(2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Hili v The Queen
Jones v The Queen [2010] HCA 45
(2010) 242 CLR 520
Hiron v R [2007] NSWCCA 336
Ingham v R [2011] NSWCCA 88
Markarian v The Queen [2005] HCA 25
Source
Original judgment source is linked above.
Catchwords
(2007) 209 FCR 387
EK v R [2010] NSWCCA 119(2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Hili v The QueenJones v The Queen [2010] HCA 45(2010) 242 CLR 520
Hiron v R [2007] NSWCCA 336
Ingham v R [2011] NSWCCA 88
Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357
Melbom v R [2013] NSWCCA 210
MH v R [2011] NSWCCA 230
Montero v R [2013] NSWCCA 214(2013) 234 A Crim R 532
Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38(2013) 249 CLR 600
Oh Hyunwook v R [2010] NSWCCA 148
Power v The Queen [1974] HCA 26(1974) 131 CLR 623
R v AB [2011] NSWCCA 229(2011) 59 MVR 356
R v BIP [2011] NSWCCA 224
R v Bolt [2013] NSWSC 895
R v Borkowski [2009] NSWCCA 102(2009) 195 A Crim R 1
R v Gazi Comert [2004] NSWCCA 125
R v Dodd (1991) 57 A Crim R 349
R v Henry [1999] NSWCCA 111(1999) 46 NSWLR 346
R v Johnson [2015] NSWSC 31
R v Kennedy [200] NSWCCA 487(1999) 199 CLR 270
R v Serutawake [2014] NSWSC 413
R v Scott [2005] NSWCCA 152
R v Thomson
R v Houlton [2000] NSWCCA 309
(2000) 49 NSWLR 383
R v Wright (1997) 93 A Crim R 48
RWB v R
R v RWB [2010] NSWCCA 147
(2010) 202 A Crim R 209
Veen v The Queen [No 2] [1988] HCA 14
Judgment (23 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions (Crown)
Dignane Hanrahan (Offender)
File Number(s): 2013/356990
[2]
Judgment
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.
He now stands for sentence for his offence.
[3]
This Court's sentencing task
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.
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).
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.
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.
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.""
No different approach can be taken when the domestic violence in question involves the more serious offence of murder.
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.
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.
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."
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)).
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.
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.
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.
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.
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).
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.
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]).
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.
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.
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.
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.
[4]
The issues
In this case the issues lying between the parties are limited.
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.
[5]
The seriousness of this offence
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."
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.
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.
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".
He also said:
"she bled to death in your house" and that "I'm certainly not going anywhere near my place at the moment".
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.
Mr Cribb also told the 000 operator that he was afraid that if he returned home, he would be killed.
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.
[6]
Moral culpability
There is evidence that Mr Murray suffers mental illness. The impact on his moral culpability for his offence thus arises for consideration.
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.
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.
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.
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".
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.
[7]
Aggravating factors
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)).
[8]
Conditional liberty
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.
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.
[9]
Mr Murray's record
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.
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).
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.
[10]
The place of this offending
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"
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.
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]).
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]).
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.
[11]
Mitigating factors
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.
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.
[12]
Remorse - s 21A(3)(i)
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),"
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.
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.
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.
[13]
Mr Murray's awareness of the consequences of his actions - s 21A(3)(j)
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.
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.
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.
[14]
Hardship of custody
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.
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.
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]).
On the information provided, hardship in custody cannot be taken into account as a mitigating matter in this case.
[15]
The offender's personal circumstances
On sentence, account must also be taken of Mr Murray's personal circumstances, about which he told Dr Nielssen.
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.
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.
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.
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.
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.
[16]
Deterrence
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.
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.
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).
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.
[17]
Discount on sentence for the guilty plea
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.
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]).
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]).
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.
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.
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.
[18]
Other decided cases
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.
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.
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.
[19]
Special circumstances
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.
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.
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.
[20]
Victim Impact Statements
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.
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.
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.
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.
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.
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.
[21]
The sentence
The parties agreed that the sentence imposed on Mr Murray must commence on the date of his arrest on 26 November 2013.
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.
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.
[22]
Orders
David Robert Francis Murray you are convicted of the murder of Keeli Antoinette Dutton.
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.
I set a balance of term of 6 years 4 months, which is to expire on 25 March 2039.
