R v Murray

Solicitors: Solicitor for Public Prosecutions (Crown) Dignane Hanrahan (Offender) File Number(s): 2013/356990

Judgment

1. On 11 June 2015, David Robert Francis Murray entered a plea of guilty to the murder in November 2013 of his de facto partner of some 3 years, Ms Keeli Antoinette Dutton, who he had stabbed 7 times in the back and allowed to bleed to death from her wounds. That plea was entered shortly before his trial, which was fixed to commence on 6 July 2015.
2. He now stands for sentence for his offence.

This Court's sentencing task

1. I begin by dealing with the submission advanced for Mr Murray that there has been a large amount of recent publicity concerning the level of domestic violence in the community, which ought not to give rise to a consideration that his case falls into a special category, calling for increased sentences reflecting the need for denunciation of such offending and deterrence. Support for this submission was submitted to be found in observations made in R v Loveridge [2014] NSWCCA 120, in relation to one punch offences.
2. Offences involving domestic violence, of which very often, but not always, women and children are the victims, are particularly abhorred in our civil society, because they are committed by the very people who should be interested in protecting, rather than harming, those who they have injured. That is why the Parliament enacted the Crimes (Domestic and Personal Violence) Act 2007 (NSW), under which the apprehended violence order by which Mr Murray was bound when he killed Ms Dutton, was made. As was explained in the Second Reading Speech, that legislation was enacted in order to better address domestic and family violence (see New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 16 November 2007 at 4327).
3. When any offender is being sentenced for an offence involving domestic violence, that fact, together with the particular acts which constitute the offence must be considered in assessing not only the objective gravity of the offence, but also in determining what role specific and general deterrence, as well as the other objectives of sentencing, must play in the particular sentence which is imposed on the offender. That exercise must be undertaken in accordance with what the legislation which the Parliament has enacted and binding case law requires, in the particular sentencing exercise.
4. In Loveridge, it was observed at [103] that the earlier authorities there referred to had established that "violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence …". It was also considered that specific deterrence had to feature in the sentence imposed in that case. In a similar way, domestic violence offences, of which there can be no more serious example than murder, remain all too common and also need to be addressed by sentences that carry necessary degrees of general and specific deterrence.
5. As was observed in Hiron v R [2007] NSWCCA 336 at [32], there in the context of the less serious offence of assault occasioning actual bodily harm: "Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see for example R v Edigarov (2001) 125 A Crim R 551, R v Dunn (2004) 144 A Crim R 180, R v Hamid [2006] NSWCCA 302. As was said by Wood CJ at CL (Studdert and Bell JJ agreeing) in Edigarov at 558 [41]: "...such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.""
6. No different approach can be taken when the domestic violence in question involves the more serious offence of murder.
7. The sentence imposed on Mr Murray must thus reflect the gravity of his offence, viewed objectively in light of the evidence led on sentencing (see R v Dodd (1991) 57 A Crim R 349 at 354). Mr Murray does not dispute that he must receive a substantial term of imprisonment for the death he has caused, but still, the gravity of his offence is in issue.
8. Disputes about factual findings must be resolved in the way discussed in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. That is, facts may not be taken into account in a way that is adverse to an offender, unless they have been established beyond reasonable doubt. However, if there are circumstances which the judge proposes to take into account in favour of the offender, it is enough if they are proved on the balance of probabilities.
9. In arriving at Mr Murray's sentence, the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) must also be borne in mind. They are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
10. Mr Murray's sentence must be determined in light of the maximum penalty imposed for the crime in question, which in the case of murder, is life imprisonment (s 19A of the Crimes Act 1900 (NSW)).
11. Section 61(1) of the Crimes (Sentencing Procedure) Act requires, however, that the sentence of life imprisonment only be imposed if the Court is satisfied that the offender's level of culpability in the commission of the murder is so extreme, that the community's interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. The maximum sentence of life imprisonment is thus reserved for extreme offences of murder.
12. It is for the Crown to establish that an offence falls within s 61(1). It did not seek to do so in this case. Having considered the evidence, I accept the parties' common position that this is not a case which warrants the imposition of the maximum sentence, notwithstanding the obvious seriousness of Mr Murray's offence.
13. The Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder, which falls in the middle of the range of objective seriousness of such offences (Pt 4, Div 1A Crimes (Sentencing Procedure) Act s 54A(2) and table). Such a non-parole period is the minimum period that an offender must serve in prison, before being eligible to be released on parole, for the balance of the sentence imposed for the offence. Where in the range Mr Murray's offence falls, is also in issue.
14. Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 and as is now provided in s 54B of the Crimes (Sentencing Procedure) Act. Under s 22 of that Act, a plea of guilty must also be taken into account in determining the sentence.
15. In accordance with s 54A of the Crimes (Sentencing Procedure) Act, the seriousness of an offence must be assessed by taking into account only the objective factors affecting its relative seriousness. The offender's moral culpability for the offence must also be taken into account (see Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600).
16. On sentencing, the Court must also consider identified aggravating and mitigating factors revealed by the evidence, which the parties have addressed in their submissions, as well as any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offence (see s 21A of the Crimes (Sentencing Procedure) Act). Consideration must also be given to questions of general and specific deterrence, as I have explained.
17. All of these relevant factors must be taken into account by way of the instinctive synthesis discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. That requires the sentencing judge to identify all of the factors that are relevant in the particular case, discussing their significance and making a value judgment as to what the appropriate sentence for that offence is. The sentence so imposed must ensure that there is a reasonable proportionality between the sentence and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]).
18. Regard must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on an offender must not exceed one-third of the non-parole period imposed, unless the Court decides that there are special circumstances which warrant a departure from that ratio.
19. If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve for the offence committed (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628 - 629). In this case, however, Mr Murray, does not press for a finding of special circumstances.
20. In this case, it is also necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious violence offences", which under s 5A, includes the offence of murder.
21. The effect of this Act is that the State can apply to the Supreme Court for an order that the offender continue to receive supervision or remain in detention, at the end of the sentence. If the Court is then satisfied, to a high degree of probability, that the offender would be a "high risk offender", that is, an offender who poses an unacceptable risk of committing a serious violence offence if not kept under supervision, it may make an order under s 5F for an offender's extended supervision. An order for continuing detention may be made under s 5G, if the Court is then satisfied that adequate supervision will not be provided by an extended supervision order.

