R v Sumpton

THE FACTS OF THE OFFENCES

1. The facts upon which the offender is to be sentenced must be consistent with the verdicts of jury bearing in mind the way in which the trial was conducted. In some instances it will not be possible to make conclusive findings as to the facts. I am satisfied beyond a reasonable doubt of the following facts.
2. On 17 May 2012 the offender and the victim met for the first time. They spent time together drinking. I am satisfied that each was extremely intoxicated by the time of the murder. As well as beer, the offender obtained some form of homemade whiskey from a friend. There was also evidence that they had taken some form of prescription drug, Valium or similar.
3. I accept the offender's evidence that they spent some time together in Ms Robert's bedroom. I do not accept his evidence that they simply talked in the bedroom and that he had no sexual interest in her. I do not accept the Crown's implicit suggestion that all of the sexual contact between them was "unwanted" or that the offender gained entry under the pretence of having forgotten his cigarettes. While there is some evidence to support those conclusions, I prefer the inferences that arise from the evidence of the witnesses Debbie Fordham and Yarnah Cook. Each of those witnesses described an incident when the deceased visited their home scantily dressed. Ms Fordham said she was wearing only a robe, "bra and undies". The underwear had "black, lacy look ... like a set". Ms Cook said that she "did like a little dance on the spot and was giggling". The victim was discovered with underpants around her knees. Neither Ms Cook nor Ms Fordham recognised these and thought they were of a different colour. Ms Cook said that she followed Ms Roberts across the road and called out to see if there was anybody else in the house. The offender was inside, told her to wait and emerged pulling up his pants. In rejecting the offender's evidence that he had no sexual interest in Ms Roberts and that they did not even touch, I also take into account the tendency evidence concerning the offender's attraction to women of Asian appearance and a conversation he had with Mr Johnson when he picked up the bottle of homemade whiskey. That conversation suggested he was looking forward to returning to see Ms Roberts. According to the offender, he told Mr Johnson that he had met a "lady friend", that they were having a bit of a joke and Mr Johnson said "go for it, mate".
4. From all of this evidence, I infer that the offender and Ms Roberts, drunk, were engaged in some kind of preliminary sexual activity. I reject the offender's evidence that it was "impossible" for him to have a romantic or sexual interest in Ms Roberts because of a medical condition that means that he cannot achieve an erection. However, based on the evidence of his former partner Ms Beeching-Marshall, I accept that the offender had erectile dysfunction. What role, if any, his dysfunction had in the events that followed is difficult to know.
5. As I observed in the course of the Crown Prosecutor's submissions, it is not possible to do other than to speculate as to exactly what happened next. It may be that Ms Roberts resisted the offender's sexual advances. It may be that he had difficulty achieving an erection. These are matters of speculation. However, what is known is that the offender then inflicted a brutal and sexually charged attack on Ms Roberts.
6. Ms Roberts was a slightly built woman (she weighed 54 kg) and had a pronounced limp. Her disability required her to use a walking stick. She was also very intoxicated. I find that she was vulnerable to the offender's violent attack. This is an aggravating feature of the crime. The evidence supports the conclusion, and I accept beyond reasonable doubt, that the offender used two weapons in his attack on Ms Roberts. He used a statue at least twice to inflict significant blunt force trauma to Ms Roberts' face. He used a knife to inflict a large number of wounds including the fatal wounds. The use of weapons is also an aggravating feature although I note that many offences of murder involve the use of a weapon. However, it is not an inherent feature of the offence and it is an aggravating feature in the strict sense.
7. A pathologist (Dr Beer) observed 24 stab wounds to the chest, abdomen, upper thigh and area of the vagina. The wounds to the area of the vagina support the inference that the murder had a significant sexual motivation. The wounds to the chest are likely to have caused death. In addition to the stab wounds, Dr Beer said that Ms Roberts had a broken nose and a number of her teeth were dislodged by the roots. These injuries, along with evidence of blood spatter in the area of the murder, suggested that she was struck with significant force with an object. There was a broken statue in the bedroom and I infer that the offender used this statue to strike his victim at least twice to the face.
8. I accept the Crown Prosecutor's description that this was a "spontaneous but brutal killing of a vulnerable woman in her own home". I accept that the killing was sexually motivated although the precise nature of that motivation cannot be determined. The most likely scenarios are that Ms Roberts rejected the offender's sexual advances or that the offender had difficulty in performing sexually. There was evidence to support the former proposition from a former cell mate (Zack Sommers). However, Mr Sommers' evidence was of such poor quality that I am not prepared to act on it. The transcript does not reflect just how unconvincing his evidence was. What I can infer from the injuries to the offender himself, is that Ms Roberts put up a fight. However, I cannot determine if that was in response to sexual advances or the physical attack. In any event, whatever be the precise motivation, it provides no mitigation of any kind.
9. I accept that the offender then fled the scene and returned to his home. The enormity of what he had done began to dawn upon him. He then returned to the scene and attempted to cover up his crime. He did this by setting fire to some sheets on or under Ms Roberts' body and set two other fires within her house. He burned his hands in doing this. He then purported to raise the alarm, knocking on the door of some neighbours and saying that there was a fire in the house of his friend. He pretended to help the firefighters who came to the scene. He was, as Senior Counsel for the Crown put to him in cross-examination, the "arsonist claiming to have discovered the fire; the killer hiding in full view".
10. Over the coming days, the offender spoke to police on a number of occasions. He lied over and over again. His lies were increasingly desperate and transparent. His conduct was theatrical and unconvincing. He showed no remorse for what he had done. OBJECTIVE SERIOUSNESS
11. While I do not accept the Crown's submission that this is a case that "approaches the worst category of offending", I do accept that it lies comfortably above the middle range of objective seriousness.
12. The spontaneous nature of the attack, and the fact that it was not part of a premeditated or planned criminal activity, is a significant factor in mitigation. The evidence suggests to me, and I accept on balance, that the offender lost control for reasons that are not clear. While his intoxication is in no sense a mitigating feature, it increases the likelihood that he lost control in the circumstances that developed that night.
13. As I have said, the victim's vulnerability and the use of two weapons are aggravating features.
14. I am satisfied beyond doubt that, in the moment, the offender formed an intention to kill Ms Roberts. That intention was formed spontaneously and in the course of a frenzy during which the offender lost control of himself. Murders involving an intention to kill are generally considered to be more serious than those involving an intention to inflict grievous bodily harm.
15. The Crown does not submit that the offence involved gratuitous cruelty or that the wounds to Ms Roberts' genital area amounted to mutilation (cf R v Robinson [2002] NSWCCA 359).

