R v Savic

Supreme Court of NSW|2013-09-23|Before: Johnson J, Mr P

REMARKS ON SENTENCE 1JOHNSON J: The Offender, Daniel Savic, has pleaded guilty to the murder of Michael Goh on 29 September 2011 at Sydenham. 2The maximum penalty for murder is imprisonment for life: s.19A Crimes Act 1900. There is a standard non-parole period of 20 years for this crime.

Findings of Fact 3It is necessary to make findings of fact with respect to the offence. 4The Court may not take disputed facts into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the Offender relies upon in mitigation of penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28]. However, not all disputed issues of fact related to sentencing must be resolved for or against the Offender. There may be issues which the material available to the sentencing Judge will not permit the Court to resolve in a way that goes either to increase or to decrease the sentence to be imposed: Weininger v The Queen [2003] HCA 14; 212 CLR 629 at 636-637 [19], [22]. Material Relevant to Fact Finding 5By his plea of guilty to murder, the Offender admits that he committed acts against Mr Goh, with intent to kill or (at least) intent to inflict grievous bodily harm, which caused the death of Mr Goh. 6An Agreed Statement of Facts was tendered at the sentencing hearing. However, there is controversy concerning certain factual matters, in particular, what happened immediately prior to the acts of the Offender which caused Mr Goh's death. 7The Offender did not give evidence at the sentencing hearing. A short statement made by him was tendered in the defence case, with the statement omitting (having not been pressed after objection) parts which contained the Offender's account of the offence (Exhibit 2). 8In addition, a report of Mr Peter Champion, psychologist, dated 9 September 2013 was tendered (Exhibit 1). In circumstances where the Offender did not give evidence, it was submitted for the Crown that no real weight could be given to the Offender's account of the offence as provided to Mr Champion, in accordance with the principles in R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377 [58]-[59], 380 [79]. I will adopt this approach in considering this part of the evidence. Some Undisputed Facts 9At the time of his death on 29 September 2011, Mr Goh was 57 years of age. He lived and worked at 9 Gleeson Avenue, Sydenham, where he operated a second-hand goods business. 10The Offender was born in 1983, and was 28 years' old at the time of the offence. The Offender and Mr Goh had known each other for a number of years and had, from time to time, engaged in consensual sexual activity with each other. 11On the evening of 29 September 2011, the Offender attended Mr Goh's premises at Sydenham. Between 8.30 pm and 9.30 pm, the Offender attacked Mr Goh, inflicting several blunt head injuries which caused his death. Having fatally attacked Mr Goh, the Offender left the Sydenham premises. 12At about 11.30 pm that evening, Darren Hookey and Sheree Wiley, who had been at a nearby hotel, walked past Mr Goh's premises and noticed that the shop was still open. Mr Hookey called out to the owner of the shop. When he received no reply, Mr Hookey looked down the narrow passageway leading to the store and saw a person lying on the ground. He ran back to the hotel and spoke to the security guard, who accompanied Mr Hookey back to the shop. They saw a person lying on the floor. The two men reported the matter to the hotel duty manager, Sean Taylor, who attended the store. Mr Taylor found Mr Goh lying on the ground about six to seven metres from the front entrance. Mr Taylor observed what appeared to be dried blood. He called out to the person, but received no response. The television was on. 13Mr Taylor checked the body for signs of life, but found none. A "000" call was made at 11.37 pm, with police and ambulance officers attending as a result. 14Mr Goh was found lying in the middle of the walkway at the back of the shop near the television. His head was tilted slightly backwards. His shirt was lifted a few inches. His pants were pulled down to the top of his thighs, with the pockets of his pants pulled out. His underpants were in their normal position. The top of the underpants was visible. Mr Goh was wearing no shoes or socks, and his feet were blood spotted. A cardboard box was on the abdomen of the deceased. His right hand was covered in blood. There was blood spattered all around the deceased and on various furnishings and clothing. 15An ambulance officer checked the deceased for vital signs and found none. 16A crime scene was established. Submissions Concerning Disputed Factual Issues 17The making of findings of fact will involve consideration of the Offender's admissions giving rise to his plea of guilty, inferences to be drawn from physical evidence at the scene of the crime and accounts given by the Offender to police over a period between 29 September 2011 and 21 November 2011, when the Offender ultimately admitted that he had killed Mr Goh. 18The Offender had told lies to the police concerning events when first spoken to on 30 September 2011, and again on 2 October 2011. The Offender was arrested by police on 21 November 2011. Again, he told lies to police, falsely asserting that Mr Goh had stumbled and hit his head inside the shop. It was only after that interview was complete that the Offender told police that he was, in fact, guilty, leading to a further record of interview conducted on the evening of 21 November 2011. 