The issues

1. In this case the issues lying between the parties are limited.
2. They concern the gravity of Mr Murray's offence; whether the fact that Mr Murray murdered Ms Dutton at their home is an aggravating matter which must be taken into account under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act; and the amount of discount which Mr Murray should receive for his plea. Whether the conditions of his custody should have any mitigating impact on Mr Murray's sentence and whether there is evidence of remorse, also arise for consideration.

The seriousness of this offence

1. As I have explained, the maximum sentence of life imprisonment is reserved for extreme offences of murder. This was explained in R v Lewis [2001] NSWCCA 448, where it was observed at [60]: "Because the life sentence provided by s.61 of that Act does not contemplate any prospect of relief in the future, no matter how distant, it should be reserved for crimes of the utmost heinousness: Chung [1999] NSWCCA 330, Ibbs v. R. (1987) 163 CLR 447 at 451-2, Twala NSWCCA 4/11/94, Fernando (1997) 95 A Crim R 553 at pars.344-4, Harris at 423."
2. The evidence establishes that while this was not such a case, it was nevertheless a very serious offence, in my assessment falling above the mid-range of seriousness of such offences.
3. The facts which the parties agreed reveal that Mr Murray killed Ms Dutton while they were alone together at the apartment of a friend, Mr Cribb, which they shared with him. When she was killed, Ms Dutton was defenceless and without help. The offence came to light when Mr Cribb made a 000 call on 26 November 2013 and told the operator that a few hours earlier, Mr Murray had admitted the murder to him, while they were drinking together at a hotel and that Mr Murray had told him that Ms Dutton's body was at their flat.
4. The words he had used were reported to have been: "I've knocked her, I've fuckin' knocked her, I fuckin' stabbed her seven times in the back and let her bleed to fuckin death" and that "I fuckin really got revved up … That many towels".
5. He also said: "she bled to death in your house" and that "I'm certainly not going anywhere near my place at the moment".
6. At one point during this account Mr Murray started to get teary eyed. Mr Cribb also said that Mr Murray had told him that he had argued with Ms Dutton the day before about her having pills and not giving him any and giving her daughter a phone, which he wanted and had smashed.
7. Mr Cribb also told the 000 operator that he was afraid that if he returned home, he would be killed.
8. Police then attended the apartment, where there was initially no answer. When they identified themselves, Mr Murray came to the door and when asked about Ms Dutton, said that he had not seen her for a few days. When told that police had information that she had been injured and that they needed to check on her welfare, he initially refused to permit them to enter. Eventually he let them in.

