R v Stanford, Vincent [2016] NSWSC 1434 | Case summary | Zoe

NSWNSWSC

R v Stanford, Vincent

[2016] NSWSC 1434

Supreme Court of NSW|2016-10-11|Before: Hulme J, Ms J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-10-11

Before

Hulme J, Ms J

Catchwords

[2006] NSWCCA 404 Fardon v Attorney General (Qld) (2004) 223 CLR 575
[2004] HCA 46 Gonzales v R (2007) 178 A Crim R 232
[2007] NSWCCA 321 Ibbs v The Queen (1987) 163 CLR 447
[1987] HCA 46 Knight v R (2006) 164 A Crim R 126

Source

Original judgment source is linked above.

Catchwords

[2006] NSWCCA 404 Fardon v Attorney General (Qld) (2004) 223 CLR 575[2004] HCA 46 Gonzales v R (2007) 178 A Crim R 232[2007] NSWCCA 321 Ibbs v The Queen (1987) 163 CLR 447[1987] HCA 46 Knight v R (2006) 164 A Crim R 126[2006] NSWCCA 292 Muldrock v The Queen (2011) 244 CLR 120unreported) R v Harris (2000) 50 NSWLR 409[2000] NSWCCA 469 R v Hillsley (2006) 164 A Crim R 252[2006] NSWCCA 312 R v Merritt (2004) 59 NSWLR 557[2004] NSWCCA 19 R v Miles [2002] NSWCCA 276 R v Robinson [2002] NSWCCA 359 R v SLD (2003) 58 NSWLR 589[2003] NSWCCA 310 R v Stanford, Marcus [2016] NSWSC 1174 R v Stani-Reginald [2013] NSWSC 567 R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309 R v Valera [2002] NSWCCA 50 R v Way (2004) 60 NSWLR 168[2004] NSWCCA 131 Veen v The Queen (No 2) (1988) 164 CLR 465

Judgment (31 paragraphs)

[1]

[3]

Facts

The offender lived in Maiden Avenue, Leeton with his mother and older brother, Luke. He was employed as a casual cleaner and worked at a variety of locations including a number of schools and other educational facilities. That included Leeton High School.
On 2 March 2015 the offender began what was to be a 5 week relief position at Leeton High School. The position was planned to end on the last day of term but it was extended. The offender had earlier had his roles and responsibilities explained to him on 27 February 2015, when he was also given the keys to the school. His hours were 3.30am until 8.30am and then 3.00pm until 6.00pm on weekdays. He was not to attend outside those hours except by arrangement and he was only to be in areas associated with his cleaning duties.
The offender promptly began acting outside the terms of his employment. He somehow obtained alarm access codes despite the school's policy of not providing them to casual employees. He was regularly seen at the school outside of his work hours and in areas not associated with his employment. He was seen at the school when children were on breaks from lessons and in and around the girls' toilets including when they were occupied.
Stephanie Scott was a teacher at Leeton High School and had been so for 3 years as at Easter 2015. She was due to be married to Mr Aaron Leeson-Woolley on 11 April 2015. This was common knowledge around the school. Thursday 2 April 2015 was the last day of the school term before the Easter school holidays and it was Ms Scott's last day at work before her wedding. Staff held a party for her that day.
On Good Friday (3 April), Mr Leeson-Woolley was preparing to go to Canowindra for a farewell party for a mutual friend. Ms Scott decided not to go due to the imminent wedding. She decided instead to spend the Easter weekend taking care of various arrangements including going to Griffith for shopping and collecting travel tickets for the honeymoon. At 12.30pm Mr Leeson-Woolley kissed Ms Scott goodbye and told her that he loved her. He was due to return on Easter Sunday. They maintained contact over the weekend and Mr Leeson-Woolley made dinner reservations for them on the Sunday night.
Mr Leeson-Woolley sent Ms Scott an SMS on the Sunday but did not receive a reply. She was not there when he returned home at about 7.20pm. Further SMS messages from Mr Leeson-Woolley did not receive a response. He believed that she may have stayed away for the night due to her feeling anxious about the wedding organisation and him not having been there over the weekend.
Further attempts by Mr Leeson-Woolley to locate Ms Scott the next morning were unsuccessful. He reported her missing at Leeton Police Station. Inquiries revealed that Ms Scott's mobile phone was uncontactable; there had been no activity on her bank accounts since her shopping on Saturday; and there was also no activity on her social media accounts.
There were initial concerns that Ms Scott may have got "cold feet" regarding the wedding but there was no indication of this being the case from her friends or family or from her SMS activity. Relatives and friends posted appeals on social media which generated a significant amount of activity across the country.

