• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

REMARKS ON SENTENCE 1His Honour: On 1 February 2013, Daniel Stani-Reginald (the offender) was arraigned on an indictment containing three counts. The offender pleaded guilty to the murder of Tosha Thakkar on 9 March 2011 (count 1). He also pleaded guilty to having sexual intercourse with Tosha Thakkar on 9 March 2011 without her consent, knowing that she was not consenting in circumstances of aggravation, namely that at the time of the offence, he occasioned actual bodily harm to her (count two). This is an offence of aggravated sexual intercourse without consent contrary to s 61J(1) Crimes Act 1900. The Crown did not seek a plea to count 3 which was a charge of aggravated sexual assault contrary to s 61J(1), but the court was informed that the offence would be placed on a Form 1 pursuant to s 33 Crimes (Sentencing Procedure) Act 1999. 2When the offender appeared before me on 29 April 2013, he adhered to his pleas of guilty. He asked that the offence of aggravated sexual assault that had been placed on a Form 1 be taken into account on sentence for count 2. At his request, I will do so. 3The 'sexual intercourse' relied on for count 2 is the penetration of the deceased's anus by the offender's penis or an object manipulated by him whereas the 'sexual intercourse' relied for the offence on the Form 1 is the penetration of the deceased's vagina by the offender's penis or an object manipulated by him. 4Tosha Thakkar was sexually assaulted by the offender and then strangled by him with the use of a ligature. The deceased was 24 years old at the time of her death. She had to come to Australia from India in 2007 to pursue her tertiary studies and was in her first semester of the third year of an accounting degree at University. 5The maximum penalty for the crime of murder is imprisonment for life. A standard non-parole period of 20 years imprisonment has been prescribed. The maximum penalty for an offence contrary to s 61J(1) is 20 years imprisonment with a prescribed standard non-parole period of 10 years imprisonment. 6The maximum penalty and standard non-parole period for an offence are legislative guideposts that are to be born in mind when the court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the offender: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The standard non-parole period does not have determinative significance in sentencing the offender: Muldrock at [31], nor is it a "starting point" for the sentence, nor does it directly apply as the offender has pleaded guilty. 7During the proceedings on sentence, Mr M Tedeschi QC appeared for the Crown and Mr N Steel for the offender. 8A document entitled FACTS ON SENTENCE (ex A T1) was tendered by the Crown. The offender acknowledges that its contents are an accurate account of the evidence in the Crown case. As this document consists of 21 pages, I shall set out my findings of fact as succinctly as possible. 9The findings of fact I make against the offender must be arrived at beyond reasonable doubt. Matters of mitigation may be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. 10The deceased and the offender resided in a boarding house in Croydon. The deceased resided in unit 2 and the offender in unit 3. The distance from unit 2 to unit 3 was around 1.54 metres. Thin ply wood type makeshift walls separated the units. A communal bathroom was around 5 metres from the entrance of unit 2. 11Between 29 December 2010 and 11 February 2011 numerous searches were conducted by the offender on his laptop relating to persons convicted of murder and sexual assault. Wikipedia pages, web pages, newspaper articles, NSW Supreme Court judgments (mostly sentencing remarks) relating to murder and sexual assault were accessed online on numerous occasions. The searches on the internet included 'lez murphy' who was one of five men sentenced for the rape and murder of Anita Cobby; 'Anthony Sowell', known as the 'Cleveland Strangler', a serial killer who was convicted of around 20 counts of murder, rape and kidnapping; 'Peter Sutcliffe the Yorkshire Ripper' who had murdered 13 women and 'Richard Ramirez', who was convicted and sentenced for 13 counts of murder and 11 counts of sexual assault. The 'Richard Ramirez' and 'carr brothers' websites were searched on many occasions. Reginald and Jonathan Carr were convicted of murder of 5 men and women. They sexually assaulted their victims before murdering them. 12On 12 February 2011, the offender purchased a large suitcase from Target Burwood. In the evening, the offender accessed various websites and articles on his laptop computer. One such article related to the murder of a child by his mother who put him in a suitcase that was later retrieved from a duck pond in Ambarvale. Wikipedia pages relating to Christopher Widler and Bill Glaze were accessed. Christopher Widler was a serial killer who abducted and raped at least 12 women and he killed eight of them. Billy Glaze was convicted of killing three women. The website claims that he believed that all native women should be raped and killed. 13Website searches of persons convicted of rape and murder were conducted by the offender between 13 February 2011 and 8 March 2011. The websites visited by the offender included 'gary ridgway' who was convicted of 49 murders. After having sex with his victims, Ridgway would strangle them by the use of his hands or ligatures. 'Park family murders' website was also searched. Nick Park was convicted of the murder of his wife and two children, whose bodies were found stuffed in suitcases dumped in bushland. 14The term 'body found in suitcase' was used in search engines on five occasions on 19 February 2011. The websites visited included the murder of a woman in New York whose body was found in a suitcase. A cord had been used to strangle the victim. 15On 28 February 2011, two searches were conducted using the term 'Meadowbank Park'. Following those searches, a map on the website www.google.com was accessed of the Meadowbank park area, including the storm water canal that the deceased's body was located in as well as Crowley Crescent where the offender alighted from the taxi with the deceased's body. Other websites searched by the offender included those relating to serial killers such as the 'Daytona Beach killer', the 'Milwaukee North Side Strangler' and the 'Noida serial murders'. 