34 Having regard to the matters to which I referred in those cases and to those identified by the sentencing judges in such cases as Regina v. Lo [2000] NSWSC 714; Regina v. Harris [2000] NSWSC 285 and Regina v. Mrish (Hidden, J., unreported 13 December 1996), it can be seen that in assessing the "worst class of case" and the "level of culpability in the commission of the offence" a court is not limited to the immediate circumstances of the crime of murder solely, even if, when assessing " the level of the culpability in the commission of the offence", the court is required to disregard matters totally unconnected with the commission of the crime (Regina v. Bell (1985) 2 NSWLR 466).
35 Indeed, Street (supra) and Rose (supra) involved multiple counts of murder, as did Mrish (supra) and Harris (supra). Barac (supra) and Lo (supra) both involved counts of murder in the context, in the case of Lo of other offences including conspiracy to murder and various drug offences, and Barac, a count of murder in the context of a previous offence of malicious wounding for which the offender was serving a sentence at the time of the commission of the murder charged. Plainly motive and matters affecting the intellect or appreciation of the offender as affecting his involvement in the crime are relevant, even though personal to the offender (see Regina v. Burke (1983) 2 NSWLR 93) and Harris (supra)).
36 Here the offender has intended three murders, has appallingly injured the spouse of one of his intended victims, mistaking her for the intended victim, and has committed those offences in the context of seeking to interfere with the criminal justice process. His motive was apparently to do away with those who might be witnesses against him.
37 It appears to me that these offences, when considered together, are offences of the very highest criminality. It was put to me by the Crown that his actions in this regard were entirely disproportionate to the circumstances in which he found himself placed. These crimes certainly fell well within the "worst class of case". They were themselves appalling instances of actual or intended violence and were committed for a reprehensible motive. Having regarding to that motive, the number of crimes and the period during which they were committed, they showed more than merely transient or sporadic criminality.
38 There was, except in the offences themselves, no matter adverted to such as is referred to in Veen v. The Queen (No. 2) (1987-88) 164 CLR 465 as might require on synthesising all the elements involved the passing of a maximum sentence, although the criteria referred to in that decision of the High Court are plainly relevant to, not only the question of what sentence might be passed in discretion, but to whether or not the criteria in s.61(1) are satisfied.
39 It was conceded by the Crown that the plea of guilty was of high utilitarian value since the trial was set down for some 14 weeks, and would have involved some 140 witnesses, including Mrs. Gerges. It was conceded that the offender pleaded at a time when the true nature of the offences against him were first explained clearly to him, this having arisen at such a late stage in consequence of a change of counsel.
40 The Crown accepted that the full picture, including the weight of the evidence available, was revealed to the offender in the Crown opening and that the plea could not be considered a late plea in that context. It was accepted by the learned Crown Prosecutor that the plea, entered as it was, might properly be regarded as containing some element of contrition, but was of great value on the utilitarian basis and my attention was drawn to paragraphs 151-156 of Thomson & Houlton (supra).
"Although these practices, as variously expressed, are suggestive, they are of only limited assistance. This is particularly so if, as proposed, any identified range is limited to the utilitarian value of a plea. That utilitarian value will vary from time to time and from one criminal justice system to another. Obviously there are common elements but there are also differences. The task of this court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty.
In my opinion, the appropriate range for a discount is from 10 to 25%.
The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.
There are however, two circumstances which will generally affect the appropriate level of discount in a particular case:-
(a) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(b) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length of complexity of the trial, the greater the utilitarian value of a plea.
The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, eg., on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.
Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the 'discount' will be reflected in a step down in the hierarchy of sentencing options."
41 However, the Crown further submitted that it was open to me to pass the sentence of life imprisonment and that in coming to the view of whether I was satisfied of the matters to which s.61 relates, I should have regard to what appears in paragraphs 157-158 in Thomson & Houlton (supra).