[6]

The attack

After leaving the Administration Block Ms Scott, by necessity, walked along an enclosed corridor towards the locked school gates. The offender was waiting for her. She saw him and said, "I'm going home now. Have a happy Easter". She stopped and attempted to get the keys out of her bag to open the gate. The offender grabbed her from behind with his right arm over her mouth and his left arm around her middle. Walking backwards, he dragged her along a corridor towards a storage room which had previously been used as a photographic darkroom.
Ms Scott struggled and fought back. She scratched the offender's face and tried to yell as she endeavoured to free herself. She dropped some of her belongings on the way.
The offender claimed that he had never been in this room before this day. He told police that he had opened it earlier that day because he "just wanted to see what was in there". He had left the door open.
After the offender dragged Ms Scott inside the darkroom he released her. As he turned to close the door, she tried to run out of the room. The offender pushed her and she fell face down on the floor between some MDF boards and a locker.
The offender put his left arm over Ms Scott's throat and started beating her to the face with his right fist 30 or 40 times. She struggled for 40 to 50 seconds before she became unconscious. The offender placed a condom on his penis and had penile-vaginal intercourse with Ms Scott. It is part of the agreed facts that she was alive at that point in time.
As Ms Scott lay on the floor, the offender placed his left hand on her throat. He removed a 40cm knife from his right pocket and stabbed her in what he thought was the carotid artery.
When asked by police why he stabbed Ms Scott in the neck he replied, "to make sure she was dead". He said that he had the knife in his car and he brought it into the school that day because "I think I had to open something up". None of the other cleaners had ever seen the offender with a knife, nor had any of them needed to use one in the course of their work.

[13]

Arrest of the offender

Police attended the offender's home at 6.00pm to ask whether he would attend the police station for an interview. They were also seeking permission to search the house. The offender was not home. His mother gave consent for police to conduct a walkthrough of the premises.
Police observed fresh tyre tracks leading from the front of the house into the rear yard towards a shed. The tyre impressions were left by a vehicle with a smaller wheel base than that of the offender's ute. A used condom was found on the ground in that area and nearby was some yellow tape.
In the offender's bedroom police found a set of keys matching the description of the school keys given to Ms Scott on Easter Sunday. An empty condom wrapper and condoms still in their wrappers were also found. Police declared the premises a crime scene.
The offender arrived home and was approached by police. Detective Milne said "Have you been at work?" The offender replied "No, I've been out taking photographs". Police saw the offender's camera on the front seat. They also observed large MDF boards in the rear of the ute with what appeared to be a blood smear. The offender's vehicle was seized and he agreed to accompany police to the station. Police turned on the camera and viewed the first image which displayed a burnt seemingly-female corpse in bushland.
When the camera was further examined at the police station it revealed a further photograph of the same burnt corpse. There was a substance in a number of places on the strap of the camera which matched the appearance of a substance on the corpse. The offender denied the photographs were of Ms Scott. He said that he downloaded them from the internet from a horror movie because he thought they were funny. He was placed under arrest for the murder.
Police questioned the offender about a number of fresh-looking scratch marks on his face and arms. He nominated different incidents of bumping his head and running into a tree branch about a week before.
A forensic examination was undertaken on the offender's ute. Smears on the MDF boards tested positive for human blood. Also located in the vehicle was a GPS navigation device which had recent locations including Boundary Road, a gravel road from which Cocoparra National Park can be accessed.
The offender was given the opportunity to speak with a solicitor and subsequently declined to be interviewed. He consented to a number of forensic procedures including the examination, photographing and measuring of his injuries and the taking of fingernail scrapings and a saliva sample for DNA.

[22]

