Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Williams v R [2012] NSWCCA 172
• Hearing dates: 26 June 2012
• Decision date: 16 August 2012
• Before: Allsop P; Price J; S.G Campbell J

Decision

1. Leave to appeal granted.

2. Appeal dismissed.

• Catchwords: CRIMINAL LAW - appeal - sentencing - murder - sentence prior to Muldrock v The Queen - whether error in regard to standard non-parole period - whether sentencing judge engaged in a two-stage approach - whether provocation may be taken into account in assessing objective seriousness - whether sentencing judge erred in giving weight to prior illicit drug use in assessing good character - whether sentence was manifestly excessive.
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; s 21A(3)(e), s 21A(3)(f), s 21A(3)(g),; s 21A(3)(h), s 54B(2),; Criminal Appeal Act 1912 s 6(3)
• Cases Cited: Aoun v R [2007] NSWCCA 292; Bolt v R [2012] NSWCCA 50; Butler v R [2012] NSWCCA 23; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520; Majid v R [2010] NSWCCA 121; Markarian v R [2005] HCA 25; (2005) 228 CLR 357; Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; R v Baker [2000] NSWCCA 85; R v Koloamatangi [2011] NSWCCA 288; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; Weininger v The Queen [2003] HCA 14 (2003) 212 CLR 629; Yang v R [2012] NSWCCA 49; Zreika v R [2012] NSWCCA 44
• Category: Principal judgment
• Parties: .
• Representation: Mr Dhanji SC (applicant); Ms J Girdham (respondent); P A O'Farrell Legal Aid NSW (applicant); S Kavanagh Solicitor for public prosecutions (respondent)
• File Number(s): 2009/213264

Decision under appeal

• File Number(s): 2009/213264

Judgment

1 ALLSOP P: I have had the great advantage of reading in draft the reasons of Price J. I have no hesitation in agreeing with his Honour in relation to grounds 2, 3 and 4. My concern lies with ground 1.

2 The decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 made clear that the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 was wrongly decided. That does not mean that all sentences passed before Muldrock relying on Way are necessarily vitiated by operative error. No such mechanical submission was made by Mr Dhanji SC, who appeared for the applicant. Nevertheless, a judge who has so scrupulously and carefully followed the precedents binding on her (as this judge did, if I may respectfully say so) can be taken to approach the matter accordingly.

3 Here at [74] of her reasons, the sentencing judge referred to "the principles discussed in" not only Way but a number of decisions of this Court, including R v McEvoy [2010] NSWCCA 110. In that decision, Simpson J (with whom Grove J and R A Hulme J agreed) in expounding those principles said at [90]-[91]:

"[90] It is because the standard non-parole period is to be treated as 'a reference point, or benchmark, or sounding board, or guide post' (Way, [122]) that this Court has required some specification of where in the range of objective seriousness an offence lies. Leaving aside other relevant factors, such as personal circumstances, one would expect an offence classified as substantially below the mid-range of objective seriousness to incur a sentence substantially below the standard non-parole period; an offence slightly below mid-range of objective seriousness to incur a sentence slightly below the standard non-parole period; and the converse where the offence is slightly, significantly, or substantially above the mid-range of objective seriousness.

[91] In fact, taking the approach proposed by Howie J provides some check against error. If an intended sentence has a non-parole period substantially below the standard non-parole period, but the offence is held to be slightly below the mid-range of objective seriousness, then a sentencing judge would be wise to examine whether other factors (for example, personal circumstances) warranted that differential. If they do not, the sentence should be re-considered: see Way, [124]."

4 To approach the matter thus may be seen to involve a degree of tethering to the standard non-parole period requiring justification for movement away from the "reference point", or "benchmark", or "guidepost": cf R v El Helou [2010] NSWCCA 111; 267 ALR 734 at [70] ff. Reference points, benchmarks or guideposts imply a degree of precision to a process which necessarily lacks such precision. Metaphors are apt to conceal as much as illuminate. Here the sentencing judge in her otherwise careful and precise remarks can be taken to be following perspicaciously the approach then required by this Court. That said, as the reasons of Price J reveal, her Honour dealt with all the circumstances attending the sentencing process in a way which in form and expression might not reflect error even after Muldrock. The assessment of the approach taken, however, is not a formal one, rather it is substantive. At [78], her Honour spoke of the offence as "just above the mid-range". This appears to involve a degree of precision that might be seen as chimeric, though faithful to such cases as McEvoy and R v Knight [2007] NSWCCA 283; 176 A Crim R 338. The expression of reasons should be assessed by a fair reading of them in the context of the then perceived orthodoxy of approach, as McCallum J (with whom Beazley JA and Harrison J agreed) said in Bolt v R [2012] NSWCCA 50 at [35]-[36]. Here the non-parole period, taking into account the 25 per cent utilitarian discount applied, was a little above 21 years (what might be seen to be "just above" the standard non-parole period).

5 It is unnecessary for me to reach a final view about the approach employed by her Honour. This is so because, like Price J, I am unpersuaded that a lesser sentence is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). The facts have been set out fully in Price J's reasons. I will not dwell on them to an extent beyond that which is necessary. The applicant strangled and bludgeoned the young woman with a shovel in a brutal attack that killed her from the blunt force injury inflicted and asphyxiation. Though not planned, the murder was intended and brutal. The sentence in all the circumstances was not only not excessive (ground 4), but it was justly reflective of all the favourable circumstances and considerations put on behalf of the applicant. I am unpersuaded that a less severe sentence is warranted in law. Indeed, I am of the view that the sentence was both just and proportionate.

