R v Washbrook

Supreme Court of NSW|2019-08-09|Before: Walton J, McInerney J

BACKGROUND TO THE OFFENCE

The agreed statement of facts describes in some detail background details regarding the deceased.
By the time of his death, the deceased had lived in his home in Tahmoor for many years. He was well known although not liked by all.
The premises where he lived were untidy and squalid. The deceased kept many animals including dogs and chickens. He was known as a user and dealer of cannabis. Whether for this reason or other, he was extremely security conscious and amongst other things kept the front and rear doors locked.
Over the years, the deceased had been involved in a number of disputes and altercations with people in the neighborhood ranging from minor to extremely serious. There is no suggestion that the offender was involved in any of these previous incidents.

Period Immediately Prior to Offence

In the morning on Tuesday, 25 June 2013, the offender visited the deceased at his home. The offender was due to attend Picton Local Court for an unrelated matter. Coincidentally, the offender's cousin, Luke Painter, was also due to attend court that day. Mr Painter and the offender went to the deceased's house and stayed there for about an hour before going to court. After court the offender returned to his mother's house.
The offender returned to the deceased's house on Wednesday, 26 June 2013, and stayed for a few days. On that night, the offender and the deceased went to a neighbour's house to watch the State of Origin rugby league match. They then returned to the deceased's house where the offender spent the night.
The offender remained at the deceased's house on Thursday, 27 June 2013. During the day he helped the deceased take care of his animals by feeding the birds, chickens and dogs. At various times people visited the premises to purchase cannabis from the deceased. The offender and the deceased were seen together at these times.
The offender was with the deceased at his home during much of the day on Friday, 28 June 2013. At about 9:00am on Friday, 28 June 2013, the offender helped the deceased take a routine home delivery of dog food, bird food and chicken feed at his home.
The deceased sold cannabis to a number of people throughout the day, most of whom saw the deceased with the offender.
Sometime before midday the deceased contacted Bradley Wilkie about purchasing a pound of cannabis. Mr Wilkie visited the deceased at his home where they discussed the purchase. Mr Wilkie told the deceased that he would have to make a phone call to ascertain the price. He made a call and then told the deceased it would be $3,200 for one pound of cannabis and the deceased said he would take half of that. The offender was present in the deceased's home during this discussion.
In the afternoon of 28 June 2013, the deceased was supplied cannabis which he placed in a faded backpack. The offender was present during the transaction.
During the afternoon, the deceased and the offender also attended a bank and the Woolworths supermarket at Tahmoor.
That evening, the deceased's neighbour, Kerry Fail, attended the premises to watch an NRL match on television with the deceased. The offender was also present that evening, and was the only other person there. After the game had finished Ms Fail returned to her home across the road. This was the last time Ms Fail saw the deceased alive. The offender stayed with the deceased that night.

