Roff v R

Background

1. In 2013, the applicant was 51. His wife for over 30 years had for many years displayed symptoms of mental illness, following the death of their 3rd child, and had been diagnosed with bipolar disorder and schizophrenia, leading to frequent self‑harm and attempts to take her own life. Throughout that time, it seems that the applicant had supported her. The primary judge recorded that: "[the applicant] never faltered in his love for her, stood by her and their children. He shared with all of them the many difficulties life threw at them": at [9].
2. The applicant's wife was diagnosed with cancer in 2010 and died some two years later. The events leading to the murder of Alois Rez commenced shortly after her death.
3. No issue was taken with the description given by the primary judge to the background to and carrying out of the murder at [14]-[44] of his Honour's judgment. Despite their length, those paragraphs should be reproduced in their entirety, for two reasons. The first is so that these reasons may be self-contained. The second is that any summary by this Court, which has not seen the evidence unfold during the trial, and does not even have the transcript of the evidence, would unavoidably fail to capture the nuances in the trial judge's account. "The offender's connection with the deceased and the co-offender 14. The offender had known the deceased's mother, Zonia Rez, from school days in the 1970s. Alois Rez was of a similar age to the offender's eldest son and the two boys had played weekend team sport together when they were young. In his early teens Alois Rez moved with his mother from Dubbo to the Newcastle area. Raymond Roff had no further contact with them until mid-2010. At that time he meet socially with Alois Rez and Sarah Tarrant over several weeks whilst the late Cathy Roff was receiving treatment at the John Hunter Hospital, near to where Mr Rez and Sarah Tarrant then lived. 15. When Alois Rez and Sarah Tarrant moved with their children and Zonia Rez back to Dubbo in June 2012 they initially stayed for a short time at the offender's home. Upon moving to 46 Alfred Street Dubbo they commenced renovating their home. The offender assisted in this work, both physically and as an advisor. He began to visit the home daily, often just for company. 16. During the second half of 2012 and through early 2013 the offender showed interest in and affection for the children of Sarah Tarrant and Alois Rez. The children were then aged between 6 months and 6 years. Raymond Roff assisted Sarah Tarrant with their care on his visits to the home. He became close to her and showed her kindness and consideration. She confided in him that she was unhappy with Alois Rez, that he demeaned and criticised her, that he was lazy and demanding. She told the offender that Zonia Rez also criticised and belittled her. She said she would gladly end the relationship with Alois Rez. 17. The passion which the offender came to feel for Sarah Tarrant from late 2012 unhinged his judgment. He had been of sound sense and morality throughout all his adult years to this point. By every account given in evidence before me he was a solid, honest, hard-working family man. It is material to the determination of an appropriate sentence that I should trace, briefly, the development of Raymond Roff's relationship with his co-offender. His descent to murder is directly attributable to his infatuation with this young woman. 18. I make the following findings of fact with due regard for the requirement that matters tending to mitigate the seriousness of Raymond Roff's offending and facts subjectively in his favour need only be proved on the balance of probabilities. Facts tending to add to the seriousness of the crime or militating against lenience on a subjective basis require proof beyond reasonable doubt. 19. In about December 2012 Sarah Tarrant began to make very explicit sexual overtures to the offender. On one occasion she deliberately exposed herself to the offender then asked him if he liked what he had seen. Soon after she entered her phone number in Raymond Roff's phone and suggested that it be filed under 'yes please'. During January 2013 Sarah Tarrant commenced to send Roff sexually explicit photographs of herself. I accept his evidence that this continued through to July 2013. 20. This strong encouragement commenced to be accepted by the offender in early 2013, with increasingly intimate physical contact leading to sexual intercourse for the first time on 3 March 2013. At Easter 2013, which was at the end of March, Sarah Tarrant wrote a long love letter addressed to the offender. She left this for him in his motorhome, then located at Burrendong Dam 70 km Southeast of Dubbo. The offender replied in a letter of similar length, to which I have earlier referred. The offender declared he wanted to marry Sarah Tarrant and promised to be a good husband and a good father to her children. From March onwards they met many times at locations around Dubbo for sexual intercourse They met on most weekdays when Sarah Tarrant's children were at school and sometimes twice on such days. 21. In the offender's own words to the reporting psychologist, 'I was lonely. I could talk to her and what she was telling me was what I wanted to hear'. His psychologist interprets his life history as suggesting 'a pattern of general emotional withdrawal from others but a tendency to identify one individual who he attaches to and he seeks to meet all his emotional needs through this relationship'. With the loss of his wife the 'one individual' became Sarah Tarrant. 