19In this interview, the Offender asserted that he and Mr Goh were engaged in consensual sexual activity when Mr Goh was said to have become aggressive towards the Offender, trying to have anal intercourse with him, with Mr Goh allegedly picking up a knife and advancing towards the Offender. The Offender told police that he had "lost it" at that point and a struggle ensued between the two men, culminating in a number of blows being struck by the Offender to Mr Goh's head, causing his death. 20It was submitted for the Crown that the version of events given by the Offender ought not be accepted, given earlier lies told by the Offender to police and the fact that physical evidence was inconsistent with this account, and in circumstances where the Offender did not give evidence on sentence. 21Mr Winch, counsel for the Offender, submitted that the Court should accept the Offender's version in this respect, and take it into account as a mitigating circumstance arising from provocation offered to the Offender by Mr Goh, from his attempt to have unwanted sexual relations with him and with the Offender thereafter acting, to some degree, in self defence: s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999. 22Counsel accepted that, in accordance with the principles in The Queen v Olbrich, the onus lay upon the Offender to establish what were said to be mitigating circumstances surrounding the commission of the crime of murder, in accordance with the Offender's final account to police. 23To the extent that there is an issue for determination in these proceedings as to whether the Offender was acting with intent to kill or intent to cause grievous bodily harm, I accept that this is an issue upon which the Crown bears the onus to the criminal standard. Findings Concerning Disputed Factual Issues 24In light of the submissions advanced, I record my findings on these issues in the following way. 25The Offender was 28 years of age and 179 centimetres tall with a solid build. Mr Goh was 57 years of age, 168 cm tall and weighed 83.5 kilograms. 26The post-mortem examination of Mr Goh conducted on 1 October 2011 revealed that he had suffered extensive blunt-force injuries to the head. These injuries included, but were not limited to: (a) a 14 cm x 10 cm compound depressed skull fracture (also involving the left temporal bone); (b) bilateral base of skull fractures (over both orbital roofs) and left middle and left posterior cranial fossa; (c) fracture of the anterior aspect of the parietal bones; (d) a fractured thyroid cartilage; (e) a significant number of facial lacerations and lacerations to the back of the head. 27Injury patterns were indicative of blunt-force and sharp-force trauma. There were multiple cross-shaped patterned lacerations (consistent with the shape of a Phillips head screwdriver) to the face and the scalp. An examination of the skull bone also showed multiple small patterned impression marks on the bone, consistent with an impression inflicted by a large standard screwdriver or a similar item. 28Mr Goh also sustained hand injuries, including fractures to the middle and ring fingers of his left hand. There were extensive blunt-force and sharp injuries to his right hand, many involving the dorsal aspect of the right hand, being defensive type injuries. 29Mr Goh had also sustained back injuries consisting of bruising to the left-side mid-section and fractured ninth lateral rib corresponding to the identified bruise. 30The injuries to Mr Goh support a clear finding that he was attacked to the head and other parts of the body, with different weapons being used against him. Located in the Sydenham premises after the discovery of Mr Goh's body were a number of items which were linked forensically to the murder. 31The items included: (a) a number of broken wooden coat racks located beside Mr Goh, and associated items (broken knobs) located under the body; (b) a bloodstained antique-style mannequin (with hairs attached to the metal base) located near the body - I accept that these hairs had come from the deceased; (c) bloodstained pieces of broken mirror located around Mr Goh's head; (d) several bloodstained Phillips head and flathead screwdrivers located around the body; (e) a pair of bloodstained pliers located near Mr Goh's right hip; (f) a pink lamp and white pedestal fan located on top of a lounge near the body. 32Mr Goh's blood was located on the bloodstained items. 