Objective Features

At some time on the morning of Saturday, 29 June 2013 (estimated to be between 10.30am and 11.20am), after staying at the premises overnight, the offender and the deceased had an argument over the deceased beating a dog which had been previously injured by the deceased.
In the course of the argument the deceased "yelled" at the offender and called the offender "useless" and "loser". The offender responded verbally (for some part of the argument). The offender became increasingly frustrated over a period of "five or ten minutes" and lost his temper in a way he had not previously lost his temper.
The offender gave evidence that he hit the deceased with a piece of "wood" which had been lying on the floor (a wooden pole was found at the crime scene in the lounge room of the premises with the deceased's blood on it). The deceased fell to the ground. The offender agreed in cross-examination he had hit the deceased in the head but could not otherwise recall other places he had struck the deceased. He stated he hit the deceased with the piece of wood two to three times. The offender hit the deceased whilst he was on the ground.
The offender described his attack as "being in a frenzy". I accept the submission advanced for the offender that, although there had been a domestic aspect to the relationship of the offender and the deceased, there had not been a history of domestic violence and the murder resulted from a spontaneous outburst of rage.
I accept that the deceased was conscious and attempting to move up to the cessation of the attack. That is illustrated by the picture of the deceased in Ex 2. The offender was asked whether he observed the deceased moving at the time that he left him and he replied "I think so. I can't remember". When asked if the deceased was still alive at that point, the offender stated: "I'm not sure". The offender stated that he kept hitting the deceased until he could no longer hear his voice.
The offender had not been drinking alcohol prior to the offence but had consumed marijuana which he had consumed "all night" and in the morning.
From the injuries inflicted, it is clear that the offender struck the deceased multiple times (more than estimated by the offender), and with considerable force, resulting in substantial blunt force trauma mainly to the head, torso and arms. The injuries included: 1. fractures to the upper and lower jaw including gross deformation of the face with the flattening of the left side of the forehead; 2. a large fracture to the base of his skull and comminuted fracture of the central frontal skull; 3. a fracture to his left eye socket and complete transverse fracturing of the nasal bridge; 4. a fracture of the hyoid bone; 5. lacerations to the face and scalp; 6. damage to the left ear; 7. haemorrhage and contusions of the brain; 8. bruising in a tram track pattern of the back; 9. a superficial laceration to the upper back; and 10. lacerations, haemorrhage or abrasions to the right forearm, right hand, left arm and left hand.
The offender had seen the bloodied condition of the deceased. He panicked and was scared. He left the premises quickly. He did not call triple-0 or render any assistance.
When he left the premises, the offender took with him his own backpack full of his clothes and a backpack containing cannabis which belonged to the deceased. The deceased left the back door open, allowing the dogs and chickens to enter the premises. The Crown submitted that the offender left the back door open to contaminate the crime scene. That submission may be accepted as it is consistent with later statements by the offender to his cousin about "no one seeing him" and the police having "nothing", no evidence, no one "seeing" him at the crime scene, the police "thinking he's stupid" and what he said to Mr Painter in 2018: But, see, they've got no evidence because what happened, I let the dogs in and I let forty chickens in the house after it. He was there for two days with forty chickens climbing all over him. They've got nothing brother, I know they've got nothing. (The offender was heavily affected by ice at the time of making that statement but accepted he made the statement recorded in his conversation with Mr Painter in 2018).
The offender was not able to take all his belongings when he left the premises. For example, he left a car.
The offender walked to Tahmoor shopping centre and purchased some telephone credit at Woolworths. He then contacted a taxi company and booked a taxi to Campbelltown but did not wait for the taxi, instead catching the train to MacArthur Railway Station and changing trains to go to the station closest to his mother's house.
The offender was observed on CCTV footage waiting for the train at Tahmoor Station, and looking through one of the backpacks.
Whilst on the train the offender met a friend, Samuel McMahon. During the train ride the offender took some cannabis out of his bag and gave it to Mr McMahon. Mr McMahon offered to pay $50 but the offender said, "Don't worry about it, I've got enough".
At 12.25pm, the offender telephoned a friend of his called Jason Baroud. It is likely that he spoke to Mr Baroud about what he had done to the deceased.
At 12.38pm, the offender telephoned Mr Painter. Mr Painter later recounted to police that, during that call, a conversation to the following effect took place: Offender: Hey, I think I killed Scott. Mr Painter: Oh, fuck, really? Offender: I hit him with [something], he went down and I hit him again. [Mr Painter could not recall exactly what the Offender called the object] Mr Painter: Oh, look, relax. I'll come and see ya. Offender: Ok.
