R v Weaver

R v Weaver - [2022] NSWSC 1140 - NSWSC 2022 case summary — Zoe

Judgment

When arraigned before the jury panel on 13 April 2022 at the commencement of his trial for the murder of Larry White on 20 December 2019, the offender, Scott Weaver, pleaded not guilty to the first count of murder, but guilty to the second count of manslaughter by unlawful and dangerous act, both counts having been pleaded in the alternative on the indictment. The Crown did not accept the plea of guilty to manslaughter in full discharge of the indictment and the offender stood trial accordingly for murder. On 17 May 2022, the jury returned a verdict of guilty of murder. The offender now stands to be sentenced for that most serious crime.
To sentence the offender, it is necessary for me to find the facts relevant to his offending, any aggravating factors and facts personal to the offender's circumstances which may operate in mitigation of the sentence to be passed. It is not my function to second-guess the jury by attempting to divine what facts I suspect they must have found to support the verdict of guilty. Rather, I am called upon to make my own findings of fact for the purpose of sentence from the evidence led at the trial and any further evidence led on the proceedings on sentence. I am to bear in mind that my function is different from the jury's. The jury was required to make findings of fact for the purpose of attribution of legal responsibility. As the sentencing judge I am concerned with the assessment of moral culpability. However, it is necessary that my judgment is faithful to and entirely consistent with the jury's verdict. It is not open to me to find as a fact any matter that may be inconsistent with the jury's verdict of guilty of murder (R v Isaacs (1997) 41 NSWLR 374).
I remind myself that all facts adverse to the offender on sentence or which may tend to aggravate the sentence to be imposed must be proved by the prosecution beyond reasonable doubt. Facts which may mitigate the severity of the sentence or reduce the seriousness of the offending are required to be proved by the offender on the balance of probabilities (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54).

[2]

Facts of the offending

From the submissions of counsel on the proceedings on sentence, the issues of fact to be determined for sentencing purposes are: 1. whether Mr White had armed himself with a knife before he was fatally stabbed by the offender; 2. whether the offender's conduct towards Mr White was entirely spontaneous or "he had been contemplating a violent attack on Mr White for a longer period" (Crown submissions, [1.2], MFI 37); 3. whether the offender's post-offending conduct is relevant to the sentence to be imposed.
The background facts are not in dispute. The offender was in a sexual relationship with Ms Yolanda Howlett who gave evidence in the Crown case at the trial. It was withheld from the jury, but they were separated by the offender's service of a term of full-time imprisonment imposed on 29 July 2019 backdated to 4 January 2019 for drug supply, weapons and other offences. During this separation, Mr White provided accommodation to Ms Howlett in the spare bedroom of his North Gosford home unit from where he conducted his own retail level, prohibited drug supply business. Each of Mr White, Ms Howlett and the offender were heroin addicts. The offender had an abuse disorder involving various substances.
After his release to parole on 3 November 2019, Mr White permitted the offender to take up residence in his spare bedroom with Ms Howlett on what Mr White at least assumed would be a short-term basis. That their occupancy extended beyond his expectation was disgruntling to Mr White. The offender formed the belief either before or soon after his release to parole that Ms Howlett was being unfaithful to him by having sexual relations with Mr White, a man in his late sixties. He was convinced that he narrowly missed catching them in flagrante delicto in the kitchen of Mr White's open plan unit on the first or second evening of his residence there. When accused of this misconduct by the offender on frequent occasions both before and after the murder of Mr White, Ms Howlett vehemently denied any unfaithfulness to the offender.
For sentencing purposes, whether the offender's belief was reasonably founded or not is entirely irrelevant. Even had it been, it would serve not a jot to reduce either the objective seriousness of the offending or the offender's moral culpability. For what it's worth, having given close attention to the evidence at trial including the evidence of Ms Howlett, the offender and the content of the gaol correspondence passing between them in the early weeks of 2020 (Exhibit H), were it necessary to make a finding about that matter, I would not be persuaded to any standard that the offender's belief was well founded. In any event, this incident was referred to by the shorthand of "the kitchen incident".
What is abundantly clear to my satisfaction beyond reasonable doubt is that the offender was at least at that time obsessively jealous of Ms Howlett's affections. From the gaol letters (Exhibit H) and indeed from his own evidence, it is clear that the offender's belief about the kitchen incident became a searing conviction as a result of his dark ruminations about it. He sought to explain his vile expressions of his convictions in the gaol letters as the result of doing "head miles" while again separated from Ms Howlett by his incarceration following his arrest on 28 December 2019. I have considered that phenomenon and afforded it some weight, but from his own evidence, and that of Ms Howlett, about the events of the morning of 20 December 2019, I remain of the view that his jealousy in relation to Mr White had been eating away at him since the early part of November 2019 and had grown into an angry and jealous ill-will towards Mr White. Despite this, I am not persuaded beyond reasonable doubt that there was any degree of longstanding planning or premeditation underlying the offender's conduct on the fatal day. But he was certainly fully primed to do violence to Mr White should the occasion arise. In his own mind, he already had the motivation and justification for such an occurrence.

