REGINA v. COULTER [2005] NSWSC 101

1 HIS HONOUR: The offender, David Lionel John Coulter, on 5 November 2004 was arraigned before Barr, J. on which occasion he pleaded guilty to one count contained in an indictment presented against him that he did, on 15 March 2004, murder a young girl who, at the time, was aged just short of her twelfth birthday. When the matter came before me on 4 February 2005, the offender adhered to his plea. 2 I was provided with a victim's impact statement which by common consent I treated as I am required to do by the statutory provisions and Regina v. Previtera (1997) 94 A. Crim. R. 76. 3 By consent, a statement of agreed facts was admitted into evidence. 4 Also tendered in evidence was an autopsy report, Exhibit D. It established the deceased had died as a result of smothering and had suffered sharp force cutting injuries to her throat, right thigh, chest and abdomen, involving gross mutilation and the extraction of her internal organs and heart. It is not necessary to further detail the brutal and savage treatment of her body. There was no evidence of any sexual interference with her. 5 The following matters appear from that statement of facts. The offender lived alone in Queanbeyan. At the time of his offence he was 41 years of age, having been born on 30 November 1962. The deceased's mother was the offender's first cousin. She was a single parent and had been so for some four years. The deceased and her brother had resided with their mother in a home unit in an inner Sydney suburb. The offender used to visit his cousin and her children about two or three times a year. He had last visited two weekends before the murder. He appeared to have had a good relationship with the family and some of their friends. On the occasion of the last visit, he obtained a set of keys to the unit in which his cousin and her children lived. The evidence does not allow me to say that he came into possession of the keys deliberately and with the motive of committing the murder. 6 Following his apprehension, and when he was medically fit to do so, he gave police a version of the killing. He said that he travelled from his home in Queanbeyan to the vicinity of the victim's home in the early hours of Monday 15 March 2004. He was aware the victim's mother left for work at about 7.30 am with the victim's brother to take him to school, leaving the victim alone. He was aware that the victim left home about half an hour later. Having arrived too early, he attended a local McDonalds and filled his car with petrol. He told police that he had brought with him from Queanbeyan various items to enable him to kill the victim and commit suicide. Whilst at the service station he checked to make sure those items were in order. 7 About 10 minutes after he believed the victim's mother and brother to have left the premises, and about 20 minutes before he expected the victim would leave the premises, he arrived at the unit. He stated that he knocked on the front door, the victim answered the door and allowed him entry. As he entered the premises, when she turned to walk in front on him, he took hold of her from behind, placing his hand over her nose and mouth. She struggled and kicked, trying to get away from him. But he walked her, using his adult strength, into the lounge room of the premises, where he continued to apply as much force as possible to her nose and mouth. He sat on her in order to gain more control over her. 8 During the struggle she defecated and urinated, but he was able to hold her away from himself so that he did not get any of the faeces or urine upon him. When she stopped struggling, he believed she was deceased. He then laid her body on the lounge room floor, cleaned the victim and the premises, placing the towel and cloth he used for that purpose in a plastic bag. He placed her school uniform in the school bag, taking her school bag to his vehicle which was parked in the driveway. He retrieved from the car a large suitcase he had brought with him from Queanbeyan so he could transport the deceased's body. He returned to the unit, placed the body in the suitcase, also placed the plastic bag containing the towel and cloth into the suitcase. He then carried the suitcase from the unit to his vehicle. Whilst carrying the case to the car, he saw a person he knew, one of the neighbours of the deceased. He said hello to that person and continued carrying the suitcase containing the deceased to the car. He placed the suitcase in the front passenger seat of the vehicle and drove to Bundanoon. 9 When he arrived at Bundanoon he set up his vehicle for the purpose of gassing himself. He had apparently prepared the vehicle for that purpose with three lengths of hose running from the exhaust pipe into the vehicle. He removed the suitcase from the vehicle and then removed the deceased's body from the suitcase, laying her on a doona at the rear of the vehicle. He told police he returned to the vehicle with the intention of committing suicide. He said that once inside the vehicle he consumed about 16 Panamax tablets and then started the engine. 