Mr Painter recounted that, during that short telephone conversation, the offender was puffing and sounded like he was out of breath. Mr Painter was of the opinion that the offender sounded genuine and stressed or worried.
Later in the evening of the same day, after making arrangements to meet, Mr Painter went to see the offender at the offender's mother's house and they had a further conversation. Mr Painter recounted that the conversation was to the following effect: Offender: Hey. Mr Painter: What happened? Offender: I got into a fight with Scott. I hit him. I think I killed him. I hit him in the head with [an object.] Mr Painter: Fuck, what are you going to do? Offender: I don't know. I don't think anyone saw me. Mr Painter: Ok.
During the meeting the offender showed Mr Painter an amount of cannabis. Mr Painter said that was a lot more pot than what the offender would usually have in his possession.
The offender explained that he did not know there was cannabis in the deceased's backpack when he took it. He gave some of the cannabis to a person on a train taken after the offence and he said he threw the remainder away even though he showed a quantity to his cousin.
In relation to the offender taking the cannabis from the home of the deceased, it is not the Crown case that the theft was the motive for the murder on the basis that: the value of the cannabis was not high; the offender would have been aware that the deceased had cash at home because of his knowledge of the deceased dealing in cannabis and when police arrived they found the deceased had $6,000 in cash in one of his pockets; the house was not ransacked; and the offender gave $50 worth of cannabis to Mr McMahon whilst on a train not long after he left the scene of the murder. The Crown does rely upon the theft of the cannabis to indicate a lack of remorse and callous disregard for the injuries he caused to the deceased.
Mr Painter did not tell police about those conversations until 2018.
The offender said that he felt distressed and agitated during his conversation with Mr Painter.
Police interviewed various friends, neighbours and associates of the deceased, including the offender. It was quickly established that the offender was likely to have been the last person to see the deceased alive (other than the killer, if the killer had been someone else).
The offender made a statement to police on 8 July 2013 in which he gave an account of his movements in the days proximate to the murder. The offender's account was false in that he directly denied any knowledge of the murder. He said he borrowed a backpack from the deceased. He said that the deceased was washing dishes when he left.
The following day, on 9 July 2013, police executed a search warrant at the offender's mother's house and found items of clothing matching those the offender was wearing on various relevant CCTV footage and also the deceased's "SMP" brand backpack and another backpack which belonged to the offender. A forensic examination of the backpacks resulted in blood being detected on each of the backpacks in the location of what looked like possible bloodstains. A DNA swab taken from the location of one of the apparent bloodstains was found to match the deceased's DNA.
At about 4pm on Friday 4 May 2018, Mr Painter attended the offender's house in Heckenberg and met with the offender. Mr Painter was wearing a listening device and the meeting was conducted under police surveillance. The conversation between Mr Painter and the offender was lawfully recorded.
During the conversation, Mr Painter raised with the offender that he had been approached by investigators in relation to the murder of the deceased. He mentioned being involved with the NSW Crime Commission. Mr Painter asked the offender if he had told anyone else that he had killed the deceased. The offender said: "No one knows nothing brother. You're the only one. No one knows nothing brother I never spoke to no one. You know what I'm like. Just keep to myself now".
Mr Painter asked if any fingerprints or DNA from the offender could have been at the scene. The offender replied: "Nothing, no fingerprints, no DNA... Plus I was living at the place before that. They've got nothing brother. I'm telling you they're clutching at straws brother".
Mr Painter asked the offender what he should tell the police or Crime Commission if asked about the incident. The offender stated, "Tell them nothing. If they say anything about ringing, say yeah me cousin rang to see what I was doing. We always hang around and go for drinks and stuff. That's about it. No cunt knows nothing. I'm pretty smart".
Mr Painter asked the offender about the thing he used to hit the deceased with and if it was left at the scene. The offender stated, "Yeah, yeah, yeah. My prints weren't on it though. I took the gloves and that with me. They've got nothing brother. They think it's multiple people. I'm not silly".
The offender then made the statement set out earlier regarding letting the dogs and chickens in (at [54] of this judgment).
Mr Painter again asked if the offender had told anyone else about the murder. The offender stated: "No one knows nothing brother. There's only one other person that knows and he's dead...".
The offender went on to assure Mr Painter that the police have no evidence linking him to the killing. The offender stated: "They've got nothing bro, they've got nothing. They think I'm stupid".