Offence committed inside the victim's home

1. Whether the fact that the offence took place in the victim's home amounts to a circumstance of aggravation is a matter of controversy. Counsel for the offender points to Ingham v R [2011] NSWCCA 88 at [111]-[112] where the Court said that there was a "clear line of authority" supporting the proposition that "it will be an aggravating circumstance when a victim is assaulted in his or her own home by an unauthorised intruder. However, it is otherwise when the offender is lawfully on the premises". Similarly, in EK v R [2010] NSWCCA 199 it was held by RA Hulme J: "It is an aggravating circumstance where an offender intrudes into the home and not where the offender and a victim reside together."
2. However, subsequent decisions of the Court of Criminal Appeal (including observations by his Honour, RA Hulme J) have indicated that the Court may need to re-examine that statement of principle and that it may not accord with the plain words of s 21A(2)(eb) of the Act: Melbon v R [2013] NSWCCA 2010 at [1]-[2] and [43]-[44]. See also Montero v R [2013] NSWCCA 214, the comments of Kirby J in Oh v R [2010] NSWCCA 148 at [40] and my observations in sentencing in R v Simmons (No 8) [2015] NSWSC 627 at [9]-[11].
3. As recently as last week, the Court of Criminal Appeal considered the issue yet again: Aktar v R [2015] NSWCCA 123. Wilson J at [45]-[64] undertook a thorough and helpful analysis of the authorities and the proper approach to the interpretation of the statute. Her Honour referred to relevant extrinsic guides to an understanding of the section and concluded that the approach taken in Ingham v R (and applied in a number of subsequent decisions of the Court of Criminal Appeal) was unduly restrictive and that the "proper construction of the provision should … include its application to offences committed within residential premises by an offender lawfully present." Hoeben CJ at CL (at [1]) preferred to reserve his judgment on the issue "until an occasion when the matter has been fully argued by both sides". The Chief Judge stressed that he did not "deprecate" the approach commended by Wilson J. RA Hulme J (at [2]) also noted that the matter had not been fully argued and did not wish to say anything more than what he said in Melbon v R.
4. Mr Dennis points to the tension between the authorities and submits that it would amount to error to find an aggravating circumstance given the current state of the authorities, stating resolution of the tension is a matter for determination by the NSW Court of Criminal Appeal.
5. The state of the authorities remains unclear. It speaks eloquently to the proposition that pigeon-holing such matters as "aggravating" or "mitigating" can sometimes be unhelpful. The tension between the authorities is such that I do not propose to treat the matter as an aggravating feature for the purpose of the application of s 21A(2) of the Act. However, the fact that the victim was killed in her own home remains relevant to a proper assessment of the objective criminality of the offender's conduct. I accept the Crown's submission that the offender was an invitee and that this involved an element of trust. Ms Roberts was entitled to feel safe, and to be safe, in her own home. Even if she was physically able to flee the attack (which is unlikely), there was nowhere to which she was able to escape. Without treating it as an aggravating feature of the offence, it is a matter that bears upon a proper assessment of the objective gravity of the crime. The distinction between this approach and essentially ticking a box that s 21A(2)(eb) of the Act is engaged is a fine, and possibly elusive, one.