10 After about an hour, he said the vehicle became hot, his throat became sore and he started to feel drowsy, so he left the vehicle and went for a walk. He said that at this point and later his memory was a bit hazy and that he could not recall everything that happened. Later he said he returned to the vehicle to continue his suicide attempt. He told police he noticed he was holding a knife that already had blood upon it. He said he could not recall where the blood came from. He then used that knife to cut both his wrists. It was, he said, a short time later that people came to the vehicle and rescued him. 11 At about 2.00 pm on Monday 15 March 2004, a group of persons involved in a Leadership Development Programme in the Bundanoon area came across the offender's vehicle with its engine running. It was parked about 100 metres away from a dirt track in the bush. The offender was inside in an apparently semi-conscious state. An emergency phone call to 000 was made and after giving details of what had been found, the members of the group that had found the car were instructed to smash the window and get the person out. This was done. It was noted that the offender was in a semi-conscious condition with slash injuries to his wrists. There was a blister pack of Panamax tablets with 14 tablets missing on the passenger's seat. 12 Personal possessions of the deceased were found in the vicinity of her body, which was in the doona at the rear of the vehicle, including her soiled pyjamas. A large blue bag was also located near at hand. This bag contained a hammer, a stethoscope, a syringe containing a blue substance and other items were found including the keys to the unit. Also located was a cut out map of the area and a photo album containing a number of photographs of the deceased and her brother. 13 The deceased's body was located at the rear of the vehicle covered in a doona. A large green travel case was located some distance to the rear of the vehicle. The deceased's body was naked, her throat had been cut and she had been disembowelled. Her heart had been removed from her body and was located under her left arm. There was a pair of secateurs at the right hand side of her body that were blood stained and there was a deep laceration in her right thigh area. 14 Although the offender claimed not to have remembered doing it, it is perfectly apparent that he had mutilated the deceased's body causing the injuries I have described. 15 When speaking to the police, the offender said that he had "a dark side to him for several years and had contemplated committing suicide". He had said he would never had the courage to do so but believed that if he did something evil he would have had no choice but to kill himself. He stated that it had been in his mind to kill a child and that would be the evil thing that he could do that would force him to carry out his suicide. He had decided during the weekend of 6 and 7 March, whilst he was at the deceased's home unit, that the deceased was to be the victim, having chosen her because he thought she was beautiful and he wanted somebody beautiful with him when he died. He said that he had spent the week between 7 March and 14 March 2004 purchasing items and preparing to murder the deceased and commit suicide and on Sunday 14 March 2004, he had checked the Bundanoon location to ensure he could gain access. 16 The offender has never denied his guilt, though he has consistently claimed not to remember the mutilation. He has expressed his remorse and pleaded guilty on the first listing of the matter in the Supreme Court. He has no other criminal history. 17 The offender has been detained in custody since his apprehension on 15 March 2004. His sentence will date from that date. 18 It has been put to me that because of the nature of his offence he has been in protective custody since his arrest, although that is somewhat inconsistent with the evidence of Dr. Reznik who referred to the offender being detained in particular Corrective Services units appropriate to those thought to be at risk of self-harm or requiring psychiatric treatment or observation. However, it is submitted that, by reason of the nature of his offence against a young child, his future custody will always be restricted to some extent. Although this information is not detailed, as far as it goes, it is not disputed by the Crown and I will have regard to it. 19 The offender is a single man, now aged 42. He has worked throughout his life. 20 It was submitted on his behalf, and, particularly having regard to Dr. Reznik's evidence, I accept that the offender's motivation in the crime he committed was not sexual. It is also submitted, and I accept, that the offender genuinely intended to kill himself and, had it not been for the chance encounter with the group who found him in the car, he would have succeeded in that endeavour. I accept also that his plea of guilty has been of real and substantial utilitarian significance and should be evaluated as a plea entered at the first real opportunity. 21 Although the offender did not give evidence, at the hearing, I was handed, by consent, a letter from him which was marked Exhibit 1. In that letter he expressed to me that he was still not sure what had happened but accepted responsibility for what he had done. He asserted he had suffered from depression; was unable to handle various elements of his life, in particular, in relation to personal relationships and financial matters; that he had developed thoughts of suicide and causing harm to others; he had kept these problems and feelings to himself; he wished that he could do things over and undo what he had done; and that he was deeply sorry for what he done, for the pain he had caused "everybody, the hurt and torment, my victim's family and friends will have to live with the rest of their lives". He informed me that during his imprisonment he had been able to talk about his problems and with the assistance of medication he had been able to feel more normal than he had in many years. His thoughts of self-harm had gone and he wished to live life as a