Supreme Court New South Wales

• Medium Neutral Citation: R v Kaye [2013] NSWSC 1812
• Hearing dates: 18 November 2013 19 November 2013
• Decision date: 06 December 2013
• Before: Price J

Decision

Convicted. Sentenced to a term of imprisonment of 21 years consisting of a non-parole of 14 years 6 months to commence on 15 October 2011 and expire on 14 April 2026. Balance of term of 6 years 6 months to commence on 15 April 2026 and expire on 14 October 2032.

• Catchwords: CRIMINAL LAW - sentencing - murder - elderly victim with pre-existing medical conditions - intoxication - general deterrence - special circumstances.
• Legislation Cited: Crimes (High Risk Offenders) Act 2006; Crimes (Sentencing Procedure) Act 1999; s 21A(3)(i), s 54B
• Cases Cited: Bugmy v R [2013] HCA 37; (2013) 302 ALR 192; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; Hasan v R [2010] VSCA 352; (2010) 31 VR 28; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1; R v Fernando (1992) 76 A Crim R 58; R v GWM [2012] NSWCCA 240; R v Previtera (1997) 94 A Crim R 76; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
• Category: Sentence
• Parties: Regina; Mark Jamie Kaye
• Representation: Counsel: Mr P Barnett SC (Crown); Mr M Ramage QC (Offender); Solicitors: Mr M Love (Director of Public Prosecutions); Mr T Voros (Voros Lawyers)
• File Number(s): 2011/51673

REMARKS ON SENTENCE

1 His Honour: Mark Jamie Kaye pleads guilty to the murder of Maxwell Charles Weir on 20 January 2011.

2 The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of 20 years imprisonment. These two legislative guideposts are to be borne in mind when the Court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the offender: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The standard non-parole period does not have determinative significance in sentencing the offender, nor is it a "starting point" for the sentence, nor does it directly apply as the offender has pleaded guilty: Muldrock at [31]. I bear in mind s 54B of the Crimes (Sentencing Procedure) Act 1999.

3 During the proceedings on sentence, Mr P Barnett SC appeared for the Crown and Mr M Ramage QC for the offender.

4 The offender's plea to murder was entered on the basis that his actions had significantly contributed to the death of the deceased. Mr Crown informed the Court that none of the injuries described in the autopsy report would themselves have been fatal to a healthy younger man (ex A TB 3). It was the Crown case that the injuries inflicted by the offender "overlaid the frailty of the deceased" which caused the death: T18/11/13 T5 L6-14. Mr Weir was 84 years old when he was murdered. At the time of his death, he had ischaemic heart disease, emphysema and prostate cancer which was not immediately life-threatening (ex A TB 3 p 2).

5 A summary of facts was tendered without objection: ex A TB 2. Mr Ramage told me that these facts are agreed by the offender. Accordingly, I will furthermore refer to them as "the agreed facts".

The agreed facts

"At about 11.45 am on Friday 21 January 2011, Maxwell Weir, was found deceased, lying on his left side on the floor of his house beside the dining table with one hand on an overturned chair. Blood from his head had pooled on the kitchen floor.

Maxwell Weir, the deceased, was 84 years of age and lived alone in the house on his property Pinewalla at Crookwell. The property itself had passed to his son Kim Weir, who worked it as a sheep and potato property. He attended the property daily and would see his father, whilst there.

The deceased had problems with his heart, lungs and mobility, needing a cane to walk.

On 20 January Kim and his uncle, Brian McLaughlin left the property at about 7pm. They had spent the last half hour talking with the deceased. When they left the deceased was watching television and dressed in his day clothes. When they left the rear wooden door was open, the screen door closed. The front door to the premises was never used.

On 20 January the offender was staying at the home of Chris Hines, the father of his partner Emma Mills, at Crookwell. The property, Pinewalla, is between that address and Goulburn Road. The offender and Ms Mills had a 16 month old daughter. During the morning of that day [Ms] Mills and the offender had been in Goulburn returning to Mr. Hines' house at about 1.30pm.

Ms Mills was to travel to Goulburn that afternoon with her mother, her sister, Lauren and cousin, Brooke, to take in two movies and have dinner. The offender was intended to stay at the home.

After he arrived the offender purchased some beer, a case of XXXX Gold, which he commenced to consume.

Later Matthew Webb, the husband of another of Ms Mills' sisters arrived. He bought (sic) more beer with him. The women left for Goulburn sometime prior to 4pm. Before she left Brooke Crawford heard the offender ask her sister, Rhiannon, for a couple of bucks.

Before she left Emma Mills locked her Ford motor vehicle. She took the keys with her to Goulburn. At the time the wallet of the offender was in the glove box of the motor vehicle.

At about 4.10pm Chris Hines arrived home from work. The offender, [Mr] Webb and [Mr] Hines continued to drink and were joined by Craig Knight and his girlfriend Rhiannon Crawford. More alcohol and meat were purchased and they had a barbeque.

