R v Ruttley

Supreme Court of NSW|2017-11-21|Before: Payne J

Solicitors: Solicitor for Public Prosecutions (Crown) McGowan Lawyers (Offender) File Number(s): 2015/374904

Judgment

HIS HONOUR: On 17 July 2017, following a trial in this Court, Troy Jason Ruttley was found guilty by a jury of the murder of Johann Morgan on or about 9 August 2015 at Tamworth in the State of New South Wales.
The crime of murder carries a maximum penalty of imprisonment for life under s 19A(1) of the Crimes Act 1900 (NSW). The maximum penalty may be reduced to a specific term of years pursuant to s 21(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). As the offender and the Crown each submitted, this is a case where the interests of the community can be met by the imposition of a determinate sentence for a specified term.
The standard non-parole period for murder is 20 years, as provided in s 54A of the Crimes (Sentencing Procedure) Act. The maximum penalty and the standard non-parole period are each important guideposts I have taken into account in fixing an appropriate sentence.

Factual findings

I must first make findings of fact relevant to sentencing. The view of the facts that I adopt for the purpose of sentencing must be consistent with the verdict of the jury: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4]-[17].
The murder occurred on 9 August 2015. The victim, Johann Morgan, had been in a relationship with the offender for a number of years. At the time of her murder, Johann Morgan was aged 40. The offender was aged 45 when he murdered Johann Morgan. They did not live together but both lived in Tamworth and would occasionally stay at each other's houses overnight. They each had a number of children from previous relationships.
The offender gave evidence at trial that he had been in a relationship with the victim for around six years and that he loved her. Yet in the pre-sentence report the offender said this was untrue and that the deceased "merely provided him with sexual favours in exchange for assistance with household chores". I reject this latter characterisation of the relationship between the offender and the victim.
I am satisfied, based on the abundant evidence in the trial, from the offender himself, from children and relatives of the deceased and also from the adult children of the offender that the victim and the offender were in a long-term relationship, although during that relationship they had periods of time apart.
On Sunday 9 August 2015, Johann Morgan, together with the offender, Stephanie Morgan (the victim's sister) and Ralph Murray (the victim's cousin) were drinking alcohol together from early in the morning at the victim's property at 13 Cole Road, West Tamworth. Johann Morgan consumed a considerable amount of alcohol. The offender consumed approximately 12 stubbies of beer during the day on 9 August 2015 whilst also apparently working in the garden. The offender gave evidence that as a result he was "charged up" by which he explained he had been drinking but he was not drunk.
Other members of the victim's family and the offender's family visited 13 Cole Road throughout the day but when Stephanie Morgan left that evening, the offender and Johann Morgan were left alone in the house together. Aside from the offender, Stephanie Morgan was the last person to see the victim alive. The atmosphere during that day was convivial and Johann Morgan and the offender appeared to others present that day to be happy and in good spirits.
At around 8:30 pm the offender's mobile phone, which was located at 13 Cole Road some days later, recorded audio of the offender and Johann Morgan arguing. The argument concerned their relationship generally, and in particular, the victim's perception that the offender's family had been "running her down". The victim's voice is raised and she is yelling at the offender. The offender's voice is calm. The recording lasts for approximately one minute and fifty-two seconds. The offender submitted that the tape recording constituted evidence of provocation for the purposes of s 21A(3)(c) of the Crimes (Sentencing Procedure) Act. The Crown submitted that I should conclude that while the victim was upset, loud and abusive, the recording shows that the offender was goading or egging on the victim in the argument. I am unable to determine on the balance of probabilities that the recording demonstrates that the offender was provoked. On the evidence before me, such a conclusion would be speculation. Equally, I am not able to conclude that the recording evidences the offender goading or egging on the victim. The recording is, however, important in placing a time on the commencement of the terrible events at 13 Cole Road that night.