33The bloodstained fingerprints of the Offender were located on a coat/hat stand, which was located near the body resting on a lampshade. I infer that the Offender used this item as a weapon to strike Mr Goh. 34As against the multiple and fatal injuries inflicted upon Mr Goh, the Offender was relatively unscathed. When spoken to by police on the morning of 30 September 2011, police noted that the Offender had fresh cuts to his left middle finger and his right-hand little finger. The Offender told police that his pet bird had done this to him, and he showed police his pet lorikeet in his Ashfield home. 35The Offender described to police the knife which he alleged had been wielded by Mr Goh as being "like a Samurai sword kind of thing just a small one". He said that he managed to get it away from Mr Goh and threw it down. Examination by police of the Sydenham premises revealed a dagger in a cupboard in the backroom of the premises, and an ornamental sword in a sheath in a shelving unit in the hallway of the premises. An ornamental sword in a sheath was located on top of some planks of wood under the mezzanine floor/storage area towards the centre of the shop, about three to five metres from where Mr Goh's body was located. The sword was dirty and rusty. 36A search of the Offender's Ashfield premises on 4 and 5 October 2011 revealed the deceased's bloodstained hair located on a towel in the bathroom. 37The Offender's plea of guilty and the description of the injuries inflicted upon Mr Goh and the various weapons used to inflict these injuries readily demonstrate that a sustained and ferocious attack was directed by the Offender towards Mr Goh. 38Given the variety of injuries and their gravity, I am satisfied beyond reasonable doubt that the Offender intended to kill Mr Goh certainly at the time when the latter series of blows were struck to his head. This is not a case confined to one or two blows struck to a victim's head, which may call for a finding that the assailant possessed an intent to cause grievous bodily harm and no more. The variety of injuries, and of items used to attack Mr Goh, supports an inference to the criminal standard that the Offender intended to kill him, acting in a state of anger. 39The Offender seeks a finding that the blows were struck to Mr Goh following a suggestion of unwanted sexual activity, which the Offender allegedly rebuffed, and then following threats by Mr Goh towards the Offender, with the deceased brandishing a knife towards the Offender. There are a number of significant difficulties standing in the way of findings of fact such as these favourable to the Offender. 40Firstly, the Offender has not given evidence to support this account. The evidence in support of this scenario emerges from the final version given by the Offender to police, nearly two months after the crime had been committed. Prior to then, the Offender had consistently given a false account to police. In addition, the Offender provided this account to Mr Champion who repeated it in his report. However, no weight can be given to this part of the report. The strength of the account provided to Mr Champion rises no higher than the unsworn version furnished by the Offender to police, after an extended period of deceptive conduct on his part. 41Secondly, an examination of the physical evidence provides no real support for the Offender's account. It is difficult to see how any of the items located in the Sydenham premises satisfy the description given by the Offender to police of the knife allegedly wielded by Mr Goh. The items which were located did not seem to be in locations which suggested that they played any part in the fatal incident (see [35] above). 42Thirdly, the evidence of injuries to the Offender tends to support the Crown submission, and undermine the defence submission on this issue. The Offender had a relatively minor injury to the hand, which I accept was occasioned during his attack upon Mr Goh. Of course, the Offender falsely attributed this injury to his pet bird, as part of his attempt to deceive police. 43I accept that some triggering event occurred in the Sydenham premises on 29 September 2011, which led the Offender, in a state of anger, to murder Mr Goh. However, I am not satisfied, on the balance of probabilities, that there was any suggestion by Mr Goh of some form of unwanted sexual activity which led the Offender to act in this way. Further, I am not satisfied on the balance of probabilities that Mr Goh threatened the Offender with a knife, as a part of the incident which culminated in the fatal attack upon Mr Goh. 44The Court is left in the position that no reliable and precise finding can be made as to what it was that enraged the Offender, so that he attacked Mr Goh with intent to kill. It would be a matter of pure speculation, and not a process of inference, to advance possible factors which could contribute to conflict between the two men leading to the murder of Mr Goh. 45Of the two men in the Sydenham premises at the time, only the Offender lives to provide an account as to what happened. I am not prepared to make a finding on the balance of probabilities favourable to the Offender, upon the basis of the unsatisfactory documentary evidence which the Offender points to in support of this submission. To the extent that the physical evidence tells a tale as to what happened in the Sydenham premises that evening, that evidence supports the Crown and not the Offender. 46The Offender has been in custody since his arrest on 21 November 2011.