Further statement of facts

A further agreed statement of facts was before me. It related to the various stalking behaviours of the offender directed towards three females other than Ms Scott. A non-publication order prohibits publication of anything that would tend to identify any of them. Section 15A Children (Criminal Proceedings) Act 1987 (NSW) applies by its own force to the same effect in relation to the first. Accordingly I will refer to each of the females by pseudonyms.
Soon after he moved into the home in Maiden Avenue on 4 March 2014 the offender began covertly photographing and stalking a young girl in the neighbourhood, "Joanne". She was then a student at Leeton Public School. She was 12 years old in 2015.
Police found numerous surveillance type photographs of Joanne on the offender's camera. There was video footage and a further large number of photographs on his computer. In total, there were 1805 images of Joanne; many showing her in her school uniform from the waist down. There are also numerous photographs of other school girls and adult females who were passing by the house. There were also numerous images of bestiality and pictures of other young girls.
Police also seized an exercise book with the offender's name on the front cover. Inside the back cover and in his notes the offender repeatedly referred to Joanne as a "slut". The book contains extensive notes relating to surveillance conducted of her, including times she left the house for ballet and school and when she returned; when the house was empty; and when she was home alone. Included is an entry, "│ home alone 15.40 │ time enough to abduct │". There are drawings including females, a car, a gun and a sword. There is an image of a female head with a knife striking it. There are notes of the registration numbers of cars belonging to Joanne's father and grandfather.
Another page contains a list of words including a number of stupefying drugs including Valium, Chloroform, Nitrous Oxide and Rohypnol.
The offender also had a laminated photograph of a school dance group that included Joanne. He took it off the school notice board because it included her in it.
In his first police interview, the offender described his stalking of Joanne as "a baseless obsession". He stated that he wanted to abduct Joanne but managed to control that urge. He went on to say that if he had abducted her he probably would have killed her.
The second female, "Jillian", was a young adult woman who worked in a supermarket in Leeton. Jillian noticed the offender attending the store with his mother on a weekly basis in the four to five months prior to the murder but he came alone in the weeks before.
On 24 March 2015 the offender approached Jillian and engaged her in general conversation. He did the same on 27 March. An examination of the offender's computer revealed that on 30 March 2015 he conducted a number of internet searches in relation to Jillian.
On 31 March 2015, Jillian arrived for work about five minutes before the supermarket was due to open. She saw the offender sitting in the car park in his ute, which was parked near where the staff park their cars, well away from the store entrance. Jillian parked her car and waited for two male co-workers to approach her car before she got out and walked into the store with them. Police later located photographs the offender had taken at that time of Jillian's car in the car park. Police also found that the offender had carried out a number of RTA internet searches in an effort to trace the ownership details of Jillian's car.
The third female, "Jennifer", was a 28 year old teacher at Leeton High School. She ordinarily parked her car in the top car park at the school. She was frequently required to work back late and on occasion her car would be the last one left in the car park. Often when she went back to her car, the offender was nearby. Jennifer would sometimes say hello and he would say hello back.
Police found a photograph of Jennifer's car on the offender's phone. The photograph was taken at 4.57pm on 27 March 2015 while the car was parked in the Leeton High School car park.

[24]

Personal circumstances of the offender

The applicant's subjective case was sought to be established by documentary evidence, particularly by way of a report by Ms Anna Robilliard, forensic psychologist. There was no oral evidence.
The offender was 24 years of age as at Easter 2015. He was born in Australia but the family moved to the Netherlands when he was aged 3. His father returned to Australia after six months and there has been no further contact with him.
The offender and his brothers were raised by their mother. He and his mother and older brother returned to Australia in early 2014 and took up residence in Leeton. His twin brother Marcus had returned a year or two earlier and lived in South Australia.
There is nothing in the history provided by the offender to Ms Robilliard that indicates that there was anything adverse or dysfunctional in the circumstances of his upbringing or family circumstances. He said he had "alright" relationships with all members of his immediate family although he was not particularly close to his older brother Luke.
There is nothing problematic in the offender's past use of drugs or alcohol.
When asked about intimate relationships, the offender told Ms Robilliard that he had a girlfriend for about six months when he was aged 14. She asked him if he had wanted another girlfriend and he said that it was "not something I craved in life".
The offender attended a local school in the Netherlands. He was expelled from school in 2003 due to what Ms Robilliard described as "an apparently impulsive and serious violent incident involving a teacher". The offender's account was that he was reprimanded by a teacher who took hold of him by the coat. He responded by grabbing her around the throat. He was 12 years' of age at the time. He was referred to an adolescent intensive care ward. A report from that facility noted the likelihood of a disorder on the autism spectrum rather than attention deficit disorder with hyperactivity. On discharge he was referred for behaviour management. He was not prescribed any medication. He then enrolled in a smaller school for students with special needs and remained there until the age of 16.
After leaving school the offender applied to study information technology at a college and to join the army but was rejected in both cases. He worked as a cleaner with the same company for five years and then worked in a sawmill until he moved back to Australia.
The offender obtained a job as a cleaner a couple of months after settling in Leeton. He told Ms Robilliard that he had no friends or social contacts. He said that being in the company of other people was stressful and he disliked it. He said that he was relatively comfortable in his cleaning job, working before and after hours and generally alone, because there was little need or opportunity for social interaction.
The offender has no criminal history and records indicate that since going into Corrective Services custody there have not been any disciplinary infractions.

[25]