22. According to his self-assessment, expressed in the course of giving evidence, Raymond Roff had a strong sex drive. Sarah Tarrant showed willing. The feelings may have been mutual or she may have done what was necessary to satisfy the offender, to keep his interest and have him take responsibility for her - I cannot tell which. 23. Sarah Tarrant had been unhappy in her relationship with Alois Rez from soon after it began in 2004. They had commenced living together as man and wife when she was 15 years old. Alois Rez was 9½ years older. She gave birth to the first of their four children at the age of 16. Sarah Tarrant had had an unfulfilling relationship with her father. She has been diagnosed as having a personality disorder with dependent traits. It is clear to me that she looked to an older man to take responsibility for her. She looked first to Alois Rez and, when she felt she had become a slave to him and that she was not valued or respected by him, she looked to Raymond Roff. 24. For Sarah Tarrant the impediment to fulfilment of her wish to be with the offender was that she feared Alois Rez would deprive her of her children, should she leave him. She told the offender that she also feared Alois Rez might be violent towards her following a separation. She said in evidence that she held such a fear. The offender's evidence at his trial was that Sarah Tarrant never reported to him any violence by Alois Rez towards her during the 13 months they had lived together in Dubbo, except one minor incident on 23 July 2013, six days before Mr Rez was killed. Lead up to the murder 25. In May 2013 Sarah Tarrant told the offender she wanted Alois Rez 'gone'. She meant by this that she wanted him dead. The offender so understood it. In the offender's trial Sarah Tarrant gave evidence to this effect regarding the conversation of May 2013, which I accept. The offender denied that there was such a conversation but I find these matters proved beyond reasonable doubt. 26. Sarah Tarrant gave no evidence of any further specific discussion with the offender between May 2013 and 25 July 2013 on the subject of having Alois Rez "gone". I do not accept that there was no further mention of the subject in this interval. But there is no evidence upon which I could make an affirmative finding about any particular additional discussion. That is because (a) the offender has at all times denied having ever spoken to Sarah Tarrant about killing or harming Alois Rez and (b) Sarah Tarrant, whilst admitting an agreement with the offender to kill the deceased and admitting her participation in the carrying out of that plan, has given evidence only of the conversations in May and July 2013. There was no other witness to any additional conversations which may have taken place between these dates. 27. In June 2013 Sarah Tarrant informed the offender she was pregnant. She told him he was the father and he believed her. On about 15 July 2013 he gave her an ultimatum. Within 3 weeks she would have to have to leave Alois Rez and become Roff's partner in a relationship that would be open and public. Otherwise, the offender said, he would break off his relationship with Sarah Tarrant altogether. She cried when this was put to her and terminated the conversation without answering. 28. On 23 July 2013 the offender visited 46 Alfred Street for some hours during the evening. He left at about 10:30 pm. After his departure Alois Rez accused Sarah Tarrant of conducting an affair with the offender. There was a moderate physical altercation between them. She was pushed and dragged along the hallway. Sarah Tarrant sent a text message to the offender describing the incident and saying Alois Rez had tried to eject her from the home. She asked the offender to call the police. One of her text messages at this time also informed the offender that Alois Rez had said late in the evening that the offender was not to come to the house any more. 29. The offender called the police on the emergency services number. When they attended 46 Alfred Street Sarah Tarrant told them there was no problem. This caused the officers to enquire of the offender what had prompted his emergency call. The episode angered the offender against Sarah Tarrant. In the next day or so he told her that this had been their chance to have the police remove Alois Rez and that they would not have another such opportunity. Instead of capitalising on the chance she had made a fool of him. He repeated his ultimatum of the previous week. 30. At this Sarah Tarrant cried again and told the offender, for the first time, that Alois Rez had been violent towards her in the past. The implication was that she was physically afraid to leave Alois Rez. 31. Sarah Tarrant gave evidence that she met with the offender on 25 July 2013 and they formed a concrete plan for the elimination of the deceased. The offender supplied her with sleeping tablets and told her these should be crushed and mixed into Alois Rez's evening meal on a night when his mother, Zonia Rez, who shared the house at 46 Alfred Street, was away. He instructed that when Alois Rez went into a deep sleep she was to let the offender know and he would come to the house. She understood that the offender would then kill the deceased. He did not explain what he would do with the body. He told Sarah Tarrant it would be safer for her not to know these details. 