16On 8 March 2011, Phillip Culbert, the tenant of unit 1, arrived home to see the deceased, her boyfriend Ali Syed and the offender in the hallway. The keys to the deceased's unit were locked inside. The construction of the room was such that there was a gap between the top of the wall and the ceiling separating the deceased's room and the hallway. The offender successfully helped the deceased gain access to her room. Mr Syed and the deceased thanked the offender for his assistance. 17On the same day, the offender's internet searches related to rapes and murders. His visits to pornographic websites included one titled 'Arse Fucking my Virgin Girlfriend'. 18On 8 and 9 March 2011, the offender called in sick to work. The offender was employed as a box boy and in that role he used Stanley knives and cable ties. 19On the morning of the murder, the offender's access to various websites included Wikepedia pages entitled 'Chokehold' and 'Grappling Hold' and articles relating to sexual assault. Pornographic websites that related to girls of Indian descent were searched between 11:30am and 11:36am. 20Mr Syed called and spoke with the deceased at around 10:15am on 9 March 2011. They arranged to meet at 1pm for lunch before her 2pm class. 21The deceased called Mr Syed at 10:33am. The deceased told Mr Syed that she was preparing rice for lunch, then showering, and would call him again when she was leaving for the train station. She never called. 22An examination of the deceased's computer revealed that the computer was switched on at 10:53am, documents were accessed at 11:11am, and a compilation of Hindi music from the website 'YOU TUBE' was accessed at 11:48am. The next user interaction was at 4:36pm. 23At 12:09pm, Mr Syed attempted to call the deceased without success. Between 12:09pm and 1pm Mr Syed and his friends attempted to call the deceased on 26 occasions. 24Mr Culbert had returned from work to unit 1 after 12:17pm. He noticed that the light was on in unit 2 and heard Hindi music that was louder than usual. He assumed Mr Syed and the deceased were inside the unit. 25At around 12:30pm, Mr Culbert heard the deceased making a grunting sound that lasted around one second. He thought she was having an argument with her boyfriend. 26Mr Culbert went to sleep. At 12:47pm Mr Culbert received a call from his brother. The music was no longer audible from unit 2 and he did not hear any other sounds from that room. Mr Culbert did however hear the slide bolt of the deceased's room and movement in the hallway. 27At 12:53pm the offender conducted a search on his laptop for 'Premier Cabs'. At 12:54pm the offender called Premier Taxis from his mobile phone to arrange a taxi. At 1:01pm, the offender received an automated text that read "Taxi 7777 is 0.25 km away..." 28At around this time, Mr Culbert and his brother heard movement outside Mr Culbert's room and the sound of a bump in the hallway. The offender was carrying a suitcase down the rear stairs of the building. He wheeled the bag along the rear lane and around to Edwin Street. At approximately 1:03pm a taxi arrived. The taxi driver asked the offender to cross the road so they could continue travelling North. The offender said, "no, I've got this bag, can you come and help me?" The taxi driver helped the offender pick up the suitcase and put it in the boot of the taxi. He asked the offender why the bag was so heavy. The offender replied, "I've got laptop computers and electrical stuff in it. That's why its [sic] very heavy...I've just finished work. I'm going home". The driver told police that the suitcase weighed over 60 kg. 29The offender asked the taxi driver to take him to an address at Crowley Crescent in Melrose Park. The taxi driver told police that for most of the journey the offender was doing something on his mobile phone but as they approached the Rhodes area the offender asked the taxi driver about his work and whether his day had been busy. 30When the taxi entered Crowley Crescent, the driver pointed to the house that correlated with the address provided. The offender said "no keep going". He directed the driver 50 metres away from the house to a bend in the road where the pathway leads to Meadowbank Park. The taxi driver offered to help the offender with his bag; however, the offender refused and stated, "no, problem, its [sic] got wheels". The offender paid for the fare in cash. 31The offender retrieved the suitcase from the boot of the taxi at around 1:24pm and wheeled the suitcase east from Crowley Crescent towards the storm water canal. 32Workmen were undertaking repairs near the junction of the storm water canal and Parramatta River, which was around 56 metres from the T Junction of the Crowley Crescent pathway and the walking path. At approximately 1:30pm, the workmen saw a person matching the offender's general description. The offender pushed the suitcase from chest height over the fence into the storm water canal. The workmen saw the suitcase floating in the canal. The tide was high. 33By 2pm, Mr Syed was concerned that he could not reach the deceased so he decided to drive to Croydon. Upon his arrival, Mr Syed heard Hindi music coming from the deceased's unit which was unlocked. He entered the unit and discovered a pot of cooked rice on the stove, her personal items were all inside the room, and her university clothing was on the end of the bed. 34Mr Syed noticed that the thongs that she would wear to the communal bathroom were inside her unit but they were in an unusual position and were wet. He also noticed that the deceased's bath towel was damp. The only thing Mr Syed noticed that was missing was her purple/maroon sleeveless dress that she wore to walk between her unit and the common bathroom. 35At around 4.30pm, the offender told Mr Syed that he had not seen the deceased. When questioned by police shortly before 6pm, the offender said that he had seen the deceased coming from her room "yesterday morning". The offender used his laptop between 6.26pm and 7pm to visit various websites and articles that included "Beginnings of a Serial Killer." 