About 6.30pm Craig Knight decided to return to the bottle shop. The offender decided to accompany him. They both asked Ms Crawford for money and she gave Mr. Knight $30.00 for beer. On the way to the bottle shop the offender complained no one was speaking to him and indicated he did not wish to stay. The offender and [Mr] Knight were captured on the CCTV at the bottle shop. At the time the offender was in a short sleeve shirt, a pair of dark coloured shorts and a pair of thongs with black straps and white upper soles.

At about 6.45pm Knight purchased two 'three packs' of XXXX Gold 750 ml bottles. After the purchase [Mr] Knight rang a friend, Tom Piec and put the offender on the phone. [Mr] Knight heard the offender ask [Mr] Piec for a lift into Goulburn. [Mr] Knight then spoke to [Mr] Piec, who told him not to bring the offender to his house, as he was not going to give him a lift to Goulburn.

[Mr] Knight dropped his phone and the offender picked it up. He then started ringing friends of [Mr] Knight in an attempt to get a lift into Goulburn. [Mr] Knight heard the offender say to Tim Skidmore words to the effect of, 'If I get a bit of money for diesel, would it be possible for you to drive me into Goulburn?' [Mr] Skidmore declined the request.

The offender and [Mr] Knight then parted company. [Mr] Knight gave the offender one of the XXXX Gold 3 packs and the offender told him he was going to hitchhike into Goulburn. The offender then started walking through the Crookwell Showgrounds towards Goulburn Road.

At around 7.30pm the offender arrived at the home of Mr and Mrs. Banfield at Crookwell, which is located opposite the Crookwell showground. The offender asked for cigarettes, when he could not get any he walked off along the road in the direction of Goulburn. Mrs Banfield thought the offender was affected by intoxicating liquor because of the way he walked, 'not staggering, just slow'.

Nardia Lanham was driving on Goulburn Road at Crookwell at about 8pm on 20 January 2011, when she saw the offender, Mark Kaye, walking along the road towards the 'Logan family property'. Ms Lanham knew the offender through school.

Lindsay Gay, who had a mechanical business in Crookwell and also a property called 'Golden Acres', directly opposite the Logan family property 'Kyamma' about 2.5km from the centre of Crookwell, saw the offender sometime after 7:50 pm standing near the 100kph speed limit sign, on the eastern outskirts of Crookwell. The offender was carrying a brown paper bag normally used for long neck beer. Mr. Gay later saw the offender walking out of Kyamma at about 8:25 pm.

Between 8 - 8.30pm Ryan Logan and his father David Logan were on their property 'Kyamma' at Crookwell. They were approached by the offender, who was on foot. He asked them for a lift into Goulburn. David Logan advised him that they were not going into Goulburn and to try his luck on the road. Ryan Logan had observed the offender as he approached him along the driveway of the property. He noted the offender appeared to be having trouble walking in a straight line. He observed a longneck bottle of beer in the hand of the offender. Mr. Ryan Logan watched the offender walk off and then moved to another position, where he was able to observe the offender making his way along the Goulburn [Road] between a property called Normanton and a point some 50 metres from the Driveway to Pinewalla.

David Logan observed the offender, as he walked from the property, to (sic) raise the bottle to his mouth, as if draining it of its contents. It was just on dark at this time.

At the committal hearing Ryan Logan acknowledged, in cross examination, that he had thought the offender, very drunk, - the offender being unsteady on his feet and slurring his words.

David Logan thought the offender [was] drunk to some degree - 'staggering slightly, carrying a bottle of beer and [had] slightly slurred speech.'

The offender left 'Kyamma' and was last seen by Ryan Logan walking along Goulburn Road in the direction of 'Pinewalla'.

Sean Proudman lived at the property 'Normanton,' located across the road from 'Pinewalla'. 'Just on dark' (about 8.30pm) on 20 January 2011 he heard raised voices and dogs barking coming from 'Pinewalla'.

The offender returned to the Hines home at Crookwell at about 9.30pm. When he returned, the offender was no longer wearing his thongs. He said he had been at the showground drinking and sleeping. Mr. Matthew Webb, who had come out of the house, found the offender sitting near the back shed. He described the offender as 'seeming drunk and very fired up.'

Later after the women had returned from Goulburn, the offender asked [Ms] Mills to open the car so he could get his wallet out. When she refused the offender produced $70 cash. When Ms Mills asked where the money had come from the offender did not provide an explanation. In cross examination at the committal Ms Mills agreed the accused was 'drunk' when she returned from Goulburn.

During this time the offender again asked to be driven to Goulburn.

Later arguments developed between the offender and the persons at Mr Hines' house about the offender wishing to be driven by Ms Mills to Goulburn. As a result the offender was excluded from the house. During this time the offender indicated he wanted warmer clothes. Ms Mills used the remote control to open her vehicle from within the house. The offender obtained long pants and a warmer top, into which he changed, from the car. He also took his wallet from the glove box.