model prisoner. He praised his victim, referring to his regard for her as being so high as to be comparable to that he would have felt for his own child. He apologised to her relatives for the harm that he had done in taking that life away. He confirmed that he had been detained at Long Bay Prison Hospital as an offender on protection and that the circumstances of that detention had meant that he has restricted time out of his cell. 22 A submission was put to me by the Crown, that I should find that preparation for this offence had commenced at least as early as the purchase of the secateurs on 4 March. In support of that submission, the Crown tendered evidence of the purchase of the secateurs on 4 March 2004 at a Port Macquarie store. I was informed that the receipt for the purchase of the secateurs and the plastic bag marked with the name of the Port Macquarie store had been found at the scene of the offender's car on 15 March 2004, as were the secateurs. 23 The offender had told police he had decided on the deceased as his victim when visiting two weekends before Monday 15 March 2004. That weekend would be either that of 6 and 7 March or that of 28 and 29 February. 24 The offender had also stated that he had a "dark side to him for several years" and that he had had it in his mind to kill a child. The Crown made specific reference to other preparations by the offender, between 7 and 14 March 2004. 25 It was in the light of those matters that it was submitted that I should regard the purchase of the secateurs at Port Macquarie as showing preparation for the commission of the crime against the deceased commenced at least as early as 4 March 2004. On behalf of the offender it was submitted that no such conclusion should be drawn or, at least, that I would not be satisfied of that matter beyond reasonable doubt. 26 I am unable to see what other conclusion could possibly be drawn particularly having regard to the evidence of Dr. Reznik to which I will refer shortly, than that the secateurs were purchased for use in this crime or for a similar crime against whatever young girl might be selected. In any event, the horrible nature of what was being prepared is not mitigated if the particular victim had not at the time of such detailed preparation yet been selected. 27 In the oral submissions, it was conceded that this was a crime of great heinousness, whether the preparation had commenced on or preceded the purchase on 4 March or had not occurred until 7 March, particularly because the offender had visited the home of his intended victim in the interim. 28 In argument I raised the suggestion that the culpability of the offence was such that, whether the preparation commenced prior to or about 4 March rather than about 7 March, would make, in view of the totality of the circumstances, little, if any difference and the learned Crown Prosecutor, in his submissions, appeared to accept that proposition. 29 I conclude that I am satisfied beyond reasonable doubt that the offender's planning and preparations to kill a young girl commenced prior to 4 March and the determination to kill this particular little girl and mutilate her body in this horrendous way occurred at least as early as the weekend of 6 and 7 March 2004. 30 Context and support are given to this finding by the evidence of Dr. Reznik, the only witness called for the offender. 31 Dr. Reznik, a psychiatrist, who, in 2004, was working as a visiting medical officer for Corrections Health as a consultant providing services to the inmates, gave evidence of his observations and opinion of the offender. He had initially examined the offender in the context of his attempted suicide in the Long Bay Hospital. The offender had been transferred during the period in which Dr. Reznik had been observing him from the psychiatric ward of the hospital to Prison Hospital Area 2, a facility where inmates who require medical attention are transferred prior, either to their treatment there, or transfer to another hospital. Such a facility is available for persons whose conditions are not so acute as to require hospitalisation in those wards in which the offender had previously been held, yet sufficient to require psychiatric follow up. 32 Dr. Reznik gave oral evidence relying on his memory and notes. Regrettably no report was provided. He had seen the offender in his capacity as a treating doctor. He emphasised that he had not considered forensic matters in his observations of the offender. He based his opinion not only on his own interviews with the offender, but also on what the offender had told his registrar, Dr. Roberts. The offender had apparently told Dr. Roberts and Dr. Reznik:- "That he had been sad most of his adult life. This, he says, had been due to his dark thoughts. These thoughts had been the murder and dismemberment of young girls. "These thoughts exist daily, are intrusive and unwanted and have got increasingly violent and intrusive over time. There have been no particular sexual themes, but rather are about control …" 33 The doctor had made a note that the offender had "chronic suicidal thoughts of ending his life coinciding with the impact of his obsessive dark thoughts but no previous attempt". The doctor believed that the offender had had these dark thoughts involving the killing and mutilation of young girls for many many years. The doctor noted that the offender, in an effort to deal with these very distressing thoughts, endeavoured to keep himself busy throughout the day by tightly controlling the structure and timing of his activities, devoting attention to rituals and so forth. This meant that the offender would, in addition, embark on a heavy consumption of alcohol and food whilst suffering chronic headaches, necessitating Panadeine and symptoms of an irritable bowel disorder. 