32. The offender and Sarah Tarrant agreed that they would not immediately report Alois Rez missing. They intended that when his absence was noted they would promote a story that he was likely to have been kidnapped and eliminated by members of the Rebels Outlaw Motorcycle Gang with whom the deceased had had a disagreement in early 2012. I accept beyond reasonable doubt Sarah Tarrant's evidence to the effect summarised in this and the preceding paragraph. 33. According to the offender's own evidence, on Sunday 28 July 2013 Alois Rez rang and invited him to visit 46 Alfred Street. Upon the offender attending, around the middle of the day, Alois Rez asked him "Are we right?". The offender understood this to be a request for assurance that there were no hard feelings between the two men following Alois Rez having accused the offender of misconduct with Sarah Tarrant and having said that he was no longer welcome at their home. The offender replied "We're always right". All the same, he murdered Alois Rez about 14 hours later in accordance with the plan he had made with Sarah Tarrant three days before. 34. During the afternoon of Sunday 28 July 2013 Sarah Tarrant drove Alois Rez's mother to the Dubbo railway station to board a train bound for Sydney. It was expected she would be away for at least a week. That night Sarah Tarrant mixed the crushed sleeping tablets into a serving of mashed potato which was part of a meal she made for Alois Rez. As he became drowsy and eventually fell into a deep sleep, Sarah Tarrant kept the offender informed by text messages about the victim's state of consciousness. Pursuant to the offender's request she left the front door of 46 Alfred Street unlocked, switched off a sensor light at the front of the house and disconnected a closed-circuit camera which normally displayed movements around the front of the property on a monitor in the deceased's bedroom. 35. At about 1:50 am when Alois Rez was sleeping soundly enough not to be disturbed by a train passing nearby, Sarah Tarrant conveyed this information to the offender by text. He came to the house at about 2:00 am. He entered the bedroom and killed the deceased. The manner in which Alois Rez died is not known because his body has never been recovered. The offender dragged the body, wrapped in bedding, from the bedroom to the front driveway. He had backed his vehicle close to the house. Sarah Tarrant helped him lift the body into the back of the vehicle. The offender drove out into the countryside and disposed of the body at an unknown location. He instructed Sarah Tarrant in an SMS to hose off the driveway, which she did. 36. I am satisfied beyond reasonable doubt that mortal injuries were inflicted on the deceased in his bedroom. His body was motionless when the offender and Sarah Tarrant lifted it into the back of the offender's vehicle. Alois Rez was by that time either dead or close to death from wounds inflicted while he lay asleep. 37. The victim's aunt and his mother were aware of his absence within a few days of 29 July 2013. On 2 August they reported him as a missing person to Dubbo police. 38. Sarah Tarrant lied to police, in denial of their homicide of Alois Rez, during a lengthy interview on 2 August 2013. The same day Raymond Roff made a statement to police about the matter in which he lied about not knowing the circumstances of Alois Rez's disappearance. During the following week police examined the offender's vehicle and found dried blood in its rear compartment. This was later linked by DNA profiling to the deceased. A search warrant was executed at the offender's home on Friday 9 August 2013. During its execution the offender at first denied to police any relationship between himself and Sarah Tarrant. The love letters which had been exchanged between the offender and Sarah Tarrant in March of that year were then found. The offender made valiant but unconvincing efforts to explain his initial denial of the affair. 