The arguments continued and eventually the police were called. They found the offender walking in Pleasant Street Crookwell not far from the home of Mr. Hines. He was taken to the police station in Goulburn, where he took part in an electronically [recorded] interview with the police. During the interview the offender told the police about the events of the evening. In short during the interview the offender told the police that after he went to the bottle shop with Mr. Knight he had sat down on his own and drank the two bottles of beer...in Pleasant Street up behind the home of either Mr. Hines or Mr. Knight.

The offender had cuts to his hands and feet.

On the morning of 21 January at about 8am Kim Weir and Brian McLaughlin arrived at Pinewalla to commence work for the day. When they arrived each noticed the rear external light of the house was still on and the back wooden door was still propped open, both of which events were unusual.

As mentioned earlier Mr McLaughlin found the deceased on the floor of the house, when he went there at about 11.45am for a chat. Having made the discovery he called Kim Weir to the house. A knife blade was on the floor just inside and adjacent to the back doorway. The handle was missing. The blade had not been there the previous evening, when the two men had left. The deceased was checked and no signs of life could be found. The police and ambulance were summonsed. A check of the house showed that the wallet of the deceased was missing as was his favourite walking cane, which had an engraved metal emblem upon it.

The police established a crime scene at the house and crime scene officers attended to make an inspection of the premises, recording their observations photographically and by a video system. Items, including the blade found near the back door, were taken [into] possession and subjected to further examination including fingerprint examination.

On 24 January 2011 a post mortem examination was conducted by Dr. Van Vuuren. This examination revealed that the deceased had sustained bruising and swelling to an area on the right side of his head and swelling to his right ear consistent with blunt force trauma. A tooth had been knocked from his lower denture plate and he had a cut on the inside of his lower lip. He had bruising to his shoulder and chest area. He had two stab wounds to the right side of his neck one of which passed downwards in the sternomastoid muscle for some 70mms. He had two other wounds to the left side of his face consistent with being caused by a sharp object. None these wounds are fatal [on] their own. He had fractures to both sides of the thyroid bone in his neck and bleeding around his eyes and eyelids consistent with the application of blunt force to his neck. He had some minor bleeding within his brain. It was concluded that the cause of death was 'the combined effects of blunt force injuries and asphyxia on a background of ischemic (sic) heart disease and emphysema.'

On that same day specialist police commenced a line search of the paddocks and area surrounding Pinewalla. The search also consisted of a search along the side of the road for a distance of about 2.8kms towards Crookwell. Police Divers also searched some of dams on Pinewalla and adjoining properties. If one walked towards Crookwell from the home on Pinewalla there was a dam about halfway between the home and Goulburn Road. On 25 January searchers located the deceased's missing distinctive walking cane floating at the edge of that dam. Within metres of the dam was a second knife blade, without a handle. Around the blade was a yellow dish cloth with what appeared to be blood staining in a smear pattern. This dish cloth was similar to dish cloths, located in the kitchen of the deceased. In the dam were a towel and a jumper, which belonged to the deceased, which had last been seen in the house not long before 21 January. In order to go from the house, across paddock to the dam and then onto the roadway one has to step over fences with strains of barb wire, including at the top.

Later testing revealed the fingerprint of the offender on the blade, found just inside the back door of the house. Blood matching the DNA profile of the deceased was found on that blade, and the yellow cloth wrapped around the blade near the dam. Two steak knives, which the offender used regularly and kept either in a kitchen drawer or on the sink of the kitchen, were found to be missing. The blades found matched the blades of the missing knives. The black handles have not been found.

The deceased had a housekeeper, who attended to the property weekly. On 20 January she had attended and changed the bed linen and made up the bed. When the deceased was found on 21 January the bed had not been used. When he was found the deceased was still clothed in the clothes, he had been wearing the previous evening, when Kim Weir and [Mr] McLaughlin left.

On 24 January a pair of men's thongs with black straps and white upper soles was located by a dam on the Logan Property only metres from Goulburn Road. One was floating in the water and the other was in the grass before the dam. They were undamaged. This location was again between the homestead at Pinewalla and Crookwell.

On 25 January the police found a XXXX beer bottle in the grass along the northern edge of Goulburn Road near the front of Pinewalla. Later tests revealed a DNA profile on the lip of the bottle consistent with the DNA profile of the offender.

On the afternoon of 25 January the police executed a search warrant at the home of the offender at Goulburn. Amongst other things the police were hoping to find the clothes worn by the offender on 20 January. They did not find the shirt but took possession of a number of pairs of shorts. One of these pairs of shorts was a pair of Bad Boy brand black shorts, which matched the shorts shown on the offender in CCTV footage from the bottle shop at Crookwell. On the inside of both legs were a number of pronounced tears, considered consistent with the shorts coming into contact with barb wire.