Moral culpability

1. There is evidence that Mr Murray suffers mental illness. The impact on his moral culpability for his offence thus arises for consideration.
2. Mr Murray was examined by Dr Nielssen in 2015. His June report disclosed that Mr Murray had been living with Ms Dutton, with whom he had had an on/off relationship for some three years including a period during which he had been in custody. He told Dr Nielssen that they were both substance abusers, consuming alcohol, methamphetamine, cannabis and sedative medications. Mr Murray also told Dr Nielssen that an AVO had been taken out in favour of Ms Dutton after a previous incident at a time when they had both been intoxicated. He said the condition was "not to drink around each other because the courts knew we lived with each other". It was, in fact, more onerous than that.
3. Mr Murray told Dr Nielssen that he had no memory of the offence or the events between Ms Dutton's death and his arrest, but he did remember going to the methadone clinic that day to collect his usual dose and consuming 80mg of methadone, as well as a hundred dollars of methamphetamine, or 0.2 grams, as well as 7 or 8 schooners of beer. Mr Murray said he could not remember taking any sedatives, but could not rule out having done so.
4. Mr Murray also remembered arguing with Ms Dutton, but not what about. He said that his next memory was of police knocking on the door, asking about Ms Dutton, searching the flat and charging him with murder. He did not remember cleaning the flat, wrapping Ms Dutton's body, or talking to Mr Cribb.
5. Mr Murray said, as to his state of mind, that it was all a bit of a blur and that his use of sedatives had caused him to have large gaps in his memory; and that methamphetamines made him very paranoid, which he said was "like not knowing if someone was going to want to hurt me … hearing someone talking about someone else and thinking they are talking about me".
6. Mr Murray also told Dr Nielssen that Ms Dutton had bipolar disorder; that she had assaulted him in the past, when in a disturbed state of mind; and that he had been anxious that she might attack him again, but he had no memory of believing that she was about to attack him, or believing that she planned to kill him, on the day of his offence. He claimed, however, then to have no memory of either the offence, or why he might have committed it.

Aggravating factors

1. The aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act which the parties agreed were relevant to this sentencing exercise were firstly, that Mr Murray has a record of previous convictions, and is being sentenced for a serious personal violence offence, having a record of previous convictions for serious personal violence offences (s 21A(2)(d)); and secondly, that his offence was committed while he was on conditional liberty in relation to another offence (s 21A(2)(j)).

Conditional liberty

1. When he killed Ms Dutton, Mr Murray was subject to a good behaviour bond which had been imposed upon him on 20 June 2013 in the Local Court, for failing to appear in relation to drug and dishonesty charges. He was also subject to the AVO made in favour of Ms Dutton.
2. There could be no more serious breach of a good behaviour bond than to murder the person protected by the AVO which bound Mr Murray. It follows this was a serious, aggravating factor to be taken into account in this sentencing exercise.