34 The offender was meticulous about his detail of things, obsessive about order. Of necessity this involved detailed preparation and planning. The doctor concluded that he suffered from an obsessive compulsive disorder meeting the criteria under the Diagnostic and Statistical Manual of Mental Disorders. 35 The doctor had noted that his dark thoughts had gotten worse in the past two years and that his obsessive compulsive disorder was accompanied by dysthymia, ie., long standing sadness. The doctor commenced the offender on medication to treat the dysthymia and any masked depression. The medication was increased in order to help control the obsessive compulsive disorder. In that regard, the doctor noted, after some time, that the medication had apparently helped the offender. His intrusive dark and black thoughts about his victim "don't exist anymore and he feels less depressed now than he had been for years". 36 I enquired of the doctor as to whether he had made a note that the offender no longer had dark thoughts in respect of this particular victim or whether his note meant that the offender no longer had dark thoughts of that general kind. The doctor confirmed that his note was about the particular victim, though he did have recollection that on re-evaluation of the offender, the dark thoughts in general had receded, that the depressive mood and the dysthymia had lessened and that the obsessive compulsive disorder appeared to have been mitigated by the medication. The doctor put it that there was an improvement in the obsessive compulsive disorder symptomology in greater than 50%. 37 In cross-examination, the doctor gave evidence that the obsessive compulsive disorder meant that the person suffering had obsessions and was subject to compulsions to do certain things in order to relieve the distressing thoughts, that is, the obsessions. Such thoughts are pervasive, intrusive and, if not continuous, significantly so, in that they are present most of the time, leading to significant impairment of the individual's activities. The sufferer is unable to stop the thoughts voluntarily. The condition may be treated by cognitive behaviour therapy, that is, "talking to a person for them to re-align their thinking to a more functional state in conjunction with the presence of medication". Other forms of treatment provided in severe cases include psycho-surgery involving the cutting of certain parts of the nervous system, that is, certain nerves in the brain between the putamen and the thalamus. 38 The doctor was unable to assist the court on whether an obsessive compulsive disorder of the kind he diagnosed in this offender might prevent the offender from reasoning with any degree of composure such as to be able to resist the compulsion to carry out the matter to which the obsession related as he had not conducted an examination of the offender sufficient to ascertain that fact. Indeed, his evidence had opened with the statement that he had been concerned to examine the offender for the purposes of treatment and not for any forensic purpose. 39 In further answer to questions put to him by the Crown, the doctor said that he had noted on each of his observations of the offender some improvement in his condition, which is what would be expected in respect of an obsessive compulsive disorder. When asked whether the obsessive compulsive illness might ever go away or whether its symptoms might merely be relieved by medication, the doctor said:- "I think it has a fluctuant course. I think that the longitudinal, that means long term natural history of the disorder, is that it is present from a very early age and lasts life long and some persons are blessed with it being not too bad and others, on the other hand, are blighted to the extent that they are totally incapacitated." 40 The doctor agreed that such a condition may have to be treated and monitored for life. 41 Since I had asked those questions, I afforded to the parties a particular opportunity to ask any question arising out of those matters they might wish. Neither wished to do so. 42 It was the contention of the Crown that all the circumstances of this offence, having regard to the relevant statutory provisions and all the factors those provisions require me to take into account, were such that the appropriate penalty was the sentence of life imprisonment, a sentence which under the law of this State is to be served for the rest of the offender's natural life. Alternatively, that the offence was such that, having regard particularly to the factors enumerated in s.21A of the Crimes (Sentencing Procedure) Act 1999, a non-parole period should be imposed in excess of the standard non-parole period of 20 years provided in the table set out in s.54D of that Act. The effect of that would be that the sentence itself would be a sentence longer in duration than sentences otherwise to be passed for this offence. 43 I turn to consider the Crown's primary submission, ie., that the life sentence should be imposed. Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999 does not apply to such sentences by reason of the application of s.54 of that Act, so that no non-parole period is available for such sentences. An offender subject to a life sentence is to be detained in custody for the whole of his life. Such a sentence is itself horrifying in nature as depriving an offender of any prospect of release. It is only where the application of the statutory provisions render the passing of such a sentence imperative that resort should be had to it. 44 The statutory provisions relevant to the imposition of that sentence as they then stood were conveniently set out in the judgment of Wood, CJ. at CL. in Regina v. Merritt [2004] NSWCCA 19 at 557:- "Section 19A of the Crimes Act provides:- "19A Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of s.21(1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life) ..." Section 21 of the Crimes (Sentencing Procedure) Act relevantly provides:- "21 General power to reduce penalties (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. … (4) The power conferred on a court by this section is not limited by any other provision of this Part. (5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties." Section 61 of the last mentioned Act provides:- "61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. … (3) Nothing in subsection (1) affects section 21 (1). … Section 21A of the Act [at the relevant time] provided:- "(1) In determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case. (2) For that purpose, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the case, (b) if the offence forms part of a course of conduct consisting of a series of criminal acts - that course of conduct, (c) the personal circumstances of any victim of the offence, including:- (i) the age of the victim (particularly if the victim is very old or very young), and (ii) any physical or mental disability of the victim, and (iii) any vulnerability of the victim arising because of the nature of the victim's occupation, (d) any injury, loss or damage resulting from the offence, (e) the degree to which the offender has shown contrition for the offence:- (i) by taking action to make reparation for any injury, loss or damage resulting from the offence, or (ii) in any other manner. (f) the need to deter the offender or other persons from committing an offence of the same or a similar character, (g) the need to protect the community from the offender, (h) the need to ensure that the offender is adequately punished for the offence; (i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender, (j) the prospect of rehabilitation of the offender. … (4) The matters to be taken into account by a court under this section are in addition to any other matters that are required or permitted to be taken into account by the court under this Act or any other law…" Section 22(1) of the Act provides:- "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed." 45 The Act has since been amended so that to those provisions now must be added s.3A:- The purposes for which a court may impose a sentence on an offender are as follows:- (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences; (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 46 A new s.21A has replaced that in force at the time Wood, CJ. at CL. delivered the judgment in Merritt (supra). Section 21A(1) provides:- "(1) In determining the appropriate sentence for an offence, the court is to take into account the following matters:- (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law." 47 The consideration of specified aggravating and mitigating features are listed in s.21A(2) and (3). 48 The combined effect of s.3A and the present s.21A produce a regime, when considered with the other statutory provisions, not dissimilar in concept from that considered in Merritt (supra). I therefore consider the principles enunciated in Merritt remain applicable, and have considered all the criteria in s.21A, although particular regard will need to be paid to certain of them. 49 It was the Crown's submission, which I accept, that s.21A applies not only to determinate sentences but also to the question of whether the life sentence should be passed. The various matters referred to in s.21A must be taken into account for the purpose of ascertaining not only any non-parole period and the concomitant determinate sentence, in the event that the life sentence were not to be passed, but also on whether the life means life sentence should be passed. Such an approach not only accords with my reading of the section but also with the course taken by the Chief Judge at Common Law in Regina v. Penisini [2003] NSWSC 892 at first instance and the Court of Criminal Appeal on appeal [2004] NSWCCA 339. 50 The standard of proof would seem to require that I be satisfied by the prosecution of aggravating factors beyond reasonable doubt and by the offender of mitigating factors on the balance of probabilities (see Regina v. Olbrich (1999) 199 CLR 270). 51 The life sentence is reserved for a crime of such heinousness as to show a level of culpability so extreme that the objectives of sentencing can only be met by the imposition of that sentence (see s.61 and Regina v. Harris (2000) 50 NSWLR 409; Regina v. Merritt (supra); Regina v. Aslett [2004] NSWSC 1228). It must be a crime of very great heinousness and it must be possible to postulate the absence of objective facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty) Harris (supra) at [84] quoting Regina v. Twala (CCA, unreported 4 November 1994). 