[3]

The events of 20 December 2019

I have already observed that Mr White was a retailer of prohibited drugs, mainly heroin. So too was the offender. This circumstance is irrelevant for the purpose of sentence. But it does serve to explain that each of them was accustomed to carrying a knife or keeping one handy to protect himself in the event of the materialisation of the occupational hazard of a drug supply "rip off". There was ample evidence that Mr White did most of his business in the lounge room of his home unit and that he kept a knife handy on the glass topped coffee table near where he liked to sit. Mr White's knife was a black handled steak knife or the like (e.g. Exhibit D, photographs 106, 108 and 109).
As at 20 December 2019, the offender was in possession of a more substantial black handled knife, usually kept in a black sheath (Exhibit F, Exhibit K, photograph 126, 128 and 131). This knife was about 25 centimetres in length from tip to butt and had a single-edged blade.
20 December 2019 was a day of some significance for Ms Howlett. It was her birthday. This was known to the offender. However, he had gone out the evening before, staying out all night before returning at around 7 a.m. He re-entered the home unit by climbing up some shrubbery onto the first-floor balcony and entering the bedroom he shared with Ms Howlett through a sliding glass door. This seems to have been a common means of ingress, if not egress because Mr White had neglected to give them a key. He correctly deduced that Ms Howlett was feigning sleep and roused her. An argument soon ensued. She was angry and became angrier when she realised he had omitted to obtain heroin for her during his absence. She suspected he had been in the company of another woman. He was drug affected and quickly became angry. When she tried to placate him, he formed a strong and jealous suspicion that she had had sex with Mr White in his absence. It is pointless listing what the offender thought were the indicia of this justifying his opinion.
I will not detail each and every circumstance that developed. However, when Ms Howlett expressed her anger and disappointment about the offender's failure to procure heroin for her, the offender suggested she go and ask Mr White. This may have happened twice. When approached Mr White lied that he had none. I infer that his supply had run low. He intended to travel to Sydney later that day to replenish it. What he had left he chose to keep for himself and his downstairs neighbour. During their argumentative interactions in their shared bedroom, the offender's knife was produced. Ms Howlett's version is that he produced it and threatened her with it. The offender's version is that it was nearby, and Ms Howlett took it threatening self-harm, of which she had an unfortunate history. The offender is not charged with anything in relation to his conduct towards Ms Howlett on this occasion. Her evidence about what happened is difficult to follow and she gives no direct evidence of any deliberate act on the offender's part. Probably, on this occasion any way, the offender's evidence is to be preferred. I accept that Ms Howlett was threatening self-harm, I am not persuaded she intended to go through with it, but in the exchange between them she received a small puncture wound to her abdomen. I do not accept her evidence that it was a significant injury. Nor do I find that it was the result of any intention on the part of the offender to inflict injury of any nature. I accept on the balance of probabilities that it was an accidental occurrence.
The offender and Ms Howlett continued to argue. Doubtless their argumentativeness was fuelled by his drug affectation, her urge for the unavailable heroin, and their mutual frustration at the unrequited requests for drugs, which they would replace, from Mr White. The offender uttered further accusations about the kitchen incident eliciting further denials from Ms Howlett. The offender resolved to vent his jealous and aggressive anger by confronting Mr White about the kitchen incident. Both sides agree upon this. It is the Crown case that the accused carried the knife to this confrontation with the intention of using it on Mr White. It is the offender's case that he had no intention other than the infliction of corporal violence by way of punching or the like. He just happened to have the knife on him when he left the bedroom and went into the loungeroom to confront Mr White because he had disarmed Ms Howlett of it and had hid it on his person to keep it from her.
Ms Howlett remained in the bedroom. She was not an eyewitness to what occurred. But she heard the words of confrontation uttered by the offender when he entered the loungeroom. In the interests of accuracy, it is necessary for me to quote them verbatim: "So you want to fuck my missus, do you?" I accept that those words were spoken in a loud, angry and aggressive tone and were intended as a challenge to Mr White.

[4]

Relevant expert evidence

From evidence given by Dr Donovan Loots, forensic pathologist, post-mortem toxicological testing results demonstrated metabolites of heroin present in Mr White's blood (612.35T). The presence of 6-monoacetylmorphine demonstrated Mr White had taken that morphine, probably the last of his heroin supply, just minutes before his death. Dr Loots said this metabolite of heroin "disappears pretty quickly after it's entered the body". Dr Loots also said that heroin is an opiate which binds to the opiate receptors in the brain, having a depressing effect on the central nervous system. It has a soporific effect involving a sense of euphoria. The toxicology also showed traces of codeine and benzodiazepines in Mr White's system. Dr Loots also described them as central nervous system depressing type drugs creating a calming effect. In technical terms, benzodiazepines are referred to as anxiolytic. My understanding of this evidence is in contradistinction to a drug like say, ice, which the offender had consumed during his binge the night before, this combination of drugs would render Mr White less, rather than more aggressive and would be a factor of disadvantage in any physical confrontation.
On the evidence there were other circumstances of disadvantage affecting Mr White. The principal of these was the disparity between him and the offender in terms of weight, height, reach and age. Mr White was a relatively slightly built man in his late sixties. From his autopsy, Dr Loots was able to say that Mr White would have been 177 centimetres in height and weighed 65 kilograms. The accused, on the other hand, was a fit tall man of 39, some 28 years Mr White's junior. Dr Loots also described a number of age-related medical conditions affecting Mr White, but I am not satisfied that the accused was aware of those matters. He was probably not aware that Mr White had just taken heroin before he appeared in the lounge room to confront him. Even so, these matters of which the offender may not have been cognisant, in my view affect the probabilities of what happened.

[5]