Mutilation of the corpse

1. The Crown relies on the destruction of Ms Roberts' corpse by fire as an aggravating feature of the crime. The Crown says that this amounted to mutilation of the corpse. Defence counsel concedes that the "mistreatment" of the victim's corpse increases the objective seriousness of the offence and refers to a number of cases where that has been held to be the case. I accept that concession and have taken the matter into account in assessing the objective gravity of the offence of murder.
2. I accept that the accused deliberately set fire to the bed-clothes surrounding Ms Roberts' body and that this act was calculated to destroy Ms Roberts body and the evidence of his heinous behaviour. I accept that this amounted to mutilation of the corpse. However, the case is far removed from the circumstances that prevailed in R v Robinson. In that case, the offender disembowelled the victim, cut off his penis and threw it in the sink. This seemed to be a gratuitous act, performed for its own disturbing purposes. He later boasted about it. It was an important aspect in assessing the offender's future dangerousness. While I accept that Mr Sumpton's act of burning Ms Roberts' corpse shows his complete disregard for his victim and her dignity, I do not treat the evidence in the same way as the sentencing Judge approached the mutilation of the corpse in R v Robinson. Further, I should tread warily in my treatment of this factor because the motivation of destroying evidence is also an aggravating feature of the arson offences even though the property destroyed by the arson is particularised as the chattels of Ms Roberts and the property owned by the housing corporation.

Conclusion as to the objective gravity of the murder charge

1. Having considered all of these factors, I have concluded that the offence of murder falls comfortably above the middle range of objective seriousness.

Arson

1. Turning to the arson offences, they are serious examples of offences under s 195(1)(b) of the Crimes Act. As I have just said, the motivation of covering up a murder charge is a matter that increases the objective seriousness of these two offences. However, there are far more serious offences of arson, particularly those where a number of people are put at risk of injury or death. There are also cases where there is a far greater loss to the owners of the property and cases where the arson is motivated by financial gain and is well planned and executed.

