R v Miller

Emerald Jade Wardle

1. Ms Wardle was 18 at the time of her death. She was the daughter of Tania Simshauser and Mathew Wardle. She had a brother who was two years younger than her.
2. Having regard to the nature of these proceedings, not as much is known about Ms Wardle as is known about the offender. However, it is apparent from the victim impact statements, the offender's letter and other material presented on trial that Ms Wardle was a person with a strong character and a bright future ahead of her.
3. She appears to have had a good relationship with her parents and friends. She was seemingly in a good relationship with the offender and enjoying everything that life had to offer her at the time, being the commencement of her adult life. Despite the drug habits of the offender, with whom she was in a relationship, and the drug habits of other persons he associated with, she did not take drugs, which of itself demonstrates a strength of character.
4. She was, as far as I can determine, a person of very good character and with great potential. As is apparent from the victim impact statements, she will be greatly missed by many.

Victim impact statements

1. Ms Wardle's mother, Tania Simshauser, prepared a victim impact statement and presented it orally on the sentencing hearing. Her father, Mathew Wardle, similarly prepared a statement and presented it orally on the sentencing hearing.
2. Both Ms Simshauser and Mr Wardle spoke of their considerable grief and loss and the significant and everlasting impact that Ms Wardle's death has had upon them and so many members of the community. They spoke of their relationship with Ms Wardle, her nature and their hopes and aspirations for her.
3. As might be expected, Ms Wardle's death has left a significant impact on Ms Simshauser, Mr Wardle and many other people.
4. I express my sympathy to them and also express my hope that their memory of all the good things about Ms Wardle might at least provide them with some comfort.
5. The Crown submits that the impact of offending on family members of victims can be taken into account under s 30E(3) of the Sentencing Procedure Act, in connection with the determination of the punishment on the basis that the harm done to the victim's family is an aspect of the harm done to the community, only on the application of the prosecution and if the Court thinks appropriate. The Crown makes such an application.
6. In R v Halloun, [5] McCallum J (as her Honour then was) observed at [46]: "I would construe [this] provision as an important mechanism for ensuring that the evidence of family victims is placed before the court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. In that way, the provision serves the purposes of sentencing stated in s 3A of the Act, one of which is to recognise the harm done to the victim of the crime and the community."
7. I accept that the offender, by his conduct, has done significant harm to Ms Wardle's family. She was taken from them at a young age, just as she was no doubt about to do and be involved in so many things that provided joy to the family.
8. I have regard to this as part of the sentencing process and otherwise have regard to the victim impact statements as an aspect of the harm done to the community arising out of the conduct of the offender.