The fatal confrontation

It is easy to conjure up with one's mind's eye the picture of the offender brandishing his large knife as he uttered his challenge to Mr White. Afterall, he continued to operate as a retail drug dealer, which offending has nothing to do with the present case, and kept and carried a knife to use it, at least, for his own protection in that dangerous business.
As I have said, the offender's evidence was that he was intent on no more than assaulting Mr White with his fists. His evidence is that when he delivered his challenge, as I have put it, Mr White grabbed his steak knife as he rose to his feet, moving or lunging towards the offender in an aggressive fashion such that he thought it necessary to draw his own knife in order to defend himself. It was made clear that the basis of his rejected plea of guilty to the alternative offence of manslaughter was the partial defence of excessive self-defence, reducing criminal responsibility from what would have been murder to manslaughter. Obviously, this version is entirely inconsistent with the jury's verdict and must be rejected for my purposes as the jury must have rejected it for theirs.
Mr Evers of learned counsel who appears for the offender, accepts that I must reject the account of the accused that he stabbed Mr White because he believed it was necessary to do so for his own defence in the circumstances as he perceived them during a desperate struggle between two armed men. But he argued it was still open to me to find that it was Mr White's brandishing of his knife that led the offender to drawing his. That is to say, that Mr White's conduct spontaneously escalated the violence that the offender was prepared to inflict, even if it is not open to me to find that the offender believed use of the knife was necessary to do so to defend himself. Mr Evers submitted that for my purposes it was sufficient if I was left of the opinion that this was a reasonable possibility on the evidence led at the trial.
Mr Evers relied upon a number of factors: first, Mr White's possession of the knife and his implied preparedness to use it when threatened in the course of his drug supply business; secondly, his relative disadvantages in a physical encounter with the offender made it likely he would reach for the knife when confronted by the offender, who was in a jealous rage, before the offender produced his own knife; and, thirdly, the fact that Mr White's knife was found in close proximity to his body by forensic officers at the crime scene, albeit under a degree of detritus which may have been dislodged during a struggle between the men. This detritus may have come to rest over the knife as others moved through the home unit before a crime scene was established.
To refute this argument, Mr Costello, Crown Prosecutor, relied on the considerations that: the knife was covered in detritus of the crime scene, particularly a sheet of newspaper; it was not blood stained; and a deep incised knife wound to Mr White's right wrist severed his flexor tendons making it unlikely he was able to hold or wield a knife.
Mr Evers pointed to Dr Loots' evidence that the absence of blood staining on the knife was not determinative as this would be a simple question of gravity, "blood would not ordinarily flow upwards" (621.20T). Clearly, if Mr White held the knife above, rather than below his wrist, blood from the wrist injury would not stain it. Mr Evers also pointed out that while Dr Loots described the incised wound to the wrist and other puncture wounds in the same vicinity as "defensive injuries", they were not inconsistent with the proposition that they were suffered while Mr White was holding or brandishing the knife.
While it is for the offender to prove matters in mitigation on the balance of probabilities, I accept that it is for the Crown to prove the facts of the offending on which the offender stands for sentence and to prove them beyond reasonable doubt. This being so, and as the actions of Mr White may have some bearing upon the assessment of the objective seriousness of the offending, and the offender's moral culpability, it is for the Crown to prove beyond reasonable doubt that there is no reasonable possibility that Mr White escalated the impending violence by initiating a knife fight. I am satisfied it has done so and I reject the evidence of the offender to the contrary. I find his alternative version implausible. It's directly inconsistent with his evidence at the trial. I find it difficult to accept that in circumstances where he was intoxicated by heroin and other drugs having a depressive effect on his central nervous system, Mr White suddenly became the aggressor. Given his relative disadvantage, of which he must have been conscious, it is much more likely that he would have remonstrated with the offender, rather than having decided to have it out with him with a knife. I do not accept that the relative disadvantage of Mr White was a reason for him to arm himself.
Returning to Ms Howlett's evidence, although I found her an unsatisfactory witness in many respects, the offender's account of his challenge to Mr White is effectively a recitation of her evidence. She also stated that after the issue of the challenge, Mr White did remonstrate. He said words to the effect of, "I haven't touched her. I looked after her for the whole time you know she had been living here", or "I didn't do it. I didn't do it" (240.22T). I accept this evidence.

[6]

Conclusion as to what happened

I am satisfied that the only rational inference available from all of the circumstances established by evidence I accept, viewed as a whole, rather than piecemeal, is that when the offender entered the loungeroom in his jealous rage, he brandished the knife he had with him as he uttered his words of challenge. As I have said, he had been obsessively ruminating about the kitchen incident for weeks. His partly-drug induced belief that Mr White and Ms Howlett had had sex in his absence overnight added fuel to that destructive fire. I am satisfied that at the moment he left the bedroom to enter the loungeroom to confront Mr White about his jealous beliefs he had formed the intention of doing him really serious injury with the knife. I am not satisfied the Crown have proved beyond reasonable doubt that he intended to kill Mr White. Naturally, it's hard to avoid a conclusion about an intent to inflict grievous bodily harm when a person armed with a knife that the person is prepared to use confronts another to settle some perceived issue. However, I am not satisfied that the evidence leaves open an intention to kill as the only rational inference available. In my view, after weeks of "stewing" about the kitchen incident the offender, at that moment of leaving the bedroom, decided to inflict really serious harm on Mr White as payback for the emotional injury the offender felt had been done to himself. In his still-drug affected state, I am not satisfied that he had actually turned his mind to the achievement of the purpose of bringing about Mr White's death. In making this finding, I bear in mind that a person's acts are often the best evidence of their contemporaneous state of mind.
It is worthwhile recalling then the evidence of Dr Loots about the nature of the injuries inflicted. I remind myself that it is within the expertise of a forensic pathologist to not only describe the injuries inflicted, but also to cast significant light on the manner of their infliction. Even so it is impossible at an autopsy examination to determine the order in which multiple injuries were inflicted upon a deceased person, special cases, which this is not, aside.
From the evidence of Dr Loots, I am satisfied that the offender's attack on Mr White involved the infliction of six separate knife wounds. I do not accept the Crown submission that this evidence justifies categorising the attack as frenzied, but I am certainly satisfied it was determined and desperate. I accept that the gaol correspondence is important evidence proving the strength of the motive of obsessive jealousy. Dr Loots described the injuries as a serious injury to the right upper chest which punctured the right lung, an incised wound to the inside of the left leg at or just above the right knee which severed the femoral artery, the incised wound to the inside of the right wrist severing the flexor tendons which I have already mentioned, a stab wound of no particular consequence to the outside of the right forearm, a stab wound to the upper thigh just below the left buttock, and a superficial stab wound to the front of the right leg. Of these, the most significant were the first two I have mentioned. While the wound to the upper chest was significant and in fact contributed to Mr White's death, it need not have necessarily been fatal had he received urgent medical attention. The incised wound to the left leg is in a different category. It was a relatively long wound more or less slicing the artery open. From Dr Loots' evidence, given the complexity of that injury and the treatment required to treat it and stem the bleeding I am satisfied that its infliction made Mr White's death inevitable. While both these injuries contributed to the cause of death, Dr Loots said that the stab wound to the chest "would have accelerated the lethal effect of the stab wound to the leg". The time between the infliction of the femoral injury and death "would be at best minutes" (643.30T). Dr Loots also said that an incised wound suggests that the knife blade has come into contact with the area of injury at a shallow angle where there is usually a slicing motion as opposed to a stabbing motion.
The offender said that when Mr White came at him with his knife, an account I have rejected of course, he attempted to brush his knife-hand away twice before stabbing him in the right upper chest, describing a thrusting motion. He claims to have remonstrated with Mr White, "let's not do this". While I have rejected what the offender has said about Mr White being armed with a knife, I am prepared to accept that the chest injury was the first injury inflicted. Mr White then no doubt attempted to struggle with the offender, putting his right arm up to defend himself, by which means he received those defensive injuries to his wrist and lower arm to which I have made reference. Given the oblique angle of the slicing injury which opened up the left femoral artery, I am not of the view that that was a deliberately inflicted injury in the sense that the accused meant to incise Mr White's femoral artery for the purpose of bringing about his death. Most people would not have that level of sophisticated knowledge of anatomy or physiology. I am satisfied that the accused did not. I have no doubt that the accused continued to stab at Mr White in the aftermath of the stab wound to the chest and as he did so, in the struggle, with a stabbing motion, he penetrated the fabric of Mr White's trousers incidentally inflicting the slicing injury to his left thigh. Even the chest injury, while significant, appears not to have been directed say at Mr White's heart. I am well satisfied beyond reasonable doubt that the offender intended to stab Mr White repeatedly to inflict serious injury upon him, but I am not satisfied that he turned his mind to achieving the purpose of killing him.