THE PAIN AND SUFFERING OF MICHELLE ROBERTS' FAMILY

1. I have received into evidence the victim's impact statements of Michelle Roberts' daughter (Lauren Pinxt) and her son (Mathew Pinxt). I thank Lauren Pinxt for her courage in reading these statements to the Court yesterday. It cannot have been an easy thing to do. I want to thank her and Mr Pinxt for sharing their memories of their mother and the impact that this awful crime has had upon them. I understand that nothing that the law can do will compensate you for your loss and your suffering. I realise that no sentence that I impose will seem to you to be long enough. Given the extent of your grief and your loss, how could it?
2. Through your statements I have learned more about Michelle Roberts than was previously known by the Court. She was the greatly cherished mother of seven wonderful children. She was intelligent and well educated. Her love for her children was uncomplicated and unconditional. Lauren described her as a "rose trapped in a thorn bush" and that seems, on my imperfect understanding of her life, to be an apt and lovely description.
3. I have also gained some understanding of your loss and your grief and the impact that the offender's crime has had on you. I now know that Mathew went into a significant decline, relying on drugs and drink to help ease the pain. I know that Lauren feels bad because sometimes she was too busy to stay in touch. I know that the news of her mother's death hit her like a tonne of bricks and that she feels emotionally volatile and angry; that she tries to stay busy to avoid thinking about what happened to her mother. She gets angry and upset when other people complain about their mothers - she wishes that she could still complain about her mother.
4. To both of you and to your family, I express the Court's deepest and sincere sympathy. I hope that time will allow your suffering to ease and that today will mark some form of closure to this dreadful chapter of your lives. I am entitled to take your suffering and loss into account in determining the appropriate sentence. However, I know that nothing I do or say will fill the hole in your lives.
5. I have previously discussed the difficulties in applying the provisions of s 28(4) of the Act while maintaining the dignity and equality of all human life: see R v Hines (No 3) [2014] NSWSC 1273 at [78]. Those observations have been referred to by McCallum J in R v Halloun [2014] NSWSC 1705 and by Davies J in R v Do (No 4) [2015] NSWSC 512.
6. In R v Halloun, McCallum J made the following observations (at [46]): "As has been noted by another judge of this Court, the legislation does not explain how a sentencing judge is to determine when it is 'appropriate' to take the harmful impact on a murder victim's family into account in determining punishment: R v Hines (No 3) [2014] NSWSC 1273 at [78] per Hamill J. It seems unthinkable that the amendment reflects an acceptance by the legislature that some lives are more valuable to the community than others. I would construe the new provision as an important mechanism for ensuring that the evidence of family victims is placed before the court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. In that way, the provision serves the purposes of sentencing stated in s 3A of the Act, one of which is to recognise the harm done to the victim of the crime and the community."
7. In R v Do (No 4) Davies J said (at [50]): "It is far from clear what practical difference has been made by the amendment. As Johnson J noted in R v Pluis [2015] NSWSC 320, all lives are precious and the death of any person is a harm inflicted on the community in general."
8. In this case, defence counsel concedes that the harm done to Michelle Roberts' family is an aspect of the harm done to the community and that it is appropriate to take into account that harm in assessing the appropriate sentence. The learned Crown Prosecutor has provided thoughtful written submissions attempting to explain the operation of the section and its interaction with concepts of equality before the law. In view of the sensible concessions made by counsel for the offender, it is unnecessary to attempt to resolve those issues now. I do express my gratitude to both counsel for their helpful approach to this difficult aspect of the case.
9. I accept the concession made by Mr Dennis on behalf of the offender. I accept that the harm to the victim's family is an aspect of harm done to the community. I accept that it is appropriate to consider that harm and to take it into account in connection with the appropriate punishment to be imposed on Mr Sumpton. I will do so.

THE OFFENDER'S PERSONAL CIRCUMSTANCES AND OTHER MITIGATING FEATURES

Family and Personal History

1. A pre-sentence report was prepared for the purpose of the sentencing proceedings. While the history provided is not corroborated, there seems to be no contest and the history appears to be uncontroversial. The offender is a 50 year old man. He has little to no contact with his family. He has not spoken to either of his sisters in over a decade and has only occasionally corresponded with his elderly parents. The offender seemed unconcerned about the lack of family contact and when asked the reason for it replied "that's just the way it is". The offender was second of four children and his elder, only brother passed away at the age of four. While he was well provided for, his father was strict, violent and often drank. The offender was the only son and bared the brunt of his father's physical abuse.
2. The offender attended school until the age of 15 when he left to commence employment. He worked in the grain transport and mining industries and said that although he had no formal qualifications to speak of, he acquired skills in his work which made him employable all over Australia. This resulted in a transitory lifestyle and the offender often moved from state to state at short notice.
3. The offender explained that he would often use drugs such as speed to enable him to drive through the night to get from one workplace to another. In the interviews conducted for the pre-sentence report, the offender minimised his drug use. This is at odds with the evidence given at the trial by his ex-partner (Alexandra Beeching-Marshall). Ms Beeching-Marshall revealed that he introduced her to drugs and that he was a recreational user of amphetamines (speed and ice). Her evidence also indicated that the offender abused alcohol throughout their relationship and medical records indicate that the offender disclosed a history of alcohol related blackouts. The offender justifies his excessive consumption of alcohol, stating that he "worked hard and drank just as hard". He does not consider his alcohol consumption to be problematic.

Criminal and Custodial History

1. The offender's criminal history disentitles him to leniency. He has a criminal history in Queensland, South Australia, Western Australia and New South Wales. The offender is to be sentenced for murder which is classified as a "serious personal violence offence" pursuant to ss 21A(2)(d) and 21(6) of the Act. The offender has a bad record of traffic offences and a number of serious offences of dishonesty. More significantly, he also has a number of offences of violence recorded against him.
2. The offender's record for violence includes an offence in 2010 of assaulting police in New South Wales. In Queensland he was convicted of assaulting police on 7 February 2010. He was also convicted in Queensland of "deprivation of liberty" (10 April 1987), unlawful assault (24 October 1992), indecent dealing with children under 12 years (15 March 1996), assault occasioning actual bodily harm, obstruct police and common assault (23 December 2004) and being armed to cause fear (24 May 2004).
3. He has previously been sentenced to terms of imprisonment. However, nothing in his criminal history even remotely approaches the gravity of his present crimes.
4. While I have concluded that his criminal history disentitles the offender to leniency, I have not concluded that it is an aggravating feature in the sense that it should result in a sentence that is disproportionate to the gravity of the offences themselves: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566.
5. I will further consider his history of offending in addressing the question of the protection of the community and the issue of future dangerousness.

