Supreme Court New South Wales

• Medium Neutral Citation: R v Kaewklom (No. 3) [2013] NSWSC 59
• Hearing dates: 8 November 2012
• Decision date: 08 February 2013
• Jurisdiction: Common Law - Criminal
• Before: Johnson J

Decision

For the crime of recklessly causing grievous bodily harm to X, the Offender is sentenced to imprisonment comprising a non-parole period of two years and nine months commencing on 15 February 2011 and expiring on 14 November 2013, with a balance of term of one year commencing on 15 November 2013 and expiring on 14 November 2014.

For the murder of Frederick McGregor, the Offender is sentenced to imprisonment comprising a non-parole period of 13 years and six months commencing on 15 February 2013 and expiring on 14 August 2026, with a balance of term of six years and six months commencing on 15 August 2026 and expiring on 14 February 2033.

The earliest date upon which the Offender will be eligible for release to parole is 15 August 2026.

• Catchwords: CRIMINAL LAW - sentence - recklessly causing grievous bodily harm and murder - Offender (18 years' old) seriously assaults 15-year old former girlfriend including kicking and stomping on victim - Offender charged with offence four days later and held in custody pending appearance before Local Court - Offender attacks 69-year old fellow prisoner in courthouse cell - kicking and stomping causing fatal injuries - objective gravity of offences - relevance of youth to sentence - Offender's turbulent family background - assessment of psychiatric evidence concerning Offender - assessment or risk of reoffending and prospects of rehabilitation - relevance on sentence of fact that prisoner murdered in custody in courthouse cell - specific and general deterrence - partial accumulation of sentences
• Legislation Cited: Criminal Procedure Act 1986; Crimes Act 1900; Children (Criminal Proceedings) Act 1987; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: R v Kaewklom (No. 1) [2012] NSWSC 1103; R v Kaewklom (No. 2) [2012] NSWSC 1117; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1; R v Wilkinson (No. 5) [2009] NSWSC 432; R v Dannevig [2012] NSWSC 1013; KT v R [2008] NSWCCA 51; 182 A Crim R 571; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Tran v R [2011] NSWCCA 11; AM v R [2012] NSWCCA 203; R v Kamotu (NSWCCA, 24 August 1995, BC9501870); R v Fyffe [2002] NSWSC 751; R v Hore; R v Fyffe [2005] NSWCCA 3; R v Windle [2012] NSWCCA 222; R v Knight [2004] NSWSC 498; Beldon v R [2012] NSWCCA 194; Ng v R [2011] NSWCCA 227; 214 A Crim R 191; R v Previtera (1997) 94 A Crim R 76
• Texts Cited: ---
• Category: Sentence
• Parties: Regina (Crown); Kukiat Kaewklom (Offender)
• Representation: Counsel: Ms GM O'Rourke (Crown); Ms JS Manuell SC (Offender); Solicitors: Director of Public Prosecutions (Crown); Elie Rahme & Associates (Offender)
• File Number(s): 2011/50515
• Publication restriction: ---

REMARKS ON SENTENCE

1 JOHNSON J: The Offender, Kukiat Kaewklom, is before the Court for sentence for two serious crimes of violence committed in February 2011. On 10 February 2011, the Offender (then aged 18 years) beat and seriously injured a 15-year old girl with whom he had been in a relationship. On 15 February 2011, whilst in custody for this offence, the Offender fatally attacked, by way of kicking and stomping, an elderly prisoner (who was a stranger to him) who was in a cell with the Offender at the Liverpool Local Court.

2 On 5 September 2012, the trial of the Offender for the murder of his fellow prisoner, Frederick McGregor, commenced before a jury. The Offender pleaded not guilty to murder, but guilty to manslaughter, a plea not accepted by the Crown. The trial proceeded with the jury being informed that the issue for determination was whether the Offender ought be convicted of murder, or of manslaughter upon the grounds of substantial impairment.

3 On 10 September 2012, the Offender sought to be arraigned again in the presence of the jury and he pleaded guilty to murder. The circumstances in which the change of plea occurred are considered in earlier judgments of the Court: R v Kaewklom (No. 1) [2012] NSWSC 1103; R v Kaewklom (No. 2) [2012] NSWSC 1117. Put shortly, the Offender's change of plea followed the communication to the Offender's trial counsel that the forensic psychiatrist retained for the Offender, Dr Bruce Westmore, had altered his view, in light of the report of the Crown's forensic psychiatrist, Professor David Greenberg, and that his opinion no longer supported the partial defence of substantial impairment.

4 A sentencing hearing proceeded before me on 8 November 2012.

5 By that time, the Crown and Ms Manuell SC, counsel for the Offender, agreed that the charge of recklessly causing grievous bodily harm to the 15-year old girl on 10 February 2011, for which the Offender had been committed for sentence to the District Court, should be transferred to this Court so that the Offender could be sentenced for both offences at the same time.

6 A direction was given by the Chief Justice for the purpose of s.128(2) Criminal Procedure Act 1986 to permit this approach to be taken. The sentencing hearing on 8 November 2012 extended to both offences.

7 The maximum penalty for murder is imprisonment for life: s.19A(1) Crimes Act 1900. A standard non-parole period of 20 years applies to this offence.

8 The maximum penalty for an offence of recklessly causing grievous bodily harm is imprisonment for 10 years: s.35(2) Crimes Act 1900. A standard non-parole period of four years applies to this offence.

