R v Valiukas

Supreme Court of NSW|2009-05-08|Before: Hulme J, Mr P

HEARING DATE(S) : 29 April - 8 May 2009, 31 July 2009

DECISION : Sentenced to imprisonment for a term of 18 years with a non-parole period of 13 years 6 months

CATCHWORDS : CRIMINAL LAW - sentence - murder - unsuccessful defence of substantial impairment by abnormaility of mind - relevance of state of mind at time of offence - reduced moral culpability and emphasis on general deterrence - ten year delay from offence to sentence - favourable subjective case - protective custody

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Bloomfield (1998) 44 NSWLR 734 R v Champion (1992) 64 A Crim R 244 R v Cheatham [2002] NSWCCA 360 R v Elphick [2002] NSWCCA 273 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Letteri, NSWCCA 18 March 1992, unreported R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 R v Patrick Joiner [2002] NSWCCA 354; (2002) 133 A Crim R 90 R v Way (2004) 60 NSWLR 168 R v Woods [2009] NSWCCA 55

COUNSEL : Ms M Cunneen SC (Crown) Mr P Winch (Offender)

SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: The offender, David Martin Valiukas strangled his former partner and mother of his two children, Ms Lisa Clymer, in her home at Bradbury on about 21 September 1999.

2 On 29 April 2009 he was arraigned upon a charge of murder to which he pleaded not guilty but guilty of manslaughter. The Crown did not accept that plea and so a jury was empanelled and a trial proceeded. On 8 May 2009 the jury returned a verdict of guilty of murder.

3 The crime of murder has prescribed for it a maximum penalty of imprisonment for life. The standard non-parole presently prescribed only applies to offences committed after the commencement of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. 4 Before saying anything further there is something I wish to address to the family and friends of Lisa Clymer, either those present now or those who may later read these remarks. It may seem strange or unfair to them that there is so much attention given to the personal circumstances of the offender and to the law and little mention made of Ms Clymer herself. I can understand that punishment and retribution are the purposes of sentencing that they may well want the Court to give the most attention. It would be entirely understandable that they might expect to see the depth of their loss and grief reflected in the sentence imposed. That is unlikely to occur simply because no sentence can truly compensate for that loss. I listened with interest when Ms Kerry Martin, Ms Clymer's aunt, read the victim impact statement in court on the last occasion. I am grateful for her doing so as it served the purpose of making known to the offender, to the public and to me, the impact the offender's actions have had upon the lives of so many people. I repeat what I said then that Ms Martin was a very brave and strong woman for having read that statement out in court and that she, and all of Lisa Clymer's family, have my condolences. That is what I can say at a personal level. It must, however, be understood that I am charged with the responsibility of sentencing the offender according to law and that demands that I be impartial, objective and rigorous in the application of legal principle.

5 There was no issue in the trial that the offender killed Ms Clymer. The only issue was whether he was guilty of murder or of manslaughter. It was his case that it was the latter in that he sought to make out the partial defence of substantial impairment by abnormality of mind. Thus, while he conceded that all of the elements of the crime of murder were proved by the Crown, he assumed an onus of persuading the jury on the balance of probabilities that he should be found guilty of manslaughter because at the time of the killing his capacity either to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition, and, that such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter: s23A Crimes Act 1900

6 The jury, obviously, failed to be persuaded of one or the other, or both of those matters. Nevertheless, the evidence relevant to those issues, primarily to the first, remains of some significance: R v Cheatham [2002] NSWCCA 360 at [134].