6 Thus, even if her Honour committed an error in the application of principles in Way, the orders proposed by Price J should be made.

7 PRICE J: The applicant pleaded guilty in the Local Court to the charge of having murdered Shana Joy Wilkinson on or about 18 September 2009 and adhered to his plea in the Supreme Court. The maximum penalty for murder is life imprisonment and a standard non-parole period of 20 years has been prescribed. The applicant was sentenced to imprisonment with a non-parole period of 16 years, 3 months and 23 days commencing on 24 September 2009 and expiring on 15 January 2026 with a balance of term of 5 years, 5 months and 8 days commencing on 16 January 2026 and expiring on 23 June 2031. The earliest date that he will be eligible for release on parole is 16 January 2026.

8 The applicant seeks leave to appeal against that sentence upon the following grounds:

1. The learned sentencing judge erred in the manner in which she had regard to the standard non-parole period provided for the offence.

2.The learned sentencing judge erred in giving weight to the applicant's prior use of illicit drugs thereby reducing the extent to which her Honour had regard to the applicant's prior good character.

3. The learned sentencing judge failed to have proper regard to the applicant's youth, together with the inevitable length of his incarceration, and his good character when assessing his prospects of rehabilitation.

4.The sentence is, in all the circumstances, manifestly excessive.

Facts

The facts were put before the sentencing judge by way of an agreed statement, which the sentencing judge detailed in her remarks on sentence. The following convenient summary of the agreed facts is taken from the Crown's written submissions:

The deceased was reported missing on 20 September 2009. Her mother had last seen her at home at 9.30pm on 18 September 2009 and had made several unsuccessful attempts to contact her on her mobile phone. Her mother contacted several friends of the deceased including the applicant. The applicant told her that he had picked the deceased up at home at around 11pm on the Friday night and dropped her off near Edward and Federation Drive. The applicant was the last person to see the deceased.

On Monday 21 September 2009 and the following day the Police, the SES and the Volunteer Rescue Association (VRA) conducted searches for the deceased. The applicant attended VRA headquarters on 22 September 2009 and assisted with the search of the Murray River and its banks. As part of the investigation Police interviewed friends of the deceased including the applicant who participated in an ERISP. He told Police that the deceased sent him a text message on Friday night and later rang him. She sounded upset so he went to see her and noticed that she had been drinking. He took her for a drive and she indicated that she wanted to rekindle their relationship but he declined as he had moved on with a new girlfriend. The applicant stopped the car at her request as she stated she was going to see a friend. This was at about 11pm.

Despite extensive searches of the Murray River the deceased could not be located. Telephone records confirmed the applicant was the last person to have telephone contact with the deceased.

On 24 September 2009 at 2pm Police spoke to the applicant in the presence of his father Graham Williams. During this conversation the applicant told Police "..its looks pretty bad for me. I was the last one to see her alive and they haven't found her body ". He then corrected himself and stated "No I mean they haven't found Shana. I've been out with VRA looking for her". The applicant's vehicle, a white Ford Falcon was seized by Police. The applicant's father advised Police that they had seized the wrong vehicle as the applicant was driving his other vehicle, a silver Ford Falcon ute on the Friday night. The applicant confirmed this and gave permission for Police to seize the ute for examination.

Police asked the applicant to recall what had happened after he dropped the deceased off. The applicant asked to speak to his father. Following this conversation, the applicant again told Police that he had dropped the deceased off in Edward Street, went home and had a shower after which he drove to his girlfriend's house. He agreed to give Police the clothes he had been wearing on Friday night. Shortly after, the applicant's father, Mr Williams said "He strangled her". The applicant said "/ killed her". He told Police that he had buried the deceased near the Lagoon and agreed to show them the burial site. He was arrested and cautioned.

The applicant directed police to an area known as "Dairy Lagoon" not far from the waters edge. He said to police "/ didn't mean to do it. It started out as a joke but I couldn't stop squeezing". He demonstrated how he strangled her in a headlock type position from behind. He said he hit her with a shovel, took her clothes off and buried her. He said she was dead before he hit her with the shovel. He told Police he put his clothes and her clothes in a bag and put them in the roof of his house. The applicant declined to answer any questions after obtaining legal advice and was charged.

The body of the deceased was located approximately 600 millimetres below the surface at the burial site. The body was naked and face down. An autopsy report revealed that the cause of death was blunt force injuries to the head. Asphyxia was found to be a significant contributing factor to the death. The following injuries to the head were noted;

·Large lacerations lateral to the right eye, scalp of the

forehead and back of skull.

·Commuted fractures of the base of the skull.

·Fractures of the right frontal skull left occipital skull and right orbit.

·The brain had small subarachnoid and subdural

haemorrhages and contusions.

4. The following asphyxial injuries were noted:

·Transverse bar like area of blanching of the anterior neck with adjacent profuse petechial haemorrhage.

·Contusions on the skin of the front of the neck and the central posterior neck and the left posterior shoulder and right anterior shoulder.