The Offender's Subjective Circumstances 47Material concerning the Offender's subjective circumstances can be found in his criminal history, his letter to the Court and the report of Mr Champion. 48The Offender is now 30 years' old. He was raised in the Menai area and is the eldest of three brothers. 49The Offender informed Mr Champion that he had left school in Year 10, and thereafter had a chequered employment history including work as a storeman and packer and some casual work. 50The Offender has a criminal history commencing in 2000. 51Offences of violence include common assault in February 2002 ($500.00 fine), assault police in April 2002 (nine months' imprisonment), assault occasioning actual bodily harm and common assault (two counts) in August and September 2002 (sentences of three months and one month's imprisonment). Sentences of imprisonment in August 2003, for offences of larceny, included parole orders requiring counselling for, amongst other things, anger management. 52There are a number of offences of dishonesty extending to April 2009, when sentences of imprisonment were imposed in the Sydney District Court for larceny and disposing of stolen property. 53The Offender's custodial history discloses disciplinary entries for fighting in 2002, 2003 and 2005. 54Mr Winch emphasised the absence of any prison disciplinary matter involving violence in the period since 21 November 2011, when the Offender had been in custody for this offence. 55Mr Champion undertook psychometric testing, with the Offender achieving an overall score on the WASI-II scale in the bottom half of the average range. His reading skills appeared to be confident and competent for age, despite a reported history of learning problems. On the Verbal Comprehension scale, the Offender showed reasonably well-developed vocabulary knowledge skills, though he needed to be heavily structured to achieve to this level and he found the language-based abstract reasoning test difficult. On the Perceptual Reasoning scale, the Offender's results were low-mid average. 56Mr Champion observed, on the basis of the history provided by the Offender, his presentation and the result of testing, that there was no indication that he was suffering from an intellectual disability, nor a major global limitation in intelligence. 57The Offender gave a history of polysubstance abuse and pathological gambling, and an earlier history of dysfunctional upbringing, reportedly being taken into State care as an adolescent. The Offender has had some involvement with a range of mental health services. 58Mr Champion outlined the Offender's account of the offence, and observed that the impression was that the Offender demonstrated "Cluster Personality disorder traits, which could have caused him to react violently in a confrontation situation (assuming the basic accuracy of Mr Savic's account), that is for instance by causing an exaggerated emotional response and inadequate control over his behaviour and tendencies to aggression and to lose control of his actions when he became enraged". 59A difficulty with reliance upon this part of Mr Champion's report is that I have not accepted the basic accuracy of the Offender's account. A foundation for this part of Mr Champion's opinion is compromised, although I accept that the Offender clearly became angry and directed his aggression towards Mr Goh, with fatal consequences. 60Mr Champion observed that there seemed to be antisocial features present and blunted sensibilities, which might serve to explain how an individual such as the Offender might behave in a manner which was more aggressive than might be expected of others in such a situation. However, Mr Champion expressly refrained from any diagnosis of psychopathy which went beyond the label of antisocial personality disorder (paragraph [49]). 61Mr Champion identified a number of risk factors which were relevant to prognosis. He concluded at [46]: "In sum there are a range of factors which suggest that the risk of future violent behaviour is potentially significant, the point being that it is therefore necessary to address those risk factors, for instance by way of psychiatric/psychological treatment and involvement in violent offender programs."

