Supreme Court New South Wales

• Medium Neutral Citation: Regina v Tilak Neil Huon [2012] NSWSC 1092
• Hearing dates: 18 July 2012
• Decision date: 14 September 2012
• Jurisdiction: Common Law - Criminal
• Before: Hall J

Decision

The Offender is sentenced to a term of imprisonment with a non-parole period of 16 years, which is to commence on 29 June 2010 and is to expire on 28 June 2026 and a balance of term of 5 years which is to commence on 29 June 2026 and to expire on 28 June 2031.

• Catchwords: CRIMINAL LAW - Sentencing - plea of guilty - objective seriousness of offence - murder of grandmother (by adoption) - offender acted with intention to kill - consideration of aggravating and mitigating factors - offence involved use of weapon - Offender had a record of a previous conviction particularly for serious personal violence - offence of murder committed in home of victim who was a vulnerable and elderly lady - the offence was committed for financial gain - Offender suffered from a number of interrelated psychiatric conditions including an alcohol abuse disorder - Offender demonstrated remorse.
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: KT v R [2008] NSWCCA 51; 182 A Crim R 571; Muldrock v R [2011] HCA 39; 244 CLR 120; Regina v Engert (1995) 84 A Crim R 67; R v Hamid [2006] NSWCCA 302; 164 A Crim R 179; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451; R v Hillsey [2006] NSWCCA 312; 163 A Crim R 252; R v Johnson [2004] NSWCCA 76; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566; R v MJR [2010] NSWSC 653; R v Nelson (unreported 25 June 1996, NSWCCA); R v Pitt [2005] NSWCCA 304; R v Previtera (1997) 94 A Crim R 76; R v Shankley [2003] NSWCCA 253; R v Sheather [2011] NSWSC 1239; R v Wickham [2004] NSWCCA 193; The Queen v Olbrich [1999] HCA 54; 199 CLR 270; Veen v R (No 2) [1988] HCA 14; 164 CLR 465
• Category: Sentence
• Parties: Regina; Tilak Neil Huon (Offender)
• Representation: Counsel: Mr L Lungo of counsel (Crown); Solicitors: Solicitor for Public Prosecutions (Crown); Greg Walsh & Co; Mr G Walsh (Offender)
• File Number(s): 2010/210338

sentence

1 Neil Tilak Huon has pleaded guilty to the charge of murder of Doreen McClelland on 24 June 2010. The maximum sentence for the crime of murder is imprisonment for life: s 19A(1) Crimes Act 1900.

2 Section 21(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") provides that if, by any provision of an Act an offender is made liable to imprisonment for life, a Court may nevertheless impose a sentence of imprisonment for a specified term. The maximum penalty for the offence of murder, however, remains a relevant consideration in determining the appropriate sentence for an offence.

3 Section 54A of the Sentencing Act and Table Item 1 prescribes a standard non-parole period in respect of the offence of murder of 20 years.

4 Section 3A of the Sentencing Act states the purposes of sentencing as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

5 The maximum penalty and the standard non-parole period are two legislative guideposts which 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 R [2011] HCA 39; (2011) 244 CLR 120. The standard non-parole period does not have determinative significance in sentencing the offender: Muldrock at [31-32], nor is it a "starting point" for the sentence nor does it directly apply as the offender has pleaded guilty.

Background

6 On 29 June 2010 the Offender was arrested and charged with the murder of Doreen McClelland in her home on or about 24 June 2010.

7 The Offender has remained in continuous custody since 29 June 2010.

8 He was committed for trial from the Central Local Court on 20 October 2011. He first appeared for arraignment before this Court on 4 November 2011. The Crown was informed on 5 April 2012 that a plea would be entered once the results of an MRI examination were received by the defence. On 4 May 2012, the Offender entered a plea of guilty to the offence of murder following the receipt of the results of that examination.

9 The Offender had a previous conviction for an offence of "malicious wounding". The sentence was imposed on 18 April 2007 whereby the Offender was sentenced to a term of imprisonment of 2 years with a non-parole period of 15 months. That assault was an unprovoked attack by the offender upon the face of a woman with a broken bottle causing a 12-centimetre laceration.

10 It was the Crown's submission that, in all the circumstances of this case, which include the Offender's psychiatric condition, a substantial term of fulltime custody is required to address the issue of future dangerousness.

The evidence

11 At the sentence hearing, evidentiary materials were tendered on behalf of the Crown and the Offender. The Crown tendered a number of documents which are contained in the folder which became Exhibit A in the proceedings. That exhibit contained an Agreed Statement of Facts.

12 Mr G Walsh, solicitor, appeared on behalf of the Offender. He tendered a considerable volume of material including in particular medical reports. A folder containing the material was admitted and became Exhibit 1. The report of Dr Andrew White dated 17 July 2012 was separately tendered and it became Exhibit 2 in the proceedings.