7 Four psychiatrists gave evidence in the trial. The Crown called Drs Westmore and Allnutt and the defence called Associate Professor Quadrio and Dr Carne. They were each of the opinion that, provided the offender's version of events was accepted, at the time of the killing he was likely experiencing a dissociative episode which would have affected his capacities to understand events, to judge whether his actions were right or wrong, and/or to control himself. There was some divergence of opinion as to the underlying condition from which this abnormality of mind might have arisen. Associate Professor Quadrio was of the view that it was chronic post traumatic stress disorder together with a personality disorder of mixed type with schizotypal and avoidant features. Dr Westmore did not obtain a history that enabled him to make the diagnosis of post traumatic stress disorder but agreed that it was open on the history obtained by his colleague. Dr Allnutt disagreed with that diagnosis but accepted that the offender had a mixed personality disorder with avoidant or schizoid traits. Dr Carne thought that the relevant underlying condition was a depressive and anxious personality. I do not think these differences of opinion are significant. Each of the experts were agreed as to the essential aspects of the first limb of the defence being made out, provided as I have said that the offender's version of events was accepted. 8 I should say something about this concept of dissociation. Dr Westmore put it this way: "The term dissociation is used in a number of different ways in psychiatric medicine. Firstly it's used to describe a particular defence mechanism, these are normal mechanisms that everybody uses from time to time in an unconscious way. It is effectively to block out certain thoughts and feelings so that we aren't affected by the anxiety which is generated by those feelings. It can be a state, a condition called a dissociative state which tends to be a transient condition frequently recurring during which time a person usually in response to an emotional trigger enters into a state of dissociation. The duration of that state of dissociation may vary. It can be a few moments, it can last for days. During that time a person can act in an apparently normal way to people who see them, not necessarily to people who know them well but to strangers they may act in an apparently normal way and people have been known (to) engage in very complex tasks during such a state and have no memory of doing those tasks." Associate Professor Quadrio said: "…(D)issociation means there's a disruption of memory and consciousness. So by definition if someone is dissociated they are not - they're not in a clear conscious state, they are not necessarily aware of their surroundings, they may not be aware of the passage of time, they may lose awareness of their identity or of the identity of other people so by definition dissociation does mean that." 9 Dr Westmore offered the opinion in his report that a defence of sane automatism was not available and such a defence was not pursued at the trial.

10 The Crown case at trial was that the jury would not accept that the offender was experiencing a dissociative episode at the time of the killing because his version should not be accepted. The Crown Prosecutor advanced a number of arguments in her closing address to the jury as to why that was so. Mr Winch, counsel for the offender, has submitted that I should proceed to sentence upon the basis that the first limb of the partial defence of substantial impairment of mind was established. The Crown, now, does not disagree. Notwithstanding this concession by the Crown, I must make up my own mind on this issue. In explaining the conclusion to which I have come it is necessary to set out some of the relevant evidence. It is derived from the offender's evidence in the trial as well as from the history he gave to each of the psychiatrists.

11 Mr Valiukas is the oldest of three brothers. He was brought up in the Eastern Suburbs of Sydney. His father was an alcoholic who physically assaulted him on many occasions, often hitting him with a leather belt. The offender also witnessed his father assaulting his mother and being cruel to family pets. As a result, so he said, he became a very solitary person and kept to himself. He also claimed that at the age of about 11 or 12 he was sexually molested by two men by the name of Wally and Rod.

12 The offender left school in Year 10 and obtained employment. At some stage his mother bought a pet shop and one day when working in that shop he met Ms Lisa Clymer who had come to the store as a customer. They struck up a friendship which quickly developed into a relationship. They lived with each other both in Sydney and in the country for some years. They had two children who are now aged 11 and 14.

13 The relationship did not proceed smoothly and there were a number of separations for short periods. There was an incident between the two when they were living at Wellington in May 1998. They were each to allege being assaulted by the other but on either account it was relatively minor and for present purposes nothing really turns on what the true state of affairs was. On any view, that incident serves to confirm the volatile nature of the relationship.