Offence in Breach of Conditional Liberty 62At the time of the offence of murder on 29 September 2011, the Offender was on bail with respect to a charge of using a carriage service to menace or harass a person. No evidence was offered on this charge on 8 November 2011 so that no finding of guilt resulted. 63However, the fact that the Offender was subject to conditional liberty, in the form of a grant of bail, at the time of the murder offence operates adversely to him on sentence: s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999; Porter v R [2008] NSWCCA 145 at [86]. Section 21A(2)(j) remains a relevant consideration even though the charge in respect of which he was on bail did not proceed: R v Deng [2007] NSWCCA 216; 176 A Crim R 1 at 13 [64]. The fact that the charge for which the Offender was on bail was of a different type to that for which he is to be sentenced does not stand in the way of application of s.21A(2)(j): Frigiani v R [2007] NSWCCA 81 at [23]-[24].

The Offender's Plea of Guilty 64The Offender was arrested on 21 November 2011 and was, in due course, committed for trial in this Court. On 2 February 2013, the Offender was arraigned, pleaded not guilty and his trial was listed to commence on 12 August 2013. 65On 1 August 2013, the Offender was rearraigned before me and pleaded guilty to murder. 66Mr Winch submitted that a discount ought be allowed in the order of 10%-15% for the Offender's plea. The Crown submitted that the discount should not exceed 10%. 67The plea of guilty was late and was entered not long before the scheduled trial date. In these circumstances, I will allow a discount of 10%: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10-11 [32].

Victim Impact Statement 68A victim impact statement was provided to the Court from Raymond Chan, a nephew of Mr Goh, with Mr Chan writing on behalf of the entire family. Mr Chan spoke of the devastating effect upon the family, and in particular, Mr Goh's mother, arising from news of his death. Mr Chan's statement demonstrates the terrible consequences for the family arising from Mr Goh's death. 69I express the sympathy of the Court and the community to Mr Chan, and Mr Goh's family, for their loss. I must approach the victim impact statement in accordance with legal principles applicable in this State.