·Subconjunctival haemorrhages, petechial haemorrhages of the oral mucosa and deep soft tissue haemorrhages within the neck.

A black plastic bag containing the applicant's and deceased's clothing was located in the roof cavity of the applicant's house. A fingerprint and a palm print of the applicant were located on the exterior of the plastic garbage bag. The applicant's jeans were forensically examined and it was found that the deceased had the same DNA profile as the DNA recovered from several areas on the jeans. Semen was not detected on the rectal, nasal, oral or vaginal swab of the deceased.

The autopsy report revealed no detectable alcohol or common drugs of abuse or prescribed drugs in the deceased's body.

9 The offender had given an account of events before the murder that was recorded by Dr Westmore, a forensic psychiatrist in a report dated 4 January 2011. The sentencing judge said (ROS at [8]-[9]):

"In evidence was a report prepared by the forensic psychiatrist Dr Westmore, who examined the offender on 23 December 2010. The account which Dr Westmore recorded the offender had given him was:

"I asked him what happened on the night of the incident. He said it was about one week after his current girlfriend had a miscarriage. He said "I'd been drinking pretty heavily all week and that night I really wrote meself off. She (Shana) rang me asking if I wanted to go for a drink. I went and picked her up (from her home). We were driving around for a bit and pulled over at the river, just talking. I told her how devastated I was at losing the baby. I was ready to be a father, built meself up to it. She said it was a good thing that it died, that it was a good thing that happened. That is when I got angry. I never really get angry like that, something was saying, I don't know how to explain it, something in me snapped I guess."

He continued and stated "It shouldn't have happened in the first place. I realised what I'd done. I freaked out and I panicked and that is when I tried to get rid of her."

I told him the police indicate that he had said at some stage that he had strangled Shana and he said "Yes, that is correct." I told him I understood he had also stated at some stage that he had hit her with a shovel, he said yes. I enquired had there been any sexual intimacy between him and Shana on that particular night, he said no.

I told him I understood she had been stripped naked and he said "Correct." I asked him why he done that and he said "Panic I just wanted it all to go away, I was freaking out about going to gaol. I didn't know what to do. I couldn't believe I'd done something like that."

I asked him how much alcohol he had consumed on the night and he said he had consumed a large bottle of Jack Daniel, twelve schooners and he had smoked cannabis as well. I confirmed with him that he had consumed a whole bottle of spirits by himself and he said yes to that question. He then said "I've been an alcoholic for years." I enquired had he been heavily intoxicated on the night and he said "Yes, I started drinking at quarter past three when I knocked off work. " He said the incident occurred between 10.30pm and 11.00pm. He thought Shana had been drinking as well, he said he can remember that she had a bottle of wine with her.

He had smoked a $20 packet of cannabis over a period of time leading up to the homicide."

Later Dr Westmore noted:

"I took him back to the offending behaviour and asked him what was he thinking at the time. He said "Something was telling me, you can't let her talk like that, it wasn't the first baby that I'd lost. I was pretty built up to be a father. When she said she was glad it died, it wasn't even like anger, it was blind rage. I've never felt anything like it before."

I asked him did he think he had lost control on that particular night or not. He said "Yeah, I think I did." I enquired did he think that he would have lost control in the same way if he had not used drugs and alcohol that night. He said no. I asked him in the past when he had been aggressive, had it always been in conjunction with drug and alcohol use, he said yes."

Personal circumstances

10 The applicant did not give evidence before the sentencing judge, but Anne McGeeham, his mother did. Ms McGeeham agreed with the applicant's family background that had been detailed in Dr Westmore's report. The applicant was 22 years old at the time of the murder and 23 years old when sentenced. He is the second child in a family of three children and was raised in Corowa. His father was employed as a meat inspector at the abbatoirs and his mother as a high school teacher. They separated when the applicant was approximately 9 years old. He left school in year 11 to commence a 3 year apprenticeship as a fitter and turner. The applicant received an award from the Australian Industry Group (his sponsor) as the best 3rd year apprentice in the engineering-mechanical trade and was subsequently named Victorian apprentice of the year in 2008. Upon completing his apprenticeship, he continued his employment with Goodman Fielder, with whom he had been apprenticed, until he undertook contracting work for the same company. He purchased a home and his activities included volunteer work in search and rescue operations.

11 The written material that was placed before the sentencing judge included the nomination form for the Victorian apprentice of the year award, a "custodial employment" history and statements of attainment.

12 The applicant did not have a record of previous criminal convictions.

13 Dr Westmore reported that the applicant had started drinking at the age of 13, mainly on the weekends but in a "binge pattern". At the age of 17, he was consuming a six-pack of beer most nights or alternatively he would drink whiskey and port. There was additional binging on top of that more regular pattern of alcohol consumption. The applicant started smoking cannabis at the age of 13 and by 18, he was taking ecstasy and amphetamines. He would use illicit drugs most weekends.

14 Dr Westmore diagnosed probable post-traumatic stress disorder secondary to the homicide, alcohol abuse and substance abuse.

15 Dr Westmore considered that based on the applicant's "longitudinal history", the extreme nature of the violence towards the deceased did seem to be unexpected and unpredictable. He opined that "feelings of depression and despondency following Emily's pregnancy problems and [the applicant's] abuse of drugs and alcohol on the night in question are all likely to have been significant contributors to the offending behaviour." The psychiatrist opined that the applicant's "general risk to the community is probably low, particularly if he is able to enter into sobriety in relation to drug and alcohol use."

