Conclusion
104 Section 19A of the Crimes Act, the statutory provision presently relevant, provides that a person convicted of murder is liable to imprisonment for life. However, it is also the law that notwithstanding the effect on all murder victims is death, a sentence of life imprisonment is reserved for cases which can fairly be described as within a worst category. To those unfamiliar with the gradations that the law involves, I may point out that premeditated murders committed simply for financial gain or with great cruelty or multiple murders are liable to fall into the worst category. The Prisoner's offence did not. It, and he, must be judged against a very imprecise scale of criminality.
105 The law also makes it clear that the purposes of punishment for offences are various. These purposes include principally deterrence of others inclined to offend, deterrence of an offender from re-offending, rehabilitation of the offender, protection of the community and retribution or, as I think is encompassed within that expression, the community's entitlement to feel justice has been done. I have indicated that so far as rehabilitation is concerned, I am unable to come to any view favourable to the Prisoner as to his prospects. Of course I do not find that he has none.
106 Nor is there any material in the case to suggest that the other purposes should not all be afforded, at the least, their normal weight. This is not a case where it can be said that personal deterrence or the protection of the community need be given less weight than usual. Indeed, it seems to me that the case is one where more than usual weight should be given to personal deterrence, the protection of the community and retribution. (In saying that, I do not forget that general deterrence is the principal object of sentencing and nor do I forget the limits on the weight which can be given to the protection of the community - see Veen v R (No 2) [1987-1988] 164 CLR 465 at 473.)
107 So far as retribution is concerned, murder is always serious but both the injuries to the deceased and the Prisoner's attitude as displayed to Ms Blackmore indicate a degree of cruelty and disregard for another human being well above average for the type of offence even if, as I have concluded, the cruelty cannot be described as "gratuitous" within the Crimes (Sentencing Procedure) Act. To adapt words used in R v Gordon (Unreported, CCA, 7 February 1994) and R v Crump (Unreported, CCA, 30 May 1994), "The community must be satisfied that the offender is given his just deserts and it is important as well that the victim, or those who are left behind, also feel that justice has been done". "Just deserts" for the manner of the Prisoner's killing of the deceased require a significant increase in the sentence which would otherwise be appropriate.
108 Relevant to the factors of personal deterrence and protection of the community is not only the attitude of the Prisoner displayed in the crime itself but his absence of remorse including his feelings (or lack of them) afterwards as expressed to Ms Blackmore, his disregard for the law, his tendency towards violence and his clear willingness to contemplate killing others, such as the deceased's parents and Ms Ward.
109 I should say more in relation to my finding that, on the probabilities, contributing factors to the offence included substantial quantities of alcohol, amphetamines and marijuana and consequent disinhibition, irritability and irrationality. In that the Prisoner's addiction to and abuse of these substances was probably in part influenced by his upbringing and matters such as the loss of his eye, I am disposed to give him some leniency. However the extent of that leniency must be small. The reports of Dr England and Mr Healey make it clear that the Prisoner's habits in this regard were at least in substantial measure the product of choice - c.f. R v Henry (1999) 46 NSWLR 346 at [198] - and it is impossible to conclude that in the years since he commenced his abuse of these products he has not had the opportunity to change. The effect of these drugs on him must have been obvious to him but there is no evidence of any significant effort on his part to effect permanent change.
110 With commendable industry Mr Dalton, who appeared for the Prisoner drew to my attention a number of decisions of this Court, including some by myself where the impact of some matters common to those cases and this, e.g. mind altering drugs, had been considered and suggested that my findings here should echo those made in other cases. However there is an infinite degree of variation between the circumstances of one case and another and it does not seem to me profitable to attempt this sort of one to one topic comparison. Indeed, just as it has eschewed a one to one case and sentence comparison - see R v Twala (Unreported, CCA, 4 November 1994) at page 10; R v Merritt [2004] NSWCCA 19 at [62], the Court of Criminal Appeal has also eschewed this sort of one to one fact comparison - see R v Campillo Vaquere [2004] NSWCCA 271 at [77-78].
111 However, there are 2 of the authorities that Mr Dalton drew to my attention to which reference should be made. One is R v Everett (Unreported, CCA, 13 December 1995) where the Appellant had poured petrol on his wife and set her on fire and been convicted after a trial. McInerney J had sentenced the Appellant to imprisonment for 24 years but the Court of Criminal Appeal reduced it to one of 21 years upon the basis that McInerney J not having found that the Appellant had an intent to kill, the sentence was excessive. In the course of his reasons Allen J, with whom Smart and Sperling JJ agreed, referring to the sentence under appeal, said that "The sentence, however, is at or at least very close to the top of the range for sentences imposed by this Court, in practice, for what sometimes are called a 'relationship' murder - that is murder committed upon someone with whom the offender had some family or emotional relationship."
