(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).""
53 In this case my task has been made somewhat easier in that the offender entered a plea of guilty before the commencement of his trial. In accordance with the guidance in R v Way [2004] 60 NSWLR 168, that of itself provides a reason for departing from the standard non-parole period. Nevertheless, as R v Way made clear and as Studdert J remarked in R v White, the existence of the standard non-parole period remains as a guidepost and reference point to assist the Court in formulating an appropriate sentence.
54 As a start point in the process of reasoning recommended in R v Way, it needs to be remembered that murder is a crime which can be committed under a wide range of circumstances. There are always significant differences in the subjective circumstances. Generally an offence involving an intent to kill is more serious than one where the intention is to inflict grievous bodily harm (R v Hearne (2001) 124 A Crim R 451 at [34]). Similarly, a murder which is not premeditated is usually regarded as less serious than one which involves planning.
55 The attack on the deceased was not premeditated. Until the contact between the offender and Mr Siaa and his companions at about 4-5 am, relations between the offender and the deceased were not only cordial but they appear to have been affectionate insofar as the deceased's sister was able to judge earlier. It was the confrontation with Mr Siaa and his friends which provoked a fit of jealous rage in the offender. I should at this point make it clear that these feelings of jealousy were entirely unjustified. That combined with the offender's heavy intake of alcohol led to his attack on the deceased when he arrived home shortly afterwards. I find that the attack on her was not premeditated, nor was it planned.
56 There was no issue between the Crown and the defence that at the time of the attack the offender intended to cause grievous bodily harm to the deceased but did not intend to kill her.
57 The offence appears to have been committed as a result of a sudden onset of rage brought about by the confrontation between the offender and Mr Siaa. The attack on the deceased appears to have been spontaneous. The offender's advanced state of intoxication also needs to be taken into account on the question of intent.
58 Another consideration is the behaviour of the offender after the attack on the deceased. He did not attempt to escape nor conceal his crime but went to sleep after watching television. He was surprised and shocked when he observed the results of his actions at midday when he went to the bedroom. These circumstances are inconsistent with the actions of a person who had intended to kill the deceased and who believed he had successfully carried out that intention.
59 There is simply no evidence to justify a finding beyond reasonable doubt that the offender had an intention to kill. All the available evidence indicates that the intention was to inflict grievous bodily harm upon the deceased and I so find.
60 It was submitted, on behalf of the offender, that the objective gravity of the offence was reduced because of the offender's mental health problems and in that regard general deterrence should not be given as much weight as it normally would. I do not agree.
61 These matters were carefully considered by Dr Westmore. It is clear from his analysis that whether or not the offender suffered from some schizophrenic condition, it made no contribution to his actions on the night of the offence.
62 The offender's actions were fuelled by an unjustified belief that the deceased had been unfaithful to him and by his resentment of Mr Siaa against a background of very heavy drinking. The offender engaged in this episode of binge drinking in circumstances where he knew from previous experience that he often acted violently when he was heavily affected by alcohol.
63 I should say something more about the offender's advanced state of intoxication. Clearly, as the plea of guilty concedes, it was not sufficient to prevent the offender forming the necessary intent to inflict grievous bodily harm. Nevertheless it is a matter to be properly taken into account as part of the background circumstances. It is relevant to take into account that alcohol played a significant part in causing the offender to lose control and act in such a violent way. That having been said, it was well known to the offender that when heavily affected by alcohol he was prone to behave violently and that on occasion such violent behaviour was directed against the deceased.
64 In those circumstances whilst it is relevant to take into account the part that alcohol played in the offence, it does not greatly reduce the objective seriousness of it. I do not accept that any mental health problems on the part of the offender should reduce the objective seriousness of the offence and accordingly general deterrence remains a significant factor to be taken into account.
65 As required by s 54B of the Act, I need to take into account the aggravating and mitigating factors referred to in s 21A of the Act.
66 There was an issue between the parties as to whether the offender used a weapon in his attack upon the deceased (s 21A(2)(c)). On behalf of the offender it was submitted that the Court could not be so satisfied because despite the objects found near the deceased, none except the fan had blood on them. In that regard it was submitted that there was no evidence of skin or congealed blood on the fan, rather the evidence was that of blood spatter.
67 The Crown relied upon the violence of the assault per se, the blood on the fan and the position of the objects surrounding the body of the deceased. The Crown also relied upon the opinion of Dr Ellis that "some of the injuries which were present suggested the impact and fracturing of pieces of glass".