Circumstances of the offending

1. The offender and Ms Wardle commenced their relationship in 2018. He was undertaking a surveyor's degree and was working part-time as a console operator at a service station at the time of the relevant events. The offender and Ms Wardle were in a very close relationship. It has been described as a loving and caring relationship. They spent long periods together, particularly staying together at the house where Ms Wardle died. Ms Wardle had been staying with her aunt and uncle but it may have been her intention to move in with the offender.
2. There was nothing in their relationship or the conduct of the offender prior to the events of the night of 20 June 2020 which would have indicated to either family or Ms Wardle that she was in any danger or that the offender would or was even capable of doing that which led to Ms Wardle's death. The offender was acting strangely but there was no indication that Ms Wardle was in any danger. Ms Wardle may have sensed this strange behaviour as she had spoken about dealing with a person on drugs but she gave no hint of any concern about her safety.
3. There was evidence of behavioural changes in 2020, which were suggested by Dr Nielssen to be indicative of prodromal symptoms consistent with the emergence of schizophrenia but, the jury must have rejected that suggestion.
4. The offender was a relatively long-term drug-taker, albeit he kept this secret from his parents. He had commenced using cannabis around the age of 14 and taken LSD around 30 times prior to June 2020.
5. In the months leading up to Ms Wardle's death, he had been consuming significant quantities of cannabis (that is, using daily) and had taken LSD on 9 June 2020.
6. On the last occasion he consumed LSD, being 11 days before the death of Ms Wardle, the offender obtained LSD from a friend who appears to have purchased the LSD and split it with the offender.
7. As is well-known and could hardly have been the subject of controversy, young people's reactions to drugs can differ markedly.
8. Whereas it seems that the person who provided the LSD to the offender had the apparent desired immediate short-term response without any lingering effects, I accept that the effects on the offender, although not permanent, were persisting at the time of his actions (as the jury has accepted that the offender's impairment was solely caused by the temporary effects of his drug-taking).
9. According to John Farrar, a consulting forensic pharmacologist who gave evidence at trial and prepared a report dated 14 October 2020, LSD is known as a psychedelic drug. It causes what are generally called "hallucinations", which Mr Farrar referred to as being distortions of one's perception of reality. It is a drug taken for recreational purposes. It has no medicinal purpose at all. Severe acute adverse effects such as paranoia are not common with the use of LSD, depending on the dosage.
10. The offender shared half a tab of LSD which is estimated to be a tab of 250 micrograms. According to Mr Farrar, that is considered to be a dose to provide a desired recreational effect such as the entactogenic and euphoric effects and some degree of hallucination as well as distortion of reality.
11. It is a dose towards the lower end of the scale. The presence in the blood system would become undetectable at about 12 to 15 hours after ingestion. The offender last consumed cannabis on 17 June 2020.
12. The offender was not intoxicated (as that term is understood) by drugs at the time of the offending. As such, s 21A(5AA) of the Sentencing Procedure Act does not apply. Yet, consistently with the jury's verdict, he was still suffering from the effects of taking the drugs (whether it be cannabis or LSD) several days after consuming them.
13. The offender had been behaving strangely. There was evidence of a conversation in a Caltex service station at East Maitland around 12.15pm on 18 June 2020. The offender worked part-time at the Caltex service station at Raymond Terrace.
14. It seems that he was unhappy about the service provided by a new employee at the East Maitland service station and when raising issues with the supervisor at that service station, he made statements about being watched. Evidence was adduced from the service station supervisor about that.
15. Further, he appears to have become obsessed with the treatment he was receiving from Benestar, a helpline provided by his employer as part of an employee assistance program. Phone calls made to that line were played in Court and, again, those calls demonstrate that he was not thinking rationally during those calls. There was also evidence from his father as to more recent strange behaviour.