[7]

Objective seriousness of the offending

I turn now to an assessment of the objective seriousness of the offending necessary for the purpose of ensuring the sentence is proportionate. The Crown submits the assessment is also important because murder is a standard non-parole period offence, and an assessment of objective seriousness is required to be made for the purpose of the application of s 54B Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"). In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock"), a unanimous High Court of Australia said of the assessment of objective seriousness in offences to which s 54B applies the following (at [27]): "Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The Crown submit that the offending I have described falls into the midrange of objective seriousness. In making this submission, in addition to what I might refer to as the basic facts of the offending, the Crown relied on: an intention to kill rather than to inflict grievous bodily harm; the element of pre-meditation so the conduct of the offender towards Mr White was not entirely spontaneous; a failure to render first aid; the offender's failure to call an ambulance; and aspects of the offender's post offending conduct.
Mr Evers submitted that I should assess the objective seriousness as falling well below the midrange of offending for murder. He relied on: the absence of an intention to kill; a lack of planning; the offender acted in response to Mr White's escalation of the confrontation by producing the knife; the comparatively limited number of stab wounds; and the location of those stab wounds.
I have already explained why I have rejected the argument that the offender intended to kill as opposed to inflicting grievous bodily harm. I also reject the argument that Mr White armed himself with his knife. He was not responsible for escalating the confrontation. I am satisfied he offered the offender no violence. I have made it abundantly clear that I accept that the offender had a motive of obsessive and angry sexual jealousy for his conduct. Law, literature and the general experience of life all suggest that this is a potent motive for murder. I have also explained that I accept the offender's conduct was not wholly spontaneous. He had ruminated about the kitchen incident obsessively for some weeks. He made up his mind to do something about it in the circumstances I have described existing on the morning of 20 December 2019. I repeat the conduct was not wholly spontaneous.
Bearing in mind the High Court's statement that the question is to be determined wholly by reference to the nature of the offending, great care is required, at least in the case of standard non-parole period offences, before taking into account post offending circumstances or conduct in the evaluation of objective seriousness of the offending. Obviously, such matters may only be had regard to, to the extent to which they cast light on the nature of the offending. Bearing this consideration firmly in mind, I am not satisfied that the offender did not attempt to render assistance to Mr White, whether or not he was encouraged in this regard by Ms Howlett. The DNA evidence satisfies me that the offender was actively involved in the attempted application of torniquets to what must have been the obviously profusely bleeding left leg injury. This suggests that his jealous rage subsided when he realised the seriousness of Mr White's injuries.
I interpolate that given the seriousness and nature of the left leg injury, the application of home-fashioned torniquets was always going to be ineffectual. What was required was effective medical treatment given within minutes not hours, a condition which it was impossible to meet in the best of all worlds. After all, at the very least, it would have taken an ambulance more than minutes to attend the home unit and convey Mr White to hospital, saying nothing of the additional time necessary for surgeons to prepare for complex surgery.
I accept the Crown argument that the offender deliberately refrained from dialling 000. He doubtless asked Ms Howlett not to do so. However, were it necessary to decide I would find she willingly complied with his request. I do not accept that she was under duress at that point. Their relationship was abusive, at least emotionally, but she loved him and was prepared to take whatever action was necessary to avoid his arrest and imprisonment. The scales did not fall from her eyes until later, in the early part of 2020, when she realised three things: first, his obsessive jealousy about the kitchen incident was beyond reason; secondly, he would never be persuaded to accept her denials; and, thirdly, the precariousness of her own predicament when she too was charged with murder. The murder charge was dropped when she agreed to assist the authorities and she was dealt with as an accessory after the fact on a quite narrow basis. Having said all of this, I am not satisfied that the failure to call 000 says anything about the nature of the offending. If I may put it this way, it was an infinitely selfish act of self-preservation, even allowing that Mr White's fate was sealed.
I heard a great deal of evidence about the offender's post-offending conduct. I do not propose to summarise or otherwise detail it. Clearly, he was an obvious suspect. He took steps to attempt to remove forensic evidence from the murder weapon and from the scene. He contrived a patently false story and lied to persons who asked him about the whereabouts of Mr White. When Mr White's death was discovered, he constructed a demonstrably false alibi. He falsely denied responsibility to Mr White's daughter. He went to elaborate lengths to evade arrest. He was finally apprehended on 28 December 2019 when he returned to the vicinity of the home unit to retrieve some of his property from Mr White's garage where it was stored. After his arrest, he lied to police. He gave two false accounts, the second when he appreciated the first was not accepted. He did not mention excessive self-defence, he said, because given his record he thought the police would not believe him.
All of this evidence was introduced in the trial on the usual basis of proving a consciousness of guilt by post offending conduct. While such conduct may say something about the nature of the offending, it seems to me in the circumstances of this case, it would be dangerous to take it into account for that purpose. Again, I think this was all a matter of his attempts at self-preservation notwithstanding what, with hindsight, appears to be the inevitability of his arrest and conviction.
There was perhaps a degree of callousness in his conduct in one respect at least. While Mr White lay dead in the home unit, he and Ms Howlett cleaned themselves up and made arrangements to buy the drugs they then craved from another drug dealer known to them. In conversation with that drug dealer, the offender made comment to the effect he was having a bad day. On reflection, however, while it says something about his state of mind in the immediate aftermath of the murder and represents a somewhat despicable comment, I am unsure that it elevates the serious nature of the offending.
Mr Evers submitted that I should bear in mind in making my evaluation of the objective seriousness of the offending that murder always involves very serious criminality. From this it is open to find that the offending is very serious but falls well below the mid-range of seriousness for murder. It will be obvious from what I have said that I have not accepted the whole of either side of the argument, acknowledging that the Crown carries the onus of establishing this matter beyond reasonable doubt. There is in some ways a degree of artificiality in the conventional means of expressing one's conclusion about objective seriousness by reference to where in a range, by reference to its mid-range, the particular offending, having regard its nature, falls. While the adoption of this language is not mandatory, it is sometimes hard to avoid it because of the terms of s 54B.
The respective position of the parties does not necessarily determine the ambit of the available range for judgment. However, sentencing, like other aspects of the criminal process is adversarial. In my judgment, bearing in mind all that I have said about this matter and focusing upon the nature of the offending, I am satisfied that the objective seriousness does fall within the mid-range for the offence of murder albeit towards the bottom of that mid-range.