 

Facts of Offences

9 The Crown tendered a separate Statement of Facts with respect to each offence. What follows is drawn from those statements, and from associated photographs and video and audio recordings tendered by the Crown.

The Offence on 10 February 2011

10 The Offender was born in July 1992 and was 18 years and six months' old in February 2011. The Offender and his 15-year old former girlfriend, X, had been in a relationship for two years. I will refer to this young victim as X to guard against publication of her identity: s.15A Children (Criminal Proceedings) Act 1987.

11 During their relationship, the Offender was invited to live with X and her parents at an address in Fairfield. Towards the end of December 2010, X's parents requested the Offender to move out and live elsewhere. The Offender left the premises and resided at a friend's house in Berala.

12 The relationship continued until the end of January 2011, when the Offender disclosed to X that he had cheated on her. The relationship ceased, but they maintained contact with each other until the beginning of February 2011.

13 At about 2.30 am on Thursday, 10 February 2011, the Offender called X by mobile phone and argued with her, with X eventually agreeing to see the Offender. The Offender drove to a location near X's residence and collected her. They then drove to Cabramatta and purchased some cigarettes. They drove to a car park area in Lansvale.

14 The Offender and X had a conversation, which included the Offender making sexual advances towards her, with X refusing these advances and requesting that he take her home.

15 As a result of X's rejection, the Offender became enraged. He said "Do you wanna see me angry, do you wanna see me angry, I'll show you what angry is". The Offender then hit X three to four times to the face whilst they were both inside the vehicle.

16 The Offender then exited the vehicle by the driver's door and forcibly dragged X from the vehicle. The Offender continued to punch X numerous times whilst she was on the ground. The Offender also kicked and stomped on X whilst she was on the ground.

17 X called "000" and the call was recorded. The recording was played at the sentencing hearing. The call reveals a vivid contemporaneous record of the anger and violence of the Offender and the understandable fear of X:

"OPERATOR: Please go ahead Telstra.

TELSTRA OPERATOR: xxx no request, no location.

OPERATOR: Police emergency go ahead.

X: No, no, I'm sorry.

OPERATOR: Hello.

X [to the Offender]: I'm sorry please leave me alone.

OFFENDER [to X]: ....(INAUDIBLE) ... Fucking ... bring fucking

people here, you fucking dog bitch.

X [to the Offender]: I'm sorry please stop hitting me.

OFFENDER [to X]: Bitch.

OPERATOR: Hello can you hear me? Can you tell me the address? Where are you?

OFFENDER [to X]: I love you so much, you're fucking lucky bitch ... Fucking slut.

OPERATOR: Hello can you please tell me where you are?

OFFENDER [to X]: Get up now.

 

X: (MOANING)

OPERATOR: Tell me the suburb that you're in?"

18 X then lost consciousness. Her next memory was regaining consciousness in the Offender's vehicle.

19 About 11.00 am on 10 February 2011, X recalls being driven by the Offender towards her home. On the trip home, the Offender asked her if she was going to tell anyone what happened. She said that she would not. The Offender asked what she would tell her mother. X said that she would tell her mother that she had been bashed in Cabramatta. The Offender said "Good, because if you tell anyone about it and I find out, I'll make sure your fucked up eye is hanging out". I note (as the photographs of her confirm) that X had a serious and visible injury to her right eye as a result of the Offender's attack upon her.

20 The Offender refused to drive X all the way home, and he dropped her off about 200 metres away.

21 X went home and called her mother. Her mother returned home and saw X's injuries. X's mother immediately drove her to Fairfield Police Station and an ambulance was called. X originally told police that she had been assaulted by some girls in Cabramatta. She did this because she was afraid of the Offender.

22 X was conveyed to Liverpool Hospital, and was treated for her injuries which included the following:

(a) fractured right eye socket;

(b) a laceration to the top of the head, two centimetres long and one centimetre deep;

(c) deep bruising to her facial area;

(d) tenderness to the left abdomen;

(e) red marks to the neck area;

(f) abrasions/swelling to her knees and foot.

23 Photographs depicting the injuries to X were tendered on sentence. They confirm the gravity of the attack by the Offender upon her.

24 At about 10.16 pm on 14 February 2011, the Offender, who had become aware that police were looking for him for the assault upon X, voluntarily attended the Cabramatta Police Station and asked to speak with the detectives. After a short conversation, the Offender was arrested for causing grievous bodily harm.

25 The Offender was then escorted to the charge room at the police station at about 11.00 pm. He was read his rights and then signed the appropriate documentation to state he had received and understood his rights. The Offender then participated in an electronic recorded interview between 11.58 pm on 14 February 2011 and 1.44 am on 15 February 2011. In the course of this interview, the Offender denied his involvement in the assault and concocted a false account of how X came to receive her injuries.

26 The Offender told police in the interview that on the night of 9 February 2011, he drank a significant amount of beer and spirits. He said that he received a telephone call from X asking him to pick her up from Cabramatta. He then drove to the bus stop near the train station and collected her. He said that, when she got into the car, X was bleeding and bruised. He drove her to a car park at Lansvale and they talked. He alleged that X told him she had been assaulted by some Asian girls and refused to go to the hospital.

27 When told by police that X alleged that he had assaulted her, the Offender suggested that X may have made up this allegation because he had slept with two of her friends, and also because X was seeing a psychologist.