36On the morning of 11 March 2011, the workmen retrieved the suitcase from the canal. They noticed that a black plastic cable tie sealed the zippers. The workmen cut the side of the bag with a knife and discovered human remains. They immediately called 000 at around 8am. 37Police arrived and conveyed the suitcase to the Department of Forensic Medicine at Glebe where it was opened. The deceased's body was inside the suitcase. A Stanley type knife was located on top of the deceased as were a black hair band and bobby pin. The deceased's body was in a foetal position and was dressed in a short sleeve purple/maroon dress that had been cut by a sharp instrument from the centre neckline all the way down to the bottom hem causing it to be completely opened. The zipper at the rear of the dress was still intact and open by 7cm from the top. The deceased's arms were in the armholes of the dress. The deceased was not wearing underpants. 38A black coaxial television antenna cord around 5mm in diameter was twice wrapped tightly around the neck of the deceased, overlapping on the posterior-lateral aspect of the neck. The ends of the cords were twisted into a tight knot on the anterior lateral aspect. There were at least four twists in the knot. 39Dr Brouwer, who conducted the post mortem, observed underlying horizontal ligature marks with areas of bruising below them. Linear abrasions just above the left clavicle and just below the lower jaw were noted as were similar abrasions below the chin. The appearance of these injuries was in keeping with being caused by fingernails. Dr Brouwer opined that it was not possible to say exactly how long the deceased was conscious or alive after the ligature was applied around her neck. The fingernail abrasions suggested to Dr Brouwer that the deceased was at least aware of the ligature being applied to her neck and she initially attempted to remove the ligature in self-defence. 40Dr Brouwer noted haemorrhages in the face and conjunctiva of the left lower eyelid. Blunt trauma injuries were seen to the face, lips and inner aspect of the right arm. Bruising was present in the subcutaneous tissues associated with those injuries. Dr Brouwer expressed the opinion that the bruising suggested that the injury occurred prior to death. Dr Brouwer noted other injuries to the genitalia and anus. Dr Brouwer concluded that the direct cause of death was ligature strangulation and the deceased's injuries were sustained during vaginal and anal penetration that occurred close to the time of death. The injuries to the genitalia and anus were consistent with having been caused by blunt trauma with a penis or object. 41I am satisfied beyond reasonable doubt that the offender murdered the deceased between 12:30pm and 12:47pm on 9 March 2011 in her room at the boarding house. At some point between 11:48am and 12:30pm, he had confronted the deceased who had recently showered and was only wearing a purple maroon dress. He assaulted her causing injuries to her face, lips and right arm. He had anal and vaginal intercourse using his penis or an object against the deceased's will. Prior to her death, the offender wrapped the coaxial television antenna cord twice around the deceased's neck and applied pressure to the neck. The deceased tried to remove the ligature but was unable to do so. The offender strangled her by tightening the cord causing her death. I am satisfied beyond reasonable doubt that the offender intended to kill the deceased. 42I find that the duration of the attack was more than momentary. The offender was able to subdue the deceased and penetrate her anally and vaginally before causing her death using the ligature. The objective seriousness of the sexual assault is enhanced by the considerable violence that accompanied it and by the degrading nature of the anal intercourse: R v Russell (NSWCCA, 21 June 1996, unreported). The offence on the Form 1 that involves vaginal intercourse is serious in its own right. It is an aggravating factor that the deceased was attacked in the room of the boarding house where she lived. Although the offender was lawfully in the boarding house, he was not lawfully in the deceased's room: DSR v R [2012] NSWCCA 159 at [145]. 43It may never be known for low long the cord was applied to the deceased's neck and whether it was applied, before, during or after she was sexually assaulted. The deceased was alive when the ligature was wrapped around her neck and she struggled to remove it. Notwithstanding her efforts to survive, the offender strangled her which was extraordinarily cruel. The last minutes of her life must have been horrifying. This was a terrible way for the deceased to die. 44The offender then manoeuvred the deceased's body into the black suitcase that he had purchased on 12 February 2011. He used a black cable tie to secure the zipper tabs together. At some point before the body was placed in the suitcase, he had cut the front of the deceased's dress from the neckline all the way to the bottom hem causing it to be completely open. 45The callousness with which the murder was committed is disclosed in the calm manner in which the offender booked the taxi, travelled to Meadowbank and disposed of the body. His lack of empathy for the enormity of his crimes is demonstrated by the websites that he visited on the evening of the murder. 46I do not agree with Mr Steel's submission that the court could not be satisfied to the criminal standard that the killing of the deceased was planned prior to the day of the murder. As Dr Skinner observes (ex A T19 p12): "There is documented evidence that [the offender] had been planning for similar offences over a period of years, gradually becoming more focussed." 