That afternoon the offender attended the police station voluntarily. He took part in an electronic recorded conversation with the police. During this interview the offender gave the police a version of his movements on the evening of 20 January. In the interview he told the police that after he separated from Craig Knight, after going to the bottle shop, he remained within the show grounds at Crookwell for some two hours. He said he went to the home of persons across the road from the showground and asked for a lift. He specifically denied going any closer to Goulburn stating he had not gone near the hockey fields on the outskirts of Crookwell on the (sic) Goulburn road. He told the police that he had his thongs on when he returned to the Hines' house after being at the showground. He said he had lost them in the backyard of the Hines' house, during the events that occurred at that house after he had returned from the showground and before the police found him on Pleasant Street.

The plea accepts that after the offender had left the property of the Logan's, he had made his way to Pinewalla, where he had entered the homestead. There he had a confrontation with the deceased, during which the deceased sustained the injuries found on post mortem as a result of the deliberate actions of the offender, which included stabbing the deceased with at least one of the knife blades, and the application of blunt force to the neck of the deceased, sufficient to cause damage to the horns of the thyroid. At the time the offender took the walking stick, jumper, two knife blades, and towels from the home of the deceased. The Crown contends the evidence establishes that he also took the deceased's wallet and contents, the source of the unexplained seventy dollars."

Further matters of evidence

6 I have recounted Dr Van Vuuren's findings following the post mortem that are summarised in the agreed facts. During cross-examination in the offender's committal hearing, Dr Van Vuuren agreed that it could not be suggested that the blunt force injuries in isolation were lethal. The most significant blunt force injuries were on the right side of the head. She agreed that it is possible that those injuries could have been caused by a single blow, but she suggested more than two blows. Dr Van Vuuren agreed that the combination of the blunt force injuries, the asphyxia and the heart condition, along with the emphysema, may have been the combined source of death. She agreed that it was possible that the fracture of the superior horn of the thyroid cartilage could have been caused by a single blow by a blunt object or item like a fist to the throat area. Dr Van Vuuren said the fracture indicated that there was force applied to the neck but it was not an injury that by itself would have killed the deceased. As to the stab wound on the right side of the deceased's neck, Dr Van Vuuren agreed it was not a deep wound and would be described as superficial. The second wound was also superficial and relatively less serious. She agreed it could be that neither of these wounds contributed to the deceased's death. Dr Van Vuuren said that the asphyxia or the emphysema could have been the sole cause of death.

7 In a report dated 26 April 2013, Dr Byron Collins, a consultant forensic pathologist, expressed the opinion that "it could be reasonably expected that the amount of force required to result in fracturing a superior horn of the thyroid cartilage would be relatively minor, due to the presence of age-related calcification, compared with that necessary to cause a similar injury in a healthy child/youth/adult" (ex 2 p 3 par 4). He observed that the deceased suffered from significant medical conditions, "such as chronic obstructive airways disease (emphysema) and ischaemic heart disease, which would have rendered him in a 'parlous' clinical state and were of such severity, particularly the atherosclerotic heart disease, that either could have resulted in his demise of its own accord" (ex 2 p 3 par 5). Dr Collins opined (at ex 2 p 3 par 6):

"Whilst it is reasonably possible, that [the deceased] could have survived the injuries sustained during the alleged assault by [the offender], even those involving the head (bruising, traumatic subarachnoid haemorrhage), it is my opinion that such a set of circumstances would have increased the likelihood of the deceased suffering a fatal cardiac arrhythmia consequent upon the emotional and physical stress associated with the alleged event.

In other words, the presence of the deceased's significant medical diseases, particularly atherosclerotic heart disease, likely predisposed him to the generation of a sinister cardiac rhythm disturbance, as compared with an individual in whom such diseases were absent."

8 However, Dr Collins concluded that he was unable to identify (ex 2 p 4):

"...a cause of death which is separate and completely unrelated to the production of the traumatic injuries identified on the deceased, although it should be understood that these injuries themselves were not necessarily fatal, either separately or in combination."

9 During the proceedings on sentence, Emma Mills, the offender's de facto partner, and the offender gave evidence. It emerged from their evidence that the amount of alcohol that the offender was said to have consumed before the murder was more than that stated in the agreed facts. Furthermore, the offender gave evidence of his recollection of events when he was in the deceased's home. The following is a summary of their evidence on these topics.

10 Ms Mills testified that on the morning of 20 January 2011, she went to the 'bottleo' with the offender because he wanted to get XXXX Gold. Later that day, before they returned to Crookwell, they returned to the 'bottleo' and purchased another beer for the offender. When they arrived in Crookwell they stopped at another 'bottleo' to get a case of beer for a barbeque the offender was attending. The case contained either 24 or 30 cans. She said that the offender consumed the whole case except for five of the cans. In cross-examination, she said that at the time she left Crookwell, the offender was "[a] bit drunk" and was continuing to drink (T18/11/13 T24 L48-49, T25 L1-2). Later that evening, she received a phone call from her mother that the offender was missing. She returned to Crookwell between 9:30-10 pm, and the offender was there. When she spoke with him, "he was drunk but [she] was used to it so [she] didn't really pay attention to it" (T18/11/13 T18 L16-17). There was a confrontation that ended with someone ringing the police and he was taken to Goulburn Police Station.