Objective Gravity of the Offence 70As the offence of murder carries a standard non-parole period of 20 years, the principles in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 should be kept in mind on sentence. I have had regard to the provisions in ss.54A and 54B Crimes (Sentencing Procedure) Act 1999, as amended recently by the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013, those amendments being intended to clarify the role of the standard non-parole period in sentencing, following the decision in Muldrock v The Queen. 71The standard non-parole period represents the non-parole period for an offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence: s.54A(2). 72The standard non-parole period is a guidepost to be taken into account, together with the maximum penalty, as part of the instinctive synthesis process. The standard non-parole period is to be taken into account in determining the appropriate sentence, together with other relevant considerations: s.54B(2). The Court must record reasons for setting a non-parole period that is longer or shorter than the standard non-parole period: s.54B(3). However, the Court is not required to record the extent to which the seriousness of the offence differs from that of an offence to which the standard non-parole period applies: s.54B(6). 73Mr Winch submitted that the seriousness of this offence lay below the middle range of objective seriousness. The Crown submitted that the offence did not lie below the middle of the range of objective seriousness. 74In approaching these submissions, I keep in mind the caution required in view of the decision in Muldrock v The Queen, and the amendments effected to ss.54A and 54B. 75I propose to consider the objective gravity of this offence by reference to the common law concept of objective gravity, an assessment of which is necessary for the purpose of sentence. 76I have made findings of fact earlier in these remarks concerning the circumstances of the offence itself. 77The Offender and Mr Goh were not strangers. They knew each other well and had an association which extended to consensual sexual conduct. 78On the evening of 29 September 2011, the two men were at Mr Goh's home at Sydenham. In circumstances which the evidence leaves unexplained, the Offender launched a ferocious attack upon Mr Goh, striking him to the head and other parts of the body with various items, causing fatal injuries. On the findings which I have made, no words or act of Mr Goh triggered such conduct in the Offender. 79Even if it had been the case that Mr Goh had suggested a form of sexual activity which the Offender was not prepared to perform (as to which an expression of refusal would have sufficed as a response), this scenario could not assist the Offender on sentence. As it happens, I am not satisfied that is what occurred, and I am certainly not satisfied that Mr Goh made any threat towards the Offender, using a knife or otherwise. 80One is left with a savage and sustained attack to the head by a 28-year old man upon a 57-year old victim causing death. Multiple blows were used in what may be taken to have been a terrifying experience for Mr Goh, to the extent that he remained conscious during this unrestrained attack by the Offender. 81That the offence was committed in Mr Goh's home serves to aggravate the offence: s.21A(2)(eb) Crimes (Sentencing Procedure) Act 2009; Melbom v R [2013] NSWCCA 210. 82As mentioned earlier, I am satisfied that the Offender acted with an intention to kill Mr Goh. However, even if the finding did not rise above intention to inflict grievous bodily harm, I consider that this is a case where there is little difference in the moral culpability of the Offender flowing from his intention: Tran v R [2011] NSWCCA 11 at [1], [44]-[45]. 83The circumstances of the offence, and the items used as weapons, suggest that it was a spontaneous and unplanned act. However, for reasons which have already been explained, my findings cannot extend beyond that on the evidence before the Court. 84To the extent that it may assist the sentencing process, I record my conclusion that the offence lay in the middle of the range of objective seriousness. 85Although every offence of murder, by definition, is a grave crime under our law, the present offence may be rightly characterised as a serious example of such a crime although, as both the Crown and Mr Winch submitted, it was some distance from the worst case of murder.

Remorse and Contrition 86In his letter to the Court, the Offender expressed remorse for killing Mr Goh. 87In assessing the genuineness and the weight to be given to an expression of remorse, it is necessary to keep in mind that the Offender denied to police that he had anything to do with the death of Mr Goh for nearly two months, until his admissions were made on 21 November 2011. 88The Offender's plea of guilty was late. Moreover, the circumstances leading to the Court being unable to make a finding concerning the circumstances in which the murder occurred, constitutes a further difficulty in making a favourable finding of remorse. 89I accept that there has been a measure of remorse, but limited weight can be attached to this factor in the circumstances of this case.

The Offender's Mental Condition 90I have set our earlier Mr Champion's opinion with respect to the Offender's mental condition at the time of the offence. Caution is required in approaching this issue given that Mr Champion's opinion was based upon certain factual assumptions, which do not accord with my findings of fact. 91That said, Mr Champion identified Cluster B personality disorder traits, a form of antisocial personality disorder. 92Mr Winch submitted that the Offender's mental condition should be taken into account in his favour on sentence, in accordance with the principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]-[178]. 93A difficulty with this submission is that the Offender bears the onus of proof, on the civil standard, to satisfy the Court that any of these considerations may operate in his favour on sentence. 94I am prepared to accept that personality disorder traits could have contributed to the Offender's inadequate self-control in the context of this crime. However, a finding of antisocial personality disorder may provide little assistance to a person in the Offender's position on sentence. In R v Lawrence [2005] NSWCCA 91, Spigelman CJ observed, at [23]-[24], that some mental conditions do not attract the sentencing principle that less weight is given to general deterrence. The Chief Justice observed at [24]: "Weight will need to be given to the protection of the public in any such case. Indeed, one would have thought that element would be of particular weight in the case of a person who was said to have what a psychiatrist may classify as an antisocial personality disorder." 95I am not persuaded, on the evidence, that the Offender's mental condition may be called in aid, in any significant way, to mitigate sentence or to reduce the moral culpability of the Offender. 96The concepts of specific and general deterrence remain important in sentencing the Offender.