Tyrone Brown, a neighbour residing across the road at number 24 Cole Road, was in his front yard of his property sometime between 8:30 pm and 9:30 pm that evening. He gave evidence that he heard loud noises coming from Johann Morgan's house at 13 Cole Road - "I came out the front and I could hear banging and smashing coming from the house across the road. I don't know the number of the house but I know Tamika Morgan [the victim's daughter] lives there. The banging and smashing got louder. … it went on for five to 10 minutes and then it all went quiet". In cross-examination he agreed that banging and smashing lasted for a couple of minutes.
I am satisfied that Johann Morgan died on the evening of 9 August 2015 as a result of a violent encounter that evening with the offender. I find that the jury's verdict established the following propositions beyond reasonable doubt: 1. that Johann Morgan is dead; 2. that the offender caused the death of the deceased. The jury rejected the offender's evidence at trial that he had left the deceased alive following an argument and that he was not responsible for her death; 3. the acts of the offender were voluntary; and 4. the offender intended to kill the deceased or cause her really serious injury.
It was common ground at the sentencing hearing before me that there was no issue at the trial that: 1. the offender suffered any loss of self-control induced by the deceased; or 2. the offender had acted in self-defence, or excessive self-defence.
I am not satisfied beyond reasonable doubt that the offender intended to kill Johann Morgan, but I am so satisfied that he intended to cause her grievous bodily injury. This is the only conclusion available consistent with the verdict of the jury.
The precise time of the victim's death, the nature of her injuries and manner in which they were inflicted are unknown.
Later that evening the offender returned to the house he was residing at, 49 Kenny Drive, where he lived with his daughter Whitney Dennis. Sometime later that evening the offender drove away in a white Mitsubishi Magna. He returned for a second time sometime later but left again shortly after in the white Magna.
From 8:30 pm on Sunday 9 August 2015 to the early hours of Monday 10 August 2015, the exact whereabouts of the offender is unknown, but for his brief period of time at 39 Green Street and 49 Kenny Drive. I find that it was during this time on the evening of 9 August 2015 the offender used the white Magna to transport Johann Morgan's body from 13 Cole Road to a location known only to the offender.
On the evening of the next day, 10 August 2015, the offender drove the white Magna to Andrew Ellis' home (Andrew Ellis is the partner of the offender's niece) at 39 Green Street and asked Andrew Ellis to follow him in his own vehicle about 17 km out along the Oxley Highway to the quarry. When they arrived at the quarry the offender set the white Magna alight. By the time the rural fire brigade were notified and the fire was extinguished, the interior of the white Magna was completely destroyed.
The offender lied on a number of occasions to the police when questioned about the destruction of the white Magna. He also lied when first questioned by the police about when he had last seen Johann Morgan. I am satisfied to the relevant standard that those lies were told by reason of consciousness of guilt rather than, as the offender submitted, in panic.
As I have earlier noted, Johann Morgan has not been seen by anybody, save the offender, since the evening of 9 August 2015. She was reported missing to the police on 16 August 2015 by her sister Stephanie Morgan.
On 21 and 22 August 2015, the police undertook a forensic examination at 13 Cole Road, where they identified a significant quantity of the victim's blood, both inside and outside the property. On 21 December 2015, the police attended 3 Yulong Street, Dubbo and told the offender that he was under arrest in connection with the disappearance of the victim. To date, Johann Morgan's body has not been located.