16 A report dated 16 February 2011 from Dr Susan Pulman, a psychologist, was also before the sentencing judge. Dr Pulman reported the applicant's description of having gone on a "daily binge" from the age of 17, often resulting in black outs and his use of ecstasy and amphetamines a "fair bit on weekends" from the age of 18. The applicant told Dr Pulman that he had attended an Alcoholics Anonmymous meeting and went through a detoxification on his own.

17 Results of a neuropsychological assessment indicated that the applicant was functioning within the average range of intellectual ability. He had sound abilities in problem solving, judgement and self-regulation.

18 Ms McGeeham gave evidence that she knew that the applicant went out with his friend's drinking, but she did not know that he had been consuming the level of alcohol reported to Dr Westmore. She knew about the cannabis, but did not realise how much cannabis he was consuming nor about other drugs. She agreed that the applicant had been able to maintain full-time employment and had not taken time off work. She first learnt of Emily's pregnancy and miscarriage from Emily after her son's arrest. Ms McGeeham said that Emily could possibly have been carrying twins that she thought was personal to the applicant as she and her father were twins and the applicant had previously lost a child.

Some findings by the sentencing judge

19 It is convenient to mention some of the findings about which there is no complaint upon appeal. The sentencing judge found:

·The offence was not planned.

·The applicant had an intention to kill

·On confession, the applicant co-operated with police and had provided certain assistance to them.

·The applicant was entitled to a 25 per cent discount for the utilitarian discount for his guilty plea.

·The applicant was remorseful.

20 The sentencing judge was not persuaded that provocation, as the result of a combination of the applicant's increased sensitivity to the deceased's remarks and the effects of alcohol and cannabis on his judgement had been established. The sentencing judge referred to the "two quite different accounts" of how the applicant came to murder the deceased. Her Honour observed at (ROS [66]) that "it was only when he spoke to Dr Westmore, that he gave any account of remarks made by Ms Wilkinson, which provoked his 'blind rage', causing him to strangle her. His earlier account was that the strangling began as a joke. Because [the applicant] gave no evidence, his differing accounts were not tested."

21 Her Honour was not of the view that special circumstances should be found.

Ground 1:The learned sentencing judge erred in the manner in which

she had regard to the standard non-parole period provided for the offence.

22 The sentence was imposed prior to the judgment of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. Mr Dhanji SC for the applicant, submitted that the sentencing judge's approach in following the decision in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 was unimpeachable, but the High Court in Muldrock held that Way was wrongly decided.

23 Mr Dhanji submitted that her Honour had engaged in a two-stage approach to sentencing the applicant that was not permitted.

24 Attention was drawn by senior counsel to the sentencing judge's remarks at (ROS [73] - [74]):

"As I have said, the offence of murder, which carries a maximum penalty of life imprisonment, attracts the operation of s 54A of the Act, which provides for a standard non-parole period of 20 years for a mid-range offence of murder. This standard non-parole period does not apply after a plea, but it must still be kept in mind as 'a reference point, or benchmark' in sentencing, as must the maximum penalty (see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [122]).

In considering where in the range this offence falls, I have paid regard to the principles discussed in R v Way ; R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575; MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93; R v McEvoy [2010] NSWCCA 110; Mulato v R [2006] NSWCCA 282; and R v AZ [2011] NSWCCA 43. For the offender it was urged that particular regard would be paid to what Kirby J observed in MLP v The Queen at [33]."

and at [78] - [79]:

"Having weighed the various aggravating and mitigating matters which must be taken into account in assessing the objective seriousness of the offence, I am satisfied that the evidence does not permit a conclusion that this offence fell below the mid-range of seriousness, even though it was not premeditated. I have concluded that this offence falls at just above the mid-range of such offences.

In determining sentence, consideration must be given to that conclusion, as well as to the offender's subjective case and the mitigating matters which are relevant to sentence. They include my conclusion that the offender is entitled to a 25% utilitarian discount; his remorse and prospects of rehabilitation; and his confession and co-operation with the authorities."

25 When invited to specifically identify the error, Mr Dhanji said that having made a finding of the objective gravity of the offence, the sentencing judge came up with some form of figure and then moved away from that figure as a result of other factors as if s 54B(2) Crimes (Sentencing Procedure) Act 1999 was to be applied in "a mechanistic way". Reliance was also placed upon the argument that the sentencing judge had given more emphasis to the standard non-parole period than was warranted.

26 Senior counsel for the applicant pointed to the 29 year undiscounted starting point of the sentence that corresponded to a non-parole period (absent special circumstances) of 21 years, which was "slightly above the standard non-parole period:" The non-parole period set by the sentencing judge appeared to correspond with her assessment of the offence as "just above the mid range", but this approach had led to a discounting of the applicant's strong subjective case with the distortion of the ultimate result. Another complaint was that her Honour's view as to the objective gravity of the offence appears to have been influenced by the rejection of provocation, which was no longer permissible after Muldrock.