13 At the sentence hearing, Victim Impact Statements of Kay Morris, Robert McClelland and Janet Huon, were read.

The facts

14 The Offender was born on 17 August 1987 in a shanty town near Colombo, Sri Lanka. He was accordingly 23 years of age at the date of the offence and is presently 26 years of age. He was adopted by Janet and Dennis Huon as a young child. The deceased, Doreen McClelland, was 80 years of age at the date of the offence. She was Janet Huon's mother.

15 The facts as to the events concerning the offence and to which I will now refer are based on the Statement of Facts in Exhibit A.

16 At about 7:30PM on Thursday 24 June 2010, the Offender drove his vehicle to the deceased's home at Peakhurst. He knocked on the sliding glass door and the deceased opened it for him.

17 He remained at the premises watching television with the deceased for a few hours. He consumed in that period two cups of Scotch whisky and Coke. He concealed the fact that he was drinking that liquid by using a coffee cup.

18 At some point between 7:30PM and 10:45PM the Offender assaulted the deceased causing her death. This occurred where Mrs McClelland was sitting in a single armchair in the lounge room. The Offender had obtained a knife from the kitchen and he stabbed the deceased with it in the left cheek with the blade becoming embedded and the handle snapping off.

19 On Friday 25 June 2010, Janet Huon attended the deceased's home. She was unable to locate the deceased and upon searching the premises located her mother inside the walk-in wardrobe of her bedroom.

20 The Offender received a call from his mother at about 5:30PM in which he was informed that his grandmother had passed away. He thereafter joined family members at the deceased's residence.

21 Police arrived at about 6:50PM and set up a crime scene.

22 A post-mortem was performed on the deceased on Saturday 26 June 2010 by Dr Rebecca Irvine. Dr Irvine determined that the cause of death was asphyxia. Occlusion of the outer airways was the most likely mechanism.

23 Whilst the position of the knife blade was not believed to have caused a haemorrhagic complication, it was considered by the forensic pathologist that it may have contributed to asphyxia by reason of its position in relation to the base of the tongue.

24 Dr Irvine's findings indicated that the deceased's body had been moved from a prior position to the final position in the wardrobe.

25 Police investigations established that at 10:46PM on Thursday 24 June 2010, CCTV footage revealed the Offender entered the Mortdale Hotel where he played poker machines and consumed drinks. At 11:11PM, he was recorded as accessing an ATM machine in the Hotel, attempting to withdraw funds from the deceased's credit card account. At 11:14PM a further attempt was made at an ATM nearby to the Hotel. At 11:21PM, a balance check was made at another ATM machine near the Hotel.

26 The Offender returned to the deceased's home where he used local papers to ascertain brothels that provided callout services. He made a number of calls and made a booking providing credit card details using the deceased's credit card account. A sex worker attended between 1:00AM and 2:00AM on Friday 25 June 2010. An amount of $330 was charged on the deceased's card for sexual services.

27 The Offender phoned another two escort agencies. A sex worker attended the deceased's premises between about 3:10AM and 4:10AM. The Offender again used the deceased's credit card and an amount of $308 was charged against the account.

28 The Offender left the premises and arrived home at about 4:30AM where he lived with his parents. He was awoken at 6:00AM and driven to his workplace. He was later collected by his father at 4:00PM and driven home. The Offender washed his clothes that he had worn the previous evening.

29 He was arrested at 3:30PM on Tuesday 29 June 2010. He participated in an electronically recorded interview. He told police that he had gone to the deceased's home on the evening of 24 June 2010. He recalled being in the kitchen with her and from then on "everything's a blur". He told police:

• That he could not recall leaving the deceased's home;
• That he did not touch her handbag;
• That he did not go to the bank that evening;
• That he denied returning to his grandmother's home after he left.

30 On being shown the CCTV footage the Offender then told police that he had removed his grandmother's credit card from the kitchen while he was visiting her. He said that he made a number of unsuccessful attempts to withdraw cash from the account before disposing of the card in a bin. After being told by police that the credit card was found in the office at the deceased's residence, the Offender said that he had replaced the card in the office on attending the deceased's home with other family members, after learning of her death. He denied killing or assaulting the deceased.

31 Police later executed a search warrant at his home. Clothing worn by the deceased depicted in the CCTV footage was seized including a pair of sneakers which family members had observed to have been washed by the Offender some time prior to 11:00AM on Sunday 27 June 2010.

32 I make findings of fact in accordance with the agreed facts for the purpose of sentencing the Offender.

Personal history of the Offender

33 The Offender attended primary and secondary school in Sydney. He was a below average student but participated in a number of sports, in particular rugby, cricket and athletics.

34 In Year 10 he underwent an IQ test and as a result he received additional teaching support.

35 In June 2004, when the Offender was in Year 11, it was decided that he would leave school, as he was not progressing academically. Between July - December 2004, he completed a Commercial Cookery Certificate II with credits and was nominated for Student of the Year.

36 On 4 September 2004, he cut himself. This was the first of what was said to be a number of serious episodes of self-cutting in an extensive history of self-harm.