The offender's mental condition

When speaking of his cleaning job in the Netherlands, the offender told Ms Robilliard that his boss was "disorganised and did not care about the standard of his workers, which really annoyed Mr Stanford who took pride in his work performance". He said that he had "serious thoughts of violence toward his boss on a few occasions and knew it was 'time to leave'". He would have been aged in his very early 20's at that time.
It has been mentioned earlier that part of the agreed facts are that the offender told police that as soon as he saw Ms Scott on Easter Sunday last year his thought was "Just that I had to kill her". He said much the same thing to Ms Robilliard. She reported: "Mr Stanford said he had absolutely no prior plan to murder the victim Stephanie Scott and he did not know her at all. As soon as he saw her at the school where he was working, on the morning he murdered her, Mr Stanford said "I had to kill her". He said it was an instant thought and that it was not unusual for him to have such thoughts. He said he had always had thoughts of killing someone from the time he was seven or eight years old. He stated that he gets violent thoughts when people cause him stress. He said it can build up to an almost intolerable level. He said his violent thoughts are usually caused when people interrupted his routine and in the past this had been triggered by teachers, other students, mental health care nurses and even his mother. … Mr Stanford also offered that he does not have to be angry to feel violent and described it as 'just cold-blooded violence'. He said he was not interrupted by or angry with the victim. He said he had never been bothered by violence; his own or anyone else's. As a child he said he used to think it was normal and kept it 'bottled up'. He said he now knows it is not normal and he still entertains the same thoughts. He said it happens on an almost weekly basis, especially when he has to interact with other people as he prefers to be alone. … (H)e said he believes he cannot learn to tolerate people; that 'this is just the way I'm arranged - I don't think there is anything I can do to get them (violent thoughts) away'."
Under the heading "Attitude to the Offence", Mr Robilliard wrote: "Asked what he thought about murdering Stephanie Scott, Mr Stanford said he seldom thinks about it at all and 'I can hardly remember it … it was so long ago'. He said he definitely did not enjoy the killing although he acknowledged that killing the victim reduced his tension and the overwhelming urge he had to kill her. He said he did not entertain the urge to kill anyone for a couple of months after that and then the same thoughts returned. He repeated that he has violent thoughts and keeps them in check. He also stated that he does not anticipate gaining pleasure from harming others, just relief from his own urge to kill. Asked whether he felt guilty about his crime he said 'no, this was something I had to do … I couldn't stop myself'. Asked about his self-esteem Mr Stanford repeated that 'I'm different to other people - I think I've done remarkably well to live with people for 25 years … I don't think there are any treatments for my inability to deal with other people."
Ms Robilliard administered a number of psychometric tests during the course of her lengthy interviews with the offender in April this year. One revealed that he had intelligence that Ms Robilliard described as "soundly average". Another test focussed on possible personality disorders which were described as representing "deeply entrenched structural faults in the personality construct". The results of this test tend to confirm the history he provided to Ms Robilliard: for example, a pattern of social and interpersonal deficits marked by acute discomfort and reduced capacity for close relationships; pervasive distrust and suspiciousness of others; deficits in the capacity to experience emotion; and extreme detachment and indifference to others. Ms Robilliard reported that the offender's scores on a number of scales in this test were elevated, including on the "Sadistic/Aggressive" scale which is said to "identify people likely predisposed toward aggressive outbursts which might be expressed in a callous manner, with little awareness of the impact of their verbally or physically aggressive actions on others".
The third test examined whether there are traits of psychopathy. The results indicated to Ms Robilliard that the offender was in the very low range; not consistent with a diagnosis of psychopathy. In most of the facets his scores were in the low or very low range but on the facet which measured lack of remorse, empathy and unacceptance of responsibility his score was in the high range.
Ms Robilliard also found a degree of depression in the offender's presentation, history and psychometric testing. He had self-harmed and attempted suicide while in custody. There seems to be some difficulty in understanding whether his current state (in custody) reflected his former state (pre-custody) in this respect: for example, Ms Robilliard said, "At a reactive level, depressive attributes in response to his current situation and circumstances were prominent along with high situational anxiety".
Ms Robilliard's opinion was that the offender "does meet criteria for a diagnosis of Autism Spectrum Disorder". She described the "four primary diagnostic specifiers" and their application to the offender's case in detail which I have noted but will not repeat. Of significance, however, she noted that persons with such a diagnosis, as opposed to antisocial individuals, "lack the neurological capacity to grasp the implications and consequences of their criminal activities". It seems that Ms Robilliard sees this as tending to explain the offender's statement that he seldom thought about his offence and felt no guilt, and his lack of empathy for his victim, her family, and his own.
A paragraph of the report ([47]) that was said in submissions to particularly support a conclusion that the offender's mental disorder was causative of his offending, thereby reducing his moral culpability, bears quoting: "Mr Stanford has developed an entrenched self-belief that he is defective. His autistic limitations cause him to fluctuate between despair for himself and unfulfilled expectations of other's treatment of him which leads to entrenched anger and hatred. He is essentially locked into this internally conflicted state leading to ongoing tension which he described as reaching an intolerable level at times. His strategy for relief appears to be causing harm to himself and others, in this case, the victim. Mr Stanford commented during the interviews that he considered he had done well to control himself as well as he has, 'for twenty five years'."
I think it is perhaps more pertinent when looking for a causative factor to look at something Ms Robilliard said soon afterwards (at [50]): "He described having one feeling, hatred, which could be a consequence of his perception of exclusion and rejection and the source of a generalised social animosity that may have triggered his angry, unpremeditated and overwhelming urge to kill the victim."
A significant aspect of Ms Robilliard's report is that she interviewed the offender in April of this year which was prior to the two statements of facts being agreed and prior to the offender admitting by his plea of guilty to having had non-consensual sexual intercourse with Ms Scott. The two police interviews which were available to Ms Robilliard contained only denials of a sexual element in the murder. Ms Robilliard also makes no reference to the behaviours of the offender subsequent to the murder: for example, the photographing of Ms Scott's naked body and later the burnt corpse; and the retention of her bra as a "souvenir".
All that Ms Robilliard was briefed with, for the purposes of her report, was transcripts of the two interviews, a "NSW Police Fact Sheet" dated 21 May 2015, various statements of the offender's mother, and a 2003 report by a Dutch psychiatrist. She said at least twice in her report that the psychosexual aspect of the offence was not explored. It required further investigation and may have relevance to the offending. As a consequence, Ms Robilliard's, opinions about matters that may have a causal connection with the offending have to be considered with some caution.