[10]

Aggravating factors

There are a number of most significant aggravating factors in the present case which I must take account of as part of the intuitive synthesis in fixing the appropriate sentence. While I am not required to rate them on any scale and would not do so, first amongst them must be that Mr White was murdered in his own home. Indeed, Mr White was murdered in his own home by a person he had admitted to his hospitality against his better judgment by permitting the offender and Ms Howlett to reside there for an indefinite period.
The Crown also urge upon me the vulnerability of Mr White as an aggravating factor. Mr Evers argues against this. I accept in a sense Mr White was vulnerable given his relative disadvantage in a confrontation with the offender for the reasons I have discussed, even if the offender did not know and could not be expected to know of his general health problems. However, bearing in mind the provisions of s 21A(2)(l) Sentencing Act, Mr White could not be said to be "very old" and there was no real evidence that he had a "disability" of any relevant kind. None of the other factors bespeaking vulnerability prescribed by the statute were in play here.
Another very significant aggravating factor is the consideration that the offender was on conditional liberty serving the balance of his term of imprisonment for previous offending in the community on parole. He was, of course, bound to be of good behaviour. The sentence he was serving had been imposed in the Local Court on 12 July 2019 for a whole suite of offences and taking into account a number of other offences on a Form 1. As I have said previously, a number of concurrent sentences of 16 months imprisonment were backdated to the time of his arrest on 4 January 2019 with the non-parole period expiring on 3 November 2019. The total sentence was not due to expire until 3 May 2020. After his arrest for the murder of Mr White on 28 December 2019, his parole was revoked, and the balance of term was recalculated to expire on 9 May 2020. These details are also important for another purpose to which I will refer later in this judgment.
In addition to the offending for which he was on parole, the offender has a generally poor criminal record as an adult for a variety of different offences and had been sentenced to terms of imprisonment on more than one occasion in the past. These offences include other instances of supplying prohibited drugs, serious traffic offences, other instances of prohibited weapon offending and, most significantly, offences of personal violence in a domestic relationship. The police facts in respect of a common assault against his domestic partner occurring on 10 October 2002, an assault occasioning actual bodily harm occurring on 6 December 2002 and a series of offences including another charge of assault occasioning actual bodily harm occurring on 1 September 2009 were tendered as part of the Crown Tender Bundle. That last offending involved not insignificant personal violence, including punching to the complainant's face and head while verbally abusing her. For that offending the offender was sentenced to a prison term of 12 months with a non-parole period of 4 months to be served concurrently with other like sentences for different offending. The offence of assault occasioning actual bodily harm contrary to s 59 Crimes Act is a serious personal violence offence for the purpose of s 21A(6) Sentencing Act. While committed some time ago, for that reason this conviction is an aggravating factor for the purpose of s 21A(2)(d), particularly as the offender is standing for sentence for murder. More generally, his record as a whole, disentitles the offender from any consideration of leniency. While, as I have said, there has been no violent offending for more than 10 years prior to the murder, the offender's record generally indicates that personal deterrence and community protection are relevant purposes of the sentence to be passed upon him.