Objective factors affecting the relative seriousness of the offence

It is trite to observe that I must be satisfied of any matters of aggravation relied upon by the Crown beyond reasonable doubt and of any matters in mitigation relied upon by the offender on the balance of probabilities. I will first address the objective factors affecting the relative seriousness of the offence.
As I have said, I am not satisfied beyond reasonable doubt that the offender intended to kill Johann Morgan, but I am so satisfied that he intended to cause her grievous bodily injury. An offence involving intent to kill is generally more serious than one involving intention to cause grievous bodily injury: R v Hearne (2001) 124 A Crim 451; [2001] NSWCCA 37 at [34]. It does not, however, follow that because a case is one involving intention to cause grievous bodily injury that the objective seriousness of the crime will therefore fall below the mid-range.
Whilst I am satisfied beyond reasonable doubt that the victim suffered a significant injury or injuries at the hands of the offender on the evening of 9 August 2015, the precise time of the victim's death, the nature of her injuries and manner in which they were inflicted are each unknown.
It is an aggravating circumstance in this case that the murder was committed in the home of the victim: s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act. In Jonson v R [2016] NSWCCA 286 at [41]-[42] Bathurst CJ (with whom Beazley P, Hall J, Bellew J and N Adams J agreed) observed that it was the legislature's intention to recognise, in enacting para (eb) that a home is a place which those who reside at that place should feel safe and secure.
The offender submitted that there was no evidence of premeditation in the commission of the offence. I accept that the offence was not part of a planned or organised activity: s 21A(3)(b) Crimes (Sentencing Procedure) Act.
I have earlier rejected the offender's submission that the evidence contained in the recording of the argument with Johann Morgan should be regarded as evidence of provocation by the victim under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.
I am mindful that the objective seriousness of an offence is to be assessed without reference to matters personal to the offender or class of offenders. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. As the decision in Biddle v R [2017] NSWCCA 128 and the cases there referred to makes clear, however, I am obliged to assess the moral culpability of the offender by reference to what are submitted to be a relevant mental disorder.
The offender submitted that by reason of mental disorder relevant to the offending he had a reduced moral culpability in relation to the offending.
On 5 November 2017, the offender was examined by Ms Lisa Zipparo, a psychologist, at Cessnock Correctional Centre. The offender's full scale IQ was assessed as being in the "borderline" range, better than seven per cent of the population for his age. However, the results showed significant differences between his verbal and non-verbal skills.
The offender's verbal comprehension skills were in the borderline range. The offender showed a weakness in vocabulary and information subtests which he both performed in the extremely low range. However, Ms Zipparo noted that in the context of the offender's schooling and self-reported learning difficulties, the verbal comprehension index was unlikely to be a good indicator of the offender's overall intellectual functioning.
Ms Zipparo's opinion was that "[i]n the absence of confirmatory medical records, it is assumed that Mr Ruttley's poor verbal comprehension performance is an indicator of a specific visual processing disorder". The offender's non-verbal skills were in the average range, which Ms Zipparo believes is a more accurate measure of the offender's true overall intellectual abilities, which she considers are likely to be in the average range.
Ms Zipparo expressed the following opinion: "…in terms of intellectual function, Mr Ruttley is most likely functioning in the Average range with a specific learning disability in the visual processing of written language. Mr Ruttley showed normal verbal and visual memory function with no significant memory problems noted."
Ms Zipparo suggested that the offender's executive dysfunction was typical of Attention Deficit Hyperactivity Disorder (ADHD).
It was common ground before me that, ADHD, not being diagnosed when the offender was a child, could only be diagnosed in an adult by a psychiatrist. The offender was referred by his lawyers for an assessment by a clinical psychiatrist, Dr Allnutt, for the purposes of determining whether ADHD could be diagnosed. The offender refused to speak to Dr Allnutt. Dr Allnutt was thus unable to offer any diagnosis. I am not satisfied on the balance of probabilities that the offender suffers from ADHD.