[26]

Report of Professor David Greenberg

The Crown tendered a report by Professor David Greenberg, a forensic psychiatrist. He was briefed to provide an opinion on the offender's future dangerousness. He was provided with a far more extensive body of material than Ms Robilliard. It included the two statements of agreed facts, the recordings and transcripts of the police interviews, copies of the offender's jottings about the young female neighbour etcetera, the photographs taken by the offender of the deceased's corpse, details of the offender's internet searches, and detailed information about the incident in the Netherlands when the offender was aged 12.
The offender did not consent to being interviewed and Professor Greenberg acknowledged that this hampered his ability to provide a definitive diagnosis. He is, however, an acknowledged expert with some 30 years of experience in the assessment and treatment of sex offenders and sexually deviant disorders (paraphilias) including sexual sadism disorders.
Professor Greenberg's review of the documents included more information about the offender's behaviour during and after his schooling in the Netherlands. He had attended a "behaviour school" in 2001 and 2002 because of his "unruly behaviour, limited social skills, limited friendships and oppositional behaviour". The incident in 2003 at another school when he was aged 12 involved him being in a schoolyard without authorisation and refusing to leave. He unexpectedly grabbed the school principal by the throat with both hands and with such force that she had difficulty breathing. A month prior to this he had been involved in a fight with another student where he grabbed him by the throat. He was sent to an adolescent psychiatric centre for "behaviour problems and violent incidents". He was discharged with a diagnosis of "pervasive developmental disorder (autistic spectrum disorder) and oppositional defiant disorder".
Acknowledging that he was hampered by not being able to conduct any psychiatric assessment of the offender, Professor Greenberg considered that it was highly likely that the offender has autistic spectrum disorder. There were some features of a psychopathic personality but this could not be explored further.
Professor Greenberg also felt that the offender had a likely paraphilic disorder which played a significant role in his underlying motivations for his offending behaviours. He noted the offender's repeated denials to police that there was any sexual element in the murder but he had since pleaded guilty to a sexual assault offence. The professor noted that the victim's genital area and upper thighs were targeted in the burning of the corpse which raised a strong suspicion that there was a sexual element, the evidence of which the offender was endeavouring to destroy.
Professor Greenberg questioned whether the offender had a sexual sadism disorder. In this regard he noted his sexually deviant interests and violent sexual themes in internet searches. He also questioned whether the offender used paraphernalia during the offence including handcuffs and rolls of tape which are often associated with sexually sadistic acts. Further, if he was simply intent on rape it would not have been necessary to use such excessive force.
A question was also raised about whether the offender had sexually sadistic paedophilic interests given the material concerning the child neighbour, including the offender's statement that if he had abducted the child he would have likely killed her.
Other questions raised in Professor Greenberg's consideration were whether the offender had a sexual interest in cross-dressing or fetishism, given a sexy female costume was found in his wardrobe, and an interest in bestiality, given his internet searches concerning sexual acts with dogs and horses.
Professor Greenberg used two well-known tools to make an assessment of the offender's risk of sexual reoffending: the STATIC-99R and the Risk of Sexual Violence Protocol (RSVP). They are, at best, broad guides and not at all definitive. The various limitations were noted in the professor's report. His conclusion was as follows: "Based on the above STATIC-99R and limited application of the RSVP tool, and a clinically guided judgment risk assessment approach, Mr Stanford's current risk for likelihood of committing a further sexual and violent offence/s would depend on his response to treatment in the future. At this stage, based on the limited information, I am of the view that his risk for sexual and/or violent offence should be regarded as in the 'high risk' category range, relative to other sex offenders. Relative to the general male population, his risk of sexual violence must be regarded as in the highest category. However, his response to treatment and management may or may not change this risk assessment in the future. At this point, his prognosis should be regarded as guarded."
It is important to emphasise that none of this is definitive. Professor Greenberg expressed his opinions quite guardedly given he was denied access to the offender to make a formal assessment.

[27]

A life sentence?