Assessing the Offender's Risk of Reoffending and Prospects of Rehabilitation 97Courts have recognised the imprecise nature of the process which involves an assessment of an Offender's risk of reoffending, in particular where a lengthy sentence is to be imposed, so that there is no prospect of the Offender being released into the community at an early time. It has been emphasised that it is the risk (and not certainty) of reoffending which is under consideration: Beldon v R [2012] NSWCCA 194 at [53]. 98The Court is entitled to take into account what the Offender did in committing the offence when considering the risk that he may commit violent crime again in the future: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at 207-208 [64]-[69]. 99The crime of murder in this case involves a ferocious attack by the Offender upon Mr Goh, with no finding favourable to the Offender being able to be made concerning the trigger for the offence. The sustained and multifaceted attack itself gives rise to concern with respect to the Offender's risk of violent reoffending. 100The Offender's criminal history contains entries for offences of violence, although the offences are at the lesser end of the spectrum of gravity and occurred some years prior to this incident. The Offender's criminal history indicates that anger management has been an issue requiring attention in the past. 101For a 28-year old man to commit such a serious crime, against this background, raises concerns with respect to the risk of violent reoffending. 102At the same time, as Mr Winch has submitted, there is no incident of violence recorded against the Offender in the prison setting, in which he has been housed for some two years. 103The Court must be guarded in assessing the long-term future of the Offender. That guarded approach does not permit a positive finding that there are good prospects of rehabilitation. However, a finding should not be made that there are poor prospects of rehabilitation. There is some prospect of rehabilitation, arising from what will be an extended period in custody as a result of this offence. 104There will be ample time for the relevant custodial authorities to make an assessment of the Offender, based upon his custodial history and efforts which may be made in custody, including the provision of such treatment as may be considered necessary and the likely involvement of the Offender in the Violent Offender Treatment Program. Mr Champion foreshadowed the appropriateness of such programs for the Offender, together with psychiatric or psychological treatment.

Determining the Appropriate Sentence 105I have referred to a range of factors to be considered on sentence. It is necessary now to undertake the process of instinctive synthesis for the purpose of passing sentence. 106The offence committed by the Offender is of substantial objective gravity. The Offender was subject to conditional liberty at the time of the offence. The Offender's criminal history does not assist him on sentence, but it does not operate as a factor which aggravates sentence, in the sense recognised in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566. 107The Offender's subjective circumstances provide limited assistance to him on sentence. A guarded assessment is appropriate concerning his prospects of rehabilitation. The sentence must reflect the need for specific and general deterrence. 108Having regard to all relevant objective and subjective factors and relevant sentencing principles, I am satisfied that an appropriate head sentence, prior to application of the 10% discount, would be one of 24 years. After allowance is made for the 10% discount, a head sentence of 21 years and six months ought be fixed. 109Mr Winch submitted, realistically, that no finding of special circumstances should be made in this case, given the significant length of any parole period which would form part of the sentence. I am satisfied that the parole period component to be incorporated in the sentence to be passed will provide ample opportunity, by way of conditional liberty, in the event that the Offender is released to parole at the conclusion of the non-parole period to be fixed. 110Accordingly, the sentence to be imposed will comprise a head sentence of 21 years and six months with (after some rounding), a non-parole period of 16 years and three months. The sentence will commence from 21 November 2011. 111These remarks on sentence record my reasons for setting a non-parole period that is shorter than the standard non-parole period, in accordance with the requirements of s.54B(3) Crimes (Sentencing Procedure) Act 1999. 112Daniel Savic, would you please stand. 113For the crime of murder of Michael Goh, I sentence you to imprisonment comprising a non-parole period of 16 years and three months commencing on 21 November 2011 and expiring on 20 February 2028, with a balance of term of five years and three months commencing on 21 February 2028 and expiring on 20 May 2033. 114The earliest date upon which you will be eligible for release to parole is 21 February 2028. 115I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006, which applies to "serious violence offences', including the offence of murder for which you have been sentenced. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence, if the Court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious violence offence. It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

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: 11 November 2013

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