R v Newby [2022] ACTCA 20

R v Newby [2022] ACTCA 20 | Case summary | Zoe

Neither the Crown nor Mr Newby made any substantive objection to the way in which the sentencing judge comprehensively assessed what had taken place by reference to an agreed statement of facts and the other evidence before the Court. It follows that it is convenient and appropriate to reproduce rather than endeavour to summarise the key parts of those reasons. Little is needed by way of qualification, and identifying the relatively small, but decisive, portions to which the Crown takes objection. The Crown appeal is directed to the asserted erroneous outcome and to limited parts of the process and reasoning leading to that outcome.
The following portion of the primary judge’s assessment succinctly details the events from the evening of 10 January 2020 until Mr Newby handed himself into police at 4.25 pm on 11 January 2020, some 15 hours after the murder:
The offender spent the early evening of 10 January 2020 drinking with friends and playing pool at a hotel in Braddon. 21. At 8:48 PM, Ms Adams called the offender and asked him to drop her father’s car keys to her; the keys had been left in the offender’s car the previous weekend. The offender said that he would not drop the keys because he had been drinking. 22. The offender and a drinking companion left the hotel and went to the home of the offender’s mother in Charnwood. After the offender had changed, he and his companion drove the short distance to Ms Adams’ residence, arriving at about 9:30 PM. 23. While the offender’s companion waited in the car, the offender entered Ms Adams’ residence with the car keys. He was inside for 15 to 20 minutes. The offender and Ms Adams argued about the status of their relationship and the offender “stormed out”. 24. Ms Adams expected that she would next see the offender at lunchtime on Sunday, when he was due to look after their child. 25. The offender left his car parked in front of Ms Adams’ residence. He and his companion caught an Uber to Civic. At 9:54 PM, the offender sent text messages to Ms Adams saying, “I know you were waiting for someone” and “[probably] booked in for a 12 AM plus appointment”. 26. The offender, his companion, and his companion’s girlfriend drank at various establishments in Civic until just after 1 AM, when the offender left. At about 1:08 AM, the offender entered a taxi, which dropped him close to Ms Adams’ residence. 27. Meanwhile, in the period leading up to 10 January 2020, Ms Adams and the deceased had discussed a physical meeting and agreed that they would meet on 10 January 2020. 28. After communicating during the evening of 10 January 2020, the deceased went to Ms Adams’ home shortly after midnight. After he arrived, they sat outside, chatted, and had a cigarette. They went inside, and Ms Adams closed and locked the front door. They went to the bedroom, where they talked and watched a show on Netflix. The only light that was illuminated in the house was the laundry light. Ms Adams and the deceased began to have sexual intercourse on Ms Adams’ bed. 29. Unknown to Ms Adams or the deceased, the offender gained access to Ms Adams’ residence using his house key. He heard Ms Adams and the deceased in the bedroom. He walked to the kitchen and removed a large knife (the blade was approximately 25 cm long) from a kitchen drawer. 30. He went to the bedroom, opened the door, switched on the light, and observed Ms Adams and the deceased for a few seconds. Ms Adams was shocked and did not notice that he had a knife. 31. The deceased—who was naked—stood to face the offender at the foot of the bed, near the doorway. Before Ms Adams or the deceased could say or do anything, the offender began to attack, striking the deceased with the knife. 32. The deceased and Ms Adams screamed at the offender, telling him to stop. The deceased raised his hands and attempted to push the offender away, but the offender continued to attack, striking the deceased with the knife from above. The deceased stepped backwards towards the bedroom wall, and the offender moved forward towards the deceased, continuing to slash at the deceased and accidentally stabbing his own upper right thigh. In an attempt to defend himself, the deceased grabbed the blade of the knife with his hand. However, the offender continued the attack, using the knife to strike the deceased’s head, back, and arm, and forcing the deceased back against the bedroom wall. The deceased crouched down. The offender stood in front of him. 33. During the incident, the offender said nothing. 34. The offender ceased the attack, leaving the deceased slumped against the bedroom wall and bleeding heavily. He was still conscious, but he was struggling to speak. 35. The offender dropped the knife, left the house, entered his car, and drove away. 36. At 1:30 AM, Ms Adams called an ambulance. She applied first aid as directed by the ambulance service, pressing a towel to what appeared to be the most serious wound, which was to the deceased’s upper arm and shoulder area. The deceased was struggling to breathe and told Ms Adams that he could not breathe. 37. The photographs that were tendered as part of Exhibit 1 depict what can only be described as a “bloodbath”, and show apparently deep wounds to the deceased’s head, chest, and shoulder areas. They also show that Ms Adams and the deceased were confined in a small area; the only means of access to it being the door through which the offender entered. 38. An ambulance arrived at 1:37 AM. Shortly afterwards, the police arrived. The ambulance officers attempted to take the deceased’s blood pressure, but it was too low to be detected. A large wound to the deceased’s chest was interfering with his breathing. The officers attended to the most serious wounds before transporting the deceased to the Canberra Hospital, departing at 1:51 AM. En route, the ambulance collected a cardiac monitor from another ambulance. 39. Six minutes before the ambulance arrived at the Canberra Hospital, the deceased suffered a cardiac arrest due to severe blood loss and he lost consciousness. The ambulance officers attached a defibrillator and began performing chest compressions. They administered adrenaline. On arrival at the Hospital, cardiopulmonary resuscitation and associated emergency treatment was continued. However, the attempt to reverse the cardiac arrest was fruitless. At about 2:42 AM, a doctor declared that the deceased’s life was extinct. 