OBJECTIVE SERIOUSNESS

The state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the crime: Charbaji v R [2019] NSWCCA 28 ("Charbaji") at [180] (per Beazley P, Price and Wilson JJ); Apps v R [2006] NSWCCA 290 ("Apps") at [5] per Hunt J and at [49] per Simpson J.
Here the offender intended to inflict grievous bodily harm. It was agreed he did not intend to kill the deceased and that is the basis upon which the offender must be sentenced.
Such criminality will often indicate a lesser objective seriousness. However, as the Crown correctly contended in this case, the absence of intention to kill does not necessarily mean that the murder is less serious: Charbaji at [181]. There will be circumstances where, in a particular case, an intention to inflict grievous bodily harm could reflect similar criminality to cases involving an intention to kill: R v Nelson (Unreported, New South Wales Court of Criminal Appeal, McInerney J, 25 June 1996) (with Gleeson CJ and Studdert J agreeing).
The Crown was also correct to submit the question of intent is not the only relevant consideration: Charbaji at [180]; Apps at [49].
The Crown submitted that this is a case where the intention to inflict grievous bodily harm would not necessarily result in a finding of less objective seriousness and, in any event, the offender intended to cause grievous bodily harm to the highest degree. This was because, whilst it was not clear how or why the offender struck the deceased, it was clear from the nature of the assault and its severity his intention was to cause grievous bodily harm to the highest degree. Further, the offender was aware of the nature of the injuries because he indicated to Mr Painter that he hit the deceased and that he thought he had killed him.
Counsel for the offender, however, referred to the fact that, notwithstanding an accepted high level of violence, the acceptance by the Crown of an intention to cause grievous bodily harm rather than an intention to kill together with the absence of premeditation should reduce the seriousness of the offence.
Reliance was placed, in that respect, upon R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252 at [17] (per Hodgson JA and Adams and Johnson JJ) as follows: [17] In our view, the finding that the respondent intended only to cause grievous bodily harm does not in the circumstances here significantly reduce his culpability. Put another way, the culpability involved in the premeditated vicious attack of extreme violence on the victim in his own home is so grave that the mere fact that the respondent might not have intended to kill does not significantly mitigate the gravity of the offence. For this reason, it is unnecessary to determine whether the learned trial judge's conclusion about whether the respondent intended to kill the deceased is incorrect and we decline to do so. [Emphasis added.]
Reference was also made to Versluys v R [2014] NSWCCA 98 ("Versluys") at [21] (per Hamill J, with whom Hidden and Simpson JJ agreed) as follows: [21] While every case will turn on its own facts, and while no categorical proposition can be discerned from past murder cases, it is generally the case that murders involving a lack of intention to kill and a lack of premeditation are likely to be less serious than those in which there is established premeditation and an intention to kill.
The agreed facts do not state there was an absence of planning or premeditation. However, I consider that there was an absence of planning and premeditation for the following reasons: 1. As I have found, the offender spontaneously erupted after a short argument and went into a frenzied rage; 2. The lack of any motive consistent with premeditation; 3. The fact that the two had been friends for many years and got on well; 4. The candid and contemporaneous admissions by the offender to Mr Painter that he "got into a fight with Scott" during which he hit him in the head with an object; and 5. The only fact which could be indicative of any possible planning is the offender's reference to having taken "the gloves and that" with him. However, this is consistent with the offender wearing gloves while doing cleaning at the time the incident occurred and with his concern to avoid detection after the event.
On this basis, I shall approach sentencing, as per Versluys, upon the basis that the offence was less serious than those involving established premeditation and an intention to kill. The offender should be sentenced accordingly. I note, in that respect, that the absence of a planned or organised criminal activity is a mitigating factor (s 21A(3)(b)).
Nevertheless, the offender used a high level of violence to cause fatal injuries to the deceased. The deceased was struck multiple times. The attack was severe involving very substantial injury to many parts of the deceased's body indicative of heavy blows. Except for the argument between the offender and the deceased, there was no evidence of provocation. I do not consider the submissions of the offender that there was no evidence the deceased suffered or that the deceased was dead or at least unconscious shortly after the attack, if that submission entailed a proposition that this was the case for the duration of the attack itself.
The attack was relatively short. However, as found earlier, the offender accepted the deceased was moving at some stage whilst on the ground whilst being struck and was therefore still alive.
Whilst the later statement by the offender to his cousin "I think I killed Scott" may indicate the deceased was dead or at least unconscious shortly after the attack, that does not in the circumstances properly result in a conclusion that the deceased did not suffer during the attack. The Crown submitted that the deceased could have lingered on for some time after the attack but there is, in my view, insufficient evidence to substantiate such a contention.
The attack involved multiple blows over a short time but did not cause immediate death. The nature of his injuries and his inability to escape would have caused, albeit for a short period, considerable pain and anxiety for the deceased.
Whilst the offender's actions immediately after the attack on the deceased were consistent with both a lack of concern for the deceased (he took no steps to render or obtain medical help and left the deceased for dead), they were also consistent with a state of panic and a belief that the deceased was dead. He also sought to contaminate the crime scene. Overall, I consider this to be a neutral factor.
I have considered the aggravating and mitigating circumstances listed in s 21A of the Sentencing Act, which a sentencing Court is required to take into account.
The use of a wooden pole was a significant aggravating factor of the offence although I am mindful it cannot be double counted with the level of violence described above; the use of the weapon forming part of that violence.
The offence was committed in the deceased's home.
The Crown submitted that this was an aggravating factor for the purposes of s 21A(2)(eb) of the Sentencing Act. The offender submitted that, given that the offence occurred spontaneously in circumstances when the offender was at the house assisting the deceased, this factor adds little to the offender's criminality in this case.
In my view, this aggravating factor may not properly be rendered as having little significance to the determination of the offender's criminality. The offender was a guest in the deceased's home and the provisions of s 21A(2)(eb) were applicable in these circumstances: Gore v The Queen (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [29]. I accept the submission that the deceased was entitled to feel safe in his own home.
I note that the offender had offered the deceased some extra security. As the counsel for the offender put it "it is an awful and tragic wrong that [the deceased] met his death at the hands of his very friend who was there to help him". However, this is not a matter involving the offender abusing a position of trust.
The offence was committed whilst the offender was conditionally at liberty. He was on bail for an offence committed on 7 March 2013, namely, assault occasioning actual bodily harm (H5092957). This is a further significant aggravating factor. However, I do not accept the Crown's submission regarding the offender's earlier parole is an aggravating factor.
In all of those circumstances, I consider the murder to be objectively serious: McDowall v R [2019] NSWCCA 29 at [35]-[37] (per Adamson J, with Hoeben CJ at CL and Schmidt J agreeing).

