R v Sheather

Objective Seriousness 21Section 19A Crimes Act 1900 specifies the maximum penalty for murder as imprisonment for life. 22Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") provides for the imposition of the maximum penalty where the Court is satisfied that the level of culpability in the commission of the offence is so extreme as to require that that sentence be imposed. 23The offence of murder is, however, an offence for which a standard non-parole period of 20 years is prescribed, pursuant to the provisions of Division 1A of Part 4 of the Sentencing Act. This non-parole period is to be imposed after trial for offending which is in the mid-range of objective seriousness. Aggravating and mitigating factors justifying a greater or lesser sentence also need to be considered ( Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 at [18]). 24In this case, there was no trial. Nevertheless the authorities make clear that the standard non-parole period remains relevant as a guidepost or reference point. Accordingly, it is necessary to assess the objective seriousness of this offence. On the facts of this case, the Crown submitted that the offence fell below the mid-range of objective seriousness for offences of this kind. In my opinion, that was a concession properly made by the Crown. 25The circumstances of the offence, together with the very intoxicated state of the Offender, make it clear that the offence was unplanned and unpremeditated and occurred as a spur-of-the-moment act. Nevertheless, by resisting the efforts of Ms Duckett to restrain him, it was also clear that the Offender had a determination to use the knives against the deceased. That having been said, it is significant that having struck the blow to the chest of the deceased, the Offender ceased his attack on the deceased. 26I am satisfied that the intention of the Offender at the time, was not to kill, but was an intention to inflict grievous bodily harm. The actions of the Offender, both at the time of the offence and in the front yard thereafter, are demonstrative of the onset of his inexplicable rage, but not of an intention to kill. 27An analysis of the facts of the offence, by reference to the aggravating and mitigating factors set out in s.21A of the Sentencing Act, confirms my conclusion that the objective seriousness of this offence falls below the mid-range of objective seriousness for offences of this kind. 28The fact that a weapon was used is clearly an aggravating factor (s.21A(2)(c)). However, the effect of that aggravating factor is reduced in that the Offender taking up a weapon was unplanned and spontaneous. 29That the offence was committed in the presence of a child and at Ms Duckett's home are also aggravating factors (s.21A(2)(ea), (eb)). Whilst those are important matters, their seriousness is reduced by the circumstances in which the offence occurred. The onset of the Offender's rage was spontaneous and inexplicable. It is clear that the Offender had little, if any, awareness of where he was and who else was present when pursuing his single-minded intention of inflicting grievous bodily harm on the deceased. 30By way of mitigation, the Crown accepted that the Offender did not have any significant record of previous convictions (s.21A(3)(e)). Whilst the Offender did have a relatively minor record of criminal offences consisting of the misuse of a motor vehicle on occasions and convictions for assault and damage to property more than 10 years before, these were not the sort of matters which would prevent him from gaining the benefit of this subsection. 31Although the Offender did not give evidence in the sentencing proceedings, I am prepared to find that he has shown remorse for the offence. I do so because of his plea of guilty and because of his expressions of remorse in the ERISP and to the forensic psychologist, Ms Robilliard. In his ERISP, he said: "I feel bad that Brett's passed away, you know. We went to school together, we played football together. Yeah I feel bad." (Q150) In her report of 22 August 2011, Ms Robilliard recorded the Offender as saying "I regret he is dead - we had some good times" and "I regret his kids are going to grow up without him" . 32His prospects of successful rehabilitation (s.21A(3)(h)) and the likelihood of him not reoffending (s.21A(3)(g)) are less clear. He clearly has strong family support and family members were present during the sentencing hearing. Whilst he has problems with his temper, his capacity to control it and therefore to not reoffend would appear to be closely linked to his regular abuse of alcohol in the 10 years leading up to the offence. If those matters could be addressed, his prospects of rehabilitation would improve and the likelihood of him reoffending would be less. 33On the state of the evidence before me, I cannot reach any conclusion one way or the other on this issue. No doubt, he will have the opportunity while in prison to attend courses which will address these matters, but the evidence before me was largely silent on these questions. In the Offender's favour is the fact that despite his alcohol issues, his contact with the criminal law over the years has been comparatively minor. 34The Offender's level of intoxication is not a matter which can be properly taken into account by way of mitigation. It provides an explanation, but not an excuse, for his otherwise irrational behaviour. To the extent that the Offender can gain some benefit from his state of intoxication, he has done so in my finding that the offence was unplanned, unpremeditated and spontaneous.