Leaving ADHD to one side, Ms Zipparo concluded that the tests reveal "some degree" of executive dysfunction, "suggestive of some level of frontal lobe dysfunction". She defined executive function as being "neuropsychological processes which allow a person to self-regulate". The offender's test results manifested some difficulty with executive functioning tasks, namely, slowed processing speed and reduced working memory.
Ms Zipparo's ultimate conclusion was that it was "possible" that the executive dysfunction she had identified in combination with his alcohol consumption on the night in question "may" have made him more vulnerable to a significant aggressive outburst than would be the case with a person with normal cognitive functioning.
I am not persuaded on the balance of probabilities by this tentative and highly conditional evidence, in the context of all of the evidence in this case, that there is any link between what Ms Zipparo describes as the offender's executive dysfunction and his actions on the night of 9 August 2015, such as to reduce his moral culpability.
A lack of capacity to reason, as an ordinary person might, as to the wrongfulness of his or her conduct, "will, in most cases, substantially lessen the offender's moral culpability for the offence": Muldrock v The Queen at [54]. I do not consider this to be such a case.
As Simpson J explained in Aslan v R [2014] NSWCCA 114 at [34]: "[34] ... It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."
On the facts of this case I would not conclude that the offender's moral culpability was reduced or that the offender was an inappropriate vehicle for general deterrence. I observed the offender give evidence at the trial. On the evidence before me he was able to function normally in society and hold down paid employment for a number of years. In relation to the offence itself, after committing the murder the offender carefully disposed of the white Magna the next day and was able to disguise his involvement in the crime for some time. This is not a case where the offender suffers from a lack of capacity to reason, as an ordinary person might, about the wrongfulness of his conduct.
Accepting Ms Zipparo's evidence about the existence of executive dysfunction, I do not find any connection with the offender's actions on the night of 9 August 2015. I do not consider that his moral culpability was reduced.
Before leaving this question of moral culpability for the offending, I should record that I also accept the Crown's submission that the offender's level of intoxication on the evening of 9 August 2015 does not excuse the offender's actions on the night of the offence: s 21A(5AA) Crimes (Sentencing Procedure) Act. Further, on the evidence before me, the evidence of the offender's intoxication on 9 August 2015 does little to explain the offender's actions.
The Crown submitted that it was an aggravating circumstance under s 21A(2) (d) of the Crimes (Sentencing Procedure) Act that the offender has a record of previous convictions. The Crown accepted, however, that the Court should be astute in taking that criminal record into account not to punish the offender again for the criminality involved in these earlier offences. The offender submitted that the offender's criminal record is a mitigating factor in that it does not amount to a "significant record" of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act.
The offender's criminal record contains a number of driving offences and offences of some antiquity which I do not regard as relevant. There are, however, two relevant prior offences which need to be considered.
First, on 22 June 2006 the offender was charged with assault occasioning actual bodily harm under s 59(1) of the Crimes Act. I will briefly set out the facts of that offence which were tendered by the Crown on sentence. On the afternoon of the 22 June 2006 the Central School Principal and her assistant attended the residence of the offender and his then de facto partner, Suzie. They informed the offender and Suzie that Guy Ellis was being suspended from school. On receiving this news the offender punched his 12 year old son in the face. The offender received a s 9 bond. The sentencing facts record the following: "At this the accused has become enraged and punched the victim child to the right side of his face and forehead. The punch has caused the child's eye to instantly swell and the skin above the victim child's eye to split. The victim …was instantly taken to the Mungindi Hospital were police attended [sic]."