11 The offender gave evidence that he remembered "[b]its and pieces" of the day that the deceased died (T18/11/13 T32 L30-32). He recalled going to the 'bottleo' once with Ms Mills to get a long neck beer before going to Crookwell. Once they arrived in Crookwell, they stopped at another 'bottleo' to purchase a case of XXXX Gold. He said he drank nearly the whole case which had either 24 or 30 cans. Later that evening he went back to the 'bottleo' with Craig to purchase more alcohol, namely, "[a] crate, a bottle of six long necks, XXXX Gold and a bottle of port" (T18/11/13 T35 L7-8). He drank the alcohol on the way to and at the showground.

12 He recalled wanting to go to Goulburn and he "[s]tarted hitchhiking" when he was unable to get a lift (T18/11/13 T35 L42-43). He remembered walking further down Goulburn road and being refused a lift by the residents of the "Kiama" property so he continued to walk to the next property, which was "Pinewalla", the property of the deceased who he did not know. He walked up the "Pinewalla" driveway to ask the deceased for a lift to Goulburn. He could not recall whether the light was on at the back door. He said that "[he] just knocked on the back door and [he] heard a voice, ask [him] who [he] was and [he] explained who [he] was and [the man] asked [him] to come in" (T18/11/13 T37 L20-23). He went inside and approached the deceased who was standing up from the chair. He recalled that they spoke for a while. The offender recalled the deceased told him that he "stunk like a pub" and had asked him to stop swearing (T18/11/13 T38 L24-27). The offender asked the deceased for a lift but the deceased told him he did not have keys to his car and to ask his son. The offender said that he was swearing and the deceased told him to leave. The offender said that when he went to leave, the deceased struck him with a stick and he backhanded the deceased over the chair. He recalled the backhander hitting the deceased in the chin area, but did not recall seeing the deceased land on the ground and "[he] left scared" (T18/11/13 T39 L3). The offender said that when he spoke to the deceased, he didn't take notice that the deceased was an elderly, frail man. He said that "if he knew ...this wouldn't have happened" (T18/11/13 T48 L47-48). He related that he was pretty drunk from port. It was the port that made him drunk, which he got from the 'bottleo' in Crookwell before he started hitchhiking.

13 In cross-examination, the offender said when he knocked on the door and the deceased asked for his name, he replied, "me name's Mark" (T18/11/13 T57 L25-26). He could not explain why the deceased had struck him with the walking cane but it had struck him on the right side of his forehead. The offender said that it did not feel like a full blow and he did not suffer any injury. The offender said he had read the autopsy report and accepted that he had stabbed the deceased and did more than backhand him.

14 The Crown in reply called Kim Weir, the deceased's son, who gave evidence that his father had had two knee replacements and a hip replacement over the years and one of his biggest problems was stability. His father needed a walking cane to maintain his balance and would have no chance of regaining his balance after he had fallen to the floor. Mr Weir said that the deceased had no family friends by the name of Mark and would not have anticipated anyone by that name calling at the house. He said that it was his father's usual practice to go to the back door if there was someone there, but he never locked that door.

15 Mr Crown invited me to reject the offender's evidence as to the consumption of port or the degree of drinking where it differs substantially from that which he told the police in either of the interviews. Mr Ramage said a specific finding as to the consumption of port was not required, but the Court would be satisfied from the evidence of those who observed him shortly before the murder that he was well affected by intoxicating liquor.

16 I do not accept the offender's evidence that he drank port before he arrived at "Pinewalla". His attention was directed by the police in the interviews conducted on 21 January 2011 (ex A TB 5) and 25 January 2011 (ex A TB 7) to the alcohol he had consumed but no mention was made by the offender of drinking port. Furthermore, his testimony on this topic was inconsistent. His initial evidence was that he got the port from the 'bottleo' in Crookwell but later said the port was taken from Chris Hines' house. However, I do not think it is necessary to make a finding as to the specific amount of alcohol consumed by the offender. There is ample material in the agreed facts from which the Court can conclude that the offender was affected by intoxicating liquor at the time of the murder. The offender had been drinking for some hours before the commission of the offence. Ryan Logan considered that the offender was very drunk and his father David Logan thought he was drunk to some degree. Both observed that he was unsteady on his feet and his speech was slurred. Matthew Webb described the offender as "seeming drunk" and Ms Mills said that he was drunk when she returned to Crookwell (ex A TB 2 par 25). However, the level of the offender's intoxication did not prevent him from attempting to conceal his crime by wrapping one of the knife blades in a dish-cloth and by trying to dispose of it and other items stolen from the deceased, but it is apparent that his intoxication hindered him from successfully achieving his aim.