14 The offender claimed in his evidence that there came a time when there were regular arguments and that this occurred with increasing frequency. He said that in about one in four of the arguments Ms Clymer would become violent towards him. He said that in about August - September 1998 it was decided between the two that it would be best if they separated for good. He went to live with his mother who was living at Mumbil in the central west of the state and Ms Clymer returned to her parents' home in the south western suburbs of Sydney. Ms Clymer retained custody of the children and in the year or so prior to her death he saw the children on possibly two or three occasions.

15 In September 1999 the offender travelled to Sydney for the purpose of seeing the children and taking them back to Mumbil to stay with him for a a week or so. He stayed for some days at Ms Clymer's new home at Bradbury with her and the children. He said at first they were amicable to each other.

16 The offender's account of the day of the killing was as follows. He said that tempers had become frayed because they had spent most of their time trying in vain to purchase cannabis. I interpolate that there was said to have been a history of cannabis use by both of them. That evening he said that Ms Clymer made overtures of a sexual nature which he rejected. It was late in the evening and the children were in bed. Ms Clymer became very angry. He removed himself to one of the bedrooms upstairs where he proceeded to smoke a pipe of tobacco. Ms Clymer came to that bedroom. He continued, "She threw open the door … Came in yelling, what I'm not sure, it was fairly incoherent. Basically came at me and threw a cup of coffee in my face as she was yelling and screaming at me". He said he was yelling at her to stop it and he raised his hands to ward off the blows that were coming his way. He was asked what sort of blows were coming his way and he said, "Basically just wild - wild swings". He then said, "My next recollection is realising that she'd stopped hitting me". He said that just before this happened, "I had the mental impression that it was my father towering over me … I had the impression of being a small child again". The image he had of his father was of him swinging the belt. He was asked if he had any other mental images at the time and he said, "It changed from a picture of Lisa swinging the coffee cup at me to my father with the belt to Wally standing over me … He was naked and leering over the top of me". He was asked if there was anything about the way Ms Clymer looked at the time she was screaming at him and he said it was almost like a carbon copy of his father when he became enraged. He explained that when his father "got very drunk and aggressive his face would go red and his eyes would bulge out and Lisa reminded me very much at that stage of him".

17 When he became aware that Ms Clymer was not hitting him anymore he opened his eyes and realised that he had his hands around her neck. He released her and she fell to the bed. He collapsed on to the bed, feeling that this was some sort of nightmare and that it could not be real. He soon came to realise that it was real, however, and he decided the only thing to do was to hide what he had done. He hid the body in a large red chest. In the morning when the children woke and asked after their mother he told them that she had gone out.

18 The offender stayed with the two girls in the house for the next two or three days. He then trussed up the body and put it in a bag which he placed in the boot of the car. He took the girls around to their grandparents home to inform them that they were leaving to go to Mumbil. They then made the trip to his mother's home. He said that after they had alighted the car and he had unpacked the clothes and children's toys he "loaded Lisa into a wheelbarrow and took her down to the shed". The shed was full of rubbish, including car parts and the like. He moved some items and placed the bag containing the body in a rear corner and then moved items so as to conceal it.

19 In the time that followed the children remained living with him at Mumbil. He gave up his employment at a local vineyard so as to look after them. To people who inquired about Ms Clymer's whereabouts, including her father, he created an elaborate story about her having "gone away".

20 Detective Barr gave evidence of what the offender told Ms Clymer's father, who is now deceased, and what he said to police. He told Ms Clymer's father that Ms Clymer had left home on 21 September 1999 and not returned. He told police that he had been staying at her home for about a week. They had slept together but he had told her that this was unwise and they should not continue in a sexual relationship. He said that they had argued about this. He told police that he went to bed at about 11.30pm on Monday 20 September or Tuesday 21 September 1999 after arguing and when he woke up she was not home. He said that during the following night, at about 4.00am he heard a door slam and saw a car outside. He then found some of Ms Clymer's clothes had been taken from the house. He said he went home with the children on Friday 24 September 1999. He told Mr Clymer that he hoped that Ms Clymer would keep an arrangement they had made for the return of the children, that being that she would meet them at Lithgow railway station on an agreed date and time. He rang Mr Clymer about a week later and told him that Ms Clymer had not attended. The following day, 3 October 1999, Mr Clymer went to Macquarie Fields police station and reported his daughter missing.