16. On early Friday morning (19 June 2020) at approximately 3.00am, the offender had come to the conclusion (he said from some form of "process") that he had to kill himself. He drove Ms Wardle's car to Morpeth to do so as it was her favourite spot. However, he chose not to do so. Although plainly acting irrationally, he said in his ERISP interview that he chose to remain alive for Ms Wardle, even though he believed that the choice was killing himself or killing her. He said to the Police that he thought he had some sort of curse imposed upon him and the only way that he could fix it was to kill himself or kill her.
17. On the evening of 19 June 2020, the offender and Ms Wardle had dinner at his parents' home. They then went to the premises where they were staying later in the evening.
18. Around 12.15am on 20 June 2020, a neighbour heard noises coming from the house lasting for about a minute. She described yelling with a male sounding angry and a female frightened.
19. At 1.07am, the offender called triple-0. He said that he needed to be connected to the Benestar helpline. The triple-0 operator called him back. The offender said that he thought his health was at risk and described a mess at his house. He described killing a person and then said that he believed the person was a demon. He referred to the demon as being a "female demon". At 1.15am, the offender called the Benestar helpline and said words to the same effect, followed by another call to triple-0 at 1.22am.
20. At approximately 1.24am, the Police arrived on the scene. The body-worn video of the Police officers captures the offender wandering around the front of the house, apparently waiting for the Police to arrive. When first spoken to, the offender again repeated that he had killed a demon and that the demon was inside. He wanted to get into the Police car as if he needed protection himself from the demon. After some conversation with the Police officers during which it must be that the Police officers were somewhat disbelieving of what the offender was saying, the Police officers went inside and discovered Ms Wardle's body lying on the floor of the bathroom.
21. The offender was taken to the Maitland Police Station where he remained for a period in a holding cell. As is evident from the Police body-worn video, during that time he presented as being somewhat calm, although he made constant requests for water. He made various statements to the Police whilst he was being held, including that he had killed Ms Wardle and he was sorry for that.
22. In the morning (20 June 2020), he participated in an ERISP interview.
23. On 23 June 2020, an autopsy was conducted. The results of that autopsy are subject to agreed facts. As a result of the attack by the offender, Ms Wardle sustained a number of injuries, including: 1. Bruising and abrasions to the neck; 2. Haemorrhaging of the muscles of the neck; 3. Hairline fracture of the hyoid bone; 4. Blunt force injuries to the abdomen; 5. Bruising, bleeding and tearing of the large intestine; and 6. Bruising and abrasions to the face, scalp, mouth, arms, legs and chest.
24. Having regard to these injuries, I am satisfied that Ms Wardle was subject to a violent assault by the offender, during which time the offender did more than just strangle Ms Wardle. Whilst a number of the injuries, particularly those to the neck, are consistent with manual strangulation, others, such as the abdominal injuries, indicate a violent assault to other parts of her body.
25. The Crown points to the evidence in the ERISP interview to the effect that the attack on Ms Wardle might have lasted two to three minutes. Again, I accept that.
26. Indeed, the offender said to the Police that the struggle lasted about two minutes. Whilst I do not place any real weight on what the offender said occurred, it must be that the offender attacked Ms Wardle as she lay on the bed. Photographs show the presence of one of Ms Wardle's hair extensions on a pillow. It must be that the struggle continued with the offender attempting to strangle Ms Wardle. Having regard to some of the injuries, he was doing more than holding his hand against her throat.
27. I accept that the physical injuries suffered by Ms Wardle suggest both that there was some sort of a struggle and that the offender must have been acting violently towards Ms Wardle to subdue her. That is, Ms Wardle put up a fight as best she could. Further, as the jury plainly accepted that the mental element of murder was established, I accept that despite his irrational belief, he knew that the demon was a person.
28. The offender perpetrated violence upon her as she struggled against him. Other than that, I do not know precisely what occurred except that Ms Wardle ended up lying on the bathroom floor. It may be that she tried to take some refuge in the bathroom or that their struggle went from the bedroom to the bathroom.