17 In assessing the veracity of the account given by the offender of the events that he recalled in the deceased's home, I have made allowance for his intoxication. Nevertheless, it is an egregious feature of his evidence that his recollection is substantially confined to matters that are favourable to him, such as being invited into the deceased's home and the first act of violence being the deceased striking him with a walking cane.

18 I find the offender's evidence that he did not take notice of the deceased being an elderly frail man to be implausible. The offender conversed with the deceased an 84 year-old who had difficulties with maintaining his stability. Furthermore, the offender's evidence that he was invited into the home when he said his name was "Mark" stands unhappily with Mr Weir's evidence that the deceased would not have anticipated anyone by that name calling at his house and the deceased's practice to go to the back door if he knew that someone was present. Mr Ramage conceded that the offender's recollection that after the backhander he left could not be accepted. Overall, I found the offender to be an unimpressive witness.

19 Mr Crown submitted that on the evidence of the offender, supplemented by Mr Weir's evidence as to his father's stability, the Court would be satisfied that all injuries, other than injury to the area around the mouth, and all other actions by the offender were done to the deceased, after he was knocked over the chair and was on the ground.

20 Senior Constable Harrison observed an area of blood staining behind the deceased's head and that the dining room chair rested in a pool of blood. There were blood spots on the northern wall of the dining room and on the floor behind the deceased. Her evidence as to blood was confined to these observations. No expert evidence was adduced by the Crown as to the blood staining or blood spatter which may have assisted the Court in determining whether the injuries to the deceased were occasioned when he was standing or lying on the ground. Moreover, I have found the offender's testimony to be unreliable. I am unable on the material before me to find beyond reasonable doubt that these injuries to the deceased, were inflicted when he was on the ground.

21 In addition to the agreed facts, I am satisfied beyond reasonable doubt of the following;

(i) the offender entered the deceased's home at about 8:30pm and night had fallen by this time;

(ii) whilst in the house, the offender armed himself with two steak knives, using at least one of them to stab the deceased in the neck and inflict the other sharp instrument wounds seen by Dr Van Vuuren in the post mortem;

(iii) he assaulted the deceased causing the blunt force injuries found in the post mortem. The assault included the offender backhanding the deceased with considerable force causing him to fall backwards over a chair. The offender was aware that the deceased had landed on the ground;

(iv) the actions of the offender included the application by some means of blunt force trauma to the neck and the fractures to both sides of the thyroid bone in the neck and bleeding around the deceased's eyes and eyelids. I am unable to conclude on the evidence how those injuries were actually inflicted by the offender;

(v) although the cause of death was the combined effects of blunt force injury and asphyxia on a background of ischaemic heart disease and emphysema, the injuries inflicted by the offender on the deceased were a substantial cause of his death;

(vi) at the time of the assault, the offender knew that the deceased was an elderly person;

(vii) the offender stole a walking cane, a jumper, a towel and the deceased's wallet from the deceased's home. The $70 cash that the offender produced to Ms Mills was stolen from the deceased;

(viii) the offender wrapped one of the knife blades in a yellow dish cloth taken from the deceased's kitchen. Prior to leaving the deceased's home, the offender dropped one of the knife blades near the backdoor; and

(ix) on leaving the deceased's home, the offender made his way across paddocks and negotiated fences topped with barbed wire. He attempted to dispose of the walking cane, the second knife blade, towel and jumper in and near a dam which was about halfway between the deceased's home and Goulburn Road. He left his thongs in and near the dam on the Logan Property. He arrived at Mr Hines' home at about 9:30pm.

22 I accept that it is more likely than not that at some time during the course of events, the deceased struck the offender with his walking cane. It is evident from the absence of injury to the offender's forehead that there was little force behind the blow. I do not accept, however, that this was the first act of violence and was delivered by the deceased for no reason. Unsurprisingly, Mr Ramage did not submit that the deceased's conduct amounted to provocation either as a defence or as a mitigating factor. It does provide some explanation for the theft of the walking cane. I am satisfied beyond reasonable doubt that the offender's attack upon the deceased was unprovoked.

23 Mr Crown did not contend, nor do I find, that the offender entered the home with an intention to steal or to assault the deceased with an intention to inflict serious bodily harm, let alone to kill him. It is clear, however, that having entered the home, the offender viciously attacked the deceased and left him on the floor of his home with callous disregard for his wellbeing.

24 I acknowledge Dr Collin's opinion that the amount of force required to fracture the superior horn of the deceased's thyroid cartilage would be relatively minor and Dr Van Vuuren's description of the stab wounds as being superficial. However, the offender used such force in the assault that the deceased fell backwards over a chair and he stabbed his elderly victim. Having regard to all of the circumstances, I am satisfied beyond reasonable doubt that the offender had an intention to inflict grievous bodily harm upon the deceased.

25 This was a cowardly attack by a younger and undoubtedly stronger man on a senior citizen in his home. In my view, the seriousness of the offence is not reduced by the deceased's advanced years or pre-existing medical conditions. Although the absence of pre-planning provides some mitigation, this is objectively a serious instance of the crime of murder.