Contrition and Remorse

1. The offender maintains his denials. He told the author of the pre-sentence report that he was an "easy pinch" for police. He states that the initial admissions made to police were obtained when he was sleep deprived. That evidence was excluded at trial (R v Sumpton [2014] NSWSC 1432). Counsel for the offender objected to it being used on sentence and the Crown withdrew the tender of that material.
2. In any event, by the time of the trial and in his conversations with the author of the pre-sentence report, he maintained his innocence. He denied the admissions allegedly made to the Grafton Correctional Centre co-ordinator (Andrew Hayes) where he said that he blacked out and "woke up with blood all over himself and she was a mess". He told Mr Hayes that he set the place on fire because "she was fucked and I had to get rid of the evidence". Mr Hayes made notes of this conversation shortly afterwards. I accept that something like that was said. I do not accept that it demonstrated any remorse.
3. The pre-sentence report states the offender displayed very little "victim empathy" and focussed on his personal circumstances and "perceived maltreatment by the justice system". While it can safely be assumed that the offender regrets the fact that he was caught and proved to be guilty, I am satisfied that he has no genuine remorse or contrition.

Future dangerousness, protection of the community, prospects of rehabilitation

1. The Crown contends that the protection of the community should be at the forefront of this sentencing exercise and, implicitly at least, submits that the offender represents a future danger to the community. The prosecution relies on three parts of the evidence. First, the pre-sentence report assesses the offender as a "medium to high" risk of re-offending. Second, the criminal record contains offences of violence and sexual deviation. Third, it relies on the facts of this case and in particular the sexual component, the savage nature of the attack and the mutilation of the corpse by fire.
2. Mr Dennis submits that the fact that the offender has not demonstrated remorse for his offending behaviour does not prohibit a finding of positive prospects upon his eventual release and refers to R v Alseedi [2009] NSWCCA 185. He further submits that due to the inevitability of a very lengthy sentence, the offender will be quite old by the time his sentence expires and that his advanced aged will reduce the likelihood that he will be a danger to the community when he is eventually released.
3. As I said in R v Hines (No 3) "it is very difficult when an offender is to be sentenced to an extremely long sentence for a court to come to any conclusions, let alone any certain conclusions, as to the likelihood that they will offend again". In Bugmy v The Queen [1990] HCA 18; 169 CLR 525, Dawson, Toohey and Gaudron JJ said that "a minimum term of eighteen years and six month is of such length as to take the prospects of re-offending in this case beyond even speculation". In Fardon v Attorney General (Qld) [2004] HCA 46; 223 CLR 575 Kirby J said at [124]: "Experts in law, psychology and criminology have long recognised the unreliability of predictions of criminal dangerousness."
4. However, in the same case Gleeson CJ said at [12]: "No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles ... permit or require such predictions at the time of sentencing, which will often be many years before possible release."
5. In Hines (No 3) I referred to the authorities concerning the relevant standard of proof and concluded that it was not a matter in relation to which a sentencing judge was required to apply the criminal standard: see, for example, R v SLD [2003] NSWCCA 310 and particular the judgment of Handley JA at [40]. I think that the question posed by McCallum J in R v Gittany (No 5) [2014] NSWSC 49 at [58] is the relevant one: "The critical question is whether the prior offences inform the extent to which a sterner sentence may be required in order to meet the objects of sentencing, including deterrence and the protection of the community."
6. While the offender has a record including offences of violence, and while the facts of this offence gives rise to legitimate concerns as to his future dangerousness, I am not satisfied that it is appropriate to extend his sentence (or non-parole period) beyond that which is proportionate to the gravity of the crime. By the time he is released, he will have reached, or be approaching, old age. His record is not such that I can conclude that he will be a risk of re-offending at that stage of his life. Plainly, it will be a matter for the parole authorities to consider. He will also be subject to the provisions of Crimes (High Risk Offenders) Act 2006 (NSW).
7. On the other hand, the same evidence leads me to the conclusion that I cannot make a positive finding that the offender has good prospects of rehabilitation or that he is unlikely to offend again.