Key issues

1. The central feature of this case which distinguishes it from other cases of murder in the domestic context is that it was not in dispute at trial that, at the time that he killed Ms Wardle, the offender was delusional and suffering from psychosis and would have satisfied the definition of mental health impairment in s 4 of the MHCIFP Act except that the impairment of mind was caused solely by the temporary effects of ingesting drugs. The other distinguishing feature is that the offender was not intoxicated by the drugs at the time that he killed Ms Wardle. He was, however, suffering from the temporary effects of taking them.
2. The offender sought a verdict of act proven but not criminally responsible in accordance with s 30 of the MHCIFP Act. He did not dispute killing Ms Wardle and did not dispute the physical elements of the offence or those acts attributed to him which led to her death.
3. As set out in s 28 of the MHCIFP Act, the question of whether an accused person suffers from a mental health impairment (as that term is defined in s 4 of the MHCIFP Act) that had the effect of the matters set out in s 28(1) is a question of fact for the jury.
4. It is important to observe that the Crown did not dispute that the elements of the defence arising under s 28 were satisfied and indeed that the offender was suffering from a mental health impairment as defined in s 4 of the MHCIFP Act, subject only to the application of s 4(3).
5. As is amply supported by the expert medical evidence and consistent with the approach of both parties at trial, I accept that, at the time that he killed Ms Wardle, the offender: 1. Had a temporary disturbance of thought, mood, volition or perception; 2. The disturbance would be regarded as significant for clinical diagnostic purposes; 3. That disturbance impaired his judgment or behaviour; and 4. At the time that he killed Ms Wardle, the offender was suffering from a psychotic disorder.
6. At the trial, there were diverging opinions between the expert psychiatrists, Professor Greenberg and Dr Nielssen, as to the cause of the psychosis. It must be that the jury did not accept the evidence of Dr Nielssen. That is because Dr Nielssen opined that the psychotic episode with which he was suffering at the time of killing Ms Wardle was the first episode of a chronic illness (being a schizophrenia-like illness) which had persisted for some weeks.
7. In Dr Nielssen's opinion, the offender had symptoms which had been present from at least March 2020 and persisted for at least six weeks after his arrest. He considered that the symptoms were likely to be indicative of a long-term illness, being schizophrenia, and the events which occurred were the manifestation of that schizophrenia.
8. According to Dr Nielssen, it may be that the development of the schizophrenic illness originated in the offender's drug-taking but that his condition at the time of the offending was not solely caused by the temporary effects of taking those drugs.
9. On the other hand, Professor Greenberg considered that it was premature to make a definitive diagnosis of schizophrenic disorder. He expressed some uncertainty about the evidence as to whether it met the criteria for such an illness. He opined that the offender clearly met the diagnostic criteria for substance-induced psychotic disorder at the time he was examined. He acknowledged that individuals who have substance-induced psychosis usually resolve within a month but referred to reports of extended residual drug-induced symptoms for a longer period.
10. He felt that only with the passage of time could the diagnosis of schizophrenia be excluded. He said the possibility of him being diagnosed with schizophrenia in the future is not unlikely.
11. Dr Nielssen provided a further report dated 10 August 2022 for the purpose of sentencing. Consistent with his earlier opinion, Dr Nielssen continued to diagnose a probable schizophrenic illness with a substance abuse disorder in long-term remission. Indeed, Dr Nielssen felt that his diagnosis was confirmed by the evidence that emerged during the offender's trial, as well as some aspects of his presentation to him on examination on 13 July 2022. Whilst Dr Nielssen was not required for cross-examination on the sentencing hearing nor did the offender give evidence.
12. On the sentencing hearing, the offender did not urge upon me a finding that he suffers from schizophrenia either at the time of the offending or now. The Crown opposes such a finding.
13. Mr Krisenthal on behalf of the offender acknowledged that all that could be said about the possibility of the offender suffering from schizophrenia is that it remains uncertain. That must be so.
14. As such, only the passage of time will bring clarity to the question of whether the offender suffers from schizophrenia. I am not sentencing on the basis that the disturbance of mind from which the offender was suffering was caused by the development of schizophrenia.
15. I must make findings of fact which are consistent with the jury's verdict. For the purposes of sentencing, I accept that the first episode of psychosis from which the offender was suffering at the time was caused solely by the temporary effects of ingesting drugs. That is, the drugs that he had last taken had caused a psychotic episode and caused him to become delusional. This was his first episode of psychosis. Although these effects were only temporary, they were acting upon him at the time that he killed Ms Wardle.
16. The Crown did not submit at trial that the offender had made up a story about killing a demon after the event as if to excuse himself. That is, the offender was suffering from a genuinely held psychotic belief at the time that Ms Wardle was a demon. He said that he thought he needed to kill her or be killed.
17. The jury did not accept the partial defence of self-defence with excessive force and I must be careful not to make findings inconsistent with the rejection of that defence. However, it is not necessarily so that the jury rejected that which the offender said he believed.
18. Having regard to the evidence at the trial, including the evidence of Professor Greenberg and Dr Nielssen, both expert psychiatrists, I accept that at the time the offender killed Ms Wardle, he was acting under a delusion, the delusion being that Ms Wardle was some sort of demon. What this actually means is not capable of rational or logical explanation. This is because it was not a rational thought or belief.
19. Having said that, the only finding available is that the offender intended to kill Ms Wardle. The fact is that he strangled her. The jury must have accepted that both the physical and mental elements of the offence of murder were established or else they would not have convicted him of murder. As the cause of death was, in real and practical terms, strangulation, then it must be that the offender intended to kill Ms Wardle by strangling her.
20. However, that does not mean that the attack on Ms Wardle was some sort of planned event. Again, it is important to observe that at the time he killed Ms Wardle, the offender had at least a temporary disturbance of thought, mood or volition which would be regarded as significant for clinical diagnostic purposes, and that he was suffering from a psychotic disorder. He did not kill himself the night before but I am not satisfied beyond a reasonable doubt that he then planned to kill Ms Wardle rather than it being a spontaneous reaction to his delusion.