Antecedents

The offender was 42 years of age at the time of the offence. He is now 48 years of age. He has established a strong work ethic during his life.

The Offender's Deprived Background and Early Introduction to Substance Abuse

Mr Patrick Sheehan, Forensic Psychologist, issued a report dated 22 June 2019. He interviewed the offender for 2.5 hours at the Metropolitan Special Programs Centre.
Mr Sheehan described the offender's family history as follows: 5. Mr Washbrook was born and raised in South-West Sydney to Australian parents. He is the second of three children. The family unit remained intact during childhood. His father operated an office supplies business and the family owned the home. There was no criminality or mental illness in the family and his care needs were reliably met. However he described a highly aversive home environment. He said that his father was a violent alcoholic who would regularly assault his wife and children. Mr Washbrook felt that he was particularly targeted for violence from his father. The violence was excessive and uncontrolled. He said that he was treated in hospital on more than one occasion between the age of 8-10 years in relation to assaults. Given Mr Washbrook's own problems with violent behaviour throughout adulthood, these early experiences may have salient in forming an early template for how to react to frustration or anger, encouraging the use of disinhibited violence as an acceptable response. He reported having been a withdrawn and "stubborn" child. 6. Mr Washbrook's mother left the family when Mr Washbrook was aged 15 years. He "didn't get on" with his father's new partner and moved out of the home aged only 15 years. He lived in unstable residence for at least one year but returned to the home to live with his siblings when his father moved away. He lived independently from the age of 17 years, but was highly mobile over the years and was seldom in one place for long. He nominated his mothers' residence for bail and parole but never lived there in a formal sense, leaving almost immediately on each occasion. Both siblings have had substance use disorders. When Mr Washbrook was aged 23 years, his younger brother took his own life in Mr Washbrook's home. He said that he later found a piece of his brothers' brain matter in the home, which was a highly distressing discovery. He felt this was a significant event in the destructive trajectory his life has taken from that point. He said: "It changed me, who I am. I can't seem to settle, can't get close to anyone, I destroy any relationship I start".
He also described the offender's "chronic and evolving history of substance abuse" from age 14-15 years and that the offender had never participated in any formal treatment programs. That history met the diagnostic threshold for substance use disorder.
The Crown accepted that the environment in which the offender was raised in custody including the exposure to the violence of his father was relevant to the assessment of the moral culpability of the offender, provided there was no double counting when considering comparable cases involving persons with his type of background. That concession was consistent with authority: See Perkins v R [2018] NSWCCA 62 at [77], [80]-[83] (per White JA) and [99] and [100] (per Fullerton J) (see further R v Irwin [2019] NSWCCA 133 at [115]-[119]; Buxton v R [2017] NSWCCA 169 at [99] and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
I accept that the offender's moral culpability is reduced because of the dysfunctional and socially deprived environment in which he was raised and, in particular, exposure to the violence of his father.
The offender made a particular submission as to the particular weight that should attach to this factor in contrast to the need to protect the community (as advanced by the Crown) to which I shall return.

Plea of Guilty and Remorse

The offender pleaded guilty to murder in the Local Court under the Early Appropriate Guilty Plea scheme and, pursuant to s 25D(2)(a) of the Sentencing Act, is entitled to a 25% discount for the utilitarian value of the plea. There was no demur from the Crown in this respect.
In my view, the plea is, in this case, evidence of remorse. The offender contended that some further minor discount may be allowed in that respect: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32] (per Howie J, with whom McClellan CJ at CL and Simpson J agreed). I do not propose to adopt that approach but my findings that the offender was remorseful shall feature in the sentence imposed in this matter. That conclusion needs to be understood in the light of my further discussion as to remorse below.