The offender's health

1. The offender has sworn an affidavit in which he sets out a number of substantial medical conditions that he has suffered over many years. The learned Crown Prosecutor does not dispute the material in the affidavit and acknowledges that, in some instances, it is supported by independent evidence. The offender also relies on a number of extracts from his Justice Health file which goes back to when he was taken into custody (May 2012). Finally, a report was prepared by Dr K Suresh Badami a Clinical Director with Justice Health. In the limited time available to prepare this judgment, it is not possible to detail all of this material. However, I have read and considered all of the material.
2. The material establishes that the offender suffers from significant back pain as a result of an accident at work around 15 years ago. Observing him in the dock in Grafton, it was obvious to me that he was in significant pain at various times during the trial. He says in his affidavit that the most effective medication for his pain is called "Lyrica". Dr Badami gave evidence that this is a brand name of a drug called Pregabalin. It is not generally provided to inmates for various reasons. It is not on the "formulary" of medications and it must be specially approved. It has not been made available to the accused until the last few weeks. I accept Mr Dennis' submission that the result is that the offender has endured substantial pain while on remand and that this has made his incarceration to this point more onerous than the average prisoner.
3. The offender also has problems with each of his elbows. There was some evidence of this in the trial. His elbow will "lock" without warning and he then gets a "sharp and severe stabbing pain". The offender is unaware of any medication that will reduce the pain in his elbow. There is a radiology report dated 29 May 2012 that confirms that there is an "olecranon spur" and "sclerosis on the margin of the radial head" in his right elbow.
4. The offender has suffered from arthritis in his hands, knees, wrists and elbows for more than ten years. He says that the medication he received in custody had no effect on his arthritis. He believes that remaining warm alleviates some of the symptoms. Dr Badami said that there is no scientific or medical research to support this belief and that it is "very anecdotal". He said "some people will feel warmer and more comfortable and safer in [warmer clothing]". He says that the medical staff are unwilling or reluctant to recommend that prisoners be provided with such things as thermal underwear or more blankets because such requests are "a Corrective Services issue … entirely in their realm". He said "It does become a bit embarrassing when we make a recommendation and it is not followed through, then the patient comes back to us and says you made a recommendation why didn't they give it to us. It puts us in an awkward position."
5. It is not for me to comment on the demarcation of responsibilities between Justice Health and Corrective Services, but I accept that the offender's experience of custody is more onerous as a result of the lack of treatment for his arthritis.
6. The offender has also suffered from shingles while in custody. He was treated for this but remains concerned that it will not be treated promptly in the future. While his concerns may be genuine, there is no evidence to suggest that if the condition recurs it will not be treated promptly and properly by the gaol authorities.
7. Another matter of some concern was Dr Badami's evidence concerning the availability of physiotherapists in the gaol system. He said there are 11,600 inmates spread over 32 gaols in NSW. There was no evidence of the number of inmates in need of physiotherapy. When asked how many physiotherapists were available across New South Wales, Dr Badami laughed and said "two". The tone of his response involved an implicit agreement that the resources were insufficient to deal with the number of prisoners and the number of gaols.
8. The Justice Health file is littered with requests by the offender for more medication to deal with his various ailments and his pain. In December 2014 he "threatened self-harm due to extreme pain and not being given extra medication to manage it".

The relevance of the offender's health to the sentencing exercise.