Objective seriousness

1. All murders are in the nature of very serious offending. The murder of a young woman in her home by her partner is particularly egregious. Nothing I say detracts from that proposition. My task is to sentence in accordance with the law.
2. As part of the instinctive synthesis which is the sentencing process, my task is to determine where within the broad range of this type of offending, this particular offending falls. Many factors inform such a finding.
3. In making this assessment, I do not intend to minimise or diminish the significance of the events or the hurt and suffering that the death of Ms Wardle has caused. However, as a matter of law, I am required to assess the particular circumstances of this offending and determine where it fits within the broad range of offending of this type.
4. There may be an issue as to the extent to which the fact that the offender was suffering from a psychotic disorder and acting under a delusion at the time of the offending is relevant to the assessment of objective seriousness.
5. The issue of objective seriousness (and moral culpability) was most recently considered by the Court of Criminal Appeal.
6. As the Court said in DS v R; DM v R, [6] a mental impairment may affect an assessment of the objective seriousness of an offence but it will not necessarily do so, even if there is a causal connection between the impairment and the offence.
7. In DS v R; DM v R, the Court observed: [7] "It follows that an offender's mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment "may" affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is "a" causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing [so]."
8. The Crown submits that the offending is in the mid-range of objective seriousness for a number of reasons, including, on the Crown case: 1. It was an assault of significant ferocity. 2. There must have been a significant struggle over a period of two to three minutes which must have resulted in Ms Wardle suffering unimaginable terror and fear as she realised that the offender was trying to kill her. 3. The offender intended to kill Ms Wardle in the context of a domestic relationship and in her home. 4. There was a degree of planning. 5. The attack was unprovoked. 6. Ms Wardle was only 18.
9. The Crown further identifies aggravating features under s 21A(2) of the Sentencing Procedure Act, including that: 1. The offence involved actual violence; and 2. The offence was committed in the home of the victim.
10. All murders are violent and violence is generally an integral part of the offending. Further, I adopt the approach of McCallum J (as her Honour then was) in R v Homann, [8] in the sense that the fact that the offence occurred in the victim's home is an aspect of it being an offence of domestic violence.
11. As I have already indicated, I do not accept the Crown submission on planning.
12. Further, there is a direct causal relationship between the offending and the occurrence of the psychosis.
13. This case falls squarely within what was said by the Court of Criminal Appeal in DS v R; DM v R. The offender was suffering from a condition which fell short of satisfying the definition of mental health impairment in the MHCIFP Act but he was delusional and there was no planning. In that sense, the objective seriousness of the offending is reduced.
14. Again, it is important to observe that in determining the objective seriousness of the offending, I am considering where this matter sits within a range which may involve conduct (in other cases) such as calculated planning, violence over an extended period and other matters, such as revenge. These factors are sometimes present in cases of domestic violence leading to murder.
15. This is not such a case. This is a case in which a young man, having voluntarily taken drugs, developed a psychotic condition and became deluded days after taking the drugs and killed his partner without planning or premeditation.
16. In the broad spectrum of offending, this case falls well below the middle and towards the lower end of the range of objective seriousness.

Moral culpability

1. Further, I accept that the offender's psychotic state at the time of the offending impacts upon his moral culpability.
2. Again, In DS v R; DM v R, the Court observed: [9] "In relation to moral culpability, it has long been accepted that "[w]here the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced" (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as "a" causal connection, but it need not be the direct or precipitating cause (see Moiler v R [2021] NSWCCA 73 at [59] per Button J with whom Basten JA and Davies J agreed) (emphasis added)."
3. Unlike in R v Homann, this is not a case in which the offender knew he was prone to psychosis as a result of taking drugs and thus knowingly took the risk that he would develop a psychosis. This was a first episode of psychosis. His prior drug-taking had not previously resulted in him suffering from a psychotic condition. The drugs he took are not normally associated with such long lasting but temporary effects.
4. It is important to emphasise that I am not sentencing an offender who simply took drugs and whilst intoxicated by those drugs, killed a person. He was not intoxicated by drugs at the time of the offending but was suffering from the temporary effects of taking the drugs.
5. A relevant factor is whether the offender had any prior comprehension or anticipation of the risk of the possible consequences of taking the drugs.
6. There is no evidence that he did. The fact that he was suffering from a psychotic episode for the first time which disturbed his thought processes and led him to be deluded informs his moral culpability.
7. It is appropriate to observe that, despite suffering from a deluded mind, he has been convicted of murder. He has been convicted of murder because his state of mind was caused solely by the temporary effects of taking drugs. The fact that his offending arose from his drug taking has not reduced the consequences for him. It has resulted in him being convicted of murder and facing a much more severe penalty than the alternatives put forward by the offender at trial.