52 In Merritt (supra), the court held that notwithstanding the test for imposition of the life sentence is satisfied, the court retains a residual discretion to impose a determinate sentence. Particular reference was made to the necessity to find all the criteria contained in s.61 established, at least to some extent, so that the culpability is such that all four of the criteria in combination demand the life sentence. Attention was drawn to the necessity for a sentencing judge to consider, in this regard, in particular, dangerousness as referred to in Veen v. The Queen (No. 2) (1987) 164 CLR 465 (see Harris (supra)), not for the purpose of increasing the sentence by including an element of preventative detention, but for the purpose of ascertaining whether there should be some alleviation of sentence because of some matter personal to the offender and whether reducing the sentence because of any such matter would still give adequate weight to community protection. 53 Certain of the requirements of s.21A which apply here, in particular, those set out in s.21A(2)(a), (g) (i) and (j), parallel aspects of the concept of dangerousness referred to in Veen (No. 2) (supra) (the effect of which would seem to be preserved by the closing words of s.21A(1)) and echo the criteria in s.61 and the expressed purposes of sentencing in s.3A. 54 In referring to s.21A, the Crown drew my attention to the seriousness of the offence, committed as it was in the context in which the offender was well known to the deceased and her family and thus trusted by her and them. Indeed the offender was a relative of the family of the deceased and was trusted with access to the deceased's home. The Crown refers to the killing as accompanied by gratuitous cruelty and detailed lengthy and substantial planning. It was submitted that the criteria enunciated in s.21A(2)(f), (k), (l) and (n) were all satisfied. I am satisfied to the requisite extent of all those matters, but will return later in these remarks to the topic of dangerousness. Although the following are expressed in the section as criteria, I must not have additional regard in this connection to the fact that the murder was a crime of actual violence as that is an element of the offence. Nor can I consider that the injury was substantial for the same reason (s.21A(2)). 55 It was conceded by the Crown that the offender was a person with no record (s.21A(3)(e)), and was a person of otherwise good character (s.21A(3)(f)). I will accept those concessions and take those matters into account. However, although I accept the offender has shown some remorse, I do not accept that the offender has made any reparation which is relevant to the question of his remorse as referred to in s.21A(3)(i). It is further accepted that I should have regard to the offender's plea of guilty to which I have earlier referred as provided for by s.22 and s.21A(3)(k). 56 Section 22 confers upon the court a discretion to impose a lesser penalty than it would otherwise have imposed when an offender has pleaded guilty and requires that the court must take into account the fact of such a plea. It further requires that a court that does not impose a lesser penalty for that reason must indicate to the offender and make a record of its reasons for not doing so. In Regina v. Rose (1999) NSWCCA 327, in circumstances where there had been a plea of guilty to five offences of murder, it was noted by the trial judge as being a crime of "horrific seriousness" which description of those crimes was accepted by the Court of Criminal Appeal; that notwithstanding the plea of guilty, the offences, having fallen into that worst class of case to which the life sentence was otherwise appropriate, did not merit a lesser penalty by reason of the fact of the plea, lest the sentences should be become by reduction unreasonably disproportionate to the gravity of the crimes. See Regina. Kalache (2000) 111 A. Crim. R. 152; Regina v. El-Andouri [2004] NSWCCA 178 and Regina v. Thomson & Houlton (2000) 49 NSWLR 383. 57 The Crown submitted that the court should have regard to the horrific nature of the acts perpetrated upon the deceased when the offender smothered her as the context in which the crime was committed as well as having regard to the horrific nature of the acts perpetrated upon her body, such that it contended that, as in Rose (supra), if I was satisfied that the life sentence should be passed, having regard to the criteria in ss.61 and 21A, I should pass that sentence notwithstanding the plea of guilty. Further, it was put, that the offender's mental condition which, on the evidence, may well be life long, and the gravity of the conduct to which he was, and is, on the evidence, driven by that condition, are such that, as this is a "worst possible" class of crime which he committed because of his condition, no alleviation of sentence should be attracted by any of the offender's subjective circumstances or by the plea. 58 Particular reference is made to the degree of preparation which establishes, I find beyond reasonable doubt, that well prior to the offence having been committed, the offender had determined to mutilate his victim and the medical evidence that the offender had been driven towards such conduct for years. That the evidence supported the offender still suffering, at least to a degree, for life, from his disorder, underlay the submissions, which went so far as to put it that he constituted a danger to the community just as much as the offender did and the crime was in the same worst case category as that in Regina v. Garforth (CCA, unreported 23 May 1994), even though it was accepted that there were some factual differences. 59 On behalf of the offender, it was submitted:- "1. There was no torture or prolonged suffering of the deceased; 2. the prisoner was depressed at the time of the killing; 3. there is no evidence that the prisoner's motivation for the killing was sexual gratification; 4. the prisoner admitted his guilt from the outset; 5. there is no prior history of violence." 