40. The direct cause of death was multiple sharp force injuries to the deceased’s head, chest, and upper limbs, including a penetrating injury to the left lung, heart, and aorta, which caused massive blood loss and the collapse of both lungs. In all, the deceased sustained 14 injuries to his head and neck, four injuries to his anterior trunk, eight injuries to his posterior chest wall, seven injuries to his left upper arm, three injuries to his right upper arm, and one wound to his lower extremities. 41. After leaving Ms Adams’ residence, the offender drove to his mother’s home, where he removed his bloodied clothes and placed them in the washing machine. His mother awoke, and he yelled at her to “clean the blood” that had been smeared throughout her residence. He told her that Ms Adams “was screwing some guy and I got him with a knife”, gesturing with slashing motions. He showered, changed, and asked his mother to drive him to his aunt’s house to “buy some time”. 42. By 2:03 AM, when police arrived at the home of the offender’s mother, the offender had left the residence. 43. At about 8 AM, the offender commenced a Facebook Messenger “conversation” with a friend in which he said that he felt as though Ms Adams had “set him up to come over to be hurt”. He admitted that he had stabbed the deceased a number of times and had “taken off”, not knowing whether the deceased was alive or dead. He called his companion of the previous night and told him that he had “grabbed a knife from the kitchen and stabbed” a man at least three times, including “up near the neck, and it was squirting blood … there was blood everywhere”. He asserted that he had previously told Ms Adams that, “if she had someone over again, [he would] kill the guy”. 44. That afternoon, Ms Adams’ father called the offender and offered to convey him to a police station. The offender declined. However, at 4:25 PM, the offender attended City Police Station, accompanied by his mother, aunt, and a family friend. 45. He participated in a forensic procedure examination. Later, he did not oppose orders made by the Magistrates Court for other forensic procedures.
The sentencing judge found that Mr Newby intended that his conduct towards Mr Prineas would have a profound impact on Ms Adams.
The sentencing judge addressed the victim impact material in some detail. In summary, her Honour accepted that Mr Prineas was much loved and that his murder would have a lifelong and devastating impact upon his close family members, including his parents, siblings, cousins, nieces and nephews, to which may be added his many friends. More than 600 people attended his funeral and over 1,500 people had attended a more recent event organised by his friends.
The sentencing judge assessed the objective seriousness of the offence in way that was not substantively questioned by the Crown or Mr Newby as follows:
As a general proposition, the offence of murder is the most serious of all offences; it is accorded that level of seriousness for the obvious reason that it acknowledges the importance of protecting and preserving human life. 59. Within the range of offences that may constitute murder, this particular offence is an offence of substantial objective seriousness. In relation to an assessment of the objective seriousness of the offence, the following matters are relevant. (a) The intent associated with the offence was intent to cause serious harm, rather than intent to kill. Generally, an offence of murder committed with intent to kill may be of greater objective seriousness than an offence committed with a “lesser” intent, but it all depends on the circumstances of the particular offence: R v Lee [2017] ACTCA 30 at [66]–[67]; Apps v The Queen [2006] NSWCCA 290 per Simpson J at [49] (Whealy J agreeing). (b) The motive for the offence was to dominate the offender’s former partner, Ms Adams, by terrifying her. The offence was the final and most extreme display of jealous and controlling behaviour by the offender towards Ms Adams. At an earlier point, the offender had warned her that, if he found her with another man, he would “kill the guy”. I accept the submission made on behalf of the offender that this statement did not evidence premeditated intent to kill any future partner of Ms Adams. Rather, it was an assertion of domination and entitlement. (c) After the offence, the offender repeatedly sought to attribute responsibility to Ms Adams, making the outrageous claim that she had provoked him. Offences that are motivated in this way must be sternly denounced: R v Fredes [2020] NSWSC 1332 at [44] (per Hidden AJ). (d) The offence was not premeditated; the offender may well have gone to the residence to stalk Ms Adams, rather than attack any man who was present. However, it was not an instantaneous reaction to an unexpected situation. The offender lost his temper, entered the residence in the middle of the night when he must have known that he would not be welcome, located a knife, and stood in the bedroom door for a few seconds before launching the attack. (e) It was not a completely spontaneous crime of passion, such as may be the case if a person encounters their current partner acting unfaithfully. The offender and Ms Adams each knew that the other was seeing other people and the offender jealously suspected Ms Adams of doing so at the time of the offence. There was no acceptable reason for the offender to become enraged. (f) On the other hand, the offender’s loss of temper must be seen against the background of a tumultuous and complex relationship wherein the offender spent occasional nights at Ms Adams’ unit, paid half the rent, and had keys to her unit. (g) Ms Adams and the deceased were vulnerable, in that they were naked and in no position to defend themselves. The house was locked and there was no reason to suspect that they were in danger. They were trapped in the bedroom with no means of escape. (h) The offence was committed with a dangerous weapon. (i) The offence was committed in front of Ms Adams, in the bedroom of her home, and while her young child was present nearby; it was a gross violation of her personal privacy and security. (j) The deceased was stabbed not once or twice, but many times. He suffered 37 injuries. He was struck to vulnerable parts of his body, including his head and chest. It was a brutal and sustained attack. Although the deceased moved backwards, the offender advanced on him and continued to slash at him. The deceased crouched while the offender stood over him. (k) The last few moments of the deceased’s life would have been horrific. He had first met Ms Adams that night, was subjected to an extremely vicious attack, and he did not die immediately from his injuries. Rather, he struggled to breathe for a period before going into cardiac arrest. (l) Having attacked the deceased, the offender dropped the knife and left, presumably having realised that, in a frenzy of temper, he had committed a shocking assault.