28 CCTV footage from Cabramatta, and available telephone records, demonstrated that the account given by the Offender in the interview was false.

The Offence of Murder on 15 February 2011

29 Following the record of interview which concluded in the early hours of 15 February 2011, the Offender was charged with recklessly causing grievous bodily harm to X and was refused bail. At about 4.00 am, he was placed in a cell at the Cabramatta Police Station next to the murder victim, Frederick McGregor.

30 The Offender was a fit and powerfully built, 18-year old young man.

31 Mr McGregor was 69 years of age. He was slightly built and weighed 55 kilograms. At about 7.40 pm on 14 February 2011, Mr McGregor, who was on the Child Protection Register, had been transferred from Green Valley Police Station to the Cabramatta Police Station after being arrested for a breach of a residential condition of his bail, and was refused bail by police to appear before the Liverpool Local Court on 15 February 2011.

32 Following his arrest, Mr McGregor was abusive towards police and was observed to be intoxicated.

33 At around 2.00 am on 15 February 2011, Mr McGregor woke up and pressed the emergency buzzer in his cell. He then yelled abuse at the police and was quite belligerent. His behaviour continued for some time until he was observed to be asleep at 3.55 am.

34 At about 5.45 am, Mr McGregor was awake and yelled out and annoyed the police. A police officer responded, telling Mr McGregor to "shut up" and calling him several derogatory names, including "rock spider" and "cockroach".

35 At this time, the Offender was observed to be lying down on his bed.

36 Mr McGregor continued yelling, banging and pressing the buzzer in his cell at regular intervals until some time after 7.00 am, before finally falling asleep.

37 At some time after 8.15 am, police arrived at Cabramatta Police Station to transport the Offender and Mr McGregor to the Liverpool Local Court complex. During the preparation stage of transfer, both the Offender and Mr McGregor were woken up separately, strip searched and removed from their cells and placed into the holding dock separately without incident.

38 The Offender and Mr McGregor did not have any interaction during the period of time they were held at Cabramatta Police Station.

39 Just before 9.00 am, both men were handcuffed and again separately conveyed and placed in the rear of a police caged vehicle without incident, and without any communication occurring between them.

40 The Offender and Mr McGregor were then transferred to Liverpool Local Court, a journey occupying some 10-15 minutes. Police did not observe any verbal interaction or any eye contact between the two men, who sat at opposite corners of the caged section of the police van.

41 On arrival at Liverpool Local Court, at around 9.15 am, the police handed over custody of the Offender and Mr McGregor to Corrective Services officers, who placed the Offender in Cell 1 at about 9.24 am, where he was again strip searched. Mr McGregor was then placed in the same cell at about 9.29 am.

42 Between 9.25 am and 9.54 am, the Offender and Mr McGregor remained in the cell together. Mr McGregor continued to bang on the door of the cell and yell abuse at the Corrective Services officers.

43 At 9.54 am, the Offender was escorted from the cell to the legal room to speak to a Legal Aid lawyer for about half-an-hour. The question of bail was discussed and the Offender was told that he would need a place to reside and a surety.

44 At around 10.25 am, the Offender returned to Cell 1 and Mr McGregor was then escorted to the legal room.

45 From 10.25 am until 10.32 am, the Offender kicked the wall and stretched his arms. He then began to pace the length of the cell and, as time went on, the speed of his pacing increased.

46 I observe at this point that events inside Cell 1 described so far and to follow were captured on CCTV, with the recording being shown during the sentencing hearing.

47 At about 10.32 am, Mr McGregor returned from the legal room to the cell and stood near the door of the cell with his back to the Offender. The Offender continued to pace up and down the cell.

48 Mr McGregor moved away from the door of the cell and stood about one metre from the cell door and hugged the alcove wall around the toilet block. The Offender continued to quickly walk the length of the cell, but was required to alter his direction due to the movements of Mr McGregor.

49 At 10.34 am, Mr McGregor moved back to the door and at 10.34.49 am, Mr McGregor, after banging on the door one last time, turned away from the door and walked diagonally across the cell, walking just in front of the path of the Offender.

50 A second later, the Offender grabbed Mr McGregor from behind, grasped the top of the victim's clothing around the shoulder area and threw him to the ground. Mr McGregor landed on the ground parallel to the front wall of the cell. He appeared to hit the wall and he faced the wall when the Offender kicked him to the back.

51 The Offender (who was wearing shoes) then repeatedly stomped and jumped with his two feet on the head and upper chest area of Mr McGregor approximately 20 times. The Offender placed his hands on the wall in front of Mr McGregor as he continued to stomp and jump on him. The Offender used both feet to stomp on Mr McGregor. The Offender's last action was to step back and forcefully kick the victim to the head.

52 The attack by the Offender upon Mr McGregor had occupied some 22 seconds.

53 After the forceful kick to the head of the victim, the Offender walked away and paced the length of the cell twice more before a Corrective Services officer entered the cell. Officers had heard noises and went to investigate and saw the victim lying on the floor of the cell.

54 The Offender was removed from Cell 1 and was placed in Cell 2. The Offender then paced in this cell before what appeared to be an attempt to wash the blood off his shoes from the toilet basin at about 10.30 am. This was observed by a Corrective Services officer, and the Offender was handcuffed and taken to Cell 4 at 10.31 am, before being made to take off his shoes. Blood was visible on the sole and side of the Offender's shoes.