Mr Murray's record

1. Overall, Mr Murray's record is one of considerable violence, committed over the course of his adult life. It began in 1982 when a sentence of 6 years imprisonment with a non-parole period of 21 months was imposed upon him for assault with intent to rob with wounding. It includes a robbery while armed offence in 1989; an assault occasioning actual bodily harm offence in 1995; an assault police officer offence in 2001; a common assault in 2002; a stalk with intimidation offence, as well as a wound with intent to cause grievous bodily harm offence in 2008; and an assault occasion actual bodily harm offence in 2011.
2. This is a record which Mr Murray accepted disentitled him to leniency, but he submitted, it did not increase the objective seriousness of his offence. That may be accepted, it being settled that prior offending cannot result in a sentence which is disproportionate to the gravity of the offence for which the sentence is being imposed (see Veen [No 2] at 477).
3. This record also, however, gives rise to the need for deterrence to feature in the sentence imposed upon Mr Murray, a matter to which I will return.

The place of this offending

1. The provisions of s 21A(2)(eb) need also to be mentioned. It provides that an aggravating factor is: "(eb) the offence was committed in the home of the victim or any other person"
2. It became common ground between the parties that this ought not to be regarded as an aggravating feature of Mr Murray's offence, because of the view taken in the authorities, as to the proper construction of this provision. Rather, they agreed, the fact that Mr Murray killed Ms Dutton in the home which they shared, should be taken into account in assessing the overall nature and seriousness of his offence.
3. At common law, the fact that an offence is committed in the home in which both the offender and the victim reside, is not a circumstance of aggravation and so, in accordance with s 21A(4), has not been considered to be an aggravating factor under s 21A(2)(eb) (see R v Gazi Comert [2004] NSWCCA 125; EK v R [2010] NSWCCA 119; (2010) 79 NSWLR 740 at [79]; Ingham v R [2011] NSWCCA 88 at [112]; R v BIP [2011] NSWCCA 224 at [61]; MH v R [2011] NSWCCA 230 at [34]; Essex v R [2013] NSWCCA 11 at [72]).
4. The correctness of that construction has been questioned, but the issue has not been resolved (see Melbom v R [2013] NSWCCA 210 at [44] Montero v R [2013] NSWCCA 214 at [47]; Oh Hyunwook v R [2010] NSWCCA 148 at [40] and Aktar v R [2015] NSWCCA 123 at [1], [2] and [55]).
5. In the result, I accept the parties' common position that on currently binding authority, the fact that Mr Murray murdered Ms Dutton at the home which they shared, is not a separate, aggravating factor to be taken into account under s 21A(2)(eb), but a part of the matrix of factors which must be taken into account in assessing the objective seriousness of his offence. I have accordingly taken this factor into account, in the conclusions I came to, as to the seriousness of this offence.

Mitigating factors

1. Under s 21A(5AA) an offender's self-induced intoxication at the time the offence was committed is not to be taken into account as a mitigating factor on sentencing.
2. The parties agreed that the mitigating matter specified in s 21A(3) of the Crimes (Sentencing Procedure) Act relevant to take into account in this case was Mr Murray's plea, to which I will return.

Remorse - s 21A(3)(i)

1. It was also submitted for Mr Murray that it would be accepted that his confession to Mr Cribb could be considered to evidence some remorse on his part. That submission may not be accepted, s 21A(3)(i) providing as it does that a mitigating factor is: "(i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),"
2. Not only did Mr Murray not give evidence at the sentencing hearing as to his remorse, it was not a matter which he raised with Dr Nielssen, who examined him in May 2015. Earlier, when confronted by police, he not only denied his admission to Mr Cribb, but sought to attribute the blame for Ms Dutton's death to him. I have outlined what Mr Murray agreed he had confessed to Mr Cribb. It would defy common sense to accept that this callous, dreadful account of what he did to Ms Dutton, evidenced remorse of any kind.
3. I also cannot find that Mr Murray's conduct shows either remorse, or an acceptance of his responsibility for his actions. Nor has he acknowledged the injury, loss and damage which he has caused, or made any reparation.
4. The fact is that apart from the entry of the late plea in the face of what was unquestionably a very strong Crown case, Mr Murray has taken no responsibility for what he did to Ms Dutton, let alone shown that he has any remorse for his truly awful offence. It follows that remorse is not a mitigating factor which can be taken into account in his case.