[11]

Subjective circumstances

I regret to say that there is little to be said in mitigation of sentence based on the offender's personal circumstances. There is no factor which stands out as operating to reduce his moral culpability for Mr White's murder.
As I have already said at the time of the offending, the offender was a single man of 39 years of age, living in a relationship with Ms Howlett. His adult life was marred by the offending evidenced by the criminal record to which I have already made reference. There is no evidence before me of a dysfunctional or disadvantaged childhood that may cast light on his offending behaviour in such a manner as to, as I have said, reduce his moral culpability for the murder of Mr White. While I will avoid any speculation, he was supported in court by his parents and persons I take to be other members of his family. I assume that they will continue to offer him such support as they can while he serves a necessarily lengthy sentence.
So far as specific mitigating factors are concerned, Mr Evers relied upon three matters, not necessarily in this order, being: the offender has been subjected to extra curial punishment; by his conduct of the trial he has facilitated the administration of justice; and he has demonstrated remorse. I accept that the evidence demonstrates a degree of extra curial punishment and the facilitation of the administration of justice. I am not so persuaded in relation to remorse.
Concerning extra curial punishment, while in custody on 5 March 2020, the offender was attacked from behind by a fellow inmate armed with a "gaolhouse shiv", which he had borrowed from another for the specific purpose of attacking the offender. I regret to say that the assailant was a person with whom Mr White's daughter was then involved. I do not mean to suggest that she has any complicity in what occurred. However, that circumstance is relevant because it establishes to my satisfaction on the balance of probabilities that the attack on the offender was motivated by the assailant's desire to exact retribution for the murder of Mr White. Indeed, the evidence tendered (Exhibit 3) included the transcript of gaol telephone calls which are routinely recorded, and which make obvious that the assailant's motive was to punish the offender for this offence.
Where an offender suffers a loss imposed by persons other than the sentencing court for the purpose of punishing the offender for his offence, the sentencing court is entitled to take that matter into account in mitigation of the sentence to be passed: R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398; Silvano v The Queen [2008] NSWCCA 118; 184 A Crim R 593. Fortunately for the offender the borrowed "shiv" was not efficient for the purpose and the injuries he received were not serious. On examination he was found to have suffered a number of small puncture wounds and I accept Mr Evers' submission that the experience added significantly to the burden of his custody and gave rise to a need for increased vigilance for self-protection. However, given that the injuries, thankfully, were not serious the degree of mitigation available is necessarily limited.
As I have said, when arraigned, the offender pleaded guilty to the alternative charge of manslaughter. He adhered to that position throughout the trial. Although the trial was somewhat longer than expected due to COVID and other factors beyond the control of the offender, I am satisfied that that plea and the instructions the offender gave to Mr Evers so far as they were reflected in Mr Evers' conduct of the trial did substantially reduce the facts in issue. I accept the submission that from arraignment the offender admitted that he caused Mr White's death and that the killing was unlawful. He did not dispute most of his post-offending conduct nor the various admissions he had made to third parties at different times while he was at large before his arrest. In substance, or at least in large measure, the issue for determination by the jury centred upon whether they were satisfied beyond reasonable doubt that the Crown had excluded any reasonable possibility that the offender fatally stabbed Mr White because he believed it was necessary to do so in self-defence in the circumstances as he perceived them to be. That this was the central issue was reflected, in my judgment, by the consideration that the jury returned with its verdict after deliberations of only some hours. I will take these matters into account under s 22A of the Sentencing Act and impose a lesser penalty than I otherwise would. However, again this mitigation may have a somewhat limited effect as I am required not to impose a sentence which would be unreasonably disproportionate to the nature and circumstances of the offence.
I turn then to the question of remorse. The failure to call an ambulance, the lies told to interested persons and the police, the pattern of post-offending conduct including the lengths that the offender went to avoid detection, and the content of the gaol correspondence all tell against a finding that the offender is remorseful for the death of Mr White.
Remorse as a mitigating factor is governed by the provisions of s 21A(3)(i) Sentencing Act. It may be taken into account only if the offender has provided evidence that he accepted responsibility for his actions and has acknowledged the injury and loss caused by his actions. I accept that there is some evidence in that regard. I have in mind the attempt to provide some assistance after the event by applying the tourniquet, the, as it turned out, partial acceptance of responsibility for the unlawful killing of Mr White and some of the evidence he gave at trial.
So far as his evidence is concerned, I must say that I was not persuaded that he really expressed remorse so much as regret for what happened and the predicament he now finds himself in. Indeed, this impression was reinforced by his evidence as a whole. I do not intend to summarise it for present purposes but there are some passages to which I would refer which illustrate the point. When asked in examination in chief about the damaging gaol letters (Exhibit H) and how he was feeling at the time he wrote them, he said (at 953.15T): "Just hurt, you know, I was hurt. And I was feeling that this shouldn't have happened, like, yeah, 'cause, it's because of her, she can't keep her legs closed, that I go and confront my mate, this altercation happens, now my life's over, he's dead and my life possibly over, and it shouldn't be, it shouldn't have happened." In cross-examination (954.40T) while saying he was genuinely remorseful for Mr White's death he said: "Sometimes I feel anger, yeah, I feel anger about how it happened, how I kept thinking about him fucking my girl and I was angry as well, but I was also remorseful, yes."
When asked also in cross-examination about one of the gaol letters in which he had referred to Mr White as a "paedo", he said, "I was angry and I was hurt" (958.26T). When asked, "Where's the remorse in that", he answered (at 958.35T): "… that doesn't mean that I still don't feel bad for what happened. You know. Like it shouldn't have happened. And I do feel bad about that. You know what I mean. But a part of me is still angry about what had happened too." He said that he was still angry because, "he fucked my girl and then he tried to kill me" (958.50T). I have rejected the offender's evidence that Mr White attacked him while armed with a knife.
I am of the view that these statements represent how the offender feels about the murder of Mr White. It is very difficult to find he is actually genuinely remorseful for the consequences of his offending. There remains an aspect of blaming both Mr White and Ms Howlett for his actions in murdering Mr White. That is not remorse. I do not say he will never come to genuine remorse but that state, at present, seems a very long way off.
Having rejected remorse, I must say the offender's prospects of rehabilitation are no better than very guarded. While statistically the recidivism rate for murder is extremely low, I cannot at this stage assess the offender as being unlikely to reoffend in any serious way in the future. Moreover, the variety of his past offending tells against that, and I have already indicated there is a need to consider community protection in structuring the sentence.