60 I regard matters four and five as really relevant to the offender's subjective circumstances rather than to objective culpability. I do not consider that factors one and three diminish that objective culpability. It is always possible to point to some serious aggravation which is not present in the instant crime. 61 It was further submitted I should find the offender showed, by his attempted suicide, true remorse and contrition. I reject this. Whilst I accept that the offender later showed remorse, as I have referred to, in his letter in evidence, and whilst I accept also in his plea of guilty, the suicide was integral to the crime charged. Indeed he committed this appalling murder so he could kill himself. His explanation he wished to do something evil, however, sits more with the mutilation than the suggestion that he merely wanted this beautiful relative to accompany him in death. His crime was truly evil and it was made more evil by the mutilation 62 I accept the further submission that he was, to some degree, depressed at the time but this was either an accompaniment to or part of the disorder from which he suffered and from which he still suffers and from which, on the evidence, he will probably suffer for his entire life. It was that condition which gave rise to his long held and, I find, still held compulsion to kill and mutilate young girls which either caused him to wish to suicide or which he would use to enable him to suicide. 63 The mental disorder affords an explanation for the offender's conduct but is not, in my view, a matter in mitigation, like the depression in Merritt (supra), but a matter I conclude predisposing him to commit crimes of such seriousness as to entirely overwhelm the subjective features. 64 It was submitted that the onus was on the Crown to establish dangerousness beyond reasonable doubt and the evidence was insufficient for me to be so satisfied. I disagree. On such evidence as I have, I am satisfied of dangerousness beyond reasonable doubt. The offender advisedly gave no evidence and refused to permit the Crown a psychiatric examination. He called only psychiatric evidence of a limited and guarded scope. Dr. Reznick was not concerned directly with forensic matters but his evidence as to the nature of the offender's disorder and its lifelong extent, certainly in the absence of other evidence, when taken in conjunction with the circumstances of this crime, sufficiently establishes that the offender, for all the purposes referred in s.61 and s.3A, should, having regard to the s.21A criteria, have passed on him the life sentence, notwithstanding his plea of guilty and his subjective circumstances because of the culpability of his crime and his continued dangerousness. 65 This was a crime of peculiar horror, in breach of family trust, committed against a child, most vulnerable in the circumstances, in her own home and committed for an abominable purpose. It was committed to enable the offender to suicide when he would not otherwise have been able to do so or in yielding to his obsession and recognised by the offender to be deeply evil. If he was simply yielding to his obsession, he killed as an alternative to seeking any possible treatment, a course the offender was unwilling or unable to take. Whatever his motivation, this crime was of the highest culpability and he remains liable to yield again to his compulsions. He is therefore dangerous. 66 In Aslett (supra), Wood, CJ. at CL. said of the offender in that case:- As I have observed the prisoner in this case has not altered his course, and his history, personality, and level of criminality of the most sustained and serious kind, shows that he is an ongoing danger to the community, and one of the relatively rare offenders who falls into the category of offender mentioned in the passage from Veen v. The Queen (No. 2) cited earlier in these reasons. To that principle is added the circumstance that s.3A of the Crimes (Sentencing Procedure) Act lists the protection of the community as one of the several purposes of sentencing which also include adequate punishment, personal and general deterrence, denunciation, accountability and recognition of the harm done to the victim and the community, in addition to that of rehabilitation. The protection of society has long been an important theme in sentencing: Regina v. Valentini (1980) 2 A. Crim .R. 170 at 174 and Regina v. Cuthbert (1967) 86 WN (Part 1) (NSW) 272 and it now clearly stands as a sentencing objective in its own right. That would not justify a departure from the equally long standing principle of the need for proportionality of the sentence to the offence before the court, nor would it of itself justify purely preventative detention. Nevertheless it is a matter properly to be taken into account in the way recognised in Veen v. The Queen (No. 2) ." 67 Those remarks are also apposite here. 68 In my view, the application of the statutory criteria, proportionality and all the circumstances of the case require I pass the life sentence on this offender. Whatever matter which, having regard to the discretion vested in me and to the principles in Veen (No. 2) (supra), might operate to alleviate or mitigate the sentence is more than offset by the offender's continuing dangerousness, and the necessity in his case for retribution, punishment, community protection and deterrence. 69 David Lionel Coulter, I sentence you to life imprisonment to date from 15 March 2004, the date on which you went into custody. **********

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