27 The Crown submitted that the sentencing judge did not adopt an approach of commencing with the standard non-parole period and then seeking to find factors which could justify a variation from it. The Crown contended that her Honour had clearly outlined factors relevant to the objective facts and the applicant's subjective case before arriving at sentence. There was nothing in the sentencing remarks that suggested a two-stage approach nor had the sentence been impermissibly inflated because of over emphasis upon the standard non-parole period. The Crown cited Butler v R [2012] NSWCCA 23 at [26] where Davies J (with whom Whealy JA and Rothman J agreed) stated:

"In my opinion no error has been shown in relation to the way the Sentencing Judge approached the standard non-parole period. Merely showing that a sentencing judge sentenced pre- Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick."

28 In the present case, the applicant had pleaded guilty and the sentencing judge noted at (ROS [73]) that the standard non-parole period did not apply, "but it must still be kept in mind as 'a reference point, or benchmark'." Mr Dhanji, however, referred to Bolt v R [2012] NSWCCA 50. In that appeal, the offender had pleaded guilty and the judge had remarked that the standard non-parole period was "a guideline only, as there was a plea". McCallum J (with whom Beazley JA and Harrison J agreed), after noting the Crown's reliance on Butler said at [35] - [36]:

"However, in my view, a fair reading of the remarks on sentence as a whole, knowing they were made before Muldrock was decided, reveals that the Judge did in effect adopt a two-staged process of reasoning, beginning with his assessment that the offence was placed just below the mid range of objective seriousness for that type of offence. I think it is highly likely that, informed by that assessment, his Honour used the standard non-parole period as the springboard from which he delved into the task of balancing the other factors identified.

My conclusion on that issue is reinforced by the neatness of the mathematics involved. As already noted, before applying the discount of twenty-five percent to reflect the utilitarian value of the plea, the Judge must have started with a head sentence of six years and eight months. The structure of that sentence in accordance with the statutory ratio would have been a non-parole period of exactly five years with a balance of term of twenty months. The non-parole period of three years and six months ultimately imposed can be reconciled by the application of the discount for the plea and a small adjustment to the statutory ratio to reflect the finding of special circumstances. The figure thus reached neatly reflected his Honour's assessment that the offence was placed just below the mid range."

29 It is necessary to consider all of the sentencing judge's remarks to determine whether there is error of the kind identified in Muldrock.

30 In concluding that Way had been wrongly decided, the High Court held at [25] that it was an error to characterise s 54B(2) Crimes (Sentencing Procedure) Act in mandatory terms. Section 54B(2) provides that when determining the sentence for the offence, the court is to set the standard non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. The High Court held at [26] - [27] that the correct approach was to identify all of the factors that are relevant to sentence (including the maximum sentence and standard non-parole period, which are two legislative guideposts of which the court is mindful) and then make a value judgment as to the appropriate sentence given all the factors of the case: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]. The objective seriousness of an offence is to be determined wholly by reference to the nature of the offending and without reference to matters personal to an offender. A two stage approach to the sentencing of offenders for Div 1 offences, commencing with an assessment of whether the offence falls within the middle of the hypothetical range of objective seriousness, and if it did, by inquiring if there are matters justifying a longer or shorter period, was rejected by the High Court at [28]. The requirement under s 54B to identify the facts, matters and circumstances by which the non-parole period imposed varied from the standard non-parole period, did not oblige the attribution of mathematical values to matters of significance, nor the need to classify the objective seriousness of the offending: Muldrock at [29].

31 An analysis of the sentencing judge's very careful remarks reveals that her Honour referred at (ROS [2]) to the maximum penalty and prescribed non-parole period, then detailed at (ROS [4] - [26]) the agreed facts and the evidence, then moved to the respective cases that had been advanced by the parties and to the court's sentencing task at (ROS [27] - [31]). Her Honour then discussed the aggravating factors at (ROS [33] - [35]) and the factors of mitigation at (ROS [36] - [72]). Her Honour acknowledged at (ROS [73]) that the standard non-parole period did not apply but was to be kept in mind as 'a reference point, or benchmark' and at (ROS [74]) that she had paid regard to the principles discussed in Way and the other authorities cited, in considering where in the range of seriousness the offence fell. Having weighed the various aggravating and mitigating factors to be taken into account in assessing the objective seriousness of the offence, her Honour concluded at (ROS [78]) that the offence fell "at just above the mid-range of such offences". In determining the sentence, her Honour gave consideration at (ROS [79]) to the applicant's subjective case and mitigating matters and the utilitarian discount for the plea. Her Honour said at (ROS [90]) that a head sentence of 29 years was appropriate, but for the plea.

32 I do not think that a fair analysis of the sentencing remarks discloses the adoption of a two-stage approach. The sentencing judge did not commence with an assessment of whether the offence fell within the middle range of objective seriousness and then point to factors that justified a longer or shorter non-parole period than had been prescribed. I do not accept that the general reference to the various authorities at (ROS [74]) or the mathematics of the non-parole period set, demonstrate that the sentencing judge misused the standard non-parole period. The process undertaken by the sentencing judge was not "mechanistic", rather her Honour assiduously identified all of the factors relevant to sentence which included the maximum penalty for murder and the recognition of the standard non-parole period as a "reference point" or "benchmark". Her Honour made an assessment of the objective gravity of the offending and considered all of the subjective features of the applicant before making a value judgement as to the appropriate undiscounted starting point of the sentence.