39. On the night of 9 August 2014, under effective questioning by Detective Sgt Baker of the Dubbo detectives, Sarah Tarrant confessed most of the facts about the plan she had made with the offender for the killing of Alois Rez. During the early hours of 10 August 2013 a record of interview was conducted with the offender in which he said there had never been such a plan. He claimed to have no idea what had happened to Alois Rez. 40. Raymond Roff maintained this stance in his evidence at trial. He admitted to the jury he had attended the residence in the early hours of Monday 29 July but said his purpose was not to kill Alois Rez, only to light a fire on his driveway to frighten him into believing that the Rebels had left a 'calling card' or warning. He said this was the plan he and Sarah Tarrant had made. The implementation of this plan was what was referred to in the text messages between them on the night. The jury evidently rejected this. Objective seriousness of the murder 41. Objectively this was a very serious murder. It was premeditated, planned in detail several days beforehand and implemented coldly and thoroughly. Raymond Roff was a family friend of the victim. He had known the victim from when he was a childhood playmate of one of his own sons. He did not kill Alois Rez in a fit of rage, on the spur of the moment or in uncontrolled desperation. The crime was calculated for the advancement of the offender's interests, to enable him to take up with the younger man's de facto wife. 42. The murder was the more serious for having been carried out in concert with another (s 21A(2)(e) and (n) Crimes (Sentencing Procedure) Act), albeit there could be no suggestion that the offender co-opted or corrupted his younger co-conspirator. It was her idea. Psychiatric evidence was given concerning Sarah Tarrant in the joint sentence hearing following the two trials. I accept the psychiatrists' opinions that Sarah Tarrant held an exaggerated perception of Alois Rez's power in relation to her and that she did not appreciate her own potential - for example, to leave him and take the children, to win custody of them and to obtain police protection against him. In effect the psychiatrists describe Sarah Tarrant as a case of arrested development, a person who entered a de facto marriage at 15 and never matured emotionally or socially thereafter. 43. Why Raymond Roff was not able to open Sarah Tarrant's eyes to a lawful solution for her situation remains unexplained. The offender has given no evidence on the topic and only he would be able to say. He certainly tried to bring about police intervention on the night of 23 July 2013 and he remonstrated with Sarah Tarrant for not having then taken the opportunity to have Alois Rez removed from the house lawfully. 44. Accompanying his physical attraction to her, Roff's strength of feeling for Sarah Tarrant appears to have been sincere and decent. She became everything to him. With her he felt he could be a young man again, starting over with a second family, of her children and their own. Without her the future was cold, widowed and alone in a country town. The starkness of the alternatives overwhelmed him. To achieve his clear preference, he adopted criminal means proposed by the woman he did not want to lose. This describes and to some extent explains what occurred. It is no justification."
4. The balance of his Honour's reasons may be summarised as follows. His Honour had regard to the use of a stupefying drug, the fact that the murder was committed in company and was part of a planned criminal activity, and that the victim was killed in his own home as aggravating factors in accordance with s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour put to one side the fact that violence was used in the infliction of substantial harm, those features being inherent in the offence charged.
5. In relation to mitigating factors in s 21A(3) of that Act, his Honour stated that the applicant was entitled to credit for the absence of any relevant prior convictions and for his prior good character and formed the view that his prospects of rehabilitation were good: at [47].
6. His Honour dealt with the topic of remorse and the effect on the victim's family at [48] and [49] as follows: "The offender has shown no remorse. He continues to disclaim responsibility for the death of Alois Rez. This has led him also to deny knowledge of the location of the body. The consequence is ongoing pain for relatives of the deceased. Victim impact statements of Zonia Rez, the deceased's mother, Arthur Smart, his brother, and Anne Smart, his sister, were read at the sentence hearing pursuant to s 28 Crimes (Sentencing Procedure) Act. The statements attest to positive aspects of the deceased's character and his close family bonds. The loss inflicted upon these family members by the killing of Alois Rez is starkly brought out by their impact statements. A further victim impact statement was read by the deceased's aunt, describing the effect on the four young children of the victim, deprived of their father. They will be deprived of their mother as well because she will be imprisoned for manslaughter. Raymond Roff has wreaked a catastrophe on these four young innocents."
7. At [50], his Honour stated that this was the applicant's first time in prison, that discomfort from his work injury would likely worsen as years advanced and would be harder to cope with than would be under the care available outside the corrective system. His Honour said that he had regard to those factors towards lenience "for such weight as I can give them": at [50].