[12]

Comparative sentences

The Crown provided a summary of five comparative cases with some factual similarities to the present case. Each case involved a violent and relatively spontaneous attack with a knife with a motive of jealousy or anger arising out of the conduct of a sometime partner. The Crown submitted that they were not truly comparable because although the factual matrix of each of the cases showed some broad similarity, the detail of the offender's offending and his subjective case were quite different. The Crown argued this case was worse than them.
I have considered each of the matters referred to: R v Pearce [2008] NSWSC 1434; Perkins v R [2018] NSWCCA 62; R v RJB [2019] NSWSC 719; R v Chatimba (No 2) [2021] NSWSC 863; Beldon v R [2012] NSWCCA 194. The main purpose of the consideration of comparative sentences is the distillation of matters of principle which cast light on the way forward in the case at hand or which establish a pattern of sentences for particular categories of case, if such exist.
Having considered the matters put forward I am not persuaded that there is a particular category of case into which the present case falls from which real guidance can be obtained by a consideration of these other cases. In the recent case of R v Chatimba (No 2), the sentencing judge assessed objective seriousness as somewhat below the middle range. The offender was upset and angry about, but not jealous of, the deceased telephoning his former partner. Self-defence had been rejected, but his Honour found good prospects of rehabilitation due to strong community ties, genuine remorse and acceptance of responsibility against a background of a very limited criminal record and prior good character. His Honour imposed a total sentence of 21 years and a non-parole period of 15 years and 9 months. While the facts of the offending are superficially similar, the other circumstances are quite different from the present case.
Perhaps R v RJB is closer, however, in that case the offender was somewhat younger, had a relatively minor criminal history, a difficult and deprived background and suffered PTSD, which mental condition contributed to the circumstances. The sentencing judge imposed a non-parole period of 16 years and 6 months and a total sentence of 22 years imprisonment.
In Perkins v R the offender was only 18 with no criminal record and had accepted responsibility for his actions and shown remorse. A non-parole period of 15 years and a total sentence of 20 years and 6 months was imposed.
Beldon v R lacked the important aspect of obsessive sexual jealousy as a motive. The objective seriousness was below the mid-range and the accused had acted in the heat of the moment. He was 34, an abuser of prohibited drugs with a long criminal record. He did suffer the disadvantage of a deprived upbringing. The sentencing judge found special circumstances imposing a non-parole period of 16 years and a total sentence of 24 years.
In R v Pearce the sentencing judge found an intention to kill. The offender was 25 years of age. He had the motive of exacting retribution for a robbery on his uncle. Her Honour made findings which would amount to a finding of profound childhood deprivation under current jurisprudence and imposed a non-parole period of 15 years with a balance of term of 5 years.
These cases provide limited guidance, but I will bear them in mind in fixing the sentence to be passed on the offender. Before turning to that, there are related matters which are the subject of a certificate under s 166 of Criminal Procedure Act 1986 (NSW), which I will deal with before passing sentence on the offender for the murder of Mr White.

[13]

Related offences - s 166 Certificate

On the proceedings on sentence before me the offender entered a plea of guilty to each of the two related offences on the s 166 Certificate. He asked that I deal with them when I passed sentence for the murder offence. The two offences arise out of the circumstances of his arrest in the early hours of 28 December 2019. The first offence is an offence of resisting the arresting officers in the execution of their duty contrary to s 58 of the Crimes Act. Ordinarily this offence carries a maximum penalty of imprisonment of 5 years. No election has been made for the matter to be dealt with on indictment and accordingly, I must deal with it subject to the limitations on the jurisdiction of the Local Court where it would ordinarily be dealt with in summary proceedings.
The second offence is an offence of carrying a cutting weapon at the time of his apprehension or arrest contrary to s 547D Crimes Act. This offence carries a maximum penalty of a term of imprisonment not exceeding 6 months. It is not an indictable offence. The "cutting weapon" is particularised in the court attendance notice as a 25 centimetre metal knife. This is the murder weapon.
The facts have been agreed and a statement of them has been received into evidence (Exhibit U). I will not set them out in full. Two police officers attended Mr White's unit complex at North Gosford in the early hours of 28 December 2019 to investigate an unrelated incident. The officers knew that Mr Weaver was wanted but were unaware of the detail. As they walked through the complex searching for the other person of interest, they recognised the offender as the person standing in a lit garage. One of the officers said, "that's Scott Weaver, grab him". Upon hearing this, the offender took flight and the officers made chase.
After a pursuit of about 50 metres the offender stopped and turned to face police, refusing to surrender. He was seen to be reaching for something in his shorts with his right hand. A piece of pipe was seen to be protruding from the waistband. One officer took hold of the offender who began thrashing his arms and body about. Fearing that the offender may have been reaching for a firearm, the second officer drew his own firearm, but holstered it after the struggle between the offender and his colleague began. Together they were able to wrestle the offender to the ground, but he continued to throw his body about, trying to retrieve whatever the item was from his shorts. A single burst of capsicum spray to the offender's face apparently subdued him sufficiently to enable police to handcuff him.
During the arrest he made mention of the murder of Mr White. After he was cautioned and under arrest, he was searched and police located both a metal pipe and the knife, which was tucked into the right rear hip area of the waistline of his shorts, the area he appeared to have been trying to reach.
Although occurring on a separate and subsequent occasion, in my judgment, this offending is bound up with the criminality involved in the murder offence. Viewed objectively the "resist arrest" charge is at the lower end of the range of seriousness. I am not satisfied beyond reasonable doubt that he was seeking to extract a weapon to use on the police officers even if the facts have that ring about them. I am not persuaded beyond reasonable doubt that this more serious aspect of resistance has been made good. However, it was reasonably necessary in the circumstances for an officer to draw his weapon, thankfully it was not used, and capsicum spray was required to subdue the offender's resistance. He has a previous conviction for resisting an officer in the execution of his duty dating from 3 December 2002, which is a significant matter for sentencing purposes. In all the circumstances of the case, bearing in mind the factors in mitigation I have referred to, and after allowing a 10% discount for the utilitarian value of his plea of guilty in this court, I would impose a fixed term of imprisonment of 6 months duration commencing on the same day as the sentence to be passed for the murder of Mr White. It seems to me that the criminality involved in the resist offence is so closely connected with the murder offence that a concurrent sentence is warranted.
So far as the "carrying a cutting weapon" offence is concerned, I am also conscious that the offender has a previous conviction for the similar offending of having custody of a knife in a public place dating back to 1 March 2004. He also has convictions for weapons offences committed in December 2010 and January 2018. A prohibited weapon offence was taken into account on a Form 1 when he was dealt with in the Local Court on 25 July 2019 for the offending for which he was on parole. Notwithstanding these matters of concern, I am of the view that the criminality in relation to having the knife in his possession when arrested is so closely bound up with the murder offending for which he will receive a long term of imprisonment that it is appropriate to enter a conviction for this offending, but to dispose of the proceedings in respect of it without imposing any other penalty in accordance with the provisions of s 10A of the Sentencing Act. I have taken into account the late plea.