47Dr Skinner refers to the offender's inappropriate interest in discussing serious criminal offences including mass rape and murder that is recorded in the youth officer's report on 1 June 2007 and to the drawings in 2008 of an explicitly sexual and violent nature. The Facts on Sentence disclose the offender's discussions with his brother Reegan in 2009 about raping girls and hitting them. 48The only rational inference that can be drawn from the combination of the offender's internet searches that included websites and articles relating to murder, rape and serial offenders, the use of strangulation including ligatures in murders, the use of suitcases in the disposal of bodies, the searches of the Meadowbank park area and the purchase of the suitcase, is that the offender planned to sexually assault and kill a woman and dispose of her body with the use of a suitcase well before the murder of the deceased. 49The offender's plan was brought to a head by the selection of the deceased as his victim, which appears to have arisen from their meeting on the day before the murder. His visits to websites on the morning of the murder that included the Wikipedia pages entitled "Chokehold" and "Grappling Hold" and the various pornographic websites relating to girls of Indian descent speak of his plan to sexually assault and murder the deceased. I accept Dr Skinner's opinion that the searching of the pornographic websites shortly before the murder was "intended to provide stimulation for him and a degree of sexual arousal prior to committing the offences..." (TOS 29/4/13 T37 L50, T38 L1-2). I am satisfied beyond reasonable doubt that the offences involved a high degree of planning and were premeditated. The deceased had done nothing to provoke the attack upon her. 50However, I do not accept Mr Crown's invitation to find that before the murder the offender intended to commit multiple sexual assaults and murders, that he killed the deceased because he wanted to become a serial murderer and serial rapist and that the deceased was his first victim. Although the offender accessed websites of serial killers before and after the murder, there is no evidence that he purchased more than one suitcase or visited websites of areas other than Meadowbank Park or had other methods of killing or disposing of bodies of future victims. I am unable to be satisfied beyond reasonable doubt that before the murder, the offender intended to sexually assault and murder more than one person. 51Mr Steel acknowledged that the sexual assault upon the deceased was a matter to be taken into account in assessing the objective seriousness of the murder and R v Garforth (NSWCCA, 23 May 1994, unreported) was cited. In my view, the offender's violent sexual offending that immediately preceded the deceased's death significantly increases the objective seriousness of the murder. I firmly bear in mind the need to ensure there is no double counting in the sentences to be imposed. 52Given all the matters I have mentioned, I consider that both the murder and the aggravated sexual assault fall within the worst category of offences of their kind. 53The offender was born on 23 August 1991 and was 19 years old when the offences were committed. He is now 21 years old. His prior criminal history as a young person, which commenced when he was fourteen reveals offences of violence. His record includes two counts of armed robbery with an offensive weapon (2005); one count of custody of a knife in a public place (2006); four counts of assault with intent to rob (2006); one count of stalk/intimidate with intent to cause fear (2007); two counts of damaging property by fire (2007) and two counts of assault with intent to rob armed with an offensive weapon (2008). A factual summary of these offences is contained in ex A T7. There is one minor offence as an adult for which he was convicted and fined in the Local Court. 54The control orders imposed by the Children's Court for the offences of assault with intent to rob in 2006 and damaging property by fire in 2007 did not deter him from further offending. 55The offender's criminal history does not entitle him to leniency, but it does not increase the objective seriousness of the murder and the aggravated sexual assault, nor is it an objective circumstance for the purpose of the application of the proportionality principle and it does not determine the upper boundary of a proportionate sentence: R v McNaughton [2006] NSWCCA 242; (2006) NSWLR 566. In view of the offender's prior record, I give more weight to personal deterrence and protection of society than otherwise would have been the case: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. 56The offender did not give evidence during the proceedings on sentence. His subjective circumstances are drawn from the Juvenile Justice background reports (ex A T15-16). Unfortunately, these reports are confined to the offender's subjective circumstances prior to 21 January 2009 and do not provide any information after that time. All that is known of the offender as an adult is provided by the Facts on Sentence. At the time of the murder, he was employed as a box boy and lived by himself in the boarding house. 57The offender, who is of Sri Lankan descent, came to Australia when he was about three to fours year old. The Department of Community Services (DOCS) became involved with his family following allegations of acts of domestic violence by his father. The offender witnessed domestic violence at home. He also reported that his father used excessive physical punishment. In 2001, when the offender was 10 years old, his father murdered his mother. The offender and his brother were in the family home when their mother died. The offender's father is currently serving a prison term. 58Following their mother's death, the offender and his brother came under the 'parental responsibility' of DOCS, who placed them with a family at Chester Hill. The placement broke down in 2005 reportedly due to the offender's difficult behaviours. He subsequently resided at several crisis and medium term placements. He engaged in binge drinking, used cannabis and had some experience with petrol sniffing. 59The offender was educated to Year 9 level. Attempts to engage him to attend to Year 9 studies were unsuccessful. In September 2008 he was referred to the Marist Post-Release Support Service in an attempt to encourage participation in employment or training in the community. However, the offender refused to participate in any work experience training. I take into account the offender's difficult personal background. 