26 Mr Crown invited me to find that the offender's intoxication neither mitigated nor aggravated the offence but provided some explanation for the crime by way of disinhibition. Mr Ramage accepted that intoxication did not provide an excuse for the offence but might provide an explanation for it.

27 The offender's intoxication does not mitigate the seriousness of the murder or reduce the offender's culpability but assists in providing an explanation for the crime and the manner in which the deceased was killed: Hasan v R [2010] VSCA 352; (2010) 31 VR 28; R v GWM [2012] NSWCCA 240. The offender's prior history of heavy drinking and violent offending whilst affected by alcohol demonstrates that his intoxication was not out of character for him. I conclude that his intoxication neither mitigates or aggravates the offence.

The offender's personal circumstances

28 The offender was born on 23 April 1980 and is 33 years of age. He was 31 years old at the time of the murder. His prior criminal history as an adult, other than driving offences, includes convictions for stealing a motor vehicle, assaulting a police officer in the execution of his duty, assault occasioning actual bodily harm, larceny (1998); stealing a motor vehicle, use of an offensive weapon to prevent lawful detention; attempt escape from lawful custody (1999); assault occasioning actual bodily harm, affray (2003); resist officer in the execution of duty, use offensive weapon to prevent lawful detention (2004); assault police officer in execution of duty, use of an offensive weapon to prevent lawful detention (2006); and resist officer in the execution of duty (2009). The offender's unattractive criminal history deprives him of the considerations of leniency to which he may have been entitled if the current offence was an isolated act of criminality. In view of his prior offences involving violence, I give more weight to personal deterrence and protection of society than otherwise would have been the case: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

29 The offender gave evidence of his background. He had eight brothers and three sisters and the family was living at Mt Druitt. When he was eight, he became a Ward of the State. The offender was placed in different boys' homes until he was 14 years old. He then returned to his mother and father who were living in Canberra. The offender accepted that he had a substantial criminal record but said most of the offences had been committed when he had been drinking. He had thought about stopping drinking "heaps of times" and had gone into a six week rehabilitation program in about 2009 (T18/11/13 T44 L42-45). He had finished the program and stayed off alcohol "[f]or a little bit": (T18/11/13 T45 L50). The offender said that he drank to get rid of depression. He had been referred to Dr Warwick Williams, a psychiatrist, who told him that he was bipolar and prescribed Lithium. Although he had been told not to drink alcohol because of the side effects when taking Lithium, he had continued to drink and experienced "buzzing feelings" in his head which felt like "it had cement in it": T18/11/13 T48 L1-3. The offender ceased taking Lithium after a few weeks, but did not return to the psychiatrist.

30 Ms Mills testified that her relationship with the offender commenced in 2003 and they have two children aged two and four. She described the offender as drinking "a fair bit. Pretty much from the moment he got out of bed": T18/11/13 T9 L36. She recalled a time when it was a condition of a bond that the offender did not drink and she thought he had made it the whole way. Ms Mills said that the offender had spent six weeks in rehabilitation in 2009 but resumed drinking after three or four months. The last time the offender had employment was for a couple of months in 2009. She recounted being present during the offender's consultation with Dr Williams and said that the offender stopped taking the prescribed medication after a few weeks as "his head felt like it was in a vice": T18/11/13 T13 L26. The offender did not consult Dr Williams again. Ms Mills referred to the offender as a good father and said "[y]ou couldn't find a better person" (T18/11/13 T22 L39-44). She related an incident in which the offender protected an old man from being assaulted.

31 Mr Ramage informed the Court that he did not put the offender's "sad background...in the Fernando sense...but it [was] all part of the matrix of the man" that was being sentenced: T19/11/13 T104 L1-5. Mr Ramage was referring to R v Fernando (1992) 76 A Crim R 58 which recognises social disadvantage at sentence and is not confined to Aboriginals: see also Bugmy v R [2013] HCA 37; (2013) 302 ALR 192. In any event, there is insufficient evidence to establish on the balance of probabilities that the offender's abuse of alcohol is a reflection of the environment in which he was raised. Nevertheless, I take into account the offender's difficult family background and personal circumstances.

32 A letter dated 16 February 2010 from Dr Williams to Dr Duncan and a letter from Dr Williams to Detective Senior Constable Neil dated 22 February 2011 were tendered (ex 1). The letters confirm Dr Williams' diagnosis of bipolar disorder and that Lithium was prescribed. The offender last saw Dr Williams on 17 February 2010 and did not further consult him or any other psychiatrist. Mr Crown contended that the psychiatric evidence was of no assistance to the Court and "verges on the irrelevant": T19/11/13 T94 L23. Mr Ramage agreed that the psychiatric evidence was unsatisfactory but said it did indicate that the offender had attempted to deal with his difficulties with alcohol and had been diagnosed with bipolar disorder. Mr Ramage conceded that there was no evidence that directly linked his disorder with the offence. On the material before me, I am unable to conclude on the balance of probabilities that the offender's diagnosis of bipolar disorder in 2010 contributed to the commission of the murder, or as having any impact on his time in custody or makes him an inappropriate medium for general deterrence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1. I do, however, take into account the diagnosis of bipolar disorder and the steps that the offender took to overcome his difficulties with alcohol in 2010, which regrettably, were short lived.

