthews (which in the absence of any evidence from the offender I can only surmise as a possibility) I am not satisfied that this is connected in any causal sense to killing the deceased. Furthermore, in the absence of any evidence from the offender it would be a matter of mere speculation on my part that he may have thought the man on the ground was Tony Matthews. Of course, were this the case, it does nothing at all to change the objective seriousness of the offence. 38 As this Court has emphasised on many occasions the use of a vehicle as a weapon is an offence of the gravest kind.

39 In that connection, the following observation of Street CJ in Murnin v R (Court of Criminal Appeal, 16 August 1985, unreported) remains pertinent: "A motor vehicle is a potentially dangerous - indeed lethal - machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose. The Legislature has always placed a premium upon human life and the taking of a human life by driving a vehicle dangerously is by virtue of this particular section to be regarded as a crime of some seriousness." 40 These observations have been reaffirmed in this Court many times. As Sully J observed in R v Hall [2001] NSWCCA 202 at [66]: "When…the crime to be punished is not the crime of dangerous driving causing death, but the crime of murder where the murder weapon is a motor vehicle, then the foregoing statements of principle are strengthened even further, and must be applied accordingly by a primary sentencing Judge." 41 His Honour also observed that the use of a motor vehicle as a weapon is all too frequently committed by young offenders with previously good character, and, accordingly, that general deterrence is a paramount consideration in framing an appropriate sentence. 42 Since I am satisfied that the offence is within the mid range of offending of its type, I am required by s 54B(2) of the Sentencing Act to impose the standard non-parole period of 20 years unless I am satisfied, by reference to s 21A of the Sentencing Act, that there are reasons for departing from it. Are there reasons for departing from the imposition of the standard non-parole period? 43 It was submitted on the offender's behalf that various mitigating features, in combination, justified a departure from the standard non-parole period. It is said that he has good prospects of rehabilitation given his age, that he was of prior good character and that the nature of the offence and the circumstances in which it was committed make it unlikely that he will reoffend. I am not satisfied on the evidence before me that these matters, either individually or in combination, operate to mitigate the objective seriousness of the offending. 44 The material tendered on the offender's behalf consisted of a report from Dr Andrew Walker, a senior staff specialist in forensic psychiatry with the Hunter Mental Health Service, a Probation and Parole Service pre-sentence report and testimonials from the offender's friends and family.

45 The pre-sentence report and Dr Walker's report were not, however, prepared for the purpose of this sentence proceeding but for proceedings in the Local Court on 17 May 2007. On that day the offender was placed on a bond to be of good behaviour for 2 years, and ordered to pay a fine of $200, after pleading guilty to assault police, resist arrest, entering a vehicle without permission and possessing/making an explosive without lawful purpose. Those offences were committed in Muswellbrook on 1 January 2007. I have been provided with the facts relied upon by the prosecution in the Local Court sentence proceedings. I accept that the offender's conduct on that occasion was marked by irrationality. I also note that the charge of possessing/making an explosive related to a device the offender had constructed apparently as some protection against his car being stolen.

46 The offender informed the Probation and Parole officer that he had a chronic drug addiction and that he had taken many different drugs on the day he was arrested in January 2007. Dr Walker diagnosed a behavioural disorder associated with the use of a range of psychoactive substances. The offender informed him that that he been using drugs of various kinds on a daily basis since he was a teenager and regularly consumed large quantities of alcohol. He informed Dr Walker that he was a regular user of amphetamines and LSD. There is, however, no evidence before me that points to the offender being under the influence of either drugs or alcohol when he killed the deceased, or that his behavioural disorder is relevant to his offending in any causative sense. His counsel did not invite me to make such a finding. The pre-sentence report and the report from Dr Walker were tendered in order that I might have some appreciation of the circumstances of the prior offending and some biographical information. A pre-sentence report was not sought for the purposes of the current proceedings.

47 The letters from his family and friends were specific to these sentence proceedings. Quite apart from the fact that they do not mention his drug problem, there is considerable conflict across the body of the material as to the extent to which the offender has a family relationship of any depth. This raises questions as to the reliability of their assessment and insights into his character.

48 The offender's parents separated when he was an infant. He initially resided with his mother in New South Wales but his father eventually gained custody of the offender and his siblings when he was seven years of age. He lived with his father until aged 14 when he was expelled from school. He told the Probation and Parole officer that he lived with his father for a short period of time after leaving school and that since that time, and despite his father's offers of support, he remained detached both from him and other family members. By the age of 16 he was living alone. He said that over the last three years he had little contact with his family members. He informed Dr Walker that he was in a relationship of ten months duration as at February 2007 - a relationship that appeared from the evidence at the trial to be current at the time of the offending. There is no evidence before me that the relationship is a continuing one.

49 By contrast with the offender's account to the authors of the reports, his older brother claims to have had a close relationship with him until he was taken into custody in July 2007 and that after the offender moved to Muswellbrook twelve months before the offence, he reported enjoying his life and making new friends. His brother also reported that everyone in the family, inclusive of his father and his older sister, are having difficulty accepting that the offender has been found guilty of murder and that this has been felt most extremely by his father whose health has rapidly declined over the last twelve months such that he has been unable to travel to Sydney either by aeroplane or car. He is fearful he may never see his son again. The offender's stepsister also speaks of a shared and happy childhood with the offender, inclusive of a period in recent years when they lived together, and that the offender expressed continuing love and concern for her and her young daughter. 50 Whether the offender's motives in understating his family connections to the Probation and Parole officer and Dr Walker were to protect them from learning of his drug use or his offending at that time, or for some other reason, on balance, and for the purposes of these proceedings, I accept that the views of his family members are genuinely held and that he has the love and support of his friends and family. 51 Each of the people who have provided a testimonial speak of the offender's conduct as being entirely out of character. His brother observes that whilst the offender may have what he described as a "rough exterior" he is nevertheless a quiet, peaceful and compassionate person often defending people who are experiencing difficulties in their lives. On any view this is in stark contrast to the offender's behaviour on 21 July 2007 both before, at the time of, and after he killed the deceased.