60An issue that was raised during the proceedings was whether the offender suffers from a mental disorder. An offender's mental condition can have the effect of reducing a person's moral culpability and matters such as specific and general deterrence, retribution and denunciation may have less weight. It may also mean that a custodial sentence may weigh more heavily on an offender. Conversely, the offender may present more of a danger to the community: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR at [177]. 61Dr Kenneth Nunn, a psychiatrist, who interviewed the offender in 2007 and 2008 was required for cross-examination by Mr Steel. The Crown also called Dr Yvonne Skinner, a psychiatrist, whose report dated 18 April 2013 is ex A T19. Dr Skinner has not seen or examined the offender, as the offender had declined to be assessed by Dr Skinner or any other psychiatrist on behalf of the Crown despite requests being made by Rossi Kotsis, a solicitor employed in the Office of the Director of Public Prosecutions. 62In a report dated 6 March 2008 (ex A T14), Dr Nunn expressed the opinion that the offender did not meet current DSMIV-R criteria for a psychiatric condition with the exception of conduct disorder. He explained that in reality, conduct disorder is a descriptive disorder and had no explanatory value in relation to why the offender might be acting as he did and what process underlies his behaviours. He reported that the offender had suffered "both before and as a result of the death of his mother, with traumas that are sufficient to trouble most young people and is disordered in his psychological function, so that his mental life and social function are significantly impaired" (ex A T14 p6). He opined that the offender was highly vulnerable to the development of a psychiatric disorder, but that there was no convincing evidence that the offender was suffering from any acute mental illness. 63Dr Nunn's report had been compiled at the request of the Children's Court in relation to the charges of arson and malicious damage to property for which he was to be sentenced on 12 March 2008. 64During his evidence, in answer to a question from Mr Crown as to whether the offender suffers from a mental illness, Dr Nunn replied (TOS 29/04/13 T9 L25-32): "... A. My view is he does, but his illness, I have to say, that he, because it's largely trauma based, and not intrinsic psychosis, it would have to be argued. It's even being argued in the DSM, they are just about to release a new classification with developmental trauma disorder as a major new diagnosis to capture this situation. But it still remains problematic because people are much more comfortable about saying schizophrenia, or bipolar disorder extreme, rather than extreme chronic complex posttraumatic stress disorder." 65Dr Nunn was of the opinion that the offender's traumatic background had produced a post-traumatic stress disorder. He thought that the offender had "paranoid non-disclosure" which was a symptom of post-traumatic stress disorder. 66In re-examination by Mr Crown, Dr Nunn agreed "that not one of [his] colleagues was convinced [of his] view" (TOS 29/04/13 T20 L22-26). Dr Nunn was also aware from a review of the Justice Health file that since the offender had been in custody, he had been reviewed by numerous psychiatrists and other health workers and none of them had seen evidence of a mental illness or a mental disorder. 67In preparing her report, the material that Dr Skinner reviewed included documents from Justice Health and extracts of documents produced by Juvenile Justice, Corrective Services and Marist Youth Care. It is unnecessary to mention all of the psychiatric and psychological assessments that have been made of the offender that are detailed in Dr Skinner's report, but I propose to refer to some of them. 68Dr Skinner noted that Dr Shanna, a psychiatric registrar, saw the offender on 18 November 2007 when he had been charged with setting fire at the Marist Youth Refuge. Dr Shanna found no evidence of psychosis or other psychiatric disorder. The offender was reviewed by Dr Kasinathan, a psychiatrist, who found no evidence of psychosis or other psychiatric disorder. Dr Kasinathan continued to monitor the offender and interviewed him at the Baxter Detention Centre on 18 March 2009, but he found no evidence of psychiatric disorder, mood disorder or psychosis. 69Dr Skinner reviewed the clinical records of Dr Adam Martin, a psychiatrist, who saw the offender in October 2008. She noted that the offender denied any symptoms of anxiety and depression and Dr Martin found no suggestion of psychosis. 70On 15 November 2011, the offender was assessed after an incident at Parklea Prison in which he threw a television at a cellmate and set fire in the cell. He reportedly said that he had been hearing voices telling him to throw the TV and set fire to the cell. The psychiatrist found no evidence of mental illness and thought that he was seeking a single cell placement. The psychiatrist noted anti-social and narcissistic elements of his personality and recommended psychological assessment. On 23 November 2011, the offender told a psychologist that he had no mental health issues or concerns, and no thoughts of harm to self or others. On 23 April 2012 a mental health nurse assessed the offender and found no evidence of mood disorder or psychosis. In July 2012, the offender told a psychologist that he had never been close to anyone. He also said that he felt like his crime was committed by someone else. Dr Skinner noted that no perceptual disturbances or psychotic phenomena were evident. The offender was not on any prescribed medication. His mood state was normal. He denied any suicidal ideas, thoughts of self-harm or plans. His insight and judgment appeared to be intact. 71Dr Skinner observed that except for a brief period in 2011 when a doctor prescribed a low dose of major tranquilliser, no psychotropic medications have been prescribed for the offender. 