Other Subjective features

1. The offender is currently 22. Prior to killing Ms Wardle, he had no criminal history.
2. The offender was previously a person of good character. This was accepted by the Crown as being a mitigating factor, although the Crown also refers to the offender's admitted drug use.
3. The offender does not come from a background of disadvantage. Quite to the contrary, the offender comes from a good home. There is no suggestion of any trauma occurring in the home which might have led to the offending. I am mentioning this because, in some circumstances, a background of trauma and disadvantage may afford some explanation for the offending and lead to some additional leniency. This is not such a case.
4. The offender was a long-time drug user but he hid that fact from his parents. As far as I am aware, his parents have continued to support him. His father was present on the sentencing hearing. The offender successfully completed school and was undertaking a surveying course. Again, prior to the offending, he appears to have been well-regarded by both his own family and Ms Wardle's family.
5. The simple reality of this case, as sad and tragic as it is, is that that which occurred happened because the offender took drugs. If he had not consumed drugs, nothing like this would ever have occurred.
6. Although the offending occurred in the domestic context, the offender was not generally an angry or violent man, intent on perpetrating violence on his partner when he did not get his way. The offender was prior thereto a good person who of his own choice took drugs with tragic consequences.
7. The offender ceased treatment for any psychiatric condition that he might have been suffering from approximately six months after the offending. He has not suffered from any further psychotic episodes. However, according to both Professor Greenberg and Dr Nielssen, it is possible that he may do so in the future if he has schizophrenia.
8. At this stage, he remains in custody, not under treatment, and has returned to some study whilst in custody. There is no evidence of any violent or aggressive behaviour whilst in prison.

Remorse

1. The offender has demonstrated remorse. The Crown accepts this. Although in some circumstances the Court would not accept remorse when the offender does not give oral evidence on sentence, the Crown accepts that, having regard to that which he said to the Police in the period after the offending (he said he was sorry for killing Emerald Wardle) and his letter which was tendered on the hearing which he asked the Crown to provide to Ms Wardle's family, he has shown remorse.
2. In this regard, it seems appropriate to refer directly to the letter from the offender dated 15 August 2022, particularly, at least in part, as it serves to highlight the sort of person that Ms Wardle was. "Emerald was an effervescent individual who was always very kind and generous to anyone she met. I once saw Emerald give her last five dollars to a homeless man in Maitland, acknowledging that he needed it more. I want it to be known that in my sound mind I would of never done anything like this. I loved Emerald so much and held her to the highest regards. I often contemplate how different things may have been if I was aware of the mental health issues at the time. Emerald taught me what it feels like to be in a happy, loving relationship and it still breaks my heart every day knowing that she is gone. I can only describe it as living in a nightmare that I can never awake from. I can only hope that with the passing of time, one day the people most affected by my actions, will be willing to offer forgiveness and understand that with every part of my being I am so sincerely sorry for the harm and suffering that I have caused."

Prospects of rehabilitation

1. I accept that the offender has good prospects of rehabilitation. In his report prepared for sentencing, Dr Nielssen suggests that the offender has comparatively good prospects of long-term rehabilitation despite the high risk of further acute episodes of psychosis.
2. He will necessarily be spending a long time in prison but there is little likelihood that he will reoffend. There is no prior criminal history and nothing in his background or period in custody since being arrested which would suggest the contrary. He has family support and is back studying.

Deterrence

1. The offender's reduced moral culpability may impact on other features of the sentencing exercise, particularly specific deterrence. Having said that, general deterrence and denunciation still have some role to play. Members of the community must understand that taking drugs can have significant adverse consequences and that the taking of drugs does not provide any excuse for such violent conduct.
2. Having said that, the significance of general deterrence and the need for denunciation are tempered by the fact that the offender was suffering from psychosis at the time that he committed the offence.