Murder is an offence that carries a maximum penalty of imprisonment for the term of a person's natural life: s 19A Crimes Act. There is also prescribed for it a standard non-parole period which, in this case, is 20 years. If a life sentence is imposed, no non-parole period can be fixed; the offender must serve the remainder of his or her life in gaol with no prospect of release.
Aggravated sexual intercourse without consent has a maximum penalty of imprisonment for 20 years: s 61J Crimes Act. There is also a standard non-parole period of 10 years.
The Crown has submitted that this is a case in which the maximum penalty of life imprisonment should be imposed. On behalf of the offender it has been submitted that there should be a determinate, albeit very lengthy, sentence.
Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court is to impose a sentence of life imprisonment if it is satisfied that the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
It is the combined effect of the findings concerning those four indicia in s 61(1) that must be considered: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [52]-[54]. The Crown must prove beyond reasonable doubt that a case falls within s 61(1): R v Merritt at [35].
Section 21(1) of the Crimes (Sentencing Procedure) Act provides that, even though liable to a sentence of life imprisonment, an offender may receive a sentence for a specified term. It has been said that a court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty and then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty: R v Miles [2002] NSWCCA 276 at [204]. See also R v Valera [2002] NSWCCA 50 at [8]; and R v Merritt at [37].
In R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469, it was held that the common law in relation to imposing the maximum penalty for murder still applied. Under the common law the maximum penalty is intended for cases within the "worst case category": Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46. Wood CJ at CL in R v Harris referred to authority for what constitutes the "worst case" as follows: "[84] The features required for qualification in the 'worst case category' were defined in Twala NSWCCA 4 November 1994, where it was said: 'in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)…' [85] 'Heinousness' has been described as follows: 'The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one'. R v Reginald Keith Arthurell (Hunt CJ at CL unreported 3 October 1997)."
A life sentence may be imposed even though an offender has pleaded guilty and/or has no previous criminal history: R v Miles at [213]; Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 at [34]; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [157]-[158]; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at [37].
The offender was aged 24 at the time of the offences but there have been cases of life sentences being imposed upon young adults: for example, R v Valera [2002] NSWCCA 50 (age 19); and Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 (age 20).
Even if there is some prospect of rehabilitation there have been cases in which life sentences have been imposed: R v Baker (Court of Criminal Appeal (NSW), 20 September 1995, unreported); R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unreported); and Knight v R at [23].
The abduction and sexual assault of a victim can be taken into account in the assessment of the objective seriousness of an offence of murder: R v Garforth. Similar reasoning applied in R v Hillsley (2006) 164 A Crim R 252; [2006] NSWCCA 312 where it was the deceased's child who was abducted and sexually assaulted but that was part of the motivation for the murder.
The mutilation of the deceased's body can be taken into account in the assessment of seriousness: R v Knight at [28]-[29].
The future dangerousness of an offender is a highly relevant factor. However, dangerousness alone is not sufficient to bring a murder into the worst case category: R v Hillsley at [24]. It is impermissible to increase an otherwise appropriate sentence merely to achieve preventative detention: Veen v The Queen (No 2) (1988) 164 CLR 465 at 473, 474; [1988] HCA 14. On the other hand, the absence of a finding of future dangerousness does not rule out the applicability of s 61(1): R v Merritt at [54].
It is sufficient if a risk of re-offending is established by the Crown; it is not necessary that it be established beyond reasonable doubt that an offender will in fact re-offend: R v Robinson [2002] NSWCCA 359 at [48]-[50] and R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310 at [40].
The circumstances of the offence at hand may be taken into account in determining the question of future dangerousness: R v Garforth where it was also said: "It is now well settled that the protection of society - and hence the potential dangerousness of the offender - is a relevant matter on sentence (Veen v The Queen (No 2) (1988) 164 CLR 465). This factor cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. But it can be used to offset a potentially mitigating feature of the case, such as the offender's mental condition, which might otherwise have led to a reduction of penalty … in the case of homicides involving a high degree of culpability, the fact that the offender will be likely to remain a danger to the community for the rest of his or her life might justify the imposition of life imprisonment."
Care is required in assessing future dangerous, however, as prediction of what might occur, sometimes many years into the future, is recognised as being notoriously difficult: see, for example, Fardon v Attorney General (Qld) (2004) 223 CLR 575; [2004] HCA 46.

[28]