21 The offender disputed it but I am satisfied that he made two withdrawals at ATMs from Ms Clymer's bank account on 23 and 30 September 1999 at locations she was associated with that would support his false account that she was still alive and had simply gone away somewhere.

22 Police formally interviewed the offender on 3 June 2002. The interview was lengthy but for present purposes it is sufficient to say that he maintained a version, with an extraordinary amount of detail it must be said, of Ms Clymer having suddenly disappeared. He explained in his evidence that by this stage he had repeated the story of Ms Clymer running off so many times that he had come to believe it himself. Heavy use of cannabis, he explained, helped in that process.

23 In early 2007 the Coroner at Westmead proposed conducting an inquest as it had been by then presumed that Ms Clymer had died. The inquest was set down for hearing on 26 and 27 April 2007. The offender was nominated as a person of interest and had been subpoenaed to appear. On 24 April 2007 the offender made a serious attempt to take his own life. At some stage before doing so he wrote a number of notes and letters. One such letter was addressed to Detective Barr and was said to be "an honest account of Lisa Clymer's disappearance". It included an account of having been physically abused by his father, sexually abused by a man called Wally and his friend, and being "beaten and abused" by Ms Clymer. It included: "I was never violent towards Lisa, even when struck. When she gave me herpes I wasn't violent. When she gave me warts I wasn't violent. Even when she had at least three affairs I didn't hit her. I yelled and cried a lot, but didn't hit her. Lisa was the one to hit me … I had many black eyes, broken rib (sic) and assorted other injuries and still never touched her. Even now that its too late, I want you to know that what happened was a terrible accident. I feel so guilty about it I am compelled to truly punish myself. Since that night I have been racked by remorse and loathe myself totally. If it wasn't for my girls, I would have come clean straight away. Lisa and I had been arguing that night … about why I wouldn't sleep with her anymore. I went upstairs to end the dispute and hide away for a while. Shortly afterwards, Lisa came upstairs and cornered me between the bed and the wall. I don't remember exactly what she said, but I vividly recall her bulging eyes, her red cheeks and spit flowing from her mouth as she screamed at me. Suddenly she dashed her coffee in my face and began to hit me. I closed my eyes, seeing the faces of Lisa, Wally and my father strobing into my brain. I struck out, yelling "Stop it, stop it". It seemed to me the next moment she stopped hitting me and I released her. She fell onto the bed, not breathing. I just stood there, stunned, slowly realising what I had done. Because I still loved her, I couldn't just dispose of her. I bought (sic) her home with me and I often visited her. Lisa's remains lie in a red and blue nylon tote bag located in the far corner of my mother's back yard shed. … You probably won't believe me, but this was a terrible accident that I have anguished over for years. I never meant to hurt her, I still love her"

A letter to his mother included a claim that he had been "abused and beaten by the only woman I ever loved". It then reads: "You must understand what I'm referring to by now - don't think I was a bastard, even a cowering mongrel dog will bite at you if backed into a corner, and I was".

Further on it reads: "I'm sorry it had to come to this, but I knew no other way out. At least I'm no longer living in fear. Again, please understand that I wasn't a bad guy, just attacked once too often and backed into a corner. I never meant to hurt Lisa, the pathetic truth is I still love her".

24 The following day, 25 April 2007, police went to the offender's mother's home at Mumbil where they found Ms Clymer's skeletal remains in the bag in the shed as the offender had described.

25 The offender was arrested on 26 April 2007. He exercised his right to silence and he was then charged with murder. He has been in custody since.