72The review undertaken by Dr Skinner included extensive consideration of Dr Nunn's reports. Dr Skinner had also considered the ERISP interviews, DVD's, transcripts and CCTV footage. Dr Skinner concluded that she was unable "to find any signs of mental illness or any documented evidence that there has been any evidence of mental illness in the past" (ex A T19 p14). She remarked that since Dr Nunn's assessment in 2008, there have been no signs of psychosis or mental disorder. 73Dr Skinner states (ex A T19 p15): "[The offender] has been assessed and reviewed frequently in prison and ...no diagnosis of psychiatric disorder has been made. No psychotropic medications have been prescribed, except for low dose tranquillising medication in late 2011. I can find no evidence that [the offender] is suffering from a mental illness". 74Dr Skinner was cross-examined by Mr Steel on Juvenile Justice notes made by Sugi Heng in 2008 which included an entry that "Dr Martin further summarised [the offender's] diagnosis per consultation with Dr Claire Gaskin, director of Justice Health: that [the offender] may be suffering from Post Traumatic Stress Disorder with brief psychotic episodes" (ex 1 T1) and an entry made by June Wong in counselling on 26 November 2007 that it appeared that the offender was experiencing "flash backs" (ex 1 T2). Dr Skinner did not accept that what was referred to in Ms Wong's notes was symptomatic of post traumatic stress disorder; but suggested that the offender was "really talking about memories of things that have happened" (TOS 29/04/13 T31 L10). When cross-examined on the features of paranoia that Ms Heng had recorded in case notes dated 9 November 2007, Dr Skinner did not agree that the paranoid features could be features of post-traumatic stress disorder, but considered that "it is a feature of problems he had with authority and lack of secure intentions" (TOS 29/04/13 T32 L5-9). 75In further cross-examination on Justice Health progress notes dated 23 November 2007, Dr Skinner agreed that based on that material and Dr Nunn's assessment, a reasonable diagnosis was that the offender might have been suffering from post traumatic stress disorder, but she said that the offender had been seen "by some very competent psychiatrists within the prison system so [she] would be happy to rely on their assessments" (TOS 29/04/13 T40 L12-14). 76Mr Steel did not submit that the offender has a mental illness. His contention was that the offender suffers from a chronic complex post-traumatic stress disorder. Mr Crown argued that there was no evidence to support the offender's contention that he was suffering from a mental disorder at the time of the commission of the offences. 77Dr Skinner's careful consideration of the psychiatric and psychological assessments discloses that since 2008, no other psychiatrist or psychologist has assessed the offender as suffering from a mental illness or mental disorder. Dr Nunn's diagnosis of a chronic complex post-traumatic stress disorder is not supported by recent psychiatric opinions and is founded upon interviews with the offender in 2007 and 2008. He has not interviewed the offender since 2008. I prefer and accept Dr Skinner's assessment that the offender neither has a mental illness nor a mental disorder. I am not satisfied on the balance of probabilities that the offender had in March 2011 or presently has a chronic complex post-traumatic stress disorder. 78Remorse as a mitigating factor is qualified by s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss, or damage caused by them. By his pleas of guilty, the offender has accepted responsibility for his offending. However, I am not satisfied that his pleas are indications of his contrition or remorse, rather they are a recognition of the high strength of the Crown case against him. 79Dr Skinner records in her report that during an assessment by a mental health nurse on 23 April 2012, the offender asked the nurse if the discussion was confidential. When told that the file might be subpoenaed, the offender immediately stated, "I feel remorse" (ex A T19 p5). I do not find that this expression of remorse was genuine, but agree with Dr Skinner's assessment that the offender felt that his statement might assist him on sentence. Dr Skinner was of the view that the offender "has shown no capacity for empathy and no signs of remorse" (ex A T19 p13). 80The telephone calls made by the offender from prison and the Justice Health records do not indicate regret by the offender for the grave harm that he has caused. There is nothing, in my view, that establishes that the offender is remorseful and has acknowledged the injury and loss caused by his offending. I am not satisfied on the balance of probabilities that the offender is contrite or remorseful. His sentence is not to be increased for that, but no allowance in mitigation can be made for remorse or contrition. 81Mr Crown invited me to find that the offender has no prospects of rehabilitation and there is a high likelihood of re-offending by his committing serious sexual assaults and murder. On the other hand, Mr Steel pointed to the offender's youth and submitted that there are greater prospects of rehabilitation from that fact alone and the prediction of an offender's conduct is notoriously difficult. 82I should mention that the commission of the offences was not in any way brought about by youthful impulsiveness or immaturity. I do not assess the offender's criminality to be less than that in the case of a mature adult: R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451. 83In his report (ex A T14), Dr Nunn considered that the offender represented a high risk of violent re-offending, but was likely to show improvement in a stable environment in detention with therapy from an experienced clinician under the supervision of a child psychiatrist. 