Criminal History and Personal Deterrence

The offender has a lengthy criminal history extending from 1990 which involved violence, firearms and property offences.
The offender agreed that various violence offences occurred when he had been drinking and consuming illicit substances and when he was involved in arguments.
The offender was convicted in 2014 of assault occasioning actual bodily harm and sentenced to 12 months imprisonment with a non-parole period of 9 months ("the 2013 assault"). The Court had evidence of a police "Facts Sheet" used for a bail hearing and when the offender was convicted in his absence together with the offender's evidence on this offence.
The 2013 assault occurred in circumstances where the offender and another person had a common interest in having a relationship with a woman.
A fist fight occurred when the complainant was at the premises where the offender was staying with that woman (he was sleeping with this person at the time). The offender hit the complainant a number of times and caused a gash to his face. The police Facts Sheet refer to the offender hitting the complainant with a beer bottle. However, that component of the Fact Sheet was prefaced by the qualifier (used selectively in the Fact Sheet) that the information provided in that respect derived from the complainant's allegation. The claim was that the complainant was hit in the head. It is not clear if that is what caused the gash to the face. The offender is recorded as denying that he hit the complainant with a beer bottle in the police Fact sheet and having observed his evidence on this issue in these proceedings, including an acceptance that he threw punches at the complainant's face, I accept his account.
The offender was convicted of a firearms offence in 2017 with respect to possess unauthorised pistol. The offender gave evidence that he had tried to get the pistol to work to end his life.
It was properly accepted by counsel for the offender that his criminal history disentitles him to leniency and to any finding in his favour that he is unlikely to re-offend. I also accept his submission that, in this light, specific deterrence has a role to play in sentencing the offender in this matter.
What was disputed by the offender was the fact that the offender's criminal record was such as to amount to an aggravating factor under s 21A(2)(d) of the Sentencing Act (even though it was accepted the 2013 assault met the threshold for the definition of "serious personal violence offence" in that provision) and, secondly, that the record would invoke the need for protection of the community from harm. I accept the first part of that submission and shall now turn to consider the second.

Protection of the Community and Re-offending

The second part of the submission by the offender in that respect was responsive to a submission advanced by the Crown that the Court should have regard to the protection of the community and the "future dangerousness and the risk of re-offending" in sentencing the offender.
It was accepted by the Crown that the offender managed reasonably well in custody but it was contended there were serious issues of violence and drug use when he was in the community such that the sentence imposed should reflect the need to protect the community. The authorities relied upon for that approach were: Veen v R (No 2) (1988) 164 CLR 465 at 473; Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575 at [12] and [20]; Beldon v R [2012] NSWCCA 194 at [53] and R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310 at [40].
Reliance was also placed, in this respect, upon the nature of the assault and its circumstances; the circumstances of the 2013 assault; the offender's general criminal history, the opinion of Mr Sheehan that the offender's personality vulnerabilities and trauma symptomatology (most notably autonomic hyper-arousal and emotional reactivity) resulted in poor tolerance to distress and a restricted coping repertoire of avoidance, anger and substance abuse and the virtual institutionalisation of the offender.
I do not accept the Crown's submissions in this respect. In particular, my sentence does not attempt to incorporate a Veen No 2 element concerning the danger the offender may present to the community in the future, many years from now. My reasons for that conclusion are as follows.
First, upon the findings I have made as to the circumstances of the 2013 assault, the circumstances of that offending and injuries inflicted are substantially dissimilar to the circumstances of present offending as found in this judgment. This conclusion is more so in the case of other parts of the offender's criminal record all of which were dealt with in the Local Court of NSW.
It is true that Mr Sheehan referred to the combination of symptoms experienced by the offender as playing a role in the commission of the offence including drug affects, hyper-arousal, feelings of persecution, impulsiveness, reacting to conflict with aggression and inability to de-escalate conflict.
However, and by reference to R v Lawrence [2005] NSWCCA 91 at [24] (per Spigelman CJ), the offender was not diagnosed with an antisocial personality disorder. Mr Sheehan did not diagnose the offender as having an antisocial personality disorder as such, but opined the offender's "history and presentation" pointed to a "serious personality disturbance" and his constellation of traits were consistent with a "Cluster B personality presentation" which included a mix of traits including those found in an antisocial personality disorder.
This conclusion is also supported by factors which also lead to a guarded conclusion that the offender has long term prospects of rehabilitation.
That conclusion as to rehabilitation is based upon my acceptance of the submission advanced on behalf of the offender that he is able to be treated and he is willing to undertake the Violent Offender Therapeutic Program ("VOTP") to address his violence, drug problem and his underlying post-traumatic stress. That program is, in my view, appropriate to address the criminogenic needs of the offender. He has remained drug free in prison.
My confidence in the offender properly applying himself to the VOTP derives partly from his evidence as to that matter before this Court and partly that such an approach may be expected in the light of his exemplary conduct in custody and his strong and dedicated work ethic resulting in him now occupying the trusted position of sweeper in the AVL unit of the remand centre. I note that he has specifically applied himself to addressing his issues with aggression whilst in custody.
Based on the evidence before the Court, however, I do not make a finding as to the likelihood of the offender re-offending.