Secondly, on 13 May 2013 the offender was charged with destroying or damaging Johann Morgan's car under s 195(1)(a) of the Crimes Act 1900 The facts before me demonstrate that at about 2:30 am on the 13 May 2013 police responded to a motor vehicle fire at 144 Duri Rd, Tamworth. The offender had set fire to Johann Morgan's vehicle which was in the driveway at that property.
I should also record that on 1 December 2012, the Parramatta Justice Panel issued a provisional apprehended violence order between Johann Morgan and the offender. On 29 January 2013, Walgett Local Court issued a final apprehended violence order between those parties. On 13 May 2013, the offender was also convicted of breaching that apprehended violence order issued to protect Johann Morgan, although the facts before me do not permit any more precise finding about the circumstances in which the order was granted or breached.
The offender's counsel ultimately accepted that of the offences under ss 59(1) and 195(1) of the Crimes Act were each "personal violence offence(s)" under s 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) such that I could conclude that the aggravating factor in s 21A(2)(d) was present. I regard each of these prior convictions as significant and reject the offender's submission that his criminal record is a mitigating factor.
I find that these offences constitute an aggravating circumstance under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act as being relevant, not to increase the objective seriousness of the offence committed but rather because retribution, deterrence and protection of society indicate a more severe sentence is warranted: Veen (No 2) (1988) 164 CLR 465; [1998] HCA 14; R v Shankley [2003] NSWCCA 253 at [31]. Counsel for the offender ultimately accepted that I could properly take the view in accordance with Veen and Shankley that on the basis of the 2013 offence deterrence and the protection of society indicated that a more severe sentence was warranted.
Ultimately, neither the offender nor the Crown submitted that any of the other matters, including potentially aggravating or mitigating factors identified in s 21A of the Crimes (Sentencing Procedure) Act were relevant in addressing objective factors relevant to the relative seriousness of the offence. The remaining matters which were debated before me will be addressed when dealing with the offender's subjective case.
The offender submitted that I could conclude that the offending falls below the mid-range of objective seriousness. In making this submission the offender pointed to: 1. the fact that the act was spontaneous rather than pre-meditated; 2. the fact that alcohol contributed to the offending; 3. the evidence of executive brain dysfunction; and 4. the submission that disposing of the body, destroying the white magna and lying to the police about his knowledge of Johann Morgan's whereabouts "could be sheeted home to panic" rather than consciousness of guilt.
In relation to these submissions: 1. I accept that the offence was not part of a planned or organised activity; 2. I am not in a position to find what role alcohol played in the offending, save that the offender had consumed 12 stubbies of beer on the day in question and that the offender vehemently denied he was drunk on 9 August 2015; 3. I have rejected the submission that what Ms Zipparo diagnosed as the offender's executive brain dysfunction played any causative role in this offence; and 4. I have concluded that the offender did dispose of Johann Morgan's body, destroy the white Magna and lied to the police. I have rejected the submission that the offender's lies to the police "could be sheeted home to panic" rather than consciousness of guilt.
The Crown submitted that I should conclude that this was a case in the upper middle range of offending for the crime of murder. The Crown submitted that the lengths the offender went to in covering up his involvement in the murder show his intent and guilt.
I reject the Crown's submission. Care needs to be taken to ensure that the absence of remorse and the offender's denials of knowledge of the whereabouts of the victim's body are not taken into account to aggravate the sentence imposed: Roff v R [2017] NSWCCA 208.
I have concluded that the present case was a murder without justification, cause or excuse. It was carried out in the home of the victim, although it was not part of a planned or organised activity. Taking all of these matters into account, in my view, the offending should be regarded as in the mid-range of objective seriousness.