84During his oral testimony, Dr Nunn recommended that a compulsory treatment order be taken out through the Mental Health Review Tribunal. He suggested regular intra muscular therapy with antipsychotics. Dr Nunn said (TOS 29/4/13 T21 L30-35): "So I'm really holding to the same position that I held when I said that I thought he was very dangerous in the first place, but that he has a modest possibility of response to treatment, and in his case the possibility that some use of drugs that are so-called anti-psychotics would reduce his dangerousness to other inmates, to other staff member and to himself and to his level of distress..." 85Dr Skinner, who had been a member of the Mental Health Review Tribunal for 11 years, did not believe that the offender was a suitable candidate for a compulsory treatment order as he lacked the ability to engage in any kind of therapy. She referred to the offender's exposure as a young person to psychologists, psychiatrists, counsellors and other persons who offered him treatment, but at no stage was he able to engage or ask for any form of therapy. Dr Skinner opined that the Mental Health Review Tribunal is usually against coercive therapy, but would rather hope that the person might show some motivation to seek therapy. 86Dr Skinner considered that the offender presented a high risk of future dangerousness. Important contributors to the risk included his history of offending, his total pre-occupation with the crime as shown by the computer records, the total pre-occupation with fantasies involving killing and sexual themes, his inability to make close friends, and lack of empathy. Dr Skinner thought that it was of particular concern that the offender had spent most of, if not all his leisure time planning about committing offences. She could not recall ever in the past making an assessment of high risk of future dangerousness. Dr Skinner accepted that the offender's risk of re-offending may diminish over a lengthy period in custody. 87In my view, another matter that points to the risk of future dangerousness is the visiting of various websites and articles, that included "Beginnings of a Serial Killer", by the offender on the night of the murder. 88I consider that the offender's prospects of rehabilitation are very poor. His Juvenile Justice records are replete with resistance to any form of counselling and assistance. He has demonstrated a lack of ability to engage in any kind of therapy and has shown no capacity for empathy or signs of remorse. However, I am unable to find with certainty that the offender has no prospects of rehabilitation as the offender is 21 years old and it remains possible that he might develop some insight into his offending as he grows older in custody. 89A finding of future dangerousness does not need to be established beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. It is sufficient if the Crown establishes that there is a risk of re-offending: R v Harrison (1997) 93 A Crim R 314. Both psychiatrists considered that the offender represents a high risk of violent re-offending. It appears unlikely from Dr Skinner's experience with the Mental Health Review Tribunal that coercive therapy will be imposed. In any event, Dr Nunn thought that there was only a "modest possibility" that regular intra muscular therapy would reduce the offender's dangerousness. I am satisfied that there is a real risk that the offender will re-offend by committing serious offences of violence and sexual assault and the risk will probably remain until it is moderated naturally with advanced age. I do not make this finding lightly, but the evidence in this case compels such a conclusion. I acknowledge, however, that there is a difficulty in predicting future dangerousness so far into the future. 90I am conscious that a sentence otherwise appropriate to the seriousness of an offence cannot be extended merely to protect society. On the other hand, the court must have regard to the protection of society as a factor in determining a proportionate sentence. In Veen v The Queen (No 2), the majority (Mason CJ, Brennan, Dawson and Toohey JJ) said at 474: "...It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment". 91The Court of Criminal Appeal in R v Robinson [2002] NSWCCA 359 observed at [41]: "That judgment is necessarily founded on a finding as to the offender's future conduct". 92Mr Steel submits that the offender's pleas of guilty were entered in the Local Court and should be treated as being at the earliest opportunity. On the other hand, Mr Crown contends that neither plea was at the first available opportunity and points out that the plea to the aggravated sexual assault was not entered until some 20 months after the offence. 93The Crown's brief of evidence was complete on 7 February 2012. The offender's solicitor advised the Crown on 21 February 2012 that all charges would be defended. Later that day, the Crown wrote to the solicitor for the offender reiterating the strength of the Crown case and indicated that the Crown would consent to an adjournment if counsel was to be engaged. Adjournments were then sought by the offender. On 5 April 2012, counsel for the offender advised the Crown that the offender would be pleading guilty to the murder, subject to psychiatric assessments. The plea of guilty to murder was entered on 16 July 2012. 94The plea of guilty to a single offence of aggravated sexual assault was entered on 21 November 2012. It followed representations seeking the withdrawal of the charge. A willingness to have an additional uncharged aggravated sexual assault dealt with on a Form 1 was indicated on the same date. 95A discount for the utilitarian value of a plea is determined largely by the timing of the plea: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. Although I am not satisfied that either plea was entered at the first available opportunity, the pleas were entered in the Local Court and have utilitarian value. As the pleas were entered at different times, it would normally be necessary to assess their utilitarian value separately. The utilitarian value of the pleas, in the normal course of events, would, in my view, result in a sentencing discount of between 15 and 20 per cent. However, in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, Spigelman CJ observed at [157] that: "There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate". 