Special circumstances

1. The offender submits that special circumstances exist such that the standard non-parole period should be varied. The Crown does not speak against this. The offender has been subject to Covid restrictions for the whole period that he has been in custody. Those restrictions essentially remain in place. This makes imprisonment much more difficult than it otherwise would have been.
2. Further, the offender entered the prison system as a young man and will need a longer period on parole under supervision when he leaves the prison system. I accept that a longer period on parole is required.

Assistance with the administration of justice

1. The offender submits that there should be a further discount in accordance with s 22A of the Sentencing Procedure Act, having regard to his cooperation with authorities and the efficient conduct of the trial. Again, the Crown does not speak against this.
2. As set out in s 22A, a court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence. Of course, any lesser penalty that is imposed must not be unreasonably disproportionate to the nature and circumstances of the offence.
3. The Crown accepts that there was assistance with the administration of justice both pre-trial and during the trial. There were agreed facts and agreement on much of the evidence.
4. I accept that the offender is entitled to some reduction having regard to s 22A of the Sentencing Procedure Act. It is not mandatory to specify the amount of any discount for the purposes of sentencing, [10] but I have taken account of that in imposing the sentence.

Comparable cases

1. I have been provided with what are said to be a number of comparable cases. As has often been said, [11] such cases may provide some guidance to a sentencing judge in terms of the principles to be applied but all cases are different.
2. In Hili v The Queen, [12] the Court observed: "Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'."
3. I have had regard to a number of comparable cases but no one case is identical to this in terms of the factors impacting upon objective seriousness, the prior relationship between the offender and the victim and the offender's subjective case.
4. It seems to me that there are some similarities with cases such as R v Fang (No 4), [13] R v Maletsas [14] and R v Cadman [15] . In my view, a number of other cases to which I have been referred bear little similarity, in particular, as I have discussed earlier in this judgment, the facts of this matter and the knowledge of the offender as to the risk of him becoming violent are quite different from the facts as found in R v Homann. [16]
5. I do not consider it necessary to merely recite the differing facts and circumstances in each of those cases.

The Sentence

1. The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform.
2. As observed in Veen v The Queen (No 2), [17] those purposes overlap and none can be considered in isolation when determining what an appropriate sentence may be in the process of instinctive synthesis which is the sentencing process. I have regard to the objective seriousness of the offending as well as the offender's subjective circumstances. I consider that a slightly longer period on parole is appropriate, having regard to my finding of special circumstances.
3. Jordan Brodie Miller, for the offence of murder, I sentence you to a term of imprisonment of 20 years, consisting of a non-parole period of 13 years with a balance of term of 7 years. The sentence will date from 20 June 2020. The offender will become eligible for parole when the non-parole period expires on 19 June 2033. The total sentence expires on 19 June 2040.
4. As the offender is convicted of a "serious offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. I ask the offender's solicitor to undertake that task on the Court's behalf.

Endnotes

1. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
2. Fuller v R [2022] NSWCCA 203 at [105] (N Adams J).
3. R v Isaacs (1997) 41 NSWLR 374 at 378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ); (1997) 90 A Crim R 587; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14] (Gleeson CJ, Gummow and Hayne JJ) .
4. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 199 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
5. [2014] NSWSC 1705.
6. [2022] NSWCCA 156 at [96] (Beech Jones CJ at CL, N Adams and Cavanagh JJ).
7. Ibid.
8. [2018] NSWSC 757 at [50].
9. [2022] NSWCCA 156 at [95] (Beech Jones CJ at CL, N Adams and Cavanagh JJ).
10. Droudis v The Queen (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [104] (Bathurst CJ, Hoeben CJ and Hamill J).
11. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWSCCA 194 at [304] (Simpson J).
12. (2010) 242 CLR 520; [2010] HCA 45 at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
13. [2017] NSWSC 323.
14. [2022] NSWSC 712.
15. [2019] NSWSC 634.
16. [2018] NSWSC 757.
17. (1988) 164 CLR 465 at 476 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2022