Subjective circumstances of the offender

It is well recognized that: "an offender's deprived background may militate the sentence that would otherwise be appropriate": see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [37]. In Bugmy v The Queen, the High Court said (at [43]-[44]): "[43] The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [44] An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 a majority of the High Court said (at [54]): "[54] It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion."
The majority went on (at [54]-[55]): "[54] That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community. [55] A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law."
Returning to the present case, the offender was born on 22 December 1969 in Walgett and is now 48 years old. The offender is of Aboriginal descent. The offender was raised in Coonabarabran although his family moved around a lot for reasons about which he was unsure. The offender's mother is Christina Williams. He was one of six children. He had one brother and four sisters with whom says he said he had a good relationship. One of his sisters died from cancer in her early forties.
The offender described his childhood to a psychologist, Ms Zipparo, as "rotten" having grown up around extended family on a mission in that his mother was their primary carer and she tried her best to give the offender and his siblings a good childhood despite their significant level of poverty. The family often went without basic necessities like food, due to their father's gambling and alcohol addiction. The offender's father died of cancer at the age of 74 years.
The offender met his first wife when he was 17 and they had four children together. The offender told Ms Zipparo that this was not a happy marriage as his partner was unfaithful and did not take good care of their children.
The offender then married his second wife, Suzie, and they had four children together. He was a carer for his wife while she had debilitating arthritis. She died at a young age from a heart attack. The offender became the primary carer of their children after Suzie's death.
The offender has eight children and 14 grandchildren with whom he says he had a good relationship.
At the time of the offence the offender lived at 49 Kenny Drive with his two daughters, Whitney Dennis and Joyce Ellis, and Whitney's five children.
Despite his impoverished and troubled upbringing the offender in his interview with Ms Zipparo denied experiencing any ongoing trauma symptoms. He has a distrust of authority figures as a result of his negative childhood experiences.
The offender told Ms Zipparo that he experienced great difficulty learning to read and write at school. The offender recalled that on one occasion, when he was seven years old, he tried really hard at a school project. His teacher at the time accused him of cheating because it was above his usual standard. This incident caused the offender to disengage from school. He started to truant and misbehave. On several occasions he ran away and ended up in convent schools where he received corporal punishment from the nuns.
The offender was "functionally illiterate" when he left school at 13 years of age. He told Ms Zipparo that although his reading and writing were still poor, he had taught himself to spell the days of the week since he had been in jail.
After the offender left school he "hung around home" until the age of 16 when he left and hitchhiked from Tamworth to Walgett where he spent two years binge drinking every day. He stopped binge drinking at the age of 17 and told Ms Zipparo that alcohol and not been a problem since then. When he was young he would smoke marijuana on a regular basis but that had never been a "problem".
He began shearing, which he did for five years until the price of wool became so cheap that he was no longer being paid enough. He then went to work on wheat and cotton farms and worked as a farm hand until he became the full time carer of his children after his Suzie's death.
The offender had been unemployed for approximately three years prior to his arrest on these charges. He was receiving a Newstart benefit, and supplementing this income with monies he earned collecting and recycling scrap metal.
I find that it should be taken into account in the offender's favour that: 1. he left school at 13 and he is functionally illiterate; 2. his father had a gambling and alcohol addiction, 3. he had an impoverished background as a child. His family often went without basic necessities like food, due to their father's gambling and alcohol addiction; and 4. he has suffered significant disadvantage throughout his life.
I accept the evidence that the offender had a drinking problem as a young man. The offender denies that he has a current drinking problem. There is evidence, however, of his drinking of half a carton of beer one night per week.
I have dealt with the evidence and my findings concerning this issue at some length in considering the suggested effect on the offender's moral culpability of the executive dysfunction identified by Ms Zipparo. I reject the submission that the offender suffered from ADHD. I also reject the submission that the offender was not fully aware of his actions by reason of a disability under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act. I do, however, take into account as providing some mitigation Ms Zipparo's diagnosis of executive dysfunction.
As to the likelihood of re-offending, the pre-sentence report assesses the offender as "medium risk of re-offending". I am not able to conclude on the evidence before me that the offender is unlikely to re-offend for the purposes of s 21A(3)(g) of the Crimes (Sentencing Procedure) Act.
The offender's counsel submitted, nonetheless, that "the offender does have prospects of rehabilitation": s 21A(3)(h) Crimes (Sentencing Procedure) Act. I accept that there is some prospect of the offender rehabilitating, although I cannot find on the evidence before me that there are "good prospects" of rehabilitation. There is evidence of an apparently close relationship with his family, particularly his daughters who plainly care deeply about the offender and are a positive influence in the offender's life. I have considered the letters form the offender's family which were tendered on sentence. That evidence confirms the view I have already expressed about the offender's family. I also take into account in a limited way the steps the offender has taken in prison to work as a general hand and engage in some adult learning opportunities.
That evidence of positive steps towards rehabilitation is limited, however, by the offender's conduct in a number of respects. As I have said, the absence of remorse and the failure to identify the location of Johann Morgan's body cannot be treated as an aggravating factor: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74. The absence of remorse is, however, relevant to the offender's prospects of rehabilitation. The evidence he gave on oath at trial with respect to his relationship with the victim is inconsistent to that in the pre-sentence report. His lack of basic empathy for the loss of Johann Morgan's life is epitomised in the statement contained in the pre-sentence report, contrary to the evidence he gave at the trial that: "It is noted that Mr Ruttley has continued to claim that he was never in a relationship with the victim rather he alleged that she merely provided him with sex in exchange for assistance with household chores. This claim is in direct contradiction to information provided by his sister however."
Whilst I am not able to find that the offender has "good prospects" of rehabilitation under s 21A(3)(h) of the Crimes (Sentencing Procedure) Act, I propose to take into account in his favour that he enjoys some prospects of rehabilitation.