Mr Murray's awareness of the consequences of his actions - s 21A(3)(j)

1. It was accepted for Mr Murray that before his underlying psychotic illness could be taken into account as a mitigating factor, a causal connection had to be established between his illness and his offence. Dr Nielssen found it impossible to come to such a view, given Mr Murray's claimed inability to remember the circumstances of the offence.
2. As I have explained, Mr Murray told Dr Nielssen that, at the time he killed Ms Dutton, he was affected by drugs and alcohol, to an unspecified degree. He had for many years been dependent on illicit substances, his addiction accounting for much of his record, being the result it was submitted, of attempts to obtain money for drugs.
3. Dr Nielssen concluded that Mr Murray's offence was more likely to have been the effects of self-induced intoxication, than his mental conditions. That conclusion is consistent with the agreed facts. In the result, it must be concluded that this mitigating factor was also not established.

Hardship of custody

1. A letter provided from Justice Corrective Services after the sentencing hearing revealed that as the result of a request which Mr Murray made, he is presently held in custody, in Special Management Area Placement ("SMAP") at his own request and for a period in October 2014, he was held in segregation. SMAP inmates are held in an area where inmates who require protection can be safely managed. There they have access to programs and services.
2. It is settled that protective custody can only be taken into account on sentencing where there is evidence that the conditions of imprisonment will be more onerous as a result (see RWB v R; R v RWB [2010] NSWCCA 147; (2010) 202 A Crim R 209 at [192] - [195]). I am not satisfied that there is such evidence.
3. The submission made on sentencing was that SMAP custody precluded access to work. There was no evidence about this. The onus fell on Mr Murray to establish such matters by evidence (see Clarkson v R [2007] NSWCCA 70; (2007) 209 FCR 387 at [273]).
4. On the information provided, hardship in custody cannot be taken into account as a mitigating matter in this case.

The offender's personal circumstances

1. On sentence, account must also be taken of Mr Murray's personal circumstances, about which he told Dr Nielssen.
2. Mr Murray is the second of four siblings, but has had little contact with his family for some years. His father was a fitter and turner and his mother a public servant. He had four children as the result of a long term relationship, who, on his account, have all done well in life. Apart from Ms Dutton, he has had no other serious relationships. He reported no lifelong friendships.
3. Mr Murray reported no learning or conduct problems at school, apart from truanting. He completed Year 10 with good marks and had been good at various sports. He began smoking cannabis at around age 14 and drinking alcohol when he left school. He said that his drug of choice during adulthood had been heroin and in the last 5 or 6 years, methamphetamine. He had used sedatives to help him come down from methamphetamines. He had also been taking methadone for some 27 years.
4. Mr Murray was first imprisoned as an 18 year old and since then has spent over 17 years in custody. He is now aged 51. He tried a number of drug rehabilitation places when he was younger, without success. He was able, however, to work as a labourer in the construction industry, when not incarcerated and was also usually employed in some capacity, when in custody, in order to pass the time.
5. Dr Nielssen found that Mr Murray is a person of average intelligence. He had a normal upbringing and childhood, but commenced use of cannabis at a young age and alcohol when he left school. His drug and alcohol abuse has been a factor in a number of his offences and altercations over the years. His offending commenced at age 18, with subsequent heavy, ongoing drug abuse associated with violent offending, repeated incarceration and eventually the contraction of mental disorders. Despite this, Mr Murray was able to form a long term relationship which produced children, as well as his relationship with Ms Dutton.
6. This is sadly, a history of the kind discussed in R v Henry, long term offending associated with self-induced drug and alcohol abuse, which has led Mr Murray not only to the repeated pursuit of offences to fund his drug addiction, but also to the violent offending which has finally resulted in the worst conceivable outcome, the deliberate taking of a life.