"There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate (see, eg., Regina v. Stabler (1984) 6 Crim. App. R. (s) 129 at 131; Regina v. Costen (1989) 11 Crim. App. R. (S) 182 at 184).
There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea (see, eg., Regina v. Kalache [2000] NSWCCA 2, per Sully, J. at paras.38-42)."
42 I turn to the offender's prior record and personal circumstances. It was put to me that the offender's prior record was effectively irrelevant to my determination. That record included offences of larceny and use false instrument with an offence of receiving taken into account, for which the offender received community service. I accept that this record has little bearing upon the task I must perform, and I note that otherwise the offender was of good character in Ireland as was evidenced by both his Police Certificate of Character and his Certificates of Discharge as a Seaman.
43 He has been the subject of psychological assessment and report by Alison O'Neil, clinical psychologist. It was common ground between the Crown and counsel for the offender that although the offender had not given evidence on his plea before me, I could have regard to that interview for the conclusions of the psychologist and also her account of the description given by him of his own subjective circumstances. The offender is a 35 year old married man who was born in Ireland and has Australian citizenship. He is married and has two children.
44 He described to her a very stable home environment and childhood in Ireland, leading to his education in marine engineering, which involved apprenticeships in some seven trades.
45 The offender apparently came to Australia some 12 years ago to work on boats involved in the America's Cup. He has, however, been the subject of a number of accidents, several of which have resulted in head injuries, loss of consciousness and subsequent periods of post-traumatic amnesia. In addition, during his career it appears that on a number of occasions he has sustained accidents whilst diving in which he has experienced the bends and twice been placed in decompression chambers. He asserts that he presently, frequently, experiences bleeding from the nose and ears.
46 The psychologist pointed out that such bleeding is suggestive of organic brain damage and that the offender reports several symptoms indicative of cognitive deficits including headaches, memory problems, difficulty finding words or comprehending meanings, difficulty organising, planning or making decisions. He claims to be dyslexic. Testing revealed scattered performance on the WAIS III with significant strengths and weaknesses. On the Wechsler Memory Scale there was great difficulty manipulating information, learning and recalling verbal and visual information. His ability to learn and remember verbal and visual material was equally poor and his ability to recall, worse.
47 There was discovered to be a weakness in oral generativity and in expressive language. Overall, he showed results supportive of cognitive deficits and indeed on some of the tests his performance was consistent with poor executive functioning which was consistent with the performance of a brain damaged individual.
48 Emotionally, it was clear to the psychologist that he suffered severely from depression and anxiety to the extent that his symptoms were commensurate with a mood disorder with symptoms of tearfulness, feelings of worthlessness, irritability, agitation, hopelessness, impaired sleep, suicidal ideation and anxiety.
49 He has apparently consulted prison psychiatrists and been prescribed anti-depressant medication. He had significantly elevated levels of depression and anxiety though with no psychotic disturbance noted. The psychologist was able to elicit beliefs which may have been paranoid.
50 There is nothing specific put to me to suggest that the offender's prospects of rehabilitation are significantly affected. In the light of the discussion of the relevant applicable principles in such a case by Bell, J. in Harris (supra), this is a most material matter.
51 I was informed that his wife, children and whole family were now in Ireland and that since 1997, as a consequence of an attack on him by other prisoners, he has been held in strict non-association segregation custody amounting to strict isolation involving no contact with other prisoners, this for his own protection.
52 I was further informed that the authorities had been unable to ascertain the underlying basis for the attack on him and consequently they are unable to ascertain whether he might be further at risk within the gaol system, so that the arrangements for his detention in isolation are of indeterminate duration.
53 It may be the case that his isolation will continue for a most extensive period. The fact that an offender will be spending time in more restrictive conditions of protection, can be a most important circumstance to take into account when having regard to the severity of the punishment on that offender of a lengthy sentence: see Regina v. Astill (CCA, unreported 1 October 1992); Regina v. Bell (CCA, unreported 11 May 1993), particularly where it cannot be seen that this is due to the offender's own fault.