Remorse

I consider that the offender has demonstrated genuine remorse. That conclusion comes from my observation of the offender's evidence before me and the correlation between that evidence and the opinions formed by Mr Sheehan, in this respect, after interviewing the offender (the offender's statements bearing upon remorse were consistent in both cases) together with the circumstances preceding the offence concerning the offender's relationship with the deceased.
It is true that the offender fled the scene without rendering assistance, did not surrender himself and made later remarks when speaking to his cousin when told of a Crime Commission investigation which appeared callous or arrogant but his flight was, in my view, due to panic and to avoid detection and his later remarks in 2018 were substantially, as counsel for the offender submitted, "bravado" in a drug affected state, itself a reflection of his distress which had first manifested itself when he had a discussion with his cousin not long after the murder.
In my view, the offender has since the murder been truly remorseful that he killed his friend of many years with whom he had previously had good relations (he saw the deceased as a "brother") and, on my observation of his evidence, was genuine when he said: "If I could trade places I would. If I could take my life and change places I would do it in a heartbeat", and quite contrite in the apology he offered the deceased's family.
I have taken this factor into account in sentencing the offender. It is a significant subjective feature.

GENERAL DETERRENCE

Given the violent nature of this offence, general deterrence must play a role in sentencing, although tempered, to some extent, having regard to the attack being spontaneous in the context of a previous supportive friendship unaffected by domestic violence.

SPECIAL CIRCUMSTANCES

There can be no question that the offender will then require close and careful supervision and treatment.
In my assessment, however, given the length of the sentence which must necessarily be imposed upon the offender, the result of the statutory ratio will provide him with a suitable period for such supervision.
I do not consider that the offender's submission as to institutionalisation should be accepted as a basis for special circumstances. I do not determine that there are special circumstances.

OTHER ASPECTS

In sentencing the offender I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period (Muldrock at [27]) together with factors bearing upon the objective seriousness of the offence and subjective features.
I have referred to comparable cases for the purposes of sentencing supplied by the Crown. I have taken those into account. However, I note there were relatively different factual circumstances operating in those cases to the present case. Each sentence must be determined upon its own facts and circumstances as no two cases are the same.
The offender has been in custody since his arrest on 10 May 2018. As conceded by the Crown, his sentence ought to commence from that date.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to advise you Mr Washbrook of the existence of that Act and of its application to the offence with which you have been convicted.

IMPOSITION OF SENTENCE

Mr Washbrook could you please stand.
For the reasons I have given, I now make the following orders: 1. Kenneth Christopher Washbrook, you are convicted of the murder of Scott Hammond. 2. I sentence you to imprisonment for a non-parole period of 13 years and 6 months commencing on 10 May 2018 and expiring on 9 November 2031 and the balance of the term of 4 years and 6 months commencing on 10 November 2031 and expiring on 9 May 2036.
Thus, you will be eligible for release on parole at the expiry of the non-parole period on 9 November 2031.