1. In spite of the manifest credibility issues that arose in his evidence before the jury, the Crown does not dispute the offender's evidence as to his health condition and the extent of his pain. The Crown Prosecutor referred to "independent evidence of the existence of his health issues" and said it has "no material that would objectively falsify the subjective levels of pain said to be currently experienced by the offender". However, the Crown submits that the evidence is not such that it will make any difference to the sentence to be imposed. Senior Counsel says that the onus is on the offender and that he has not discharged the onus.
2. The Crown referred me to the case of R v Smith (1987) 27 A Crim R 315 where King CJ said (at 317): "How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. III health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
3. In R v Badanjak [2004] NSWCCA 395 Wood CJ at CL noted that the responsibility for providing adequate care and treatment for prisoners resides in the Corrective Services Authorities and said that it was "only in relatively rare cases that the Smith principle is applicable". The Crown Prosecutor pointed to the fact that these remarks were picked up in Leighton v R [2010] NSWCCA 280 at [36]. In Leighton v R Price J (with whom Simpson and Howie JJ agreed) also said (at [36]) that: 'Where ill health is considered to be relevant to the determination of sentence, the extent of the mitigation is to be balanced against the seriousness of the offence: R v BJW (2000) 112 A Crim R 1.
4. Price J went on to hold at [38]: "Notwithstanding any treatment that might be provided by Justice Health there is an abundance of evidence, which demonstrates that the applicant's ill health will make his time in gaol significantly harder. He suffers from chronic osteoarthritis in the hips, knees and shoulders, his mobility is compromised as is his breathing. He experiences chronic neck and back pain and his vision is adversely impacted upon by shingles. He has difficulties dressing himself and standing or sitting for any length of time. The austerity of prison conditions will add to the problems that the applicant has encountered in his daily living".
5. Price J concluded that the sentencing Judge fell into error in failing to take into account the applicant's health in the sentencing exercise. His Honour was of the view that it was entitled to "some weight" and would result in a "modest" mitigation of the appropriate sentence.
6. In my opinion this is a very similar case. I am satisfied that that imprisonment will be "a greater burden on the offender by reason of his state of health." I am also satisfied that there is "a serious risk of imprisonment having a gravely adverse effect" on his health. The former consideration is more potent than the latter but both have some application. Because of the objective gravity of the offending, the mitigation to the sentence will be modest. However, I will also consider whether it is a matter that might inform the question of special circumstances (s 44 of the Act) and the length of the appropriate non-parole period.

THE PURPOSES OF PUNISHMENT AND THE RELEVANT GUIDEPOSTS TO AN APPROPRIATE SENTENCE

1. I have taken into account the relevant purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as well as the principles of sentencing established by the common law. The sentence I impose must ensure that the offender is adequately punished and is held accountable for his crime. The sentence must serve to protect the community from the offender. The sentence must denounce his conduct and recognise the harm done to the victim, her family and friends and to the community.
2. The sentence should serve as a deterrent to the offender himself and should send a message to others that crimes such as these will be met with condign punishment. It should act as a deterrent to the commission of crimes of violence against vulnerable people and it should aim to deter alcohol fuelled violence. It is not enough to pay lip service to the principle of general deterrence. It must be reflected in the sentence actually imposed.
3. Another purpose of sentencing is to foster the rehabilitation of the offender. It is difficult to see how the sentence that I will impose will achieve that end. However, that is a consequence of the gravity of the offender's crime and current sentencing patterns.
4. Murder is the most serious offence known to the criminal law and carries a maximum penalty of life imprisonment. That penalty will be imposed in the most serious of cases and it is not suggested by the prosecution that this is such a case. Nevertheless, in determining the appropriate sentence, "careful attention" to the maximum penalty is required: see Markarian v the Queen [2005] HCA 25; 228 CLR 357 at [30]-[31].
5. Each of the arson offences carries a maximum penalty of ten years imprisonment.
6. There is a standard non-parole period of 20 years for the murder offence. The way in which the standard non-parole period is to be applied was determined by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Along with the maximum penalty, it is an important statutory guidepost to the seriousness of the offence. However, it is erroneous to commence with the 20 year standard non-parole period and to oscillate up and down based around my assessment of the objective gravity of the offence (comfortably above mid-range) and relevant subjective features (such as the offender's medical conditions). The correct approach is to synthesise all of the various relevant factors (including the standard non-parole period), to balance the purposes of punishment and to determine the punishment that I consider to be just in the individual circumstances of this case.
7. I have considered the statistics maintained by the Judicial Commission. However, the range of sentences there disclosed and the wide diversity of circumstances in which the crime of murder might be committed, means that the statistics are of little, if any, assistance.
8. Mr Dennis has provided me with references to some cases that he says have some common features with the present case. As I understand it, the Crown Prosecutor accepts that these cases are a fair selection. Of course, no two sentencing cases are alike and I must exercise some caution in my approach to those cases. I have considered the sentencing outcomes in those cases as well as a number of other cases decided by members of this Court. That survey leads me to the conclusion that the sentence that I consider to be appropriate does no violence to the public's legitimate expectation of consistency of punishment.
9. Of course, there is no single, correct sentence and minds may (and often do) differ as to the appropriate length of a sentence.
10. I do not propose to impose the standard non-parole period for the offence of murder in the present case. For the purpose of s 54B(3) of the Act, I record that my reasons for that decision are recorded throughout this judgment. The health of the offender is a particularly important factor. However, I have dealt with that matter in the manner disclosed in this judgment and I have incorporated it into the many features of the case that lead me to the conclusion as to the appropriate sentence to be imposed on the offender.