55 On the way to Cell 4, a Corrective Services officer had the following conversation with the Offender:

"OFFICER: What did you do that for?

OFFENDER: He is a paedophile.

OFFICER: How do you know this?

OFFENDER: The boys in the cells last night said so.

OFFICER: He's just some old guy who has breached his bail."

56 Corrective Services staff had rendered first aid to Mr McGregor, who was unconscious and bleeding profusely from an ear and was making gargling noises. Ambulance officers attended a short time later and conveyed the victim to Liverpool Hospital.

57 Crime scene officers attended and conducted an examination of the cells and seized the Offender's shoes, which were observed to have blood and hair on them. Later forensic examination revealed that the blood and hair was that of the victim.

58 Mr McGregor was conveyed to Liverpool Hospital and the following injuries were noted:

(a) complex bilateral cranial vault fractures;

(b) depressed left parietal fracture;

(c) skull fracture;

(d) complex petrous temporal bone and facial bone fractures;

(e) left temporoparietal extradural haematoma;

(f) subdural haematoma in middle and left posterior cranial fossae;

(g) minor intraventricular haemorrhage;

(h) left side rib fractures.

59 A craniotomy was performed on Mr McGregor. He was placed on a life-support system. However, he did not recover. On 25 February 2011, his life-support system was turned off and Mr McGregor died.

60 A post-mortem examination revealed that Mr McGregor had died as a result of head injuries. The forensic pathologist, Dr Wills, noted that the left side rib fractures were indicative of blunt injury to the left side of the chest and were consistent with stomping and/or kicking. The complex skull fractures indicated the application of a severe degree of blunt force to the head.

61 On 15 February 2011, the Offender was arrested and taken to Liverpool Police Station. He was interviewed concerning the attack upon Mr McGregor. The Agreed Statement of Facts records that, in brief, the Offender told the police during the interview:

"* He barely spoke with the victim because a police officer told him that the victim was a paedophile so he did not want to speak to him.

* He did not communicate with the victim when in the cell together.

* He left the cell to speak with the Legal Aid solicitor and the victim was banging on the walls.

* He returned to the cell and the victim was still banging on the walls and was being loud.

* He grabbed the victim and 'blanked out'.

* He was angry 'cause the banging interrupted me talking to the Legal Aid lady.'

* He grabbed the victim by the shirt and wanted to tell the victim to shut up.

* He 'lost his head', got 'aggro' and didn't control himself and threw the victim to the ground.

* When asked if he had kicked the victim he replied 'I'd say so, there was blood on my shoes.'

* He did not try to do anything with the blood on his shoes, specifically did not try to remove it.

* When he approached the victim he wanted to 'shut him up.'

* He 'loses it' when he is 'having a really bad day' and today he was having a 'bad day.'

* The offender agreed that the only reason he grabbed the victim was because the victim annoyed him and banged on the wall.

* He does not remember doing anything and cannot remember how he was feeling when he grabbed the victim.

* He felt really weird in the head and feels like this when he is 'about to fight, when I drink too much.'

* He has not been drinking but his interview and court case affected him.

* He did not hit the victim because he was worried that the victim was a paedophile but rather because he was banging on the walls.

* He had no issues with the victim in the truck, no fights, no arguments."

62 The Offender was then charged with attempted murder. Upon the death of the victim on 25 February 2011, the Offender was charged with the murder of Mr McGregor.

63 The Offender has remained in custody since 15 February 2011.

The Offender's Subjective Circumstances

64 Evidence concerning the Offender's subjective circumstances is to be found in the reports of Dr Westmore and Professor Greenberg. The Offender did not give evidence at the sentencing hearing.

65 The Offender was born in Thailand in July 1992. He came to Australia at the age of six years with his mother, who raised him in Australia.

66 Professor Greenberg noted that the Offender had a turbulent family background, with a troubled youth and a pattern of aggression and a poor relationship with his mother and her partners. The Offender moved out of home and lived initially with various friends as a teenager, leaving school at about 14 years of age and working in several unskilled capacities on a part-time basis and living briefly in refuges and drawing Centrelink payments.

67 The Offender stated that he had abused alcohol since the age of 14 or 15 years. He also reported substance abuse including use of cannabis, LSD and crystal methamphetamines.

68 The Offender stated that his mother lived with her partner at Merrylands and that he did not get on with this partner. He stated that he had a seven-year old half-brother from his mother's second relationship.

69 The Offender's history contained entries in the Children's Court for two relatively minor matters which occurred when the Offender was aged 14 and 15 years. Counsel accepted that these matters were not significant for the purpose of sentence in this Court.

70 Provided to Professor Greenberg were a range of documents relevant to the Offender's background which were summarised in his report of 1 September 2012 (Exhibit G, pages 13-14). The Offender attended the Penrith Child and Adolescent Mental Health Service in November 2006 presenting with problems of anger outbursts and polysubstance abuse.

71 Professor Greenberg observed that the Offender had a history and a pattern of difficulties with anger management dating back to when he was seven years of age.

72 Professor Greenberg observed that, at the time of the offences, the Offender was "an 18 year old immature, somewhat naïve youth" (Exhibit G, page 28).