Submissions for the offender

Ms Manuel SC conceded on behalf of the offender that the offences were, without doubt, extremely serious and she accepted that s 61(1) of the Crimes (Sentencing Procedure) Act falls for consideration. She submitted, however, that the combined effect of four features justified a life sentence not being imposed.
First, the offender's mental disorder (autism spectrum disorder) reduced his moral culpability which, in accordance with principle, would reduce the need for denunciation and general deterrence. It was recognised, however, that it may also have the effect of making him more of a danger to the community.
Secondly, the offender's age (24 at the time of the offences) meant that he had a balance of life expectancy of about 58 years.
Thirdly, the offender acknowledged responsibility for his offending conduct. He volunteered a confession days after his arrest and subsequently pleaded guilty. He was not remorseful, but that was a function of his autism. It was submitted that most offenders who had received determinate sentences had pleaded guilty while most offenders who had received life sentences had done otherwise. Ms Manuel accepted that the seriousness of the matter meant that the usual sentencing practice of allowing a discount for a plea of guilty need not apply.
Finally, the offender's lack of prior criminal convictions and lack of disciplinary infractions since being in custody was said to indicate that he had the capacity for self-control in relation to violence towards others and also that he may be amenable to treatment.
On the question of future dangerousness, Ms Manuel emphasised the difficulty in making an assessment in a case in which, on any view, a very lengthy sentence must be imposed. She submitted that even Professor Greenberg accepted that the prospect of the offender presenting a danger to the community long into the future was "guarded". The conclusion in his report (which I have quoted earlier) recognised a possibility that the offender's response to treatment may change the current risk assessment.
In support of the submission that a determinate sentence be imposed, Ms Manuel provided two volumes of material relating to the sentences imposed in other murder cases. The first comprised cases in which a life sentence was imposed on an offender who was aged less than 30 at the time of the offence. There were 10 cases concerning a total of 11 offenders.
None of the cases could be said to be comparable to the present. They involved a very wide range of offending conduct. Most related to multiple murders; some involved multiple killings in what was essentially a single attack, whereas others involved multiple murders committed some time apart.
The cases also involved very different circumstances from one another. Several involved guilty pleas but most did not. Some offenders had lengthy and violent criminal histories while others had no record at all.
The second volume of material contained murder cases in which determinate sentences were imposed. The 12 cases related to offenders aged 31 or younger at the time of the offence, most aged between 18 and 22. They all post-dated the Sentencing Act 1989 (NSW) and were categorised according to whether they arose prior to the introduction of the standard non-parole period legislation; after the introduction of that legislation; after the decision in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 or after the decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
The utility of this volume was very limited given that only two of the cases concerned offences committed this century (and to which the standard non-parole period legislation applied). The other ten cases involved offences committed between 1984 and 1998; eight of them prior to 1994. For various reasons there has been a significant upward movement in sentences imposed in murder cases since the mid-1980s to mid-1990s.
Like the first volume, the cases in the second also demonstrated a broad spectrum of offending conduct and personal circumstances of the offenders. In light of those differences and the different categories, it is unsurprising that the sentences imposed varied markedly. Further, while each of the cases in the second volume had some sexual element attached to the murder offence, none had a particularly similar factual matrix to the present.
Ms Manuel placed particular emphasis upon the case of R v Stani-Reginald [2013] NSWSC 567 as being the most comparable to the present. It involved a 19 year-old offender who raped and murdered a 24 year-old university student and then put her body in a suitcase and dumped it in a storm water canal. There was some disturbing features of the offenders conduct in the period leading up to the murder; for example his internet searches in relation to serial killings. Price J found that the offence was in the worst case category but because of the offender's youth and the difficulty with long-range forecasting of dangerousness, he concluded that the community's interest referred to in s 61(1) of the Crimes (Sentencing Procedure) Act could not only be met by a life sentence. He imposed a term of 45 years imprisonment. I take Ms Manuell's reliance on this case, not to indicate that a life sentence cannot be imposed in the present case, but as illustrative of an approach she submits would be appropriate.

[29]