ACCUMULATION, SPECIAL CIRCUMSTANCES AND THE STRUCTURE OF THE SENTENCE

1. Mr Dennis concedes that there must be a degree of accumulation in relation to the sentences to be imposed. Questions of accumulation and concurrency are questions of discretionary judgment. While there are two different victims, in my assessment the two arson offences can appropriately be dealt with by the imposition of concurrent sentences. However, there must be a degree of accumulation between those sentences and the sentence to be imposed on the murder charge. Even though the offences are closely related and the motive for the arson was to cover up the murder, they are two distinct and separate acts of criminality.
2. I have taken into account the principle of totality in determining the degree of partial accumulation. Because of the accumulation, and because the non-parole period for the murder charge will extend far beyond the expiration of the sentences to be imposed for the arson offences, I decline to set a non-parole period in respect of the sentences imposed for the two arson offences.
3. The accumulation of the sentences is itself a matter that would justify a finding of special circumstances pursuant to s 44 of the Act. However, more significant is the hardship of incarceration on this offender arising from his various medical conditions and his chronic (and at times severe) pain symptoms. Ultimately, the parole authorities will determine whether the offender should be released at the expiration of the non-parole period that I will impose. That will turn to a large degree on his progress while in custody and assessments then made as to his prospects of rehabilitation and ability to assimilate back into society without posing a danger or risk to the community. I am conscious not to "double count" the accused's medical conditions and have carefully considered the appropriate weight to be given to the factor when assessing the total sentence. When adjusting the non-parole period to reflect my finding of special circumstances, I have taken into account the extent to which the matter has operated to mitigate the total sentence.
4. In R v Mastrionardi [2004] NSWCCA 273 Sheller JA (with whom Sperling and Adams JJ agreed) said: "On the other hand his need for protective custody means that any time he spends in prison will be significantly more onerous than otherwise would be the case. There are, it seems to me, special circumstances in that the applicant needs to be kept in strict protection; R v Astill (No 2) (1992) 64 A Crim R 289 at 293, 301 and 304 and suffers serious psychological sequelae as a result of the assault upon him in prison. In Astill at 294 Kirby P, after referring to the judgment of Lord Lane CJ in R v Davies; Gorman v R (1978) 68 Crim App R 319 at 322, said: "But is it clear (and really a matter of 'common sense' as the Lord Chief Justice declared) that ordinary sentencing principles would require consideration to be given to the disparity between arduous sentencing conditions and ordinary sentencing conditions." Logically, this factor should be brought into account in determining the full term sentence as well as a special circumstance in determining the non-parole period."
5. I have applied the same kind of reasoning to the present case. In doing so, I am conscious that I must not count the same matter twice. However, as Mason CJ and McHugh J said in Bugmy v the Queen at 531 "the considerations which a sentencing judge must take into account when fixing a minimum term will be the same as those applicable to setting the head sentence". Their Honours went on to observe that the weight attached to those factors may differ (see also R v Kwon [2004] NSWCCA 456 at [19]-[21]). I have made a modest adjustment to the total sentence. I could make no more than a modest adjustment due to the seriousness of the crime. Both components of the sentence must denounce the crime and make the offender accountable for his actions. I have also made an adjustment to the length of the non-parole period. In doing so, I have taken into account the adjustment already made to the total sentence. The adjustment to the non-parole reflects my finding of special circumstances. That finding is based on the partial accumulation of sentence and the fact that the offender's time in custody has been, and will continued to be, more onerous as a result of his medical condition. The offender will be aware that his release at the end of that period will largely be determined by his performance while in custody.

SENTENCING

1. Andrew Mervyn Sumpton, in relation to each of the offences of arson, you are sentenced to imprisonment for a period of four and a half years. Those sentences will commence on 24 May 2012 and expire on 23 November 2016.
2. For the crime of murder, you are sentenced to a non-parole period of 19 years. That sentence will commence on 24 November 2013 and expire on 23 November 2032. There will be an additional term of 8 and a half years commencing on 24 November 2032 and expiring on 23 May 2041.
3. The total effective sentence is 29 years with a total effective non-parole period of 20 years and 6 months. The earliest date upon which you are eligible to be released on parole is 23 November 2032.
4. Pursuant to s 25C (1) of the Crimes (High Risk Offenders) Act I advise you of the existence of that Act and the fact that it applies to you and to this offence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2015