73 It should be observed that Professor Greenberg regarded the Offender to be "an unreliable historian" (Exhibit G, page 28), a view not disputed by Dr Westmore in his last report of 11 September 2012 (part Exhibit 1). The Offender had changed his account, in a number of important respects, when Professor Greenberg examined him on 25 and 31 August 2012. Put shortly, Professor Greenberg considered that there was "a strong probability that [the Offender] may be retrospectively malingering psychotic symptoms to explain his behaviour" at the time of the offence and/or "embellishing past history to support his current version" (Exhibit G, page 26).

74 Dr Westmore agreed with Professor Greenberg that the Offender suffers from significant personality problems and, if not an antisocial personality disorder, certainly strong antisocial personality traits (Exhibit 1, report of 11 September 2012, page 3).

75 Both Dr Westmore and Professor Greenberg referred to the fact that the Offender has been treated with antipsychotic medication whilst in custody. This was done upon the basis of "self-reports of psychotic and depressive symptoms" (Exhibit G, page 26). A complicating factor, however, in determining issues concerning the Offender is that he has proved to be an unreliable historian.

76 Justice Health records confirmed that the Offender was being treated within the prison system with antipsychotic medication in September 2012 (Exhibit 2).

77 I will return to issues concerning the Offender's risk of reoffending and his prospects of rehabilitation later in these remarks.

The Offender's Pleas of Guilty

78 The Offender pleaded guilty to the s.35(2) offence in the Local Court and was committed to the District Court for sentence. It is common ground between counsel that this plea was entered at the earliest opportunity so that the Offender should receive a discount of 25% on sentence for this offence. I accept this submission and will take this approach on sentence for this offence.

79 The position is more complicated with respect to the murder charge. The Offender went to trial, and then pleaded guilty during the trial. Thereafter, on 17 September 2012, the Offender indicated that he wished to withdraw his plea of guilty to murder and proceed to trial, an application which I held was not open in law to the Offender: R v Kaewklom (No. 2).

80 Ms Manuell SC acknowledged that, against this background, it is difficult to assess the quantum of any discount to be given to the Offender for his guilty plea. It was submitted that a "modest discount" was warranted to reflect the utilitarian value of the plea as there were some identifiable cost savings to the community, albeit not as substantial as if the plea had been entered before trial.

81 The Crown submitted that the Offender would be entitled to a "very minor discount" given the circumstances of the case.

82 Applying the principles in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10-11 [32] and R v Wilkinson (No. 5) [2009] NSWSC 432 at [73]-[77], I propose to allow a modest discount (which I will not quantify) for the Offender's very late plea of guilty to murder.

 

The Offender's Youth

83 Both the Crown and Ms Manuell SC submit that the Offender should be sentenced for the s.35(2) offence upon the basis of anger and frustration on his part at the response of X to his advances, and that the murder offence occurred in a context of anger, tiredness and frustration that he found himself in custody for the charge arising from the attack on X.

84 The Crown pointed to the objective gravity of both offences, but acknowledged that there being very little, if any, evidence of premeditation, some weight should be afforded to the Offender as a result of his youth.

85 Ms Manuell SC accepted that the crimes were serious, but submitted that the offences (and, in particular, the murder offence) constituted a very immature response by the Offender to the frustrations he had experienced in the previous 24 hours. Senior counsel conceded that the sentences should reflect a need for deterrence and retribution, but that the youth of the Offender remained a significant factor on sentence.

86 In approaching the Offender's youth as a factor on sentence, I keep in mind Professor Greenberg's assessment of the Offender's relative immaturity referred to earlier (at [72]). It may be said that the Offender's immaturity played a part in the commission of an act of sudden violence: R v Dannevig [2012] NSWSC 1013 at [68]. There was no rational motive or advantage for the Offender to attack Mr McGregor in the cell, in circumstances where it was obvious that only the Offender was the assailant, leaving aside the fact that the whole episode was recorded on CCTV. This was a pointless and gratuitous attack upon Mr McGregor.

87 That said, the gravity and ferocity of his crimes of violence, committed on separate occasions over a five-day period, with both involving cowardly attacks upon the heads of vulnerable victims by way of kicking and stomping, emphasise the continuing need for specific and general deterrence and retribution to be reflected significantly in the sentences to be imposed, applying the principles in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[26].

The Offender's Mental Condition

88 Ms Manuell SC advanced a submission that the Offender's mental health issues should be taken into account in his favour on sentence in accordance with the principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]-[178].

89 A difficulty with this submission is that the Offender bears the onus of proof, on the civil standard, to satisfy the Court that any of these considerations may operate in the Offender's favour on sentence. Both of the forensic psychiatrists accept that the Offender is an unreliable historian.

90 There is agreement that certain diagnoses may be made concerning the Offender, but these diagnoses do not, in my view, assist the offender in consideration of any of the factors identified in Director of Public Prosecutions (Cth) v De La Rosa in this case.

91 Ms Manuell SC did not contend that the Offender's mental health issues contributed to the commission of either of the offences in a material way so that his moral culpability may be reduced (T35.44, 8 November 2012). Nor did senior counsel submit that this was a case where the Offender's mental health issues rendered him an inappropriate vehicle for general deterrence (T36.1).

92 I am not satisfied that any of the principles identified in Director of Public Prosecutions (Cth) v De La Rosa are engaged in the Offender's favour on sentence.