Subjective Features 35In the Offender's case, a comprehensive report from Ms Robilliard, forensic psychologist, was placed before the Court. In order to prepare that report, Ms Robilliard spent over three-and-a-half hours with the Offender and conducted a number of tests. Her report provided valuable information as to the Offender's background. 36The Offender was the eldest in a family of two boys and a girl. His younger brother is in stable employment and his sister and her husband live in Wauchope as do his parents. He came from a caring and stable family. He left school at the end of Year 10 in order to obtain work at the local sawmill. The Offender was in steady employment in essentially labouring jobs from that date until approximately 10 years before the offence when he was forced to give up work as a result of a back injury and what he said was agoraphobia. He received a disability pension for those conditions and had been in receipt of that pension for 10 years until the date of the offence. 37The Offender's IQ was found to be in the average range. Personality tests "evidenced symptoms which could attract a diagnosis of Schizotypal Personality Disorder and he evidenced characteristic avoidant depressive and self-defeating behavioural attributes at an entrenched and characteristic level . This combination of significant scores describes an individual who would experience significant interpersonal difficulties because of deficits in his ability to comprehend the meaning and significance of interpersonal behaviour and marked reluctance to form close emotional ties" . 38In relation to his period of unemployment, Ms Robilliard said: "Without the structure of employment the client described a slow pace of life and he acknowledged developing an entrenched pattern of binge drinking and cannabis use. According to the scores he achieved on the personality test administered he barely saw his use of alcohol and illegal drugs as problematic. However, during our interview Mr Sheather acknowledged regularly experiencing consequent blackouts associated with his binges. This apparent anomaly suggests that Mr Sheather's attitude to his substance use is unrealistic and defensive." 39Ms Robilliard recorded an episode of the Offender being sexually molested from the age of five to nine years, but there was no connection made between that and his offending behaviour. There was certainly nothing in his history which would suggest that this sexual molestation was relevant to these sentencing remarks. 40Ms Robilliard's conclusion was: "From the personality test results obtained from the client during our meeting symptoms of Schizotypal Personality Disorder were described which contributed to interpersonal difficulties because of deficits in the individual's ability to comprehend and interpret the meaning of interpersonal behaviours. An intelligence test administered showed the client's overall IQ score placed him into the Average range. He demonstrated an unusual deficit on the Verbal subtest which does not necessarily equate to deficits in verbal comprehension as higher order executory skills may also be relevant. Neuropsychological testing would be required to elucidate the aetiology and clinical significance of the client's spread of scores." 41Earlier in the report, Ms Robilliard defined the behaviour of schizotypal individuals as follows: "Schizotypal individuals lead socially isolated lives and exhibit eccentricities such as odd mannerisms, expressions and clothing. They often drift to and from various locations and sources of employment, and generally function on the fringes of society with very few, if any, enduring emotional attachment. Their thought processes are scattered and their capacity to comprehend the meaning of interpersonal behaviour is typically limited." 42While it is clear that the Offender had a personality disorder, the relationship between that disorder and the offence is not clear. The difficulty for the Court is to determine what, if any, weight should be given to the Offender's personality disorder in the sentencing process. 43In R v Hemsley [2004] NSWCCA 228, Sperling J set out the principles that should be considered when an offender who suffers from a mental illness is to be sentenced. The issue here, of course, is whether in fact the Offender suffers from such a mental illness. The matters to be considered as set out in R v Hemsley are: "[33] Mental illness may be relevant ... in three ways. First , where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. [34] Secondly , mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. [35] Thirdly , a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]." 44There is no real explanation in the evidence for why the Offender became so upset and reacted so violently at the time of the offence. One can speculate and surmise that he may have misunderstood what was being said by the deceased and his son and that the reason for this was the personality disorder identified by Ms Robilliard. To make a finding to that effect, however, would involve exactly that - speculation. That is not an exercise which the Court should engage in. 45There is no clear evidence either of a direct or inferential kind, which would indicate that the Offender's personality disorder contributed to the commission of the offence. Similarly, there is no evidence capable of establishing that this Offender is an inappropriate vehicle for general deterrence. Similarly, there is no evidence that a custodial sentence might weigh more heavily on the Offender than a person without his personality disorder. 46As a result, I am not satisfied on the evidence before me, that the Offender's personality disorder should be taken into account in any significant way in moderating the sentence which should be imposed.