26 In his evidence concerning the suicide attempt, the offender said that he had stopped smoking cannabis because he had wanted to set a good example for the children as well as to be able to meet his mortgage repayments. That was in 2005 or 2006. Thoughts of what he had done to Ms Clymer came back to him once he was no longer under the influence of drugs. His mental state deteriorated, he stopped eating and sleeping and suffered dramatic weight loss. He said the pending inquest was probably the last straw. He said the purpose of the letter to Detective Barr was to ensure that Ms Clymer had a proper burial and for the truth to be known and the case closed. He claimed that he told the truth in each of the letters he left.

27 Counsel for the offender argued before the jury that they should accept his version of events as it was first recounted in the offender's writings which he made at a time when he did not expect to live. Therefore, so it was contended, the offender had nothing to gain by being anything other than truthful in setting out that version. I accept that this is a significant argument but the fact that this version was set out in suicide notes does not necessarily mean that it is entirely accurate. It is not beyond the human psyche to want people to think better of one's self than is in truth justified, even in death. Moreover, the offender has a demonstrated capacity to fantasise and embellish. The fact that he was able to weave an elaborate tale of Ms Clymer's "disappearance" and to maintain it for such a long time to the point of coming to believe it himself is eloquent of that. I am not satisfied that he did not embellish his account of Ms Clymer's behaviour during the course of their relationship and so I am not prepared to accept everything he has said about it. I am sceptical about his allegations of violence and infidelity on her part. I have not, of course, had an opportunity to hear what she might have said on the subject.

28 Having said that, however, I am prepared to accept, as the Crown has conceded, that he did experience a dissociative episode at the time he killed Ms Clymer. That much of his suicide note version is likely to be truthful. The psychiatrists were of the view that it was a description of a dissociative episode. There is no suggestion of the offender having any knowledge of psychiatry or the law and thus no suggestion that he was aware that he might be regarded as legally less culpable if the killing occurred in the circumstances he described. There is an absence of any competing alternative version of events. One hypothesis advanced by the Crown at trial was that the offender simply became enraged in the course of a domestic dispute. If that had been the case, it seems rather unlikely that the offender would include in his version that he saw visions of his father and those who molested him, rather than simply laying all the blame upon the behaviour of his former partner. Finally, I note that the offender has been consistent in his account as to experiencing flashbacks to the events in his early life in his suicide notes, his versions to each of the psychiatrists and in his evidence in the trial. Accordingly I propose to sentence on the basis of the partial defence having failed on the second limb only.

29 The offender was born in 1966. He was aged 33 at the time of the offence and is now 43.

30 He has no previous criminal convictions. The Crown concedes and I accept that I must take into account in his favour the statutory mitigating factors that he has no record of previous convictions and is of prior good character. There are a number of other mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 that must also to be taken into account. The offence was not planned. Since April 2007 the offender has accepted responsibility for his actions and has been remorseful. By sentencing on the basis of the first limb of the partial defence having been established it follows that I must accept that at the time of the offence he was not fully aware of the consequences of his actions.

31 Mr Winch submitted that I should also take into account that the offender is unlikely to re-offend and has good prospects of rehabilitation. Initially I had some misgivings about this because of the possibility that the offender may repeat his extremely violent response to a turbulent situation that provokes in him another dissociative episode. Upon reflection, however, I have concluded that I accept on the balance of probabilities these mitigating factors, the primary reason being that the incident with Ms Clymer was a single episode unparalleled in the offender's entire life. I also take into account the evidence before me to the effect that the offender has generally lead a quite life and, in the years between the offence and coming into custody, was a devoted attentive son to his mother and father to his two children. Letters from his mother and each of the children provide detail of these matters as well as describing the various ways in which the offender helped others within the small community of Mumbil. The fact that the offender undoubtedly has family support is another factor favouring the finding as to his rehabilitation prospects.