93 As both Professor Greenberg and Dr Westmore observed, an opportunity to undertake a longitudinal assessment of the Offender over the long term in custody will assist the process of diagnosis and (if necessary) treatment.

Remorse or Contrition

94 The Crown submitted that the Offender had not evidenced remorse or contrition for his crimes, in a way which satisfied the requirements of s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Ms Manuell SC did not contend that contrition or remorse had been demonstrated by the Offender.

95 The Offender pleaded guilty in the Local Court to the offence arising from his attack on X. However, there is no positive evidence of remorse on his part for that offence.

96 The Offender went to trial on the charge of murder, changing his plea during the trial, although thereafter indicating a desire once again to plead not guilty to the charge. The varying accounts given by the Offender to Dr Westmore and Professor Greenberg do not provide any evidentiary foundation for a finding of contrition or remorse on his part for the murder.

97 In these circumstances, I do not find that the Offender has demonstrated remorse or contrition for either of these crimes.

Objective Gravity of the Offences

98 Each offence carries a standard non-parole period so that the principles in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 should be kept in mind on sentence. The standard non-parole period is a guidepost to be taken into account, together with the maximum penalty as part of the instinctive synthesis process. The standard non-parole period refers to the statutory concept of objective seriousness.

99 Both the Crown and Ms Manuell SC submitted that the murder offence fell within the mid-range of objective seriousness.

100 With respect to the s.35(2) offence, the Crown submitted that the offence fell within the mid-range of objective seriousness and no contrary submission was advanced for the Offender.

101 I accept the submissions of counsel concerning the statutory concept of objective seriousness.

102 Counsel addressed matters bearing upon the broader common law concept of the objective gravity of the Offender's crimes.

103 With respect to the offence of murder, the Crown submitted that the Offender acted with an intention to kill as evidenced by the ferocity of the repeated stomping, at times with two feet, upon the head of Mr McGregor and the callousness and placement of the final vicious kick to the head. Ms Manuell SC submitted that the nature of the attack does not necessarily establish that the Offender had an intention to kill rather than an intention to inflict grievous bodily harm, as either result could have ensued from the Offender's action.

104 I am satisfied that the Offender's actions established that he acted with an intention to inflict very severe grievous bodily harm upon the victim. There is some question as to whether an intention to kill ought be inferred, to the criminal standard, from his actions. No admission of an intention to kill was made. That said, I consider that this is a case where there is little difference in the moral culpability of the Offender flowing from his intention: Tran v R [2011] NSWCCA 11 at [1], [44]-[45].

105 No act of Mr McGregor could amount to a form of provocation. The Offender's attack was upon a stranger who had the misfortune to be in the same cell as the Offender arising from the Offender's anger, tiredness and frustration at his predicament. The Offender had come to the police station on the evening of 14 February 2011 believing that he could talk his way out of any charge of attacking X, but instead found himself charged and in custody.

106 Although the offence was ferocious, it was spontaneous and relatively brief so that Mr McGregor was not subjected to a protracted period of terror. That said, the very ferocity of the sustained and cowardly attack upon Mr McGregor involving a solidly built, fit, 18-year old man assailing a 69-year old slightly built and frail man for no good reason, constituted an explosive and chilling act of violence.

107 It is the case, as submitted for the Offender, that no weapon was used during the attack. However, in a practical sense, the Offender's feet were used as a type of weapon to attack the head of Mr McGregor by way of kicking and stomping as he lay prone and helpless on the ground: AM v R [2012] NSWCCA 203 at [79].

108 The earlier attack upon X involved an entirely unprovoked and unwarranted attack upon a teenage girl, who had done nothing more than reject the Offender's advances. The "000" call and photographs provide vivid support for X's account of a sustained and brutal attack upon her, involving kicking and stomping to the head. The Offender threatened to harm X if she told the truth, and showed little concern for her by not taking her home and leaving her in the street.

Relevance of the Murder Being Committed in Custody

109 It is the case that the Offender attacked Mr McGregor at a time when both men were in custody in a cell attached to a courthouse.

110 Courts in this State have emphasised that considerations of deterrence are of particular importance in sentencing for offences of violence which occur within the prison system. It is the obligation of the courts to do their best to maintain proper order and discipline in prisons by punishing, with appropriate severity, violent crimes committed within the prison system: R v Kamotu (NSWCCA, 24 August 1995, BC9501870 at pages 7-8, per Gleeson CJ, Allen and Simpson JJ agreeing). Officers who administer prison communities are entitled to expect that inmates will be deterred from offending, and inmates serving their sentences are entitled to as much protection as the courts can afford them: R v Fyffe [2002] NSWSC 751 at [33]; R v Hore; R v Fyffe [2005] NSWCCA 3 at [351]ff; R v Windle [2012] NSWCCA 222 at [56].

111 The Offender and Mr McGregor were not being detained in a prison. Each man had been in custody for a comparatively short time, in facilities adjacent to the Local Court in which each was to appear that morning. Some of the considerations which apply to sentence for crimes of violence committed by one prisoner against another in a prison setting have limited application in this context.

112 However, there are some factors relevant to a prison murder case which are pertinent to the sentencing of the Offender. Using some of the concepts applied by Barr J in sentencing a prison murderer in R v Knight [2004] NSWSC 498 at [17]-[18], it may be said that persons in police or courthouse custody are "particularly vulnerable people" because they "have no choice about where" they are placed, and "cannot choose the company they keep". In imposing sentences for offences committed upon persons in custody, the Court must impose sentences calculated to discourage such offences in recognition of the vulnerability of persons in custody.