Deterrence

1. The circumstances of Mr Murray's offence are such that, in my view, for a number of reasons, there can be no question that both general and specific deterrence must feature in the sentence which is imposed upon him, notwithstanding the mental disorders Dr Nielssen concluded he has developed.
2. Inflicting death is the most serious offence of domestic violence which an offender can commit. On the agreed facts, this offence was committed not only at a time when Mr Murray knew he was bound by the AVO made in favour of Ms Dutton, he was also aware, he told Dr Nielssen, of the connection between his drug and alcohol abuse and his violent offending. Knowing all of this, he deliberately allowed his defenceless partner to bleed to death, rather than seeking help for her, after he had repeatedly stabbed her over, on his account to Mr Cribb, a trivial disagreement. He also then took steps to conceal what he had done and on arrest, sought to blame Mr Cribb, for his offence.
3. While Mr Murray has gone beyond addiction to the point of development of mental disorders, on what he confessed to Mr Cribb, it is apparent that despite his illness and intoxication he knew what he was doing when he killed Ms Dutton. In the result, there is little room to reduce the role which general deterrence must play in this sentence (see R v Wright (1997) 93 A Crim R 48 at 50 - 51).
4. The evidence establishes, beyond reasonable doubt, that like the offender who arose to be considered in Veen [No 2], Mr Murray is a grave danger to society when he goes at large. On the evidence in his case, both general and specific deterrence must play a role in the sentence imposed upon him.

Discount on sentence for the guilty plea

1. It was common ground that it is within my discretion to grant Mr Murray a discount for the utilitarian value of his plea of guilty, in accordance with the Court of Criminal Appeal's guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.
2. The purpose of such a utilitarian discount was there explained by the then Chief Justice as reflecting the benefits which flow from a guilty plea, for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses and victims who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. In some cases, however, a plea may not result in any discount at all (see Thomson; Houlton at [157] - [158]).
3. A trial judge must identify these benefits when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived (see Thomson; Houlton at [115] - [123]).
4. Mr Murray's plea was not entered at the earliest opportunity and so the maximum discount of 25% is not available to him. It was, however, entered some time before the hearing and so benefits of the kind discussed in Thomson; Houlton have still flown from the entry of the plea.
5. The parties agreed that in the circumstances a 15% discount would not involve error, but the Crown contended for 12.5%. The difference in percentage terms is not great, but in a lengthy sentence such as that which has to be imposed on Mr Murray, it is significant.
6. The considerations which must be taken into account when a utilitarian discount is fixed are those discussed in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. Sentencing judges are obliged to follow that decision (see R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 at [3]). These considerations include that the discount for the utilitarian value of the plea will be determined largely by the timing of the plea, so that the earlier the plea, the greater discount; generally the reason for the delay in the plea is irrelevant, because, if it is not forthcoming, the utilitarian value is reduced; the amount of the discount does not depend upon the administrative arrangements or any practice in a particular court; and that there may be offences that are so serious, that no discount should be given and where the protection of the public requires a longer sentence.

Other decided cases

1. The parties referred to various cases where sentences of various lengths have been imposed on other offenders. I have considered those submissions, but found them to be of limited assistance.
2. The authorities relied on for Mr Murray at the hearing reflected sentences ranging from 29 years, with a non-parole period of 22 years, for a stabbing murder committed during a violent struggle, after a trial; to 14 years, with a non-parole period of 10 years, after a 25% discount for a plea to murder by strangling, which reflects a starting point of 18 years.
3. The cases later argued for Mr Murray to be particularly relevant were:

• R v Bolt [2013] NSWSC 895, which involved an offence found to have been slightly below the mid-range, after Mr Bolt gave evidence; where there was no intention to kill; the deceased was found to have been the aggressor in part; a plea was entered at the earliest opportunity; a high level of remorse and real prospects of rehabilitation were found; and where a sentence of 18 years with a non-parole period of 12 years was imposed.
• R v Kennedy [2013] NSWCCA 1940 which involved multiple blows without a weapon; there was a plea at call over, for which a 12.5% discount was allowed; the offender had a record of violence, intoxication and a mental illness not causally connected to the offence, with uncertain prospects of rehabilitation; where a sentence of 23 years and 4 months with a non-parole period of 17 years and 6 months was imposed.
• R v Lutu [2014] NSWSC 413 which involved a stabbing murder, after an argument over financial difficulties where there had been an AVO; where an intention to kill was found in a serious example of murder in a domestic relationship, where moral culpability was found to be high; but a plea was entered at the earliest opportunity; there were no psychiatric or drug and alcohol issues, but genuine remorse and an unlikelihood of reoffending found. A sentence of 18 years and 9 months with a non-parole period of 14 years was imposed.
• R v Serutawake [2014] NSWSC 413 which involved a stabbing murder with conviction following a trial, at which a defence of provocation and defence of another was not accepted. The murder involved 22 wounds, 5 of which were potentially fatal, including defensive wounds. Intoxication was found to be out of character and cannabis abuse not causally connected with the offence. There were real expressions of regret and remorse and very good prospects of rehabilitation found. A sentence of 21 years with a non-parole period of 16 years was imposed.