32 None of the aggravating factors listed in s 21A(2) are relevant. The factor of the offence being committed in the home of the victim does not have any real significance in that I am already taking into account that this was a killing in a domestic context between two people who had formerly been in an intimate relationship. The fact that the killing occurred in the victim's home does not really add anything of significance.

33 Mr Winch submitted that the offence "falls below the median in terms of objective seriousness". The Crown Prosecutor submitted that "the fact that it may not quite approach the mid-range cannot be gainsaid in all of the circumstances because of the lack of aggravating features that - not one actually that I could think of from section 21A is applicable and many of the mitigating circumstances are".

34 The presence of a number of mitigating circumstances in s 21A(2) does not necessarily have a bearing on an assessment of the objective gravity of the offence. Many of them are not relevant to that issue as they are circumstances personal to the offender: see R v Way (2004) 60 NSWLR 168 at [86]. Those that are relevant are the lack of planning and that the offender was not fully aware of the consequences of his actions at the time of the offence. The absence of aggravating factors does not necessarily reduce the gravity of the offence: see, for example, R v Woods [2009] NSWCCA 55 at [53].

35 In the present case, given the spontaneous and, indeed, the reactive way in which the crime was committed, and the offender's reduced moral culpability because of his impaired awareness of the consequences of what he was doing, I am prepared to accept the submission which represented the mutual position of both Crown and defence that the objective seriousness of the offence falls below the middle of the range. I am not, however, prepared to find that it is at the low end of that range. It must be firmly borne in mind that the offender is responsible for the intentional taking of a young life by an act of extreme violence.

36 General deterrence is ordinarily a significant factor in sentencing, particularly for the crime of murder. However, in the case of an offender who acts with an impaired capacity to understand events or to judge whether his actions were right or wrong there needs to be careful consideration of this issue.

37 Sperling J set out the following principles in R v Hemsley [2004] NSWCCA 228 at [33]-[36]: "Mental illness may be relevant … in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

Secondly , mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSWCCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSWCCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

Thirdly , a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

A fourth , and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]." (emphasis added)

38 Whilst his Honour was speaking about mental illness, the principles extend to cases where there is a mental disorder or severe intellectual handicap: see, for example, Letteri, supra. I am prepared to accept that they should be applied in the present case. The first and second considerations are relevant. As there is no suggestion that the offender is presently mentally ill, or that he ever was, and there is no evidence that he presents a continuing danger to the community, the third and fourth considerations can be put aside.

39 It is to be noted that the authorities do not say that general deterrence must be ignored, rather that it is a consideration that should be moderated: Champion (1992) 64 A Crim R 244 at 255; Regina v Cheatham (2002) NSWCCA 360 at [131] . The degree to which that is so will depend upon the circumstances of the case. This case can be contrasted with a case involving an offender suffering from an enduring mental illness. Here the offender is a relatively intelligent man with his full mental faculties available throughout his life except for a few moments on the night of 21 September 1999. He quickly realised what he had done and then embarked upon a complex and intricate trail of deception of his victim's family and friends as well as the authorities. He had his then very young children think that their mother had simply abandoned them. Ms Clymer's family were given to think that their Lisa had been so callous and selfish that she would just up and leave them and her children seemingly without any thought or care. They endured all of this for almost eight years before the truth was known and then they had the horror to find that her body had been dumped in a grubby shed and left to rot. Mr Clymer, most sadly, passed away without ever knowing the truth. In my view, this is a case in which considerations of general deterrence should be moderated but the degree to which that is so should be relatively slight.