The sentencing judge also addressed Mr Newby’s subjective circumstances, in substance describing him as having a deprived and dysfunctional upbringing with a family history of heavy alcohol consumption. He was raised in the presence of men who were verbally abusive, controlling and possessive of his mother, including his father. His father suicided when he was six years old. Mr Newby had poor educational outcomes, but had been in gainful employment. The sentencing judge found that he is emotionally immature and lacked insight into his own behaviour. Her Honour found that there was no evidence of remorse.
The sentencing judge referred to the comparative sentence material proffered by the parties, and summarised the three cases considered most relevant as follows:
In Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370, the offender took a knife from the victim’s kitchen and repeatedly stabbed her when she was in her bedroom and while a 16-year-old child was present elsewhere in the house. Prior to her death, the victim was in a relationship with the offender. He was convicted following a trial. He demonstrated no remorse. The offender had exhibited jealousy of the victim’s relationships with other men. He suffered from paranoid schizophrenia, reducing his moral culpability. He had a history of violence and a tendency to threaten people with knives and to use knives when angry. The Court of Appeal reduced the original sentence of life imprisonment to a sentence of 19 years’ imprisonment, with a nonparole period of 10 years’ imprisonment. 85. The facts of the offence committed in R v Fredes [2020] NSWSC 1332 were somewhat similar to those in the present case. It involved the use of a weapon, was committed in the home of the victim, where the offender was also residing at the time, and was engendered in part by jealously arising out of the victim, a former partner, entering into a new relationship. The offender was genuinely remorseful. From a starting point of 23 years’ imprisonment, the sentence was reduced by 25 per cent to 17 years and three months’ imprisonment, with a nonparole period of 13 years’ imprisonment. 86. In R v Al-Hazari (No 7) [2017] ACTSC 350, following a trial, the offender was found guilty of murdering his wife by stabbing her at least 50 times. He displayed no insight or remorse. He was suffering from a personality disorder and bouts of psychosis. Refshauge J imposed a sentence of 30 years’ imprisonment, with a nonparole period of 21 years’ imprisonment.
At the commencement of the remarks on sentence, the sentencing judge had said as follows:
The offender cooperated to a limited extent with law enforcement authorities; he voluntarily attended the police station and did not oppose forensic procedures. However, it was inevitable that, absent cooperation, he would have been arrested very quickly. 5. At an early point, the offender offered to plead guilty to manslaughter, but the plea was not accepted. This is only relevant to show an early acceptance by the offender that he was responsible for the death of the deceased. 6. The case against the offender for murder on the basis of intention to cause serious harm was strong, as it included eyewitness testimony, admissions by the offender, and DNA evidence. 7. The Crown did not particularise the relevant intent as intent to cause serious harm until the matter had been committed for trial. Nor did the offender offer to plead guilty on that basis at an early stage. 8. The plea of guilty was entered after committal for trial, but prior to criminal case conferencing. The trial had been listed to commence on 22 March 2021 and the plea was entered on 29 January 2021. 9. There is no doubt that any trial would have been highly traumatic for the witnesses and the family of the deceased. In that respect, the plea had significant value to the administration of justice. 10. The appropriate combined discount for the plea of guilty, allowing a very small consideration for the offender's cooperation with law enforcement authorities, is between 15 and 20 per cent.
The Crown principally takes issue with [6] and [10].
The remarks on sentence concluded as follows:

Section 35(4), by commencing with the word “However”, is expressly cast as a mandatory exception to the preceding two subsections, but in particular subsection (3), which permits a reduction by reason of a guilty plea alone, after taking into account the mandatory considerations in subjection (2) and implicitly any other considerations, here Mr Newby’s subjective circumstances. Plainly enough, s 35(4) is intended to ensure that when the prosecution case satisfies the sentencing judge that the prosecution’s case for the offence, based on “established facts”, meets the description of being “overwhelmingly strong”, no significant reduction in sentence is permitted by reason of the guilty plea.