113 I bear in mind that no process of classification or protection assessment had been undertaken with respect to the Offender and Mr McGregor for the purpose of what was going to be, on any view, a temporary placement of the two men in a cell.

114 Further, it was common ground between counsel on sentence that I should approach the Offender's case upon the basis that this was a spontaneous attack by the Offender upon the victim, arising from anger, frustration and tiredness, with some element of irritation because the victim had been noisy whilst in custody, but not because the Offender in some way targeted the victim because he believed he was, in some way, a child sex offender. It is noteworthy that the Offender had no prior custodial experience, and thus had not been exposed to the thought processes well known in prisons, where child sex offenders are frequently regarded as appropriate subjects for punishment by other prisoners.

115 However, it might be thought that the angry, tired, frustrated and powerfully built 18-year old Offender may not have launched an attack upon another person in the cell, if that person was also young and powerfully built. I acknowledge that there is an element of speculation in this. However, what is clear from the evidence, including the vivid CCTV footage of the crime, is that the Offender quickly overpowered the elderly and lightly built victim who was rendered prone on the ground, and then attacked in circumstances where there was no prospect of the victim defending himself.

116 Allowing for the differences between serious crimes of violence committed in prisons and the present offence, I nevertheless consider that specific and general deterrence should be taken into account on sentence, for reasons analogous to those applying to violent crimes committed in prison.

Assessing the Offender's Risk of Reoffending and Prospects of Rehabilitation

117 Courts have recognised the imprecise nature of the process which involves an assessment of an Offender's risk of reoffending, in particular where a lengthy sentence is to be imposed so that there is no prospect of the Offender being released into the community at an early time. It has been emphasised that it is the risk (and not certainty) of reoffending which is under consideration: Beldon v R [2012] NSWCCA 194 at [53].

118 The Court is entitled to take the circumstances of the present offences into account in determining the question of future dangerousness: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at 207-208 [64]-[69]. The Offender's crimes involved explosive violence committed in the context of anger and frustration. A capacity to act in this way on more than one occasion, including the infliction of lethal force, does not assist the Offender in consideration of possible future acts of violence.

119 Nor does the absence of remorse assist the Offender in considering his prospects of rehabilitation: Ng v R at 208-209 [69].

120 However, the offences must be considered against the background of anger management issues which had been identified in the Offender, although he had no significant criminal history. Further, the Offender has been in custody since February 2011, and there has been no disciplinary problem or violent conduct on his part in the no doubt tense custodial setting in which he has been housed. The Offender's conduct in custody is relevant to an assessment of the risk of reoffending and future dangerousness: Ng v R at 208 [66].

121 The Crown submitted that the Offender's uneventful custodial history may be related to the fact that he has been receiving medication whilst in custody. Ms Manuell SC submitted in response that this aspect may tend to confirm that there is a foundation for a diagnosis of schizophrenia.

122 Professor Greenberg considered the question of the Offender's future dangerousness, observing that "prediction of future violence or re-offending is fraught with difficulties" (Exhibit H, page 2). After considering risk factors which may apply to the Offender, Professor Greenberg concluded that the Offender would probably fall within the "moderate range of risk for future acts of violence", with this prediction based on him having numerous historical factors such as his previous history of violence, his first act of violence from a young age, past relationship instability, past employment problems, substance abuse problems, early maladjustment and having a personality disorder.

123 Professor Greenberg observed, however, that clinical items and future risk management items may be amenable to change over time, and that change in the Offender's current risk for future violence would largely depend upon his motivation and response to rehabilitation programs and his developing future appropriate acceptable responses to a past history or pattern of maladaptive behaviour.

124 Professor Greenberg concluded (Exhibit H, page 4):

"Clinically, Mr Kaewklom falls within the moderate range for future risk of acts of violence at this time. Mr Kaewklom is a 20 year old man who is intelligent and capable of benefitting from education and rehabilitation programs. I note in the Justice Health records that he has requested education services to complete his HSC exams. His custodial record has no misconduct over the past 18 months. His response to rehabilitation interventions, and his personal pro-social maturation and growth as an individual may or may not change over time. However should he benefit from such programs and interventions, his future risk for violence would be reduced accordingly."

125 It is necessary to keep in mind, however, that the Offender appeared to be engaging in a form of deceptive conduct in August 2012 in his dealings with Professor Greenberg, leading to the conclusion that he was an "unreliable historian"; a view not disputed by Dr Westmore. This aspect may also bear upon the Offender's process of maturity and his reliability for the future, these being relevant to an assessment of his risk of reoffending and his prospects of rehabilitation.

126 The Court must be guarded in assessing the long-term future of the Offender, arising from the commission of very serious crimes when he was 18 years' old, and with that assessment being made when he is 20 years' old.

127 That guarded approach does not permit a positive finding that there are good prospects of rehabilitation. However, a finding should not be made that there are poor prospects of rehabilitation.

128 At the same time, an adverse finding should not be made that the protection of the community bears upon the determination of sentence in his case, including the fixing of non-parole periods.

129 There will be ample time for the relevant custodial authorities to make an assessment of the Offender, based upon his custodial history and efforts made to further his education and rehabilitation in custody, before a decision must be made concerning his release by way of conditional liberty.