Determination

The agreed facts concerning the sexual assault and murder of Ms Stephanie Scott make it plain that this case is one of great heinousness. Some of the terms used by Hunt CJ at CL in R v Arthurell (Court of Criminal Appeal (NSW), 3 October 1991, unreported) to define that adjective - atrocious, detestable, odious, gravely reprehensible and extremely wicked - are apt.
The offender had harboured violent thoughts, including killing people, since he was a child. When he saw Ms Scott his immediate thought was that he had to kill her. He had time to reflect in the hours that he waited for her but persisted with his plan. Nothing she said or did provided him with a rational motive to do what he did. Their only interaction was her wishing him a happy Easter.
On the offender's own account, he beat her a great many times to the head to the point of unconsciousness as he held her to the ground in the darkness of the storage room. He then raped her before bringing out his knife and stabbing her in the neck in order to ensure he had achieved his goal.
There are a number of aspects of the offender's confession to police that I cannot accept. The most obvious is his denial of the sexual assault which he now, belatedly, acknowledges.
More concerning, however, is that Ms Scott's DNA was on items found in the offender's wardrobe: a set of handcuffs, a bottle of personal lubricant and a condom that was inside a box of condoms. The offender gave an explanation for this to police (transference of her blood when he put the knife in the wardrobe). That seems an unlikely explanation and its credibility is adversely affected by the fact that he gave it when he was denying the sexual assault.
It seems to be more likely that the offender had each of these items at the school at the time of the attack. That would give rise to the very sinister notion that there was a lot more planning and premeditation than he is prepared to admit. The possibility that Ms Scott was his target from a time well before Easter Sunday is supported by the evidence of his searching on the internet for "bride rape" and the like. It seems apparent that he would not have known that Ms Scott would be at the school on that Easter Sunday. But the matters I have referred to support an inference that he had thought of attacking her before then and when he saw her there that day he saw it as his opportunity and went home to retrieve the various items.
The Crown, however, did not submit that findings along these lines should be made. In those circumstances I feel I should refrain from making such findings beyond reasonable doubt which is the relevant standard for taking into account something adverse to an offender. I simply record that I have a very grave concern that the truth has not been fully disclosed and that this was no opportunistic attack upon a target selected at random.
A feature that does support the notion that there was some degree of planning and premeditation is that the offender had a 40cm knife and a condom with him at the school on a day when, on his account, he was simply there to carry out cleaning tasks. He had them immediately available to him and when he saw Ms Scott his immediate decision was to attack and kill her. I am satisfied of this beyond reasonable doubt and also that he deliberately left the door to the storage room open in order to facilitate the attack when his opportunity arose.
The attack itself involved extreme brutality by a man of substantial size (120kg he told Ms Robilliard) upon a defenceless young woman of modest size who had no means of escape or raising the alarm. The offender admits to having bashed Ms Scott some 30 to 40 times to the head in under a minute. And then, to make sure she was dead, he stabbed her in the neck with a very large knife. At some stage during all of this, he gratified his lust by imposing intercourse upon her.
The manner in which the offender conducted himself in the immediate aftermath is highly disturbing. He calmly went home and had a cheese sandwich and a cup of coffee for lunch. He returned to the school to clean up the crime scene over several hours and callously loaded Ms Scott's body into the boot of her car.
He carefully planned the disposal of the body. Late at night he filled a jerry can with petrol at a service station, taking care not to drive into the service station itself. He then took the body well away from Leeton to the Cocoparra National Park where he removed all items of clothing, took photographs for some abhorrent reason, and then lit a substantial fire to ensure that evidence of his sexual depravity would be destroyed.
This brings me to another aspect of the facts I have difficulty accepting: the offender's account that he removed Ms Scott's clothes after arrival at the Cocoparra National Park because he thought that they would not burn. That seems implausible in itself when he was about to use 20 litres of petrol to fuel the fire. It is obvious from the photographs that the body had been washed clean and he would not have done that when about to set it on fire in the bushland. Why he removed the clothing and cleaned the body remains known only to him; as does where he did it, and what else he did. I cannot sentence on the basis of speculation so, having made this observation if only to point out that I have not blindly accepted everything that has been placed before me, I must put it aside in my assessment of sentence.
The offender's conniving, callous and self-interested conduct continued in the immediate aftermath with his disposal of incriminating items, one of the most despicable acts being his despatch of Ms Scott's engagement and graduation rings and her driver's licence to his brother Marcus in South Australia. Marcus Stanford's conduct in disposing of those items was disgraceful, as I observed in sentencing him (although it was necessary in his case to take into account that in doing so he did nothing effective to avoid his brother being brought to justice which is what his offence concerned).
Another despicable act was the offender's return to the Cocoparra National Park and photographing the charred remains. There was also the keeping of Ms Scott's bra as something of a "souvenir".
It would usually be accepted in sentencing an offender that credit should be allowed for volunteering a confession to police and for pleading guilty. Credit would also usually be allowed for the fact that there are no previous convictions.
A mental disorder such as the offender has would normally result in some understanding and flexibility in the assessment of sentence. It is well recognised that there are various ways in which a mental condition can operate to reduce a sentence although it can work the other way in some cases by increasing the need to take into account the protection of the community.
I am not convinced that the offender's moral culpability is reduced on account of his autism spectrum disorder. But even if it was, the extent would be minimal. The calculating manner in which the offender carried out the various activities following the murder (and to some extent before) indicates that he was well capable of making well-considered choices about how to best serve his own interests and to achieve his objectives.
There can be no question that the offender is a very disturbed individual. The evidence concerning his searches on the internet in relation to violent rape; his purchases of knives, handcuffs and other devices capable of use in carrying out acts of extreme violence; his surveillance of the child in his neighbourhood and other such things; together with the assessment, albeit guarded, by Professor Greenberg, all indicate to me that the offender will, for a considerable period of time, represent a serious danger to the safety of the community. Whether he will always be so, or whether, as Price J allowed in R v Stani-Reginald, this will moderate with advanced age, is difficult to say.
I am not satisfied that the protection of the community from further violent offending can only be served by the imposition of a life sentence when the alternative advocated on the offender's behalf is the imposition of an extremely long determinate sentence. Future dangerous and the protection of the community is, however, only one of the various factors I am required to consider.
I am satisfied that this is a case of murder that clearly falls within the worst category. It does so to the extent that subjective matters that might ordinarily call for amelioration of the sentencing response should be set aside.
I am satisfied beyond any doubt that the offender's culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met with only one response.

R v Stanford, Vincent

At a glance

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Cases Cited (27)

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