The Macquarie Dictionary defines “overwhelming” as being so great as to render opposition useless. That is the general sense in which that adverb is used in s 35(4). It does not mean that nothing other than a guilty verdict was possible. In context it suggests that an acquittal is realistically unlikely. It calls for a practical assessment of the reality of the situation. But it cannot mean so high a hurdle that it can never be met.
In Toumo’ua this Court held in relation to s 35(4) of the CSA:
In NSW, the strength of the prosecution case is not taken into account when determining the sentencing discount, and is only relevant to contrition and remorse: R v Sutton [2004] NSWCCA 225 at [12]. In Thomson, the Court decided that, while the strength of the prosecution case had no bearing on the utilitarian value of the plea of guilty and the associated discount, where a plea of guilty amounted to a “recognition of the inevitable” because it was entered in the face of an overwhelming prosecution case, then this consideration strongly informed whether contrition was genuine: at [137]–[139].
In this jurisdiction, demonstrated remorse is a relevant and discrete sentencing consideration to be taken into account under s 33(1)(w) of the Sentencing Act. Presumably, the strength of the prosecution case may inform the issue of remorse.
But in contradistinction to the position in New South Wales, in this jurisdiction the sentencing court is precluded, pursuant to s 35(4) of the Sentencing Act, from allowing a “significant reduction” for a plea of guilty if the prosecution case is “overwhelmingly strong”.
The rationale for importing this consideration into s 35, which is otherwise largely focused on the timing of the plea of guilty and its associated utilitarian value, is unclear. The Explanatory Statement does not elaborate on the purpose of including s 35(4). In Coggan v The Queen [2013] ACTCA 49 at [20], the Court explained that even an overwhelming prosecution case required an enormous amount of work and it was not unknown for an apparently overwhelming prosecution case to fail.
In any event, in cases involving a strong but not “overwhelmingly strong” prosecution case, there is no reason to reduce the discount given for the utilitarian value of a plea of guilty. In Monfries at [44] Murrell CJ (with whom Burns and Ross JJ agreed on this point) said:

On this appeal, the appellant asserted that the prosecution case was “overwhelmingly strong” but did not argue that s 35(4) had precluded a “significant” discount.
We agree that the prosecution case was very strong, although largely circumstantial. However, we do not consider that it fell into the very small class of cases that satisfy the “overwhelmingly strong” requirement in s 35(4) of the Sentencing Act. On the other hand, we accept the appellant’s submission that there was no deficiency in the prosecution case that could explain the high discount that was given for the pleas of guilty.
In Williams v The Queen [2018] ACTCA 4; 83 MVR 505 (Williams) (Murrell CJ, Burns and Elkaim JJ), this Court observed:
Turning to s 35(4), this subsection may be seen as a fetter on the general discretion that the court exercises in sentencing an offender. When the subsection is applicable, it would generally be accepted that the sentencing judge would specifically refer to it, if it was productive of a decrease in the discount that would normally be applied. When one examines the above quoted passage from his Honour’s judgment concerning the discount that does not seem to have been the case here. …
This case perhaps provides a salutary lesson to persons advising clients on pleas of guilty that a 20% or 25% discount for an early plea in the Magistrates Court might not be forthcoming if the Crown’s position is that the offender is facing a case that falls within the bounds of s 35(4). An enquiry of the Crown could be in order.
It also highlights the need for judges to clearly address any specific submission that the prosecution case is “overwhelmingly strong” within the meaning of s 35(4) so that offenders may understand why they did not receive a ‘normal’ discount for their plea of guilty.
In the sentence proceedings, the Crown submitted that the prosecution case was overwhelmingly strong for the purposes of s 35(4). This was done both orally and in writing. In the Crown written submissions on sentence, the following was said on this topic (footnotes omitted):
The Court must consider the fact that an offender has pleaded guilty: s 33(1)(j) Crimes (Sentencing) Act 2005 (ACT). If an offender has pleaded guilty to an offence, the court may impose a lesser penalty than it otherwise would have imposed: s 35(3). Before doing so, the court must consider the factors set out in s 35(2), including when the offender pleaded guilty, or indicated an intention to plead guilty; whether the plea was related to negotiations between the prosecution and defence; the seriousness of the offence; and the effect of the offence on the victim(s). The Court must not make any significant reduction if the court considers the prosecution case was overwhelmingly strong: s 35(4). … 47. In determining any discount for the plea of guilty, the Court must not make any significant reduction if, ‘based on established facts, the Court considers that the prosecution’s case for the offence was overwhelmingly strong’: s 35(4). If the Court finds the case was strong, but not ‘overwhelmingly strong’, there is no reason to reduce the discount for the utilitarian value of a plea of guilty. 48. The Crown submits that the case against the offender for murder on the basis of an intention to cause serious harm was overwhelmingly strong: a. There was an eyewitness to the murder who could easily identify the offender; b. The offender made admissions to his mother and two friends to the effect that he stabbed a man at [Ms Adams’] unit; c. The offender told Mr Young that he had previously told [Ms Adams] that ‘if she had someone over again, I’d kill the guy’; d. DNA consistent with that of the offender was found on the kitchen drawer where the knife used in the murder had been stored prior to the attack; e. Apparent blood stains were found on the outside and inside of the offender’s vehicle, in his washing machine, laundry, bathroom and bedroom on an items of clothing, including his shoes. DNA profiles obtained from these blood stains were consistent with the DNA of Mr Prineas; and f. The nature of wounds inflicted by the offender and the sheer number of them clearly indicate an intention to cause serious harm.