Facilitation of the course of justice

The offender submitted and the Crown concedes that some small allowance should be made for the co-operative way in which the defence approached this trial, in agreeing facts and requiring only necessary witnesses to be called by the Crown.
I accept that the defence co-operation saved Court and community resources in adopting a co-operative approach to the trial and this should be taken into account in my overall sentence.

Special circumstances

The offender submitted that the Court should find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act in light of what were submitted were the offender's mental health issues and substance abuse issues. It was submitted that the offender will need intensive counselling for both his executive dysfunction and substance abuse issues. It was also submitted that the offender was a vulnerable person in the prison environment because of his executive dysfunction.
I am not satisfied that there are special circumstances in this case.
The period of the balance of term that I prose is sufficient to deal with any need for counselling that the offender's counsel has identified. That period will be longer than the initial period of supervision to parole provided by r 218 of the Crimes (Administration of Sentences) Regulation of 3 years.
I do not accept the submission that the offender is a vulnerable person in the prison environment because of his executive dysfunction. I accept the Crown's submission that there is no evidence before me, including in Ms Zipparo's report, of vulnerability in the prison system. On the only evidence before me the offender has secured a job and is doing well in the prison environment, a fact I have taken into account in his favour in relation to prospects of rehabilitation.

Victim impact statements

Victim impact statements were provided to the Court by seven family members of the victim: Spencer Morgan, Kelly Morgan, Eric Morgan, Rhonda Morgan, Darryl Morgan, Rhonda Morgan junior and Vivienne Morgan .
The statements illustrate the significant distress the victim's death has caused the family. The victim was raised in Walgett, New South Wales. She has ten siblings and seven children: Michael, Tamika, Steven, Rhonda (aged 14), Tracey (aged 13), Victoria and Brandon (aged 10) and Nigel (aged 9).
Both parties accepted that I should take into account the victim impact statements in the way explained in Sumpton v R [2016] NSWCCA 162 by Bellew J citing an earlier judgment by McCallum J: "[153] … In R v Halloun [2014] NSWSC 1705 McCallum J observed, in reference to s. 28(4) of the Sentencing Act that: 'I would construe the new provision as an important mechanism for ensuring that the evidence of family victims is placed before the court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. In that way, the provision serves the purposes of sentencing stated in s. 3A of the Act, one of which is to recognise the harm done to the victim of the crime and the community.'"
The statements read in the present case have told the Court of Johann Morgan's great warmth and kindness. She loved her family dearly and was dearly loved by all of them. Her death has distressed them deeply. To her sisters and her brothers she was a central part of family life and to her children she represented motherly love and protection. Their loss, and their inability to say farewell to Johann Morgan, is to be mourned.
The Morgan family will always ache for Johann Morgan. The criminal justice system does not pretend to heal the hurt of such loss, but the Court can recognise the harm the whole family has suffered and acknowledge their strength and courage in explaining the dimensions of their loss and I do so today.

Sentencing statistics and "comparable cases"