8. Under the heading "Reasons for exceeding standard non‑parole period", his Honour stated: "51. The sentence I am about to impose will include a non-parole period which exceeds the statutory standard of 20 years referred to at [4]. My reasons for fixing a longer non-parole period are, principally, the aspects of objective seriousness referred to at [41]; the aggravating features referred to at [46] and the absence of remorse or of acknowledgement of his crime, as referred to at [48]. 52. In determining to set a non-parole period longer than the standard, I have evaluated the considerations listed in the preceding paragraph, for the purposes of s 54B(3) Crimes (Sentencing Procedure) Act, and in the context of the entirety of the features of the case referred to in these remarks."
9. His Honour declined to find special circumstances at [53] and had regard to two comparable cases at [54]. Neither of these aspects of the decision was criticised on appeal.
10. At [55]-[59], his Honour took into account a relatively minor offence under the Firearms Act 1996 (NSW), and had regard to the fact that in 1981 he had discharged a rifle near a public place and "after reporting himself to police" became subject to a bond imposed by the Local Court in Dubbo. His Honour stated that although he took that offence into account, he considered that it made no significant difference to the sentence that would have been imposed in any event.

Ground 1 - Failing to take into account applicant's subjective case

1. Although this was the first ground of the appeal, it was dealt with at the conclusion of the applicant's oral submissions. As advanced orally, it came close to amounting to an explanation for what, so it was contended, was a manifestly excessive sentence. That will be addressed under ground 3, in relation to which an explanation is not required, for as Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."
2. The difficulty facing this ground, considered alone, is that, as is apparent from the summary already given, his Honour's reasons are replete with regard being had to the powerful subjective circumstances of the applicant. The primary judge took some pains to explain how the crime had been proposed by Ms Tarrant and was executed by him as a consequence of his feelings for her. His Honour also referred expressly to his absence of prior convictions, his prior good character, the unlikelihood of any further reoffending, and his prospects of rehabilitation: at [47].
3. To the extent that this ground is a free-standing challenge to the sentence imposed, it is not made out.

Ground 2 - the absence of remorse as an aggravating factor

1. Although expressed as a single ground, there were in substance two separate arguments contained within it. The first was that his Honour had used the absence of any remorse on the part of the applicant to impose a more severe sentence.
2. It was common ground that the absence of remorse and denying the knowledge or whereabouts of the deceased's body could not operate to aggravate the term of sentence. In Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22] it was stated that: "a person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed."
3. See also (by way of example) Hadchiti v R [2016] NSWCCA 63 at [171]-[172]. In R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [5], this Court observed that Siganto affirmed the significance and validity of a distinction between not increasing a sentence by reason of a plea of not guilty and granting leniency by means of discount from pleading guilty.
4. There being no dispute as to the operation of principle, the only question arising on this ground was whether reading the reasons for sentence as a whole, and looking at their substance and not merely form (see for example Riggio v R [2015] NSWCCA 223 at [94]), the primary judge in fact relied upon the absence of remorse or acknowledgement of the crime as an aggravating feature.
5. The applicant submitted that this was the natural meaning of [51] which is reproduced above. The Crown's response was that the reasons were to be read as a whole, and that the absence of remorse should be regarded as a matter on which the primary judge relied so as to explain what was otherwise stated to be a heavier sentence. As it was put, the effect of the finding of remorse was "that this mitigating factor could not be made out and therefore could not operate to ameliorate the sentence".
6. Two considerations make this point one which is finely balanced. The first is that in [51] his Honour in terms identified as the second of the three principal reasons which led to his decision to impose a non-parole period which exceeded the statutory standard "the aggravating features referred to at [46]". It might fairly be said to follow, on a natural reading of this part of the reasons, that his Honour's reliance on the absence of remorse and acknowledgement which was the third of the three principal reasons was regarded by his Honour as not comprising an aggravating feature.