68 While I agree with the submission put on behalf of the offender, that the Court cannot be satisfied beyond reasonable doubt that the offender did use a weapon to attack the deceased, it seems to me that the question is largely academic. The attack was clearly a violent and frenzied one. The seriousness of the offence is clear when one considers the comparative size of the deceased and the offender and the nature of her injuries, particularly those to the head, and the use by the offender of his fists and feet in the attack.
69 The only matter of significance in the offender's previous criminal record relates to an assault by him against the deceased in August 2005 when he was heavily intoxicated. This of itself does not count greatly against him (s 21A(2)(d)) except that it involves the same type of conduct which brought about the death of the deceased on this occasion. The real matter of aggravation, for the purposes of s 21A(2), is that this offence was committed when the offender was on conditional liberty being subject to a bond and the offence involved a breach of the apprehended violence order which was still effective (s 21A(2)(j)).
70 I agree with the submission of the offender that the fact that the offence involved the actual or threatened use of violence (s 21A(2)(b)) and that the emotional harm, loss or damage caused by the offender was substantial
(s 21A(2)(g)) do not amount to matters of aggravation. This is because these subsections give rise to features which are elements of the offence to which the offender has pleaded. These features were present but they are the inevitable elements in any offence of murder, it being the most serious offence in the criminal calendar.
71 In relation to mitigating factors, it was submitted on behalf of the offender that he was unlikely to re-offend (s 21A(3)(g)) and that he had good prospects of rehabilitation (s 21A(3)(h)). I am not satisfied that this can be stated in such unequivocal terms. The offending was associated with poly-substance abuse which has continued. Although Dr Westmore and the Probation and Parole Service refer to the fact that the offender has some insight into his problem, neither could offer any unqualified assurance that the offender would be unlikely to re-offend. The offender would need to first bring his substance abuse under control. There remains doubt as to whether that can be achieved.
72 There was no question but that the offender is genuinely remorseful about his conduct. He voluntarily surrendered himself to the police. He has substantially co-operated with the police. His plea of guilty is consistent with this genuine remorse. His letter to the Court and behaviour while in custody support that conclusion.
73 I have regard to and I apply the principles stated by the Court of Criminal Appeal in relation to discounts for pleas of guilty in R v Thomson & Houlton (2000) 49 NSWLR 383. The Court of Criminal Appeal there explained the reasons why a plea of guilty should attract a lower sentence. The reasons identified by the Court were firstly, the plea demonstrates remorse or contrition; secondly, the plea has a utilitarian value for the efficiency of the criminal justice system and thirdly, in particular cases there can be a value in avoiding the need to call witnesses, especially victims, to give evidence. The Court of Criminal Appeal suggested a range of 10% - 25% as a discount on sentence for a plea of guilty.
74 In relation to the offender's plea of guilty, although it was made late, I am of the opinion that he is entitled to a discount because of its utilitarian value. The reason for the delay in the offender's plea of guilty was to enable the question of mental illness to be fully explored by Dr Westmore. From the material contained in Dr Westmore's report this was a reasonable approach on the part of the offender's legal advisers. The Crown agreed that this was so.
75 The utilitarian value of the plea was real because it relieved witnesses, and in particular members of the deceased's family, having to revisit the events leading up to the deceased's tragic death under oath in the witness box. The Crown accepted that in the circumstances of this case the offender's plea of guilty entitled him to a discount within the range of 15%-20%. On the facts of this matter the discount I propose to apply is 15%.
76 All of the above matters are relevant in considering the relative seriousness of the offence for the purposes of sections 54A and 54B of the Act. As was said in R v Way:
"[86] Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its
commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example,intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.
[87] Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both, the seriousness of the offence and punishment, so far as deterrence is concerned.
[88] In an assessment of the objective seriousness of the subject offence it seems to us that attention must accordingly be given to the factors mentioned above. Some of these relevant factors will be elements of the offence itself. Others
will fall within the list of aggravating and mitigating factors referred to in s 21A(2) and (3) of the Act, so far as they relate to purely objective considerations."
77 Taking those matters into account I am satisfied that this offence is not a matter which should be properly characterized as coming within the mid range of objective seriousness for offences of this kind. I see the offence as being close to that standard, but below it. Accordingly, I find that the standard non-parole period ought not to apply to the offence. That is not to say that I propose to ignore the standard non-parole period of 20 years. It remains, as the authorities have pointed out, an important guidepost and reference point in the sentencing process (R v AJP (2004) 150 A Crim R 575 at [122]).