96In my view, the grave circumstances of the offences and the high danger that the offender represents to society do not justify any utilitarian discount being applied to the sentences. 97The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (Sentencing Procedure) Act (which authorises the passing of a lesser sentence than imprisonment for life). 98Section 61(1) of the Crimes (Sentencing Procedure) Act is as follows: "A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence". 99Section 61(6) provides that "[t]his section does not apply to a person who was less than 18 years of age at the date of the commission of the offence". 100The maximum penalty of life imprisonment is intended for cases falling within the worst category of murder: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-452; 27 A Crim R 465 at 468. The level of culpability of the offender in the commission of the offence and whether the case is one calling for a life sentence in the terms of s 61(1), is first to be considered, and if so, whether in the exercise of the discretion conferred by s 21(1), the subjective features relating to the offender justify a lesser sentence of imprisonment for a specified term: R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409, R v Phuong Canh Ngo (No 3) [2001] NSWSC 1021; (2001) 125 A Crim R 495. The primary focus of s 61(1) is an assessment of how extreme the offender's culpability is: R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 at [52]. The combined effect of the community interest in retribution, punishment, community protection, and deterrence is critical to a conclusion that a life sentence is required. The absence of any one or more of the four indicia may make it more difficult for the conclusion to be reached that a life sentence is required, but will not be determinative: Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126 at [23]. 101Mr Crown submitted that a life sentence was justified in the present case and drew my attention to what were said to be comparable cases. Whilst I found the cases from New South Wales to be helpful, each case depends on its own facts. 102Mr Steel referred to the offender being in custody since the age of 19 years and given the usual life expectancy of a male, the practical effect of a life sentence would be a sentence in excess of 50 years. 103The current median life expectancy for an Australian male is 79 years. The imposition of a life sentence could mean that the offender will serve 60 years or more in prison if a life sentence is imposed. The offender's youth and the difficulty with the long range forecasting of future dangerousness militate against an indeterminate sentence. I do not consider that the community interest in retribution, punishment, community protection, and deterrence can only be met through the imposition of such a long sentence. Nevertheless, in the circumstances of this case, the sentence must be a very long one. 104Victim impact statements of Sunil Thakkar and Liese Thakkar, the deceased's parents and Vishang Thakkar, the deceased's brother were read to the court. The contents of the statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them. 105In structuring the sentences to be imposed, I have fixed an appropriate sentence for each offence and then considered questions of cumulation or concurrence as well as totality. It seems to me that the only way to avoid double counting is to make the sentences concurrent. I consider that the sentence to be imposed for murder can comprehend and reflect the criminality of the aggravated sexual assault including the offence on the Form 1. 106Mr Steel submitted that special circumstances should be found so as to warrant the reduction of the non-parole period below the statutory ratio. He referred to R v Robinson at [71]-[72] and to findings of special circumstances that had been made by the Court of Criminal Appeal in that case. Mr Steel contended that [like Robinson's case] the offender's youth at the time of the offence, the difficulty of predicting the future, the fact that the head sentence will be lengthy and that release on parole will not be automatic but is likely to depend on the offender's rehabilitation are all matters on which a finding of special circumstances would be appropriate. 107I have already taken into account the offender's youth and the difficulty in predicting the future in deciding that a determinate sentence is appropriate. In R v Fidow [2004] NSWCCA 172 Spigelman CJ said at [18] that "double counting" for matters already taken into account in reducing a head sentence and therefore already reflected in the head sentence must be avoided. I do, however, find as a special circumstance that if the offender is found eligible for release on parole after a very long period of custody, there is the risk of institutionalisation and his rehabilitation will require lengthy post-release supervision: R v Lemene [2001] NSWCCA 5; (2001) 118 A Crim R 131; Jackson v R [2010] NSWCCA 162. 108The non-parole period that I am about to set is the minimum period required to reflect the grave circumstances of the murder and the protection of society. The agreed date for the commencement of the sentences is 11 March 2011. 109Daniel Stani-Reginald for the murder of Tosha Thakkar, I convict you. I sentence you to a term of 45 years imprisonment consisting of a non-parole period of 30 years which is to commence on 11 March 2011 and is to expire on 10 March 2041 with a balance of term of 15 years which is to commence on 11 March 2041 and will expire on 10 March 2056. 110Daniel Stani-Reginald for the aggravated sexual assault of Tosha Thakkar (including the offence on the Form 1), I convict you. I sentence you to a term of imprisonment of 15 years consisting of a non-parole period of 10 years which is to commence on 11 March 2011 and is to expire on 10 March 2021 with a balance of term of 5 years which is to commence on 11 March 2021 and will expire on 10 March 2026. 111The earliest date that you will be eligible to be released on parole is 10 March 2041. 112I ask Mr Steel to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offences for which he has been sentenced.