[23]
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Decision last updated: 30 July 2015
There the police found that the apartment smelt of bleach or cleaning products and that an Otto bin was in the middle of the lounge room. There was what appeared to be a blood stain on Mr Murray's pants, as well as bloodstains on an archway. In the bedroom they found Ms Dutton's body next to the bed, wrapped in sheets. Mr Murray then became agitated and was arrested for her murder.
Subsequent investigations showed that Ms Dutton had collected methadone at 9:30 am on 25 November, before she went to the pub with Mr Murray at 9:47 am. They left at 1:57 pm. Ms Dutton made and received calls on her phone until 7:30 pm, after which calls went to a message bank. It was estimated that her death must have occurred between that time and 8:30 am the next day. Mr Murray collected his methadone at 8:45 am on 26 November, before going to the pub, where he made his confession to Mr Cribb. He left at 1:30 pm. The Otto bin was taken into the apartment at 3:30 pm.
Mr Cribb had not returned home until 5 am on 26 November and was home for only about 2 hours, in the company of a Mr Hancock, who saw Mr Murray come out of his bedroom, opening the door only wide enough to allow him to get out and then shutting it behind him.
After his arrest, Mr Murray told police that he had drunk alcohol and smoked pot that day, but that he hadn't seen Ms Dutton that day. He also said "we had a blow up last week. I got an AVO and haven't seen her". He also said he had been drinking at the hotel for 2 to 3 hours that day.
Mr Murray agreed to an interview, in which he told police that Ms Dutton was his de facto partner. He agreed that he had been in the apartment when police arrived. He did not agree that police had found Ms Dutton's body there, but said that he had last seen her on Sunday, 24 November. That was untrue. He also denied his confession to Mr Cribb, but then said "he's full of shit, it [sic] strange he's come and done that and I'm getting the blame".
Forensic testing on Mr Murray's pants determined that the stain matched Ms Dutton's DNA profile. Various items removed from the apartment, the Otto bin and a bin outside, were tested for human blood, including knives. Stains on the underside of a mattress, a plastic bag found in the Otto bin and a roll of plastic bags found in the laundry room also matched Ms Dutton's DNA profile. Three of the fingerprints on the roll of plastic bags matched Mr Murray's fingerprints.
The autopsy established that the cause of Ms Dutton's death was the 7 stab wounds inflicted to her back, with the weapon passing into both her lungs and her left deep jugular vein. There was also relatively minor blunt force injury to her neck and head. One of these wounds was fatal, one dangerous, three survivable with treatment, one going to muscle only and only one which posed no problem for survival.
Toxicological examination established that Ms Dutton's alcohol reading was 0.184 and she also had a reading of 1.82 mg/L for methadone. The expert opinion of Dr Farrar, a forensic pharmacologist, was that irrespective of Ms Dutton's tolerance to drugs and alcohol, the effects of the consumption of this level of methadone and alcohol would have caused significant sedation and probably, respiratory depression. The combination would also have reduced her ability to perceive any threat to her safety and her ability to defend herself against physical attack. That was consistent with the absence of any defensive wounds on her body.
This evidence underscores the seriousness of Mr Murray's offence. Mr Murray later told Dr Olav Nielssen, a psychiatrist, who examined him in May 2015, that he had no memory of his offence, or of the events between Ms Dutton's death and his arrest. Dr Nielssen observed that this was consistent with Mr Murray having at the time taken a large amount of sedative, which he could not, however, then remember taking. He could, however, remember other things leading up to the murder.
Mr Murray gave no evidence on sentencing and so what he said to Dr Nielssen has to be approached with caution, he not having been prepared to give evidence, or be cross-examined on the account he gave to Dr Nielssen.
What Mr Murray told Dr Nielssen also has to be considered in light of what the agreed facts received on sentencing establish. They are consistent with Mr Murray knowing that he had killed Ms Dutton, at the time of his arrest. Not only had he earlier that day, told Mr Cribb what he had done, in terms consistent with what was later established when Ms Dutton's body was found, he had also taken steps to conceal what he had done, including by acquiring cleaning products and other items, clearly intending then to dispose of her body.
After his arrest, Mr Murray told police not only that he had consumed drugs and alcohol that day and that he had gone to the pub, he also revealed that he was bound by an AVO order and claimed that he hadn't seen Ms Dutton. He also then denied having been found with her body. That was inconsistent with his admission to Mr Cribb. His claim that it was Mr Cribb who had killed Ms Dutton was also consistent with his then knowledge of what he had done and an attempt to deflect blame from himself.