54 Having regard to the objective circumstances, it is quite apparent that the gravity of the crimes for which the offender must be sentenced are so great that even should I conclude that I am not satisfied of the matters which s.61 requires, that nonetheless the overall culpability, considerations of general and personal deterrence, particularly in the context of offences committed out of a motive to defeat the ends of justice, will require very heavy sentences indeed. It is necessary for crimes of this degree of gravity for the court to denounce the conduct and to have regard to the moral outrage of the community: see Regina v. Geddes (1936) 36 SR 554; Regina v. Nichols (1991) 57 A. Crim. R. 391.
55 It will be necessary for the sentence to reflect the total criminality and in particular, to have regard to the criminality involved in the two counts on the indictment, while allowing for a substantial component in the eventual sentence to reflect the culpability to be attached to those offences charged on the Form 1: Regina v. Pearce (1998) 104 CLR 610. I must also have regard to the principle of totality.
56 I have regard to those matters when considering the s.61 criteria and, on any exercise of discretion, I will take them into account. Further, I note that any sentence must reflect the appalling conduct of the offender and its context and that he contemplated the killing of three persons, achieved the killing of one and severely and terribly injured another. It is necessary that the sentence not be disproportionate to the gravity of the crime, having regard to all the circumstances.
57 Although there is most limited material to which I can have regard, it seems as though what occurred was a process of frantic, if not, panic stricken reaction by the offender to the prospect of being tried and punished for the alleged fraud, possibly influenced by a degree of paranoia. His thought processes did not appear at all organised. He seems to have resorted to drastic and fantastic expedients because of the intellectual and personality deficits described by the psychologist.
58 His criminality should be considered to be mitigated to some limited, but some, degree by these matters: Regina v. Letteri (CCA, unreported 18 March 1992). Considering the criteria, comparisons between individual cases are of no assistance. It is hard to find any guiding principle which might operate by way of gloss upon the section to afford any further assistance than is afforded by direct regard to the express words of the provision. It is of no assistance to consider categories of murder such as those applicable to contract killers, political assassinations, killing for profit or to consider particular examples of other persons, who other judges, in other circumstances, but for the same crime thought deserved the maximum sentence.
59 I have considered all matters relevant to culpability and particularly the gravity, multiplicity and frequency of the crimes in context and, particularly, the offender's psychological deficits as appear to have been involved in his criminality. Notwithstanding that his conduct has been appalling and reprehensible in the extreme, I have been unable, after anxious consideration, to conclude that I am satisfied that the level of culpability is so extreme that the community's interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a sentence which would require the confinement of the offender for the rest of his natural life.
60 I am, however, of the view, having regard to all those matters, that nonetheless, a very lengthy sentence which will include a most substantial non-parole period, must be passed.
61 In that regard, however, the very length of the sentence together with the matters I have earlier referred to in evidence from the psychologist's report and going to the offender's cognitive deficits and possible brain damage and his isolation are such as amount to special circumstances. I am firmly of the view that, having regard to the matters I referred to in Petrinovic (supra) at paras.64-66, the maximum opportunity should be afforded to the offender for supervision after release but under the sanction of a possible return to custody, and that should be catered for by varying the statutory proportions envisaged by s.44(2) of the Act to a limited extent.
62 In accordance with the decision of the Court of Criminal Appeal in Thomson & Houlton (supra), I express the discount for the plea of guilty as allowed at 15%.
63 Mr. Offer, on the charge of murder, you are sentenced to a total sentence of 34 years. There will be a 25 year non-parole period. That sentence takes into account the three matters on the Form 1. On the charge of cause grievous bodily harm with intent to murder, you are sentenced to 10 years imprisonment to be served concurrently with the sentence on the murder charge. I decline to set a non-parole period for that offence because of the other penalty imposed on you for the murder offence.
64 I direct that those sentences commence on 17 October 1997. I specify that the earliest date on which the offender will be eligible for release from custody or eligible to be released on parole is 16 October 2022.