40 The circumstances of the offender's incarceration is a factor to consider. A report of Dr Carne of 21 July 2009 indicates that he has experienced some distressing incidents whilst on remand - the suicide of a cellmate, being assaulted by some fellow inmates and not being permitted to attend the recent funeral of his father. He has been in protective custody by choice because of the assault and feels safer there. Education, rehabilitative and recreational facilities are limited. He has suffered from insomnia, nightmares and flashbacks as a result of the cellmate's suicide. He has been prescribed a relatively high dose of anti-depressant/anti-anxiety medication. He did, however, tell Dr Carne that overall he was not coping too badly. He did not mind occasions when he was locked in his cell for long periods of time as he preferred to be away from other inmates. Dr Carne noted that the offender was becoming withdrawn and the longer this goes on the more difficult it will be for him to rehabilitate himself into the community when he is eventually released. I will take all of these matters into account, although there are some difficulties in forecasting precisely what the custodial experience will be for the offender after he is classified and moves out of the remand environment.

41 A matter that requires particular attention in this case is the principle that I must impose a sentence that is consistent with the sentencing regime that prevailed at around the time of the offence. Current authority on this issue derives from Regina v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368. Sentencing patterns for the offence of murder have changed in the intervening period, most notably because of the introduction in 2003 of standard non-parole periods. Both the Crown Prosecutor and Mr Winch provided me with statistics compiled by the Judicial Commission of NSW of sentences for murders committed prior to 1 January 2003. Whilst the authorities are clear about the limited utility of sentencing statistics - see R v Bloomfield (1998) 44 NSWLR 734 - they are of some use when a court requires information concerning the pattern of sentencing in years gone by. The statistics that I was provided with were for "all offenders". In other words, they include cases where the offender has pleaded guilty and, it would be expected in most cases, received a discount on sentence for so pleading. There are 143 cases in that database. They reveal sentences ranging from 11 years to life with a median at 19 years. Eighty percent of sentences fell in the range from 16 years to something between 25 years and life. Non-parole periods range from as low as 7 years with the median at 14 years and eighty percent of cases being 11 years or more. Extracting the pleas of guilty and only looking at the balance reduces the database to 97 cases. To my mind that provides a more useful basis for comparison. In this database one sees that the sentences range from 14 years to life with the median at 20 years and eighty percent of sentences falling in the range from 16 years to life. Non-parole periods range as low as 9 years with the median at 15 years and eighty percent of cases being 12 years or higher.

42 Mr Winch submitted that the sentence to be imposed in this case should be considerably less than the median disclosed in the statistics for "all offenders". In support of this contention he provided a table of 79 cases of murder sentences imposed in the period 1997 to 2000. The table lends support to the proposition that sentencing for murder in that period was more lenient than now. Looking at the cases that are the most broadly similar to the present case one can see a range that is around or slightly less than the median disclosed in the statistics.

43 Whilst the Crown Prosecutor maintained that this was a crime of "some significant objective gravity, being the taking of a young life in violent domestic circumstances and leaving these relatives of the deceased in this dreadful state of uncertainty for so many years", she did not resile from her submission that "none of Mr Winch's submissions can be gainsaid by the Crown".

44 She provided me with the decisions of the Court of Criminal Appeal in R v Elphick [2002] NSWCCA 273 and R v Patrick Joiner [2002] NSWCCA 354; (2002) 133 A Crim R 90. In the former there was a sentence of 15 years with a non-parole period of 12 years with the appeal, which was dismissed, only being concerned with a contention that the sentencing judge erred in not finding special circumstances and in setting the non-parole period at greater than three-quarters of the total term. In the latter there was a sentence of 18 years with a non-parole period of 13 years 6 months. The appeal was only concerned with the conviction, not the sentence. The facts of those two cases are obviously not identical to the present case - no two cases are the same - however, they bear broad similarities.

45 No submission was made that I should find special circumstances and reduce the proportion of the sentence represented by the non-parole period but I have considered this issue nonetheless. I have concluded that the period of parole that would be allowed by sentencing in the usual proportions will be sufficient to cater for the offender's rehabilitation and reintegration back into the community upon release.

47 Sentenced to imprisonment for a term of 18 years with a non-parole period of 13 years 6 months. The sentence will date from 26 April 2007 and the offender will be eligible for release on parole on the expiration of the non-parole period on 25 October 2020. **********

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