The written submissions for Mr Newby sought a 20-25% discount for all the circumstances involved in the guilty plea. However, those submissions did not make any submission directly contrary to those of the Crown on the strength of the prosecution case, seemingly avoiding the point.
In oral submissions on the second sentence hearing day, 2 June 2020, after a discussion about the timing of the guilty plea and about it not being made upon any restricted basis as to the charge in the indictment, and about the offer to plead guilty to manslaughter, the prosecutor said:

Consideration 230 In Pettitt v Dunkley [[1971] 1 NSWLR 376], as well as in Soulemezis v Dudley (Holdings) Pty Limited [(1987) 10 NSWLR 247] it was recognised that the duty to provide reasons is a fundamental component of the judicial process. Such duty is a manifestation of the fundamental principle of the common law that justice must not only be done, but must be seen to be done [R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42] Spigelman J]. 231 The extent of the duty will depend upon the circumstances of the individual case [Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels (Clarke JA and Hope JA agreeing)]. In that regard, Mahoney JA said in Soulemezis [270]: … In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them. 232 The corollary of that proposition is that if an issue is the subject of a specific submission made to a judge in terms which call for a reasoned consideration of it, that issue must be addressed in the reasons, and a definitive conclusion expressed. 233 In Taylor v R [[2020] NSWCCA 46 at [86] – [87]] Davies J, in the context of the factors set out in s 21A of the Crime (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), observed that it was not necessary for a sentencing judge to structure a judgment in the form of a checklist, in which principles of sentencing are enumerated and then “ticked off” as having been applied. To that extent, I accept the submission advanced by the Crown in response to this ground of appeal. However, consistent with the principles which govern the duty to give reasons, Davies J also observed in Taylor [[87]] that when a particular factor is addressed in submissions, what is required on the part of a sentencing judge is a “succinct statement as to the approach adopted on sentence” in relation to that factor. Whilst his Honour’s views were expressed in the context of the factors set out in s 21A of the Sentencing Act, they are equally applicable to any relevant factor which arises under s 16A of the Act when sentencing a Federal offender.

Based upon that material, Mr Newby submits that it was clear that the sentencing judge specifically engaged with the submissions made by the Crown about the strength of the prosecution case, using the phrase describing that case as being strong, and by necessary implication finding that it was not overwhelmingly strong. He submits that there was no need to refer to s 35(4) given that her Honour had assessed the case at a level lower than required for that provision to apply. He submits that this was not like Abbas in which there was a failure to make any finding at all about a particular issue, also relying upon Taylor v R [2020] NSWCCA 46 per Davies J (summarised in the passage from Abbas reproduced above).
None of the above references upon which Mr Newby relies constitute the necessary engagement with the issue as to the application of s 35(4), as explained in Toumo’ua and in Williams, consistently with the statement of principle explained in Abbas. This was not a case in which the Crown submission was marginal. To the contrary, it was compelling. If it was not acceded to, there needed to be a clear and express explanation as to why the prosecution case was not found to be overwhelmingly strong, particularly given the circumstances of the matter.
If that process had been engaged in, either the conclusion urged by the Crown (and not expressly contradicted by the submissions for Mr Newby at the sentence hearing) would have been acceded to, or a contrary conclusion would have been reached. If the latter conclusion was reached, it would then have been available for consideration of any appeal as to legal error. It is to be expected that the Crown would only argue for the application of s 35(4) in a relatively small number of cases.
Contrary to Mr Newby’s submissions, the sentence hearing discussion between the sentencing judge and the Crown prosecutor about the guilty plea prior to the express submission about s 35(4) did not raise anything about the strength of the prosecution case. The reference in the Crown written submissions at [47] to what would happen if s 35(4) did not apply was no basis for not properly considering that issue and making it clear why, if that be the case, her Honour considered that the prosecution was not overwhelmingly strong. The ex tempore reasons go no further than the published reasons in not addressing this most important issue at all. The Crown must therefore succeed on this ground of appeal.
Unless there is a reason to exercise the discretion not to intervene, this error calls for resentencing. It is therefore appropriate for this Court to make its own finding as to the application of s 35(4). That is, do the established facts before the Court provide a proper basis to conclude that the prosecution’s case was overwhelmingly strong? The answer is yes.