33 I am not persuaded that the sentencing judge considered that the standard non-parole period was anything other than a marker. Her Honour did not treat her sentencing discretion as being tethered to the standard non-parole period. There is nothing in her remarks that suggests that her Honour was of the view that it had determinative significance.

34 The sentencing judge did, however, characterise the murder as being "just above the mid-range." In R v Koloamatangi [2011] NSWCCA 288, Basten JA (with whom Adams and Johnson JJ agreed), when discussing Muldrock observed at [19]:

"What remains in doubt, however, is whether the sentencing judge is required or permitted to classify, or prohibited from classifying, the particular offence by reference to a low, middle or high range of objective seriousness."

35 It is clear that there is no need to "classify" the offending or assess whether it falls in the middle range of objective seriousness. It may also be accepted that a sentencing judge is to continue to assess the objective seriousness of the offence: Muldrock at [27]; Koloamatangi at [19]. As Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said in Zreika v R [2012] NSWCCA 44 at [46]:

"Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s 3A(a) Crimes (Sentencing Procedure) Act 1999."

36 It seems to me that her Honour's classification of the murder as being "just above the mid-range" does not expose error of the kind identified in Muldrock. My conclusion would be different if a consideration of all of the sentencing remarks, revealed a two-stage approach or that the standard non-parole period had determinative significance in the sentence.

37 Mr Dhanji suggested in the course of oral argument that a reference to the standard non-parole period as a guideline or benchmark has a different meaning after Muldrock. A similar argument was advanced in Butler which Davies J rejected. His Honour said at [27]:

"To suggest that the words "yardstick" or "guideline" might now carry some different emphasis or meaning by reason of matters in Muldrock is to apply an overly analytical approach to the use of those terms."

38 There is no substance in the applicant's complaint that the sentencing judge's view as to the objective gravity of the offence appears to have been influenced by the earlier rejection of provocation. The focus of this debate is her Honour's remarks at (ROS [72]) that she could make "no positive finding in [the applicant's] favour as to what caused him to kill Ms Wilkinson, or that the killing was provoked by Ms Wilkinson."

39 The sentencing judge made these remarks in her discussion of mitigating factors. The applicant bore the onus of establishing on the balance of probabilities that he had been provoked by the deceased, which he failed to do. Her Honour's assessment of objective seriousness was not inflated by the absence of provocation.

40 Following the decision in Muldrock, there has been some debate about the range of factors to be considered in determining the objective seriousness of a standard non-parole period offence. The High Court held at [27] that the objective seriousness of an offence is to be assessed without reference to matters "personal to a particular offender", but is to be determined "wholly by reference to the nature of the offending". In Koloamatangi, Basten JA said at [18] that Muldrock limits the range of factors to be considered in determining the objective seriousness of the offence. In Yang v R [2012] NSWCCA 49, RA Hulme J reviewed at [28] - [37] the cases in which the issue had been discussed. As it had not been the subject of submissions in the appeal, his Honour was of the view that it was unnecessary to decide the issue.

41 Senior counsel for the applicant did submit that provocation (or the absence of it) was not, after Muldrock, to be taken into account in assessing the objective seriousness of an offence. For the reasons provided at [38] - [39] above, it is not strictly necessary to express a view, but as the subject was raised I propose to do so.

42 The objective seriousness of an offence is to be determined wholly by reference to the "nature of the offending". I do not think that the nature of the offending is to be confined to the ingredients of the crime, but may be taken to mean the fundamental qualities of the offence. In my view, where provocation is established such that it is a mitigating factor under s 21A(3)(c) Crimes (Sentencing Procedure) Act, it is a fundamental quality of the offending which may reduce its objective seriousness. It seems to me, that in those circumstances, there cannot be a realistic assessment of the objective seriousness of the offence unless the provocation is taken into account. The absence of provocation is not a factor of aggravation and does not increase the objective seriousness of the offence.

43 Notwithstanding this discussion, I am far from certain that, after Muldrock, whether proven provocation is taken into account in assessing the objective seriousness of the offence or as a matter personal to a particular offender, that there will be any practical impact upon the ultimate sentence.

44 I would reject the first ground of appeal, but even if error had been demonstrated, I am unpersuaded that some lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912.

Ground 2: The learned sentencing judge erred in giving weight to the

applicant's prior use of illicit drugs thereby reducing the extent to which her Honour had regard to the applicant's prior good character.

Ground 3: The learned sentencing judge failed to have proper regard to

the applicant's youth, together with the inevitable length of his incarceration, and his good character when assessing his prospects of rehabilitation.

45 It is convenient to deal with these grounds of appeal together.

46 The complaint of error in the second ground is that the sentencing judge gave "weight" to the prior illicit drug use whereas the third ground complains that the sentencing judge failed to have "proper regard" to various aspects of the applicant's subjective case and the inevitable length of the sentence. Although different terminology is used, both grounds raise questions of weight in the exercise of her Honour's sentencing discretion. It is well established that the circumstances in which matters of weight will justify intervention by this Court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11]; Majid v R [2010] NSWCCA 121 at [40].