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remarks on sentence

HIS HONOUR: On 6 March 2019, Kenneth Christopher Washbrook ("the offender") entered a plea of guilty to a charge that he, on 29 June 2013, at Tahmoor in the State of New South Wales, murdered Scott Hammond ("the deceased").
That plea was entered following two case conferences pursuant to the Early Appropriate Guilty Plea Scheme upon the basis of agreed facts.
At the outset of those agreed facts, the circumstances of the offence were briefly described. At or about 11.00am on 29 June 2013, at the deceased's home at Tahmoor ("the premises"), the offender murdered the deceased by repeatedly striking him to the head with a wooden pole. At the time he struck the deceased, the offender intended to cause grievous bodily harm. The blows resulted in blunt force head injuries which caused the death of the deceased.
The factual basis for the establishment of liability for murder pursuant to s 18 of the Crimes Act 1900 (NSW) was established by the agreed facts: 1. Overall, the facts establish that it was a deliberate act of the offender which caused the death of the deceased. 2. As mentioned, it was agreed the offender intended to cause grievous bodily harm.
It was agreed, in that respect, the offence was not motivated by the taking of cannabis belonging to the deceased.
In arriving at the offender's sentence, the purpose of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") must be borne in mind.
The offender's sentence must be determined having regard to the maximum penalty for the offence with which he has been convicted. The maximum sentence for the crime of murder is imprisonment for life (s 19A of the Crimes Act 1900 (NSW)).
The Court may nonetheless impose a sentence of imprisonment for a specified term pursuant to s 21(1) of the Sentencing Act. That course may not be taken if the Court is satisfied that the level of culpability in the circumstances of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be only met through "a sentence of life imprisonment" (see s 61(1)).
It is for the Crown to establish that an offence falls within s 61(1). It did not seek to do so in this case. In my view, it is appropriate, notwithstanding the objective seriousness of the offence, and having regard to the circumstances of the offence, to impose a finite term, and not, therefore, to impose the maximum sentence.
The standard non-parole period prescribed for the offence is 20 years imprisonment: s 54A(2) and Pt 4 Div 1A table of the Sentencing Act.
In accordance with s 54A of the Sentencing Act, the seriousness of the offender's offence must be assessed by taking into account only the objective factors established on the evidence affecting its relative seriousness. The objective seriousness of the offender's offence is in issue between the parties.
Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock") and as is provided in s 54B of the Sentencing Act.
The offender's moral culpability for his offence must also be taken into account, in the way discussed by the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57].
In sentencing, the Court must also consider the aggravating and mitigating factors specified in s 21A of the Sentencing Act revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender's offence, must also be taken into account.
Questions of general and specific deterrence must also be considered.
Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That requires that all of the factors relevant in the offender's case be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offence made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].
Regard must also be paid to s 44(2) of the Sentencing Act, which requires that the balance of the term of the sentence imposed on the offender must not exceed one-third of the non-parole period imposed upon him, unless it is found that there are special circumstances which warrant a departure from that ratio in his case.
In this matter, there is a dispute as to the objective seriousness of the offence although there would seem to be agreement that the objective seriousness of the offence is the primary factor in sentencing. The question of intent featured in submissions in this respect. I will return to that question.

VICTIM IMPACT STATEMENT

Before considering the circumstances of the offence and the offender, it is appropriate to make reference to a victim impact statement of Rachael Taylor, the niece of the deceased, dated 16 July 2019.
Section 3A(g) of the Sentencing Act provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community". The application of ss 3A(g) and 21A(2)(g) of the Sentencing Act ("the injury, emotional harm, loss or damage caused by the offence was substantial") were not intended to alter the common law principles on sentencing.
The victim impact statement of Ms Taylor was tendered to the Court without objection.
It was submitted, without demur, that the victim impact statement would not have a direct effect upon the sentence imposed but will "give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way" when the court is taking into account one of the purposes of sentencing, "which is to recognise the harm done to the victim of the crime and the community" (R v Halloun [2014] NSWSC 1705 at [46] (per McCallum J), cited with approval in Sumpton v R [2016] NSWCCA 162 (per Hoeben CJ at CL, with whom Hall and Bellew JJ agreed at [153]).
I note, in that respect, the High Court of Australia in Munda v Western Australia at [54]) referred to the role of the criminal law including "the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence".
I adopt the approach proffered by counsel for the offender in that respect.
Ms Taylor gave in her statement an eloquent account of the impact of her uncle's murder. She described the pain and disbelief of visiting the crime scene and learning of her uncle's death. Soon after her mental health suffered as well as her "overall wellbeing" such as her emotional state, relationships and work performance. After some time she experienced trust issues and an avoidance of social interactions. Her doctor advised that she had post-traumatic stress disorder.
The Court acknowledges the understandable statements of grief that have been expressed by Ms Taylor and the continuing impact that the murder has had upon her.
After dealing with the objective features of the offence, I will turn to the degree of objective seriousness of the offence and the measure of the offender's moral culpability.
All murders are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased's surviving family members, who have attended the sentencing proceedings and are present to hear sentence passed today, to accept that this murder should be categorised in seriousness relative to other murders on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.

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