52 Because the offender has not acknowledged his guilt and has not given any explanation for his conduct or his motivations, or made known his attitude to his offending and the loss of life that resulted, I have only a very limited basis upon which to make any assessment of his prospects of rehabilitation. I have been invited by his counsel to find his prospects are good by reason of his youth, his relatively minor criminal history, his history of employment and his family support. The fact that he is currently 26 years of age, and that he has been gainfully employed in the motor vehicle trade in various capacities since leaving high school, does not, in my view, advance his case on sentence any material distance having regard to the objective gravity of the offending and his determination to take no public responsibility for his actions. While I accept he has family support and that he came to adverse notice for the first time six months prior to the murder, I am unable, in the absence of any insight into the attitude of the offender, to make any meaningful assessment of his prospects of rehabilitation.

Likelihood of reoffending 53 While the particular circumstances that culminated in the death of the deceased are unlikely to present again, and while it is to be hoped that the offender would not resort to the means he chose in this case to settle a score or exact a revenge (if that was in fact his motivation in acting as he did) again, on the evidence available to me, I am unable to be satisfied on the probabilities that he is unlikely to reoffend against the criminal law. Good character 54 Finally, whilst I accept that his friends and family members speak well of him, and while I am prepared to accept that there are aspects of this offender's personality that may well endear him to others, his admitted polydrug use over many years and his very recent prior offending run counter to a finding that he is a person of prior unblemished character. That said, I do not regard his criminal antecedents or his drug use as features of aggravation. Although he committed this offence whilst he was subject to a bond to be of good behaviour, I am not persuaded that it aggravates the offending. None of the other aggravating factors under s 21A(2) are present since they are accounted for in the assessment I have made of objective seriousness.

55 I have been referred to a number of decisions where sentences of varying lengths have been imposed on offenders who have used a vehicle as a weapon where a death was occasioned. While there is some similarity in the objective circumstances, in each case the sentence was passed prior to the introduction of Div 1A of Part 4 of the Sentencing Act providing for the imposition of the standard non-parole period of 20 years for the offence of murder. In the case of R v Hall [2001] NSCWCCA 202 the Court of Criminal Appeal confirmed a sentence of 19 years and 6 months, with a non-parole period of 14 years and 6 months, in circumstances where, following a violent exchange with some people in the vicinity of an inner city hotel, the offender drove away before returning and intentionally driving at two people, knocking them to the ground and seriously injuring them. He then drove off a second time and returned striking several other people and killing one of them. The Court was satisfied that the offender drove with a deliberate and cold-blooded determination to exact revenge upon those who had, in his perception, grievously offended him. Despite the fact that the offender was only 22 years of age and that he was seriously intoxicated, angry and in all likelihood humiliated by having been beaten in a fight which he had himself in large part instigated, overall the offender's behaviour was described as a dreadful criminal enterprise and the sentence imposed was not regarded as excessive. 56 In R v Holton [2004] NSWCCA 214, a sentence of 16 years with a non-parole period of 12 years was imposed when the offender, after being involved in a police chase driving a stolen motor vehicle, deliberately ran at and over a police officer who was attempting to stop the vehicle by use of spikes on a roadway. In that case the element of reckless indifference to human life was relied upon at trial by the Crown as justifying the charge of murder. The Crown's appeal against the leniency of the sentence was dismissed with the Court observing that whilst the sentence was lenient it was not so low as to warrant the Court's intervention. That offender was 25 years of age with a minor criminal record. 57 As I have emphasised, in neither case was the sentencing judge constrained by the fact that the offence was subject to a standard non-parole period. Accordingly, and despite the similarities in the cases to which I have been referred, similarities which in other circumstances might be productive of a sentence of similar length, this offender must be sentenced strictly in accordance with the relevant provisions of the Sentencing Act. I am not persuaded that there are factors that mitigate the offending and, accordingly, the standard non-parole period of 20 years will be imposed.

58 Before I impose sentence it is important that I acknowledge that I have received in evidence a victim impact statement from the deceased's grandfather, Mr Leslie Gleeson, which was read onto the record by Ms Denise Day on his behalf. As Mr Gleeson senior is aware, I have not received that statement for the purpose of increasing the sentence to be imposed on this offender but to allow him, and through him, his family, the opportunity to participate in the sentence proceedings by publicly expressing their grief and making me aware of its impact on them. I well appreciate the difficulty that Mr Gleeson has experienced in coming to terms with the death of a very close and young family member in circumstances where his death was both pointless, unexpected and attendant with such a callous disregard for his life. Mr Gleeson speaks of his grandson in the following terms: "Lukas was a typical young bloke, a real character. He loved his family and his mates. He loved having a laugh, sharing a beer and playing his guitar. He talked about setting out on his own - saving for a flat and owning his car. He was looking forward to his 23rd birthday. Everything was coming together for him. He had so many hopes and dreams - now shattered in such a senseless and violent way…" 59 I take pause and acknowledge the central part the deceased played in the life of his grandfather and how he feels the loss of his grandson on a daily basis, with no lessening of sadness over the passing of time. I take this opportunity to extend my personal sympathies to Mr Gleeson, his extended family members and friends. Orders 60 I sentence the offender to a non-parole period of 20 years to commence on 21 July 2007 and to expire on 20 July 2027. I impose a balance of term of 6 years and 8 months. In light of the length of the non-parole period it is not necessary to make an adjustment for special circumstances. **********

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