47 Mr Danji submitted that the sentencing judge should not have given weight to the applicant's revelation to Dr Westmore and to Dr Pulman of his use of illicit drugs. Mr Danji contended that the evidence was different to that in Aoun v R [2007] NSWCCA 292, where the offender's conduct was directly connected to the offence and militated against any finding that the offence was otherwise out of character, nor could it be said that the applicant's illicit drug use impacted upon the relationship between the applicant's character and his involvement in the offence. Another criticism was that the sentencing judge erred in failing to qualify the significance of the applicant's drug use in respect to the applicant's claim of good character. It was further argued that her Honour gave too much weight to the applicant's prior drug and alcohol use when determining his prospects of rehabilitation. Mr Danji submitted that her Honour erred in failing to have proper regard to the applicant's youth, the inevitable length of his incarceration and good character when finding that she could not be satisfied that he was unlikely to re-offend. Her Honour's acceptance at (ROS [62]) that the offence was "entirely out of character" did not sit happily with the lack of satisfaction that the applicant was unlikely to re-offend.

48 The Crown submitted that the sentencing judge did not err in stating that the evidence of the applicant's significant illicit long-term drug use reduced the weight to be given to the evidence of good character. Furthermore, the sentencing judge was not obliged to find that the applicant's prospects of rehabilitation were good as her Honour was faced with a sentencing exercise involving a brutal murder for which she could not make any positive finding in the applicant's favour as to what caused him to strangle the deceased and then beat her with a shovel.

49 The focal points of the applicant's complaint are her Honour's remarks at (ROS [44] - [47]):

"There is also evidence, including Dr Westmore's opinion, which supports the view that the offender has good prospects of rehabilitation, particularly having regard to his age, his conduct while in custody, his existing qualifications and intentions to pursue further studies and the ongoing support which he has from his family. That evidence must, however, be considered together with the evidence that he has not taken effective steps to deal with what appears to be a serious, longstanding problem with drugs and alcohol.

As I said, the evidence shows that the offender has a strong subjective case. There is evidence that he was previously of good character. However, the evidence of his significant long term use of illicit drugs must also be taken into account. That reduces the weight which may be given to the evidence of good character (see Aoun v R [2007] NSWCCA 292 at [23]).

That the offender is unlikely to reoffend, is in my view not a conclusion which may readily be reached. I note Dr Westmore's opinion that the offender's risk to the community is probably low. Nevertheless, given the evidence as to the circumstances in which he came to murder Ms Wilkinson and dispose of her body; the extreme nature of his violence, which Dr Westmore considered to be unexpected and unpredictable; and the absence of any evidence from the offender, that he is not likely to re-offend in future is, in my view, not a matter about which it is possible to be confident.

It is also necessary to consider the evidence that the offender had consumed both cannabis and alcohol before he committed the offence. The offender gave no evidence himself about what he consumed, but there is various evidence as to how much alcohol he had consumed and conflicting evidence as to how it affected him. The offender told Dr Westmore that he had been heavily intoxicated and that he would not have lost control in the same way, if he had not used alcohol and drugs that night."

50 A lack of previous convictions (s 21A(3)(e) Crimes (Sentencing Procedure) Act and good character (s 21A(3)(f) Crimes (Sentencing Procedure) Act) are mitigating factors to be taken into account in determining the appropriate sentence. Sections 21A(3)(e) and s 21A(3)(f) reflect the rejection of the notion that 'good character' is synonmous with the absence of prior criminal convictions: see Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at [108]-[109].

51 An assessment of good character involves a consideration of all of what is known of an offender's character, which may include uncharged, but established criminal conduct: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [32]; Aoun v R at [23].

52 The positive aspects of the applicant's character were undoubtedly strong. In addition to his lack of a criminal history, his impressive work record included the completion of an apprenticeship as a fitter and turner and being named as Victoria's apprentice of the year. Although aged 22, he had purchased a home that he was paying off. There was, however, before the sentencing judge the material in the reports of Dr Westmore and Dr Pulman of the applicant's long term use of illicit drugs.

53 Before the remarks I have quoted at [49] above were made, the sentencing judge had thoroughly considered all of the applicant's positive subjective features. The sentencing judge had accepted at (ROS [32]) the applicant's submission that he had a strong subjective case. Her Honour, however, was not obliged to disregard the evidence of long term use of illicit drugs.

54 It was for the applicant to prove good character on the balance of probabilities. The sentencing judge was entitled to take into account all of what was known, both positive and negative of the applicant's character prior to the murder. Her Honour cited Aoun at [23] where Hodgson JA said:

"However, in order that a judge take into account an accused's good character as working in his favour, this is a matter that needs to be proved on the balance of probabilities: see R v. Olbrich (1999) 199 CLR 270, Weininger v. The Queen [2003] HCA 14, 212 CLR 629. In my opinion, if there is evidence suggesting criminal conduct other than that for which an offender is being punished, that may be taken into account by a sentencing judge in deciding whether or not the accused has shown previous good character on the balance of probabilities; and in my opinion also, this does not offend either Ryan or R v. De Simoni (1981) 147 CLR 383: see Weininger at pars.[31]-[33]."

55 I do not agree with the applicant's submission, that Hodgson JA's remarks are to be confined to evidence suggesting criminal conduct that was directly connected to the crime for which an offender stands for sentence or that it impacts on the relationship between the offender's character and involvement in that crime. It defies common sense that established criminal conduct disassociated from the offending itself cannot form part of an assessment of a claim of good character.