This was not the conduct of a person who in November 2013 had no memory of what he had done to Ms Dutton, namely, that he had killed her deliberately, by stabbing her 7 times in the back, almost all of the wounds he inflicted being serious and one of itself fatal. Even though Ms Dutton was clearly defenceless and without help, Mr Murray then callously let her to bleed to death, as he told Mr Cribb in graphic terms. That he could have summoned the help she then so desperately needed, after his violent attack, is apparent on the agreed facts.
There is, accordingly, no question that Mr Murray intended to kill Ms Dutton, rather than merely to cause her grievous bodily harm, as he accepted on sentencing.
There can also be no question that objectively, this was a most serious offence, involving a brutal killing of a defenceless woman, Mr Murray's partner at the home which they shared. The parties agreed that at the time, Mr Murray was aware of the terms of the AVO which bound him, it having been served on him personally. It obliged him not to assault, molest, harass, threaten or otherwise interfere with Ms Dutton, nor to engage in any other conduct that intimidated her and not to stalk her. There can be no more serious breach of such an order than to kill the person it is designed to protect.
In the result, this, I am satisfied was an offence which undoubtedly falls above the mid-range of seriousness of such offences.
After his arrest, Mr Murray was admitted to the Mental Health Screening Unit at the MRRC and then transferred to other wings in the mental health unit. He said there he experienced hallucinations of voices, hearing people calling out his name, seeing things, hearing her family say things, even though he did not know who they were or what they looked like. He had then received treatment and the symptoms had abated.
Mr Murray understood that he had been diagnosed with schizophrenia and was still taking sedating antipsychotic medications. His contact with mental health services had mainly been in the last few years, he said, after he had started using methamphetamine. He reported no family history of mental illness or treatment for any psychiatric disorder and no contact with mental health services as a child, or adolescent. He had attempted suicide in custody in 2011.
Mr Murray also said that his general health was "not too bad", but after his last release from custody he was referred to a psychologist, which he had found helpful. He was also being treated for active hepatitis C and reported having in the past been resuscitated, after several overdoses of heroin. He had also, in the past, woken covered in blood, in weird places, after being knocked out.
Dr Nielssen found Mr Murray's intelligence to be within the normal range, consistent with his reported literacy and social performance. He diagnosed him to be suffering from substance use disorder; a substance induced psychotic illness and a depressive illness. This diagnosis rested on Mr Murray's account of a pattern of regular use of hazardous quantities of alcohol, cannabis and methamphetamine; his history of long term opiate addiction; and his abuse of sedatives. Dr Nielssen said that Mr Murray had also reported complications of drug use, including the role of long term substance use in his many past offences and the probable role of intoxication in the recent offence.
The diagnosis of a psychotic illness rested on Mr Murray's history of typical auditory hallucination and related persecutory beliefs, following the onset of regular methamphetamine use, some five years before Ms Dutton's murder and his treatment with antipsychotic medication after arrest, with which he is still being treated. Dr Nielssen diagnosed a psychotic illness, rather than schizophrenia, because of the late onset of Mr Murray's symptoms; the close relationship between their onset and his methamphetamine use; and the absence of objective features of chronic mental illness during his interview, when Dr Nielssen said Mr Murray was depressed, not showing active psychotic illness and lack of elaboration in answers, consistent with depression and schizophrenia. He found Mr Murray to be alert and maintaining attention throughout the interview, in which he had also displayed knowledge of recent events.
Mr Murray maintained that he had no memory of killing Ms Dutton and on the information available, Dr Nielssen concluded that he had no defence of mental illness available to him. His psychotic illness was not a transient state of mind, and so Dr Nielssen considered it to be an underlying condition. He concluded that it was impossible to assess whether the symptoms of that illness had affected Mr Murray's perceptions of events, his ability to judge right from wrong and his capacity to control himself at the time he killed Ms Dutton. That he has mental health issues is supported by records tendered from NSW Health, which include relevant clinical notes.
Dr Nielssen observed, however, that it appeared unlikely that Mr Murray would have committed the offence, but for the effect of self-induced intoxication with methamphetamine and a large quantity of alcohol. In the result, he concluded that amnesia offered him no advantage, but suggested that he had taken a relatively large dose of sedative medication, known to result in memory loss for large periods. Dr Nielssen accordingly considered him to be fit to be tried.