7. The second is the approach taken by s 21A(1) of the Crimes (Sentencing Procedure) Act, which requires a court imposing sentence to take into account both the aggravating factors referred to in subsection (2) and the mitigating factors referred to in subsection (3) insofar as they are relevant and known to the court. The subsections treat different factors differently. As it was put in the applicant's written submissions: "Some of the mitigating factors set out under section 21A(3) of the Act reciprocally mirror the aggravating factors set out in section 21A(2). For example, the circumstances that the injury, emotional harm, loss or damage caused by the offence was substantial is an aggravating factor; while the circumstance that the injury, emotional harm, loss or damage caused by the offence was not substantial is a mitigating factor. Remorse is a mitigating factor pursuant to section 21A(3)(i), yet there is no reciprocal aggravating fator for the absence of remorse under section 21A(2). An offence is not aggravated by the fact that no remorse can be shown. If an offender wishes to rely upon remorse as a mitigating factor, the offender is required to prove it on the balance of probabilities. If there is no evidence of remorse, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing."
8. The distinction mandated by the structure of s 21A may seem to be a fine one. An offender who is found to be remorseful, in the particular way required by s 21A(3)(i), is entitled to the benefit of that finding in mitigation, and if other things are equal, may anticipate a lesser sentence than a co-offender who has not been found to be remorseful. Thus the absence of remorse may explain why a heavier sentence was imposed upon the co-offender, insofar as it has the consequence that the offender has not been able to establish the mitigating factor of remorse. However, as was common ground on appeal, regard may not be had to the absence of remorse in imposing a heavier sentence.
9. The fineness of the distinction makes this aspect of this ground of appeal quite technical. However, on balance, we are of the view that, on a fair reading of the reasons, that is what his Honour did. His Honour explained at [51], under the heading "Reasons for exceeding standard non‑parole period", that he had 3 principal reasons for fixing a longer non‑parole period, the third of which was "the absence of remorse or of acknowledgment of his crime". His Honour went on, at [52], expressly to say that each of those three considerations, including the absence of remorse or acknowledgement of the crime, were evaluated for the purposes of s 54B(3) of the Crime (Sentencing Procedure) Act. The natural meaning of his words was that the absence of remorse and acknowledgement was used to produce a longer non-parole period. This aspect of this ground is made out.
10. The second aspect of this ground turned on s 54B(6) of the Crimes (Sentencing Procedure) Act, which is as follows: "A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non‑parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable."
11. Section 54B applies when sentence is imposed in respect of an offence for which there is a standard non-parole period: s 54B(1). Subsection (2) requires regard to be had to the standard non-parole period, but does not limit the matters which are otherwise permitted or required to be considered. Subsections (3), (4) and (5) impose obligations on the Court to make a record in certain circumstances. Subsection (3) provides that the Court "must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account." Subsections (4) and (5) apply in a broadly similar fashion to aggregate sentencing. Subsection (7) provides that a failure to comply with this section does not invalidate the sentence.
12. The lynchpin of the applicant's submission was that the applicant's subjective matters could not be taken into account in determining the non-parole period. The starting point for the argument was the reference in s 54A(2) to "the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness". It was said that in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [28] it was held that Div 1A of Part 4 of the Act did not require or permit the Court to embark upon a two-stage approach to sentencing, involving first assessing whether the offence falls in the middle range of objective seriousness, and, if it does, then asking whether there are matters which warrant a longer or shorter non-parole period.
13. Those first two propositions are unexceptionable. However, it was then submitted that s 54B(6) "puts that [viz, the proposition from Muldrock above] into legislative effect". The submission proceeded: "[Section 54B(6)] provides that the requirement to give reasons for setting a non-parole period that is longer or shorter than the standard non‑parole period does not require the court to, 'identify the extent to which the seriousness of the offence for which the non‑parole period is set differs from that of an offence to which the standard non‑parole period is referable.' However, it is submitted that the sentencing Judge's approach to objective seriousness was not in accordance with section 54B, read in conjunction with section 54A and as interpreted by the High Court in Muldrock at [27]-[29] in that subjective matters (or more accurately, the lack thereof) were taken into account when assessing the objective seriousness of the offence. It is therefore respectfully submitted that his Honour's reasons at [51]-[52] reveal error and a different sentence is warranted in law."