56 It was well within the proper exercise of her Honour's sentencing discretion to reduce the weight to be afforded to the evidence of good character, because of the illicit drug use. Her Honour was not obliged to qualify the significance of the reduction in weight that had been assessed. I am not persuaded that error has been demonstrated in the way in which the sentencing judge had regard to the evidence of illicit drug use. I would reject the second ground of appeal.

57 As to the third ground of appeal, the unlikehood of re-offending and good prospects of rehabilitation (whether by reason of the offender's age or otherwise) are mitigating factors to be taken into account in determining the appropriate sentence: s 21A(3)(g); s 21A(3)(h) Crimes (Sentencing Procedure) Act. The onus of establishing these mitigating factors was on the applicant on the balance of probabilities.

58 It is plain that her Honour took into account in the applicant's favour when assessing his prospects of rehabilitation, his relative youth, his family support, the evidence of prior good character and existing qualifications, his good conduct in custody, his remorse, and Dr Westmore's opinion that the applicant's general risk to the community was "probably low".

59 Her Honour weighed against these favourable considerations, the evidence as to the circumstances in which the applicant came to murder the deceased and to dispose of the body, the extreme nature of the violence which Dr Westmore described as being "unexpected and unpredictable", the applicant's failure to take effective steps to deal with a serious longstanding problem with drugs and alcohol and the absence of evidence from the applicant. Her Honour had been unable to make any positive finding in the applicant's favour as to what caused him to kill the deceased.

60 In these circumstances, it was open to the sentencing judge to be reticent about the applicant's future prospects and to conclude that it was not possible to be confident that the applicant was not likely to re-offend. There is no inconsistency between this conclusion and the finding that the murder was "out of character". As the Crown submitted, "out of character" refers to the disaccord between previous knowledge of the applicant and the specific offence committed, whereas any conclusion as to re-offending and the prospects of rehabilitation includes not only what was known of the applicant, but also the circumstances of the offending.

61 The sentencing judge's approach to the assessment of the applicant's prospects of rehabilitation was within the proper exercise of her sentencing discretion and I would reject ground 3 of the appeal.

Ground 4: The sentence is, in all the circumstances, manifestly excessive.

62 It was contended for the applicant that the sentencing judge's classification of the offence as "just above the mid range" (even in the context of the principles that were applicable at the time of sentencing) was not justified. This was a spontaneous killing that did not involve sexual violence or gratuitous cruelty and the lack of explanation for the crime did not increase its seriousness. Moreover, the applicant had a strong subjective case. The Court was referred to a number of sentences in other cases and a comprehensive note of "comparable cases" was filed. The applicant submitted that the sentence is manifestly excessive.

63 The Crown's response was that the sentencing judge correctly identified the objective seriousness of the offending and that general deterrence was an important element in determining an appropriate sentence. That being so, the applicant's subjective features, must not overshadow the objective seriousness of the offence. Both the head term and non-parole period were said to be within the exercise of sound sentencing discretion and the sentence was not manifestly excessive. The Crown filed a note in which she pointed to matters of distinction between the present case and what were said to be comparable by the applicant.

64 The applicant must show that the sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]. Intervention by this court is neither warranted simply because it might have exercised the sentencing discretion in a manner different to the sentencing judge: Markarian at [28]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [57], nor simply because the sentence is markedly different from other sentences that have been imposed in other cases: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [59]. Whilst prior decisions and sentencing statistics are helpful when they assist in identifying a range or pattern of sentences for a particular offence, each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence: Markarian at [27].

65 In my opinion, the criticism of the sentencing judge's characterisation of the seriousness of the murder is not made out. Her Honour aptly described the brutality of the crime at (ROS [34]):

"In this case, not only was Ms Wilkinson strangled, which has been described as 'a horrible way to die' (see Versluys v R [2008] NSWCCA 76), she was repeatedly struck with a shovel. Those blows finally caused her death, with the asphyxiation contributing. The offender told police that she was already dead when he struck her. That belief appears to have been wrong, but the evidence certainly suggests that she was, by then, unconscious. She was patently defenceless. "

66 The spontaneity of the offence does little to diminish its seriousness. After strangling the deceased in a "head lock type position" from behind, the applicant did not refrain from his attack, but went on to repeatedly hit her to the head with the shovel, resulting in large lacerations lateral to the right eye, scalp of the forehead and back of the skull, with comminuted fractures of the base of the skull and fractures of the right frontal skull, left occipital skull and right orbit. When balanced against the seriousness of the offence, I do not think that the sentencing judge failed to give sufficient weight to the applicant's strong subjective case.

67 The cases relied upon by the applicant do not persuade me that the sentence was outside a legitimate exercise of her Honour's sentencing discretion.

68 The applicant has not shown that the sentence was unreasonable or plainly unjust. I would reject this ground of appeal.

Orders

69 Accordingly, I propose the following orders:

1.Leave to appeal granted.

2.Appeal dismissed.

70 S.G CAMPBELL J: I agree with the orders proposed by Price J for the reasons he gives. With great respect, I acknowledge the force of the President's reasoning from [2] to [4]. For that reason it is well to emphasise that like Allsop P and Price J, in any event, I am not of the opinion that any other sentence is warranted in law.

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Decision last updated: 17 August 2012