112 I have no difficulty in accepting that sentences of or exceeding 24 years in the case of "relationship" murders are rare. However, given that life imprisonment is the maximum penalty prescribed for murder, and that there is no basis for concluding that normal sentencing principles do not apply, it does not seem to me possible to say that any lesser penalty is the maximum that can be imposed in such a case.
113 One case that demonstrates that is so is R v Merritt [2004] NSWCCA 19. The Applicant in that case had pleaded guilty to the murder of his 3 children aged between 11 weeks and 6 years. He had suffocated them. It was accepted, at [34], that there was not evidence "as would affirmatively establish future dangerousness" on the Applicant's part, that he should be regarded as having pleaded guilty "at the earliest possible occasion", and that he had manifested "a high degree of contrition and remorse". He was sentenced upon the basis that he had intended to kill each of the children. In the Court of Criminal Appeal, Wood CJ at CL observed, at [71] that the Applicant's criminality should be regarded as tempered by the following circumstances:-
(a) The acts were neither planned nor expected, but spontaneous and impulsive;
(b) They did not occur against a background of abuse or violence, and they were unaccompanied by any act or acts that involved the infliction of gratuitous cruelty, or that prolonged the suffering of the children.
(c) They were not carried out for the sexual gratification of the Applicant.
(d) They were committed in circumstances where the Applicant was in a state of depression, or at least in a significantly depressed mood, and they involved conduct which was dramatically different from the normal loving relationship which he had with the children, and, indeed, from his own behaviour during the preceding day.
(e) There was no attempt to conceal the offences, and the Applicant accepted his guilt from the outset.
(f) The Applicant had no prior history of similar violence towards his, or any other children, and there was no evidence that would suggest any likelihood of him re-offending in a similar manner…"
114 His Honour also observed that the case was one in which the death of the children had led "to the infliction of considerable punishment upon the Applicant, in so far as they resulted in his own loss of children for whom he had a deep and abiding affection". Setting aside life sentences which had been imposed at first instance, but holding that a 25% reduction on account of the plea would result in an inadequate sentence, Wood CJ at CL, with the concurrence of Tobias JA and Hidden J imposed sentences of 24 years, including non-parole periods of 18 years, in respect of each of the 3 offences, structuring their commencing dates so that there was an effective sentence of 34 years including an effective non-parole period of 27 years.
115 Once recognition is given to the number and weight of the factors which operated to reduce each sentence in that case to 24 years, the decision is a demonstration that a sentence for a "relationship" murder may well exceed 24 years. In saying that I do not ignore the fact that different considerations may apply in the case of the murder of a child rather than of a spouse or partner. I seek rather to make the point that I do not see the remarks in R v Everett which I have quoted as imposing a limit on the maximum sentence which can be imposed in a case such as this.
116 There are, of course, numerous cases where sentences less, and sometimes much less, have been imposed. Such cases include R v Andrews [2003] NSWCCA 7, R v Barry [2000] NSWCCA 138, R v Brown [2004] NSWSC 194, R v Cheatham [2002] NSWCCA 360, R v Elphick [2000] NSWSC 977, R v Hunt [2002] NSWSC 66, R v Park [2003] NSWCCA 142, R v Twala (unreported CCA, 4 November 1994) to which Mr Dalton referred me and to which I have had regard. However, to obtain a fuller picture of sentences in this area, reference should also be made to cases referred to by me in R v Brown including R v Thomas Keir [2000] NSWSC 111 and R v Toki [2003] NSWCCA 125 and to R v Fraser [2004] NSWSC 53. An appeal in that last mentioned case, where the number of deaths is, of course, a distinguishing feature so far as the accumulation of sentences is concerned, was dismissed - see [2005] NSWCCA 77.
117 For reasons I have indicated, I do not propose to seek to compare the circumstances of any one of these cases with the facts here. At the end of the day my function is to determine the Prisoner's sentence by the application of principle to the facts as I have found them.
118 I sentence the Prisoner to imprisonment for a non-parole period of 17 years to date from 23 May 2003 and a balance of sentence of 5 years and 6 months to commence on 23 May 2020. I specify as the date upon which he will become eligible for release on parole to be 23 May 2020.
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