14. It is here that the applicant's alternative submission falls down. First, essential to the applicant's submission is that s 54B(6) imposes a requirement. But that is not how the subsection operates. It does not impose any requirement. To the contrary, it confirms that the requirements in subsections (3), (4) or (5) to make a record do not require the Court to do certain things (namely, to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable). Section 54B(6) does not circumscribe the matters to which the Court may have regard in setting the non-parole period. Instead, it relaxes one aspect of the obligation to "make a record" of some of the integers which contribute to the sentence in fact imposed.
15. Moreover, it will be seen that s 54B(2) provides in terms that the matters to which account must or may be taken are not limited by the standard non‑parole period.
16. Accordingly, we cannot accept this second aspect of the applicant's submission on ground 2.

Ground 3 - Manifestly excessive sentence

1. The applicant's murder of Mr Rez was calculated and cold‑blooded. It took place in Mr Rez' own home, after he had been drugged by his wife. It was premediated, and was found to have been raised by Ms Tarrant two months earlier (at [25]), although the sentencing judge found that the "concrete plan" for killing Mr Rez had only been formed three days beforehand (at [31]). The trial judge found (beyond reasonable doubt) that the applicant planned to promote a story that a bikie gang had kidnapped and eliminated Mr Rez.
2. The applicant has never expressed any remorse for his crime. It is difficult to convey the loss to the surviving members of Mr Rez' family, especially his young children.
3. That said, there are a number of features which powerfully favour the applicant in the sentencing process. The sentencing judge found to the criminal standard that Ms Tarrant had told the applicant that she wanted Mr Rez "gone", and that that had led to the offence. The offence was not motivated by financial gain. There appears to have been no special cruelty in the manner of inflicting death. The crime was not committed in furtherance of, or to conceal, another crime. The applicant has a clean criminal record, save for a minor firearm offence some decades ago. He had a difficult upbringing and faced adversity during his married life. There is no prospect that the circumstances accompanying this crime will recur.
4. The sentencing judge found that the applicant has been "significantly physically disabled" since a work accident in April 2003, in which he put himself in danger to prevent injury to a workmate. The applicant "had been a faithful husband for over 30 years and a loving and interested parent" (at [13]) and was deeply affected by the death of his wife. Although it is no justification, the applicant's actions were motivated by his "sincere and decent" feelings for Ms Tarrant.
5. In short, and as stated by the sentencing judge at [5]: "This terrible crime was an extraordinary exception to everything about the offender's character and conduct up to that date."
6. Weighing up all of those matters, a head sentence of 32 years is outside the range of sentence which could have properly been imposed.

Resentencing

1. The result is that there must be an extension of time and the appeal must be allowed. It was accepted that in those circumstances, this Court should proceed to resentence. The Crown did not seek to defend orally its submission advanced in writing that even if any of grounds 1-3 were made out, no lesser sentence was warranted in law. With respect, it is very difficult to see how that submission can be available when the grounds include one of manifest excess.
2. The matters bearing upon the appropriate sentence are those summarised in ground 3 above, and in light of the careful and detailed background description given by the sentencing judge reproduced above. The applicant should be resentenced to a term of imprisonment of 25 years with a non‑parole period of 18 years and 9 months, commencing on 9 August 2013.
3. We make the following orders:
4. Extend the time for the filing of a notice of appeal to 19 June 2017.
5. Grant leave to appeal against sentence.
6. Appeal allowed.
7. Quash the sentence of 32 years with a non‑parole period of 24 years imposed on 19 August 2016, and in lieu thereof, sentence Raymond Isaac Roff to imprisonment for a non-parole period of 18 years and 9 months to commence on 9 August 2013 and to expire on 8 May 2032 and a balance of term of 6 years and 3 months to commence on 9 May 2032 and to expire on 8 August 2038.
8. Note that Raymond Isaac Roff will be eligible for release on parole at the expiry of the non-parole period on 8 May 2032.
9. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of the Act apply to him and to the offending the subject of these proceedings.

Amendments 30 August 2017 - File number on coversheet corrected. 01 September 2017 - [4] - Replaced "Roth" with "Roff" [5] - Replaced "faulted" with "faltered" in quote [13] - Replaced "were" with "was" [14] - Last line, replaced "offence" with "sentence" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2017