Victim Impact Statements 47I have received victim impact statements from the deceased's wife, his son, Brett, his daughter, Stacey, and his mother. Those statements eloquently describe the love which the deceased brought to his family, in particular his wife and children. The statements set out clearly the terrible loss that all of the family have suffered by the deceased's death. 48The deceased's son, Brett, has set out in detail the significant effect which seeing his father's murder has had upon him and his family. He now suffers problems with sleeping and it has adversely affected his relationship with his friends and family. The loss of his father continues to cause in him a serious grief reaction. 49The deceased's mother, daughter and wife have described their continuing sorrow at his loss and the great gap that his absence has brought into their lives. They all continue to feel great grief and loss because of his death. 50I accept fully that the circumstances of the deceased's death have affected each member of the deceased's family and those close to him. Whilst the family may expect to see their loss and pain reflected in the sentence to be imposed, that is not the reason I have received their statements in these proceedings. I do, however, take into account their statements in the way permitted by the law and I note that no sentence of imprisonment can compensate for the loss of a loved one. I extend to them my sympathy for their loss.

Conclusion 51The Offender's plea of guilty was entered late. Nevertheless, it still had utilitarian value in that the cost of a two-week trial was avoided including the necessity of Ms Duckett's sons giving evidence in circumstances which would have undoubtedly been traumatic for them. In the circumstances, the Offender is entitled to a discount for his plea of guilty of 10%. 52Murder has always been the most serious crime in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including denunciation and general deterrence. However, as I have already indicated, the objective seriousness of offences of murder need to be assessed within the appropriate range. 53I have been referred to a number of sentencing decisions where attacks occurred similar to (but not identical with) the offence which occurred here. Some of these involved sentencing after trial, some after pleas of guilty and some preceding and post-dating the standard non-parole period provisions to which I have referred. I have examined the sentencing remarks in those cases, including those to which both the Crown and the defence drew my attention, making due allowance for their individual facts and circumstances. 54The purposes of punishment include, in addition to general and specific deterrence, the rehabilitation of an offender, protection of the community and retribution. In view of my finding that the Offender's personality disorder had little influence on the commission of this offence, deterrence both general and specific, is important. In relation to this offence, I have had regard to factors in mitigation and factors of aggravation. What cannot be avoided, however, are the specific circumstances of the case. The offence involved a violent and unprovoked attack, the trigger for which has not been identified. 55At the heart of the offence of murder is the taking of a human life. The infliction of violence upon a person is always serious. Where the act of violence causes the death of that person, the Courts must denounce such conduct by the imposition of appropriate sentences. A significant sentence of imprisonment is required in this case to punish the Offender and to deter others who may engage in similar conduct. 56Contrary to the submissions made by senior counsel for the Offender, I do not propose to make a finding of special circumstances. The length of the term during which the Offender is under supervision will be sufficiently long to allow for the Offender's reintegration into the community. Any lengthier period would be of little utility. 57The Offender's plea of guilty, my finding that the offence was below the middle of the range of objective seriousness for offences of murder and my review of all relevant facts are reasons for departing from the standard non-parole period. 58Ricky John Sheather, for the crime of murdering Brett Donald Jones, I sentence you to imprisonment for 20 years with a non-parole period of 15 years. The non-parole period is to commence on 6 December 2009 and is to expire on 5 December 2024 and the balance of term of five years is to expire on 5 December 2029. The earliest date on which you will be eligible for release on parole will be 5 December 2024.

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 October 2011