Short of a confession, it is difficult to see how the prosecution case could have been much stronger. Ms Adams, who by 11 January 2020 had known Mr Newby intimately for over two years, was an immediate eye witness to the murder, including the nature and savagery of the attack which strongly supported the necessary inference as to intention to cause serious harm. That eye witness evidence was corroborated by extensive crime scene evidence, for which graphic photographs were in evidence, leaving no room to doubt that serious harm had to have been intended. There was also ample independent evidence of Mr Newby’s state of mind towards Ms Adams and his objection to her seeing anyone else despite knowing that she considered their relationship to be over. That evidence went both to motive and to the formation of intention by finding a knife and proceeding into the bedroom. It is highly unlikely that a jury would have needed to linger long in deliberations to reach a guilty verdict.
In the course of legal argument it was suggested on behalf of Mr Newby that the prosecution case could be characterised as falling short of being overwhelmingly strong because he could have had available to him a defence of provocation. There are two answers to that suggestion. First and foremost, that was never raised before the sentencing judge nor in written submissions in this Court. It was not explained how provocation could possibly be permitted to go to the jury, given the complete absence of evidence, medical or otherwise, to support it. In the case of Mr Prineas, he did not say or do a single thing that could constitute provocation of any kind. In the case of Ms Adams, it was not suggested how her conduct on that night could have constituted provocation in relation to Mr Prineas. Ms Adams did not even know Mr Newby was in her flat until he entered the bedroom with the knife. Furthermore, any such argument may well have been utterly inconsistent with the asserted and accepted absence of premeditation. Secondly, for such a submission to be considered, it had to be based upon established facts, per s 35(4). No such established facts were identified, and the highest that this rose to was mere speculation and bald assertion.
It follows that the prosecution case was overwhelmingly strong, that s 35(4) was engaged, that the sentencing judge should have reached that conclusion, and that accordingly the Court below, and this Court at any resentencing on appeal, must not make any significant reduction in sentence for the fact that Mr Newby pleaded guilty. Of course, that does not preclude a limited discount for the guilty plea, nor a discount for other factors.

Section 36(3) then provides a list of considerations required to be taken into account in deciding whether to impose a lesser sentence by reason of assistance to law enforcement authorities, whether past or promised in the future. Section 36(4) requires that any lesser penalty imposed for this reason not be unreasonably disproportionate to the nature and circumstances of the offence. The Crown argument turns on the scope of the discount provision itself, rather than any aspect of those mandatory considerations.
The parts of the sentencing judge’s reasons that give rise to this ground of appeal are [4] and [10], reproduced here again for convenience and ease of reference: 4. The offender cooperated to a limited extent with law enforcement authorities; he voluntarily attended the police station and did not oppose forensic procedures. However, it was inevitable that, absent cooperation, he would have been arrested very quickly. … 10. The appropriate combined discount for the plea of guilty, allowing a very small consideration for the offender's cooperation with law enforcement authorities, is between 15 and 20 per cent.
The Crown asserts that the sentencing judge fell into error at [10] by failing to engage with s 36 of the CSA and by allowing any discount at all for assistance, especially given the finding at [4] that, absent any cooperation, Mr Newby would still have been arrested very quickly. Putting to one side the unknown factors that might have delayed any arrest, it needs to be remembered that this was a brutal and frightening event for the public. There was inevitably a need for as rapid an apprehension of the person responsible as possible to allay community concerns. Given that police efforts from soon after 1.30 am until 4.25 pm on the day of the murder did not result in apprehension of Mr Newby, the diversion and deployment of significant police resources would likely have been needed if Mr Newby had not surrendered when he did, necessarily detracting from other law enforcement activities.
The substance of the Crown case on this ground of appeal requires the conclusion to be reached that the sentencing judge was precluded from giving any weight to Mr Newby handing himself in, and apparently willingly participating in forensic orders being made by the Magistrate’s Court and the performance of other related procedures. If that was the correct legal conclusion to reach, that would be most unfortunate. It is inherently desirable that some limited recognition be given for cooperative conduct in these processes (even if the extent of that cooperation is to not oppose the processes) if only to encourage others to do the same in the future. It was not worth a lot in the circumstances of this case, but it was worth something. Such cooperation may be worth more to the community and to law enforcement authorities in another case.
Fortunately, in the public interest, the conclusion urged upon the Court by the Crown cannot be accepted, having regard to the terms of s 36 and to case law on this topic.
First, the relevant phrase in this case is that Mr Newby assisted law enforcement authorities in investigating the murder offence. That assistance was both the presence of the positive and the absence of the negative. As to the positive, while forensic procedures may not ultimately have made much of a difference to the prosecution case, the true value of such assistance will often not be known at the time. It is undoubtedly part of the investigative process and almost certainly would have need to be carried out, with or without Mr Newby’s assistance by way of consent and cooperation. Greater time and effort would have had to be deployed without that assistance. Mr Newby therefore assisted police in that aspect of their investigation. For that reason alone, this ground should fail at least as to that aspect identified by the sentencing judge as to a basis for giving a very small consideration, in context meaning discount.