[15]

Sentence

The sentence I impose must take into account all of the purposes of sentencing so far as they are relevant to all of the facts, matters and circumstances I have assessed as relevant to fixing the appropriate sentence for this offence and this offender. In any case of murder, a starting point must be the vindication of the life unlawfully taken and the denunciation of the criminal conduct of the offender. I mean, vindication of the life of Mr White and the denunciation of the offender's conduct in all of the circumstances I have described in which the offending occurred. I also recognise the taking of Mr White's life and its impact on his family are aspects of the harm done to our community which must be reflected in the length of the sentence imposed. Given the offender's record, the nature of this offending, his lack of remorse and corresponding comparatively poor prospects of rehabilitation, community protection is also a prominent factor.
Although I will bear in mind the aspects of mitigation to which I have referred, unfortunately there is nothing in the offender's case that serves to diminish his moral culpability for this offending which is commensurate with its objective seriousness. For this reason, specific deterrence too has prominence. And in every case of serious violent offending general deterrence has an important part to play in decisions about the appropriate sentence to be imposed.
I am concerned about the offender's lack of remorse and the consideration that this is usually an indication that his prospects of rehabilitation are guarded if not poor. However, one should not abandon all hope or impose a sentence which causes the offender to do so. The promotion of rehabilitation is an important purpose of sentencing. The offender will have long years to reflect on his circumstances. At some stage during his sentence courses of rehabilitation will be made available to him and I can only trust that he will take up the opportunity afforded to participate in them. By this means and through his own efforts he may come to remorse, rehabilitation and reformation.
It is necessary for me to fix a sentence that has both a non-parole period and an additional term. As I have explained, the non-parole period is the minimum time which justice requires the offender to serve in full time custody for this offence. However, release at the expiration of the non-parole period is not, in serious cases like this, automatic. No one should be under any illusions about that, least of all the offender. Whether or not an offender is released to parole at the expiration of the non-parole period depends upon the independent decision of the State Parole Authority. While it is not for me to second guess the exercise of that Authority's discretion in any particular case, the offender's prospects of release when first eligible may well depend upon his good behaviour in custody and him accepting and satisfactorily completing any programs of rehabilitation offered to him by Corrective Services NSW. I observe in passing that since his arrest his conduct in custody has not been unblemished. It may be that his substance abuse issues remain problematic for him.
Balancing all of the competing considerations to which I have referred in this judgment in conformity with the instinctive synthesis required, bearing in mind the maximum penalty of life imprisonment and the statutory standard non-parole period of 20 years imprisonment, I have decided to impose a sentence of 24 years and 8 months duration having a non-parole of 18 years and 6 months commencing on 9 March 2020 and expiring on 8 September 2038 with an additional term of 6 years and 2 months commencing on 9 September 2038 and expiring on 8 November 2044.
I have also decided that this is not an appropriate case for the making of a finding of special circumstances varying the statutory ratio between the non-parole period and the additional term. The period available for release on parole, having regard to the total length of the sentence will be adequate to assist the offender with his reintegration into the community after service of a long sentence.
Mr Weaver, I am obliged to inform you that murder is a serious violent offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW). I am required to draw to your attention that you may be subject to an application under that Act at the expiration of your sentence either for a continuing detention order or an extended supervision order if you are then found to pose an unacceptable risk of further serious offending. Whether such an application is made is a matter for the decision of the Attorney General. While it is not for me to say, your future conduct and co-operation in custody may be an important consideration taken into account when such a decision is made.
Mr Weaver: 1. By the jury's verdict you have been convicted of the murder of Larry White. I sentence you to a term of imprisonment of 24 years and 8 months having a non-parole period of 18 years and 6 months commencing on 9 March 2020 and expiring on 8 September 2038 with an additional term of 6 years and 2 months commencing on 9 September 2038 and expiring on 8 November 2044. You will first be eligible for release on parole after the expiration of the non-parole period on 8 September 2038. 2. By your plea of guilty I convict you of the offence of resisting arrest and sentence you to a fixed term of imprisonment of 6 months duration commencing on 9 March 2020 and expiring on 8 September 2020. 3. On your plea of guilty I convict you of the offence of carrying a cutting weapon at the time of your apprehension by police on 28 December 2019, but I dispose of the proceedings in respect of it without imposing any other penalty in accordance with the provisions of s 10A Crimes (Sentencing Procedure) Act 1999 (NSW).

At a glance

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Judgment (16 paragraphs)

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