37 On 7 September 2004, the Offender attended Interrelate Family Life Counselling. This followed concerns over the self-harming incident. He attended a second time in September 2004.

38 In February 2005, he obtained employment at a Sydney restaurant for 8 weeks. He had considerable difficulties working there due to comments about his ethnicity.

39 He cut himself regularly between September 2004 and June 2005 and was consuming alcohol to excess. On 15 June 2005, he cut himself badly and was taken by his parents to see Ms Katy Vidler, psychologist.

40 On 18 July 2005, Ms Vidler prescribed Efexor XR 75mg for the Offender. Due to the complexity of his subjective problems, he was referred to Dr Hugh Morgan, psychiatrist. A number of reports by Dr Morgan are contained in Exhibit 1.

41 On 31 August 2005, the Offender cut himself very badly and was treated at St George Hospital. The history of self-mutilation was noted as was the fact that he was suffering from depression. He was prescribed the drug Zoloft. A diagnosis of depression and borderline personality disorder was recorded.

42 Dr Morgan noted in his report of 4 August 2005 that he had decided to change the Offender's medication from Efexor XR to Lovan.

43 Ms Vidler, in July 2005, diagnosed the Offender as suffering from a generalised anxiety disorder, a major depressive disorder "recurrent severe without psychotic features, with comorbid self-harm behaviours": Report 19 July 2005 at p 3.

44 In December 2005, the Offender was again involved in a very serious cutting incident and was treated at St George Hospital in the Acute Mental Section. On 17 March 2006, the Offender was taken to Royal Prince Alfred Hospital and then to the St George Acute Mental Health Team. He gave a history of being sexually assaulted by a man dressed as a woman. He was referred to Dr John Albert Roberts, consultant psychiatrist, for assessment in June 2006. Dr Roberts arranged for a cerebral CT scan to be performed on 6 June 2006. The report on the scans stated:

"There is a possibly mild degree of cerebral atrophy present. No other focal lesion is seen."

45 An MRI examination was performed. Dr Roberts stated that the MRI was indicative of an abnormal brain. He considered it could be congenital or acquired as a result of alcohol and other substance abuse or both.

46 Dr Roberts noted that the offender had an IQ of 80-89 being "low average".

47 Dr Roberts identified a number of problems in the Offender including developmental delay with what he considered to be proven cerebral atrophy (presumably on the basis of the MRI examination), psychiatric illness associated with depressive moods and substance abuse disorder, namely alcoholism. These conditions, he considered, interacted to cause the Offender to be more vulnerable to what he referred to as the disinheriting effects of alcohol.

48 This diagnosis was made following the offence to which I have earlier referred. It occurred on 21 April 2006 when the Offender, after having heavily consumed alcohol, attacked a female at Kings Cross. He claimed to have had little recollection of the incident.

49 In June 2006 the Offender went to Wandene Private Hospital for intensive assessment under the care of Professor Saunders and Dr Grace, psychiatrist. Between July and October 2006 he entered an Alcohol Abuse Program conducted by Professor Saunders. He was also placed on medication for the self-harm problem.

50 Dr Olav Nielssen, forensic psychiatrist, has assessed the Offender on two separate occasions. He initially assessed him for the purposes of the sentence hearing in relation to the Kings Cross malicious wounding offence and in September 2010 for the purposes of the present proceedings. He diagnosed the Offender in 2006 with low-grade developmental disability, major depressive illness and an alcohol abuse disorder. Dr Nielssen, however, considered the Offender was fit to plead and was fit for trial.

51 Dr Nielssen's report of 21 November 2006 is included amongst medical evidence in Exhibit 1 in the present proceedings. Dr Nielssen in that report stated at p 6:

"The diagnosis of low-grade developmental disability is based on the history of poor fine motor skills and learning problems throughout his upbringing, despite what seemed to be a supportive and enriched environment and access to remedial teaching. His developmental disorder is manifested in low average intelligence with limited capacity for the kind of conceptual thinking needed for some forms of insight orientated counselling and problem solving in stressful situations."

52 Dr Nielssen observed in 2006 that as a result of consistent treatment with anti-depressant medication and counselling and 6 months' abstinence from alcohol, there had been signs of improvement.

53 In relation to the alcohol abuse disorder he recorded a history of hazardous intake of alcohol. He said that the complications of alcohol abuse included what he termed "amnestic episodes". He had amnesia for the malicious wounding offence which he said was consistent with alcoholic amnestic episodes or "blackout".

54 Dr Roberts provided a report dated 13 December 2006 in which he identified three features as relevant to the malicious wounding offence:

1. Brain damage.

2. Pre-existing psychiatric illness associated with self-harm.

3. The possible interaction of Zoloft with cerebral atrophy and alcohol excess.

55 In his report of 11 July 2012, tendered in relation to the subject offence, he stated that psychopathy is a sub-type of antisocial Personality Disorder. It was not an illness that would satisfy the M'