As to the negative, in the sense of avoiding the deployment of investigative resources, assistance in investigating an offence conceptually can take place at any time from the commission of the offence until its final resolution with a guilty plea or a jury verdict. It may involve many of the steps towards that final objective, including apprehension and charging of a suspect. It would be reading the word “investigating” too narrowly to confine it to the formal obtaining of evidence, although it would be going too far to apply it to absolutely anything and everything that is done. As the authorities discussed below make clear, the advancement of incentives for desirable behaviour must be balanced carefully against the discretionary power of a sentencing court to apply any discount, having regard to adverse consequences for criminal justice system as a whole if this system swayed too heavily one way or the other, including the impact upon such overarching principles as the right of silence.
With the benefit of hindsight it may be easy to see that apprehension without surrender may not have taken very long, but at the time the police could not have known that. It is obvious enough that such a violent crime calls for the earliest apprehension possible. Encouragement of voluntary surrender does not, for example, encroach upon wider considerations as to the exercise of the right of silence. Even the sentencing judge’s prediction of arrest taking place very quickly has an indeterminate aspect as to what passage of time is being contemplated. Even a matter of hours was likely to be important to the community and to the police. Not having to marshal resources for even a manhunt of limited scope and duration was of assistance to the investigation viewed in a more holistic way. Of course, there is a risk of double-counting on this consideration and on the guilty plea. The earlier the guilty plea, the less that ongoing investigative resources need to continue to be deployed. However this element of assistance in this case is independent of any guilty plea benefit, as is often the case: R v UG [2018] ACTCA 64; 14 ACTLR 70 at [48].
The Crown also contends that the sentencing judge failed to consider the factors listed in s 36(3). While it is true that each factor was not individually considered, the proposition that they should have been suggests a checklist approach to sentencing. It also needs to be remembered that those factors will be more important in some cases than others. If an offender is giving evidence or other assistance to police in relation to other participants in the instant offence or in another offence, a more thorough consideration of the various factors may be required in order to ensure that the public interest beyond the joint urging of the prosecution and defence is taken into account: see R v Gallagher (1991) 23 NSWLR 220 at 232. However in this case, most of the considerations listed in s 36(3) were amply considered elsewhere in her Honour’s reasons.
That section requires the consideration of the effect of the offending on Mr Prineas’ family and friends; the usefulness of assistance from the offender, its nature and extent, its timeliness and its relationship to the offending; the truthfulness of information given by the offender; the benefit to Mr Newby of providing assistance; the risk of committing further offences; and, the listed possible detriments from assisting. These were clearly enough taken into account by her Honour.
For completeness, consideration should also be given to the authorities relied upon by the Crown. Properly considered, aspects of those cases lend a degree of weight to the conclusions reached above, or help to qualify the application of s 36, rather than lending true assistance to the contrary argument advanced by the Crown.
In Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50, Murrell CJ and Charlesworth J expressed the view at [56] that s 36 of the CSA was a codification of the consideration of assistance to authorities, designed to incentivise behaviour rather than reward outcomes. Their Honours then observed at [57] (emphasis added):

The sentencing judge did not give any overt reason for arriving at a 10 year non-parole period, half of the head sentence, beyond the reference at [88] to rehabilitation, considered in more detail below. In substance, the Crown asserts the absence of a reasonable and appropriate relationship between the head sentence and non-parole period in the particular circumstances of this case. The key issue raised is the absence of reasons to justify such a high degree of leniency, albeit that 50% of the head sentence is within the general and most common range of between 50% and 70% in the Supreme Court of the ACT. The Crown relies upon a range of well-established High Court authority, as considered in a number of decisions of this Court.
Mr Newby seems to submit that an appropriate non-parole period is a matter of discretion, with no legislative or other basis for any particular duration or proportion being required. He relies upon the non-parole period imposed being within the general range of 50-70%. He suggests that it is only when the non-parole period is outside that range that a non-parole period has been questioned, citing the 84.5% proportion considered in Cole v The Queen [2019] ACTCA 3. Otherwise, he submits, a non-parole period of 50% was not unusual and did not warrant further inquiry. Mr Newby submits in substance that provided the sentencing purposes in s 7 of the CSA have been considered, that should be the end of it.
While there is no statutory requirement contained in the CSA or elsewhere to impose any particular length or proportion of non-parole period, a low proportion or shorter length for a very serious offence calls for careful examination and consideration of whether adequate reasons have been given to justify it, given that the non-parole period is the time that will ordinarily actually be served: see Cole at [13]-[25], and in particular at [17]-[18], being the passages quoted from Toumo’ua at [95]-[100] and [102]-[103]. That in turn included a pithy summary of the key principles in relation to fixing a non-parole period in Taylor v The Queen [2014] ACTCA 9 at [19]:

The key issue raised in relation to this ground is whether 10 years imprisonment is in all the circumstances constituted a substantial part of the head sentence of 20 years, and was otherwise appropriate, and whether sufficient reason was given for that time to serve. While the general sentence range in this jurisdiction is 50-70%, it is important that this not be a mathematical guide by which to measure whether a sentence is appropriate or not. While being over or under that range may more readily give cause to examine what has taken place, the consideration required is more nuanced than that. Generally speaking, the more serious the crime, the harder it is to justify a lower non-parole period or a lower proportion of the head sentence as a non-parole period. Given the gravity of the offending and the relatively low head sentence, considered further in relation to the next ground, there was a compounding effect in also imposing a lower non-parole period and a lower proportion of the head sentence.