That Mr Murray was fit was supported by the plea which he entered after receiving Dr Nielssen's report, as well as legal advice, and by the statement of facts which he later accepted, was correct. As I have explained, that statement raised some questions as to the account which he gave Dr Nielssen, which were not answered because, as was his right, Mr Murray chose not to give evidence at the sentencing hearing. That means, however, that caution has to be exercised in reaching conclusions based on the report he gave Dr Nielssen.
Mr Murray's history is one of self-induced addiction at an age of rational choice. That has long been recognised as establishing moral culpability for the predictable consequences of such choices and that those who choose a course of addiction, must be treated as also choosing its consequences (see the discussion in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [185] - [202]).
It is also settled, however, that an offender's mental condition can have the effect of reducing his or her moral culpability and that matters such as general deterrence, retribution and denunciation may then have less weight to play in the sentence which is imposed on the offender (see Muldrock at [53]). Even, however, where there is a causal relationship between a mental disorder and an offence, that will not automatically result in a reduced sentence (see R v Engert (1996) 84 A Crim R 67 at 71. The evidence established no such causal connection in this case. It did establish, however, that Mr Murray is a considerable danger to the community when he is at large.
As discussed in Veen v The Queen [No 2] [1998] HCA 14; (1988) 164 CLR 465 at 476, the purposes of sentencing overlap and often point in different directions. This is such a case. Mr Murray is an offender whose drug abuse has been pursued for many years and who has now developed mental disorders. Dr Nielssen's view that it was his self-induced intoxication which was the more likely explanation for his offending on this occasion, was supported by other evidence received on sentencing. It follows that even if it be accepted that Mr Murray's moral culpability for this offence, is somewhat less than it would have been if he did not suffer from those disorders, it is still high.
Like in Veen [No 2], the evidence in this case thus has two countervailing effects, one which tends towards a somewhat shorter custodial sentence, the other towards a longer one. It will be necessary to return to this when discussing deterrence. It must be noted, however, that these considerations cannot lead to the imposition of a more severe penalty than would have been imposed on Mr Murray, had he not been suffering from the mental disorders which Dr Nielssen diagnosed.
In this case, the timing of the plea was submitted to have been the result, in part, of the need to have Mr Murray's fitness assessed by Dr Nielssen and the requirements of the Local Court as to when pleas must be entered, which, it was argued, had not been sufficiently taken into account in Borkowski.
These submissions may not be accepted. It is settled that the utilitarian value of a plea will be determined largely by its timing, irrespective of the practices of the courts, or the reasons for the delay. Borkowski is binding on sentencing judges and may not be departed from, for the reasons here advanced for Mr Murray.
The Crown's case was unarguably always a strong one. The guilty plea was a belated recognition that Mr Murray's conviction was likely, as the facts he later agreed confirmed. These facts do reveal that protection of the public is an important aspect of the sentence which must be imposed on Mr Murray, for reasons which I have discussed.
In the result, I have concluded that, given the lateness of his plea, the seriousness of the offence and the undoubted need for community protection in the sentence which must be imposed on Mr Murray, the discount for his plea should be 12.5%.
R v Johnson [2015] NSWSC 31 where a sentence of 21 years was imposed, with a non-parole period of 15 years and 9 months. There death resulted from multiple blunt force trauma, as well as multiple superficial wounds with a sharp instrument, following a violent rage brought about by alcohol and jealousy. There was a plea on arraignment following an offer to plea in the Local Court to manslaughter, resulting in a little less than 20% discount. There were earlier assaults on the same partner, with a finding of reduced moral culpability because of childhood exposure to violence, drugs and alcohol; remorse was found, but rehabilitation was considered to be speculative.
These were all unquestionably serious offences, but they all have relevant differences, which it is unnecessary to discuss. The position is that the sentences imposed in these and other cases, on other offenders, shed but little light on how Mr Murray must be sentenced for his offence, having regard to all of the matters revealed by the evidence and the sentencing principles which are relevant in his case, which I have earlier discussed.
As discussed in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520, in a sentencing exercise such as this, what the Court must achieve is consistency in the application of relevant principles, not some equivalence with sentences imposed in other cases, where those principles have been applied to the different circumstances there arising to be considered, in respect of other offenders and the offences which they have committed.