Accumulation and Totality

130 The Crown submitted that a measure of accumulation is necessary in this case given separate offences committed five days apart against different victims. Senior counsel for the Offender accepted that a measure of accumulation was appropriate, but submitted that the Offender's age and the totality principle ought see a lesser degree of accumulation than might otherwise be warranted.

131 Although there is a similarity in the two crimes, involving in each case a frenzied attack using kicking and stomping to the heads of the victims, there is clearly a need for a significant level of accumulation of the sentences to be imposed for these offences.

132 I shall keep in mind the totality principle, whilst at the same time recognising the need for the sentences to be imposed to reflect the objective gravity of the offences as well as all other factors bearing upon the assessment of penalty.

Effects of the Offender's Crimes

133 The Court was informed that X did not wish to make a victim impact statement for the purpose of the sentencing hearing. The Crown also indicated that the relatives of Mr McGregor did not wish to make victim impact statements.

134 It is apparent from the evidence before the Court that the attack upon X was a terrifying experience which left her suffering from significant injuries which clearly constituted grievous bodily harm. After the attack, she was threatened by the Offender. That experiences of this type occurred for this 15-year old girl, and will have consequences upon her for some period at least, is an appropriate inference to be drawn, even without a victim impact statement.

135 The law recognises, without specific evidence, the value which the community places upon human life. That is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar. The criminal law does not seek to value one life as greater than another: R v Previtera (1997) 94 A Crim R 76 at 86-87. The absence of a victim impact statement from any member of Mr McGregor's family does not affect the question of sentence to be passed upon the Offender for his murder.

Determining the Appropriate Sentences

136 I have referred to a range of factors to be considered on sentence. It is necessary now to undertake the process of instinctive synthesis for the purpose of passing sentence.

137 The offences committed by the Offender are of substantial objective gravity. He committed a brutal and cowardly attack upon his 15-year old former girlfriend because of anger and frustration at her refusal to do what he wanted. He then threatened to harm her if she told the truth.

138 Four days later, the Offender attended the police station for the purpose of providing a false account to police concerning the attack on X. Things did not progress as he expected. Police did not believe his false account and he was arrested and charged and was placed in custody. The next morning, he found himself in a cell with the elderly victim. The Offender was clearly tense and frustrated, with his frustration intensifying after a conference with the legal aid lawyer who, no doubt, identified the difficulties he would have in being released on bail. Although the noisy earlier conduct of the victim in the cells may have been somewhat irritating to the Offender, what followed constituted a sudden, brutal and explosive attack upon an elderly, frail and defenceless victim who had said and done nothing to the Offender. Although the attack occupied some 22 seconds only, it was intense and directed at the victim's head.

139 The Offender was 18 years of age at the time of these offences and had a turbulent family background. Despite anger management issues and abuse of alcohol and illegal substances, he had not come into conflict in any significant way with the criminal justice system.

140 The Offender's youth is relevant to sentence, although the factors of general and specific deterrence and the need for retribution are significant factors on sentence. An assessment of the Offender's prospects of rehabilitation is guarded, although his custodial experience shows an ability to live without committing acts of violence.

141 Having regard to all relevant objective and subjective factors and relevant sentencing principles, I am satisfied that an appropriate sentence for the offence of recklessly causing grievous bodily harm to X, before application of the 25% discount for his plea of guilty, is a term of imprisonment of five years. After application of the 25% discount, a head sentence of three years and nine months will be passed. In the absence of a finding of special circumstances, and with some rounding, a non-parole period of two years and nine months is appropriate.

142 Having regard to all relevant objective and subjective factors and applicable sentencing principles, and taking into account the modest discount for the Offender's plea of guilty, a sentence of imprisonment of 20 years should be imposed for the crime of murder. Unless special circumstances are found, the non-parole period would be one of 15 years.

143 As I have said, it is appropriate to partially accumulate the sentences to reflect the fact that they are separate crimes committed against separate victims, albeit only five days apart and involving (in some respects) similar offending conduct. I am satisfied that a period of two years accumulation is appropriate, having considered relevant principles, including totality.

144 I am satisfied that a finding of special circumstances should be made with respect to the sentence for murder. The special circumstances arise from the process of accumulation, and the need to ensure a sufficiently lengthy period of supervision in the community is available when the Offender becomes eligible for parole. I am satisfied that the appropriate non-parole period to impose for the murder sentence is one of 13 years and six months.

145 The total effective sentence to be passed will comprise a non-parole period of 15 years and six months with a balance of term of six years and six months.

146 The sentence for the s.35(2) offence will commence on 15 February 2011.

147 Kukiat Kaewklom, will you please stand.

148 For the crime of recklessly causing grievous bodily harm to X, I sentence you to imprisonment comprising a non-parole period of two years and nine months commencing on 15 February 2011 and expiring on 14 November 2013, with a balance of term of one year commencing on 15 November 2013 and expiring on 14 November 2014.

149 For the murder of Frederick McGregor, I sentence you to imprisonment comprising a non-parole period of 13 years and six months commencing on 15 February 2013 and expiring on 14 August 2026, with a balance of term of six years and six months commencing on 15 August 2026 and expiring on 14 February 2033.

150 The earliest date upon which you will be eligible for release to parole is 15 August 2026.

**********

Decision last updated: 08 February 2013