Special circumstances

1. Mr Murray presents a considerable risk that he will engage in further violent offending, once released. He did not seek a finding of special circumstances, accepting that he would be subjected to a lengthy period of supervision, if released on parole, when his non-parole period expires.
2. On the evidence, he will certainly require the closest and most careful supervision, whenever he is released on parole, given the nature of his record, the seriousness of his offence and the obvious risks which he presents of further violent offending, once released.
3. In my assessment, given the sentence necessarily to be imposed upon him, the result of the statutory ratio will provide such a period of supervision. In the result, there is no need for any finding of special circumstances.

Victim Impact Statements

1. Two moving victim impact statements were read out in open court at the sentencing hearing, one which had been made by Ms Dutton's parents and the other by her brother.
2. Under s 28(4) of the Crimes (Sentencing Procedure Act), on the application of the prosecutor and if the Court considers it appropriate to do so, those statements may be considered and taken into account on sentencing Mr Murray, on the basis that the harmful impact of Ms Dutton's death on the members of her immediate family, is an aspect of the harm done to the community. There was no objection by Mr Murray to account being taken of those statements.
3. It has long been recognised that all human life is precious and that the death of any person is a harm which an offender inflicts on the community generally. One life cannot be valued over that of another. Nevertheless, in this case, I consider that the victim impact statements should be taken into account on sentencing, shedding light as they do on the particular harm which this murder has done to Ms Dutton's family. Accordingly, I have taken them into account in sentencing Mr Murray.
4. For myself, I also wish to observe that the tragic reality is that Ms Dutton's death was an awful and lonely one, defenceless and without help as she was when her death was so needlessly caused.
5. Ms Dutton's family and friends all have my very deepest sympathy at her terrible loss. What her family, in particular, must continue to bear, not only as the result of her death, but also as the result of the terrible way that it was brought about, is, it seems to me, very difficult for others of us to fully comprehend. Their sad plight is, however, acknowledged. What they must endure has not been overlooked by the community of which we are all members together.
6. It is to be hoped that Mr Murray's acknowledgment of his wrongdoing by the entry of his guilty plea and the sentencing proceedings which have followed, will give them some small measure of comfort, by revealing how our society and the legal system it has created, has operated to deal with the awful offence which Ms Dutton's killing involved.

The sentence

1. The parties agreed that the sentence imposed on Mr Murray must commence on the date of his arrest on 26 November 2013.
2. Having considered all of the matters I have mentioned, I have concluded that after a 12.5% discount for his plea, Mr Murray must be sentenced to a term of 25 years 4 months imprisonment. The application of the statutory ratio results in a non-parole period of 19 years and a balance of term of 6 years 4 months. This reflects a starting point of 29 years for Mr Murray's offence.
3. This means that the earliest date that Mr Murray will be eligible for release is 25 November 2032. That will depend on Mr Murray convincing the Parole Authority that he should then be released on parole. His sentence will expire on 25 March 2039.

Orders

1. David Robert Francis Murray you are convicted of the murder of Keeli Antoinette Dutton.
2. You are sentenced to a term of imprisonment of 25 years 4 months, commencing on 26 November 2013 with a non-parole period of 19 years, expiring on 25 November 2032.
3. I set a balance of term of 6 years 4 months, which is to expire on 25 March 2039.

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