The utility of referring to previous sentencing judgments was considered by the High Court of Australia in Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54] and Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41] where French CJ, Hayne, Kiefel and Bell JJ said: "[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. [41] As the plurality pointed out in Hili v R, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect."
Divergence from the statistical median for offences of a like kind does not of itself necessarily bespeak error. This must be so if only for the logical reason that the very concept of a median sentence anticipates the existence of sentences that are both longer and shorter.
The offender and the Crown each provided all of the available JIRS statistics and suggested "comparable" cases for my consideration. As the parties, acknowledged, however, the comparison of statistics and cases need to be approached with great care.
So far as JIRS statistics are concerned, they showed that of 145 offenders with a plea of not guilty, non-parole periods showed a range of 14-24 years and head sentences a range of between 14 years to life imprisonment. 19% of offenders who entered a plea of not guilty to murder received a non-parole period of 18 years. These statistics are a blunt instrument but I have had regard to them as helpful background information.
So far as the potentially comparable cases are concerned, the four cases most closely related to the present were identified by the parties as follows.
Roff v R; Biddle v R and Alkanaan v R [2017] NSWCCA 56 provide some useful guidance, but each of course turned on their own particular circumstances.
Perhaps the closest case to the present is R v Birch [2016] NSWSC 816 which involved an Aboriginal couple in a relationship for around three years. On the day of the murder they were each consuming alcohol all day. The offender and his girlfriend began arguing. The offender's brother was outside and gave evidence that he could hear noises that sounded like the offender was punching his girlfriend's abdomen. The offender's brother described the offender and being in a fit of rage. The next day, his brother saw the deceased on the floor, cold to touch and apparently dead. The gravity of the offence was "as at or about the midrange". The offender was sentenced to 20 years imprisonment, with a non-parole period of 13 years. The critical differences from the present case are that there was a 25% discount given for the offender's early plea of guilty in that case and a finding of special circumstances. Finally, the offender in that case had shown great remorse.
I have taken them into account the cases referred to by the parties in fixing the sentence I will shortly announce.

Time spent in custody

I am to have regard to the time the offender has already spent in custody pursuant to s 24(a) of the Crimes (Sentence and Procedure) Act.
The offender was arrested on 21 December 2015 and has been in custody since that date. Therefore, the offender has already served one year and 11 months in custody in relation to this matter. The sentence will be backdated to commence on 21 December 2015.

Section 3A Crimes (Sentencing Procedure) Act

I have taken into account for the purposes of sentencing the matters set out in s 3A of the Crimes (Sentencing Procedure) Act. I have set out at some length in this judgment my reasons in addressing each of the matters to which that section refers. I will briefly return to each of those matters.
I have taken into account the need to ensure that the offender is adequately punished. As the offender's counsel acknowledged, murder is the most serious offence. I have taken onto account the objective matters referred to in this judgment and the maters of mitigation I have earlier identified, in particular the matters of disadvantage suffered by the offender, in performing the instinctive synthesis I have conducted.
I have taken into account the object of preventing crime by general and specific deterrence. I have rejected the offender's principal submissions based on executive dysfunction but I do take into account that evidence in ameliorating to some extent the need for specific deterrence. General deterrence, as the offender's counsel accepts, must be considered in such a serious matter. I have addressed at length the evidence about the offender's executive dysfunction and have rejected the submission that by reason of that condition he was not fully aware of the consequences of his actions. I acknowledge, however, that general deterrence as a single factor cannot be allowed to an impermissible degree to override the offender's favourable subjective circumstances.
I have taken into account the need to protect the community. I have earlier set out my findings about the offender's prior convictions, including, in particular, the burning of the Johann Morgan's car and the breach of the apprehended violence order granted to protect her for which he was convicted in 2013. I have rejected the submission that there was a causal link between the offending and the offender's executive dysfunction.
I have taken into account the need to promote rehabilitation and I have explained my finding that the offender has some prospects of rehabilitation.
I have taken into account the object of making the offender accountable for his actions and denouncing his conduct and the need to recognise the harm done to the victim and to the community, including of course her family.

Sentence

Troy Jason Ruttley, I have earlier formally convicted you of murder following the verdict of the jury. I sentence you to a non-parole period of 18 years commencing on 21 December 2015 and concluding on 20 December 2033 and a balance of term of 6 years commencing on 21 December 2033 and concluding on 20 December 2039.
To express my sentence another way I have imposed a head sentence of 24 years with a non-parole period of 18 years backdated to the date of the offender's arrest.
This is a serious violence offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW). The offender's legal representatives have undertaken to explain the existence of the Crimes (High Risk Offenders) Act and its implications to you in accordance with s 25C of that Act.

Amendments 24 November 2017 - Typographical errors corrected in paras [53] and [55] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2017

At a glance

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Judgment (13 paragraphs)

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Cases Cited (26)

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