33 The community interest in the protection of the elderly who remain living in their homes requires that it be made absolutely clear by this Court that our senior citizens are entitled to live their lives without any fear of violence. I give weight to general deterrence in the sentence.

34 Remorse as a mitigating factor is qualified by s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. By his plea of guilty, the offender has accepted responsibility for the murder. Ms Mills gave evidence that the offender had expressed his remorse and sorrow for the deceased and his family. During his evidence, the offender said that he felt very sorry and regretted drinking so much. Whilst the self-serving nature of the offender's evidence of his recollection of events at the time of the murder has caused me some hesitation in making a finding, I conclude on the balance of probabilities that he is remorseful and take into account his remorse as a mitigating factor.

35 Notwithstanding the offender's remorse, I am unable to make a finding on the balance of probabilities that the offender is unlikely to re-offend or has good prospects of rehabilitation. Much will depend upon the offender's ability to overcome his difficulties with alcohol. The failures in the past to successfully deal with this problem do not encourage an optimistic view being taken. His prospects of rehabilitation remain uncertain.

36 The offender pleaded guilty to the murder on 2 August 2013. Having been committed for trial on 26 April 2012, he had entered a plea of not guilty on arraignment in this Court on 7 September 2012. His trial was set to commence on 8 April 2013 at Wollongong which was vacated on 25 March 2013. The trial was re-listed to commence on 15 April 2013 but this date was vacated due to the unavailability of the forensic pathologist. The matter was placed in the arraignment list on 3 May 2013, when the defence indicated it was anticipated the matter would be short. It was listed again on 7 June and 5 July before the plea was entered on 2 August 2013.

37 Mr Crown submitted that "the plea should be regarded as being entered late in the piece, in fact after the day, upon which the matter was first listed for trial" (CWS p1). Mr Crown argued that the utilitarian value of the plea should not exceed ten per cent. Mr Ramage referred to the complications that arose from the evidence of Dr Van Vuurren at the committal proceedings that were ultimately resolved by the agreed facts. He asked the Court to allow more than ten per cent for the offender's plea.

38 The discount for the utilitarian value of the plea is determined largely by the timing of the plea and generally the reason for the delay in the plea is irrelevant: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 per Howie J at [32]. Although this was a late plea, the estimated length of the trial was three to four weeks and involved issues as to the cause of the deceased's death. I assess the utilitarian value of the plea to be 12.5 per cent.

39 Victim impact statements of Kim Weir, the deceased's son, Maree Grieve, the deceased's daughter, and Grahame Dick, the deceased's son in law, were read to the Court. The contents of the statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them.

40 I find special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of term of the sentence being the offender's long term need for appropriate psychiatric treatment and alcohol counselling upon release. I have determined that a non-parole period of 14 years 6 months is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63].

41 The offender was arrested on 16 February 2011 and has been in custody ever since. On 2 March 2011, he was sentenced in the Goulburn Local Court to imprisonment for 12 months commencing on 16 February 2011 and expiring on 15 February 2012 with a non-parole period of 8 months expiring on 15 October 2011 for an offence of driving whilst disqualified. He was also sentenced for an offence of break, enter and steal to imprisonment for 9 months commencing on 16 February 2011 with a non-parole period of 6 months expiring on 15 August 2011.

42 As the offender has served these sentences since he went into custody, it is necessary to consider the principle of totality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The offences for which the offender was sentenced in the Local Court are discrete and independent acts of offending. This does not, however, finally determine whether the present sentence ought to be imposed concurrently, partially concurrently or consecutively: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at [27]. In the present case, I consider that it is appropriate to commence the sentence on 15 October 2011 being the date that the offender would have been released on parole.

43 Taking into account all matters that are relevant to sentence, the appropriate undiscounted starting point of the overall sentence is 24 years. The overall sentence is reduced by 12.5 per cent to 21 years.

44 Mark Kaye for the murder of Mawell Charles Weir, I convict you. I sentence you to a term of imprisonment of 21 years consisting of a non-parole of 14 years 6 months which is to commence on 15 October 2011 and is to expire on 14 April 2026. I set a balance of term of 6 years 6 months which is to commence on 15 April 2026 and will expire on 14 October 2032.

45 The earliest date of eligibility for your release to parole is 14 April 2026.

46 I would strongly recommend that the offender be given the opportunity whilst in prison, to participate in programs which will assist him in resolving his alcohol related problems. I would also recommend that he be seen by a psychiatrist. I ask that these recommendations be brought to the attention of the prison authorities.

47 I ask Mr Voros to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence for which he has been sentenced.

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Decision last updated: 09 December 2013