That is especially so when no finding was made that Mr Newby had good, or even fair, prospects of rehabilitation. The question of whether meaningful rehabilitation was even realistically possible was not addressed. A positive conclusion would have been difficult to reach given that there was no evidence of remorse, and had poor insight as to his offending. The sentencing judge’s assessment of rehabilitation at [88] is expressed in terms of Mr Newby’s relative youth. Her Honour also considered Mr Newby’s limited opportunities to date, for which there was little to indicate any basis for that to improve in the immediate future, let alone in a decade’s time. Rehabilitation was assessed by the sentencing judge in this limited way, providing little justification for a low non-parole period, both in absolute terms, and as a proportion of the head sentence. With no other reason given for why the non-parole period was appropriate in all the circumstances it is difficult to understand how the particular non-parole period and proportion was arrived at. No other reason was advanced, and none other is reasonably apparent.
This ground is concerned with the adequacy of the reasons given for the non-parole period imposed, not, per se, whether the conclusion arrived at was itself erroneous, that being left to ground (d) considered below. Given the paucity of reasoning for the non-parole period that was imposed, the complaint about inadequate reasons is made good. This ground of appeal succeeds.

This ground largely, but not entirely, flows from ground (a) as to the head sentence, and from ground (c) as to the non-parole period. Unlike those two grounds, which have succeeded, this ground is squarely focused on the result. As such, this ground both interacts with those grounds, and also operates independently. Importantly, the assessment of manifest inadequacy falls to be assessed by reference to the statutory regime under which the sentence was imposed. That necessarily includes the constraint on the discount for a guilty plea mandated when s 35(4) applies, as it has been found it does in this case.
The starting point sentence of 25 years was neither overtly severe, nor overtly lenient. No point is taken in relation to it by either the Crown or Mr Newby. The first critical issue is therefore whether the final head sentence of 20 years was manifestly inadequate, principally having regard to the objective seriousness of the offending, including the motive of jealousy and controlling Ms Adams, the degree of discount for the guilty plea having regard to its lateness and to the operation of s 36(4) (or to the strength of the Crown case even if s 36(4) did not apply), and the absence of remorse, measured against the utilitarian value of the guilty plea in dispensing with the need for a somewhat lengthy and obviously traumatic trial. A related consideration is whether Mr Newby’s deprived background properly entitled him to any substantial leniency having regard to the extreme nature of the violence involved: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
Before the sentencing judge, the Crown addressed the hierarchy of mens rea in s 12 of the Crimes Act. In short, while intention to cause serious harm may generally be regarded as less serious than the preceding states of mind of reckless indifference to the probability of causing death, or intention to kill, that is not necessarily so. The Crown listed the following features as indicating why this was a most serious instance of murder, notwithstanding that the state of mind was intention to cause serious harm, rather than the other two states of mind, which in combination leave little room to regard this murder as being other than of the utmost seriousness (footnotes omitted):

The sentencing judge’s remarks on sentence reproduced in these reasons as to the facts (at [11] above), and the objective seriousness of the offending (at [14] above) may be adopted without hesitation. So too may her Honour’s conclusions as to the profound impact of the murder of Mr Prineas on his family and friends as summarised at [13] above, and Mr Newby’s subjective circumstances summarised at [15] above.
The conclusion for the purposes of s 35(4) must be that the prosecution case was overwhelmingly strong, precluding any significant discount for the guilty plea, noting that in any event it was entered late and in the face of an almost certain guilty verdict.
The sentencing judge’s conclusions as to there being no evidence of remorse, but also no premeditation, remain in place. So too does her Honour’s conclusion that a small discount for cooperation with police is appropriate. There is no reason to depart from her Honour’s starting point of 25 years imprisonment, especially as neither the Crown nor Mr Newby asserted any error in that regard, nor urged any other starting point in the event of re-sentencing.
All of the above factors must now be combined to produce a numerical result. The combination of a slight discount for the guilty plea and for cooperation with police cannot contribute more than a year off the appropriate and agreed starting point to produce a head sentence of 24 years. This takes into account all of the appropriate considerations of objective seriousness and mitigation, including the purposes of sentencing in s 7 of the CSA set out below.
Turning to the non-parole period, regard must be had to the objective seriousness of the offence and the circumstances in which it was committed, the lack of remorse offset by lack of premeditation, and to the sentencing purposes in s 7 of the CSA being: adequate punishment, deterrence, community protection, the limited identified possibility of rehabilitation, making Mr Newby accountable for his actions and recognising the harm he has caused. Therefore the appropriate non-parole period constituting the minimum period of imprisonment justice requires to be served, having regard to the head sentence, is 15 years imprisonment.
Mr Newby is sentenced to imprisonment for 24 years, with a non-parole period of 15 years, both backdated to when Mr Newby was taken into custody on 12 January 2020. The head sentence expires on 11 January 2044. The non-parole period expires on 11 January 2035.

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