Sentence
33 I have found this a most difficult sentencing exercise. The offender must be sentenced for two very serious crimes. The murder of R carries a maximum sentence of imprisonment for life and a standard non-parole period of twenty years. The attempted murder of Ms C carries a maximum sentence of imprisonment for twenty-five years and a standard non-parole period of ten years.
34 In all the circumstances, the murder of R does not call for the maximum sentence. The Crown prosecutor, very properly, did not suggest that it did. Nevertheless, it is a most serious crime, ameliorated only by the fact that, in all probability, the poor boy was unaware of what was happening to him. It is most likely, and was accepted by the Crown prosecutor, that he was asleep when he was attacked and never regained consciousness. The attempted murder of Ms C is also a serious crime of its kind, and its enduring effects upon her are obvious from the evidence.
35 The offences are the product of an entirely uncharacteristic outburst of violence by the offender. Such light as can be cast upon his behaviour emerges only from Dr Nielssen's reports. His depression, his intoxication and his withdrawal from cannabis provide some explanation for the level of his violence, but what triggered it remains a mystery. This, of course, is the most disturbing feature of the case and it raises the question whether the offender remains a danger to the community, requiring particular emphasis to be given to the protection of society in determining the appropriate sentences.
36 Dr Nielssen expressed a view about that matter also in his final report. He found no evidence of brain injury or psychotic illness, and concluded:
With regards to his prospects of rehabilitation, it is difficult to make predictions far into the future. However, Mr [N]'s behaviour was in part due to depression and substance abuse which are conditions that are amenable to treatment. He did not report any criminal activity apart from drug abuse and he did not reveal any antisocial attitudes during the interview. He did express a high level of remorse and self-loathing, which were consistent with the presence of depression. He was thought to carry a significant risk of suicide.
I believe he has reasonable prospects of rehabilitation provided he receives appropriate treatment and counselling.
37 I have given this matter careful consideration and have concluded that the offender should not be seen as posing a continuing threat to society. I am fortified in that view by the opinion of Dr Nielssen, a most experienced forensic practitioner. The offender is a man of prior good character with no criminal record and no history of violence. He has acknowledged his responsibility for the crimes from the outset, has pleaded guilty and has demonstrated his remorse. He has insight into the gravity of the offences, and has not attempted to put forward anything by way of excuse for them. The depression and substance abuse which appear to have contributed to his behaviour are able to be treated.
38 He needs to undergo that treatment in custody and, if necessary, upon his eventual release. It appears that he has re-established contact with his family and has their support. All in all, I think that his prospects of rehabilitation are good. Of course, he is entitled to rely upon his previous good character, his pleas of guilty and his remorse in mitigation of sentence. His pleas of guilty should be recognised for their utilitarian value, which is considerable, quite apart from their demonstration of his contrition.
39 I have taken into account the aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act which are applicable to the case. They are apparent from what I have already said, and there is no need to recite them. The standard non-parole period for each offence is the period which should be set for a crime falling within the mid range of objective seriousness unless there are reasons for departing from it. Neither the Crown prosecutor nor Mr Haesler SC, for the offender, made any submission about where these offences fall within the scale of objective gravity. That is not an easy matter to decide, given that the circumstances in which they were committed are unknown. Nor is it easy to determine the significance of the offender's depressive illness for this purpose, but some weight must be given to it as a factor contributing to his criminal behaviour.
40 However, the fact remains that he snuffed out the life of a defenceless child. It must be accepted that the child did not suffer, in that he was not conscious at any relevant time. Nevertheless, I would place the murder somewhat above the mid range of objective seriousness, although falling well short of a worst case. I would reach the same conclusion about the attempted murder of Ms C, in the light of her description of what must have been a terrifying experience and of its serious effects upon her.
41 However, there is force in Mr Haesler's submission that the offender's pleas of guilty and his subjective case provide ample reason for departing from the standard non-parole periods. The Crown prosecutor, again very properly, did not submit the contrary. I accept, nevertheless, that those periods take their place in the sentencing process as guideposts or reference points.
42 Although I think it unlikely that the offender would commit another offence of violence, it is necessary that the sentences which I pass reflect the need for general deterrence. That factor is reduced somewhat because of his depressive illness, to which I think his abuse of alcohol and drugs was linked at the relevant time. There is a long and familiar line of authority that there is less need for general deterrence in sentencing a person whose culpability for a crime is mitigated by mental illness. Such a person is not a suitable vehicle for severe punishment as an example to others. That said, the extent to which the offender's mental illness contributed to his crimes is far from clear and it cannot afford him any marked degree of leniency.
43 Although the two offences arose from the same incident, they are distinct and serious crimes. There must be substantial, although not complete, accumulation of the sentences. I would reduce each sentence by twenty percent to reflect the utilitarian value of the offender's pleas of guilty. But for those pleas, I would have sentenced him to imprisonment for twenty-five years for the murder and fifteen years for the attempted murder. In recognition of his pleas, those sentences will be twenty years and twelve years respectively.
44 Mr Haesler submitted that I should find special circumstances and reduce the non-parole periods below the statutory ratio, even though the application of that ratio to the heavy sentences which I must impose would still leave a lengthy period of parole eligibility. It is obviously in the community's interest that the offender have the opportunity for release into society for a long period, subject to supervision and the sanction of parole, to foster his rehabilitation. However, in my view, that would be achieved by the application of the statutory ratio. Furthermore, the non-parole period for each offence must be sufficient to mark its gravity.
45 I must structure the sentences with an eye to their total effect, and in such a way as to reflect his overall criminality. The aggregate sentence must meet the competing requirements of denunciation and rehabilitation. The sentence which I have arrived at will involve an effective non-parole period greater than the statutory proportion, but I trust that it will serve both those ends.
46 The sentence for the attempted murder, which I shall pass first, will be imprisonment for twelve years with a non-parole period of eight years. The sentence for the murder, which will commence five years later, will be imprisonment for twenty years with a non-parole period of fifteen years. The aggregate sentence, then, will be twenty-five years with an effective non-parole period of twenty years. It will commence on the date he was taken into custody, 9 July 2006, and he will be eligible for release on parole on 8 July 2026.
47 [DN], for the offence of causing grievous bodily harm to SC with intent to murder her you are sentenced to a term of imprisonment comprising a non-parole period of eight years, commencing on 9 July 2006 and expiring on 8 July 2014, and a balance of term of four years, commencing on 9 July 2014 and expiring on 8 July 2018. For the murder of R you are sentenced to a term of imprisonment comprising a non-parole period of fifteen years, commencing on 9 July 2011 and expiring on 8 July 2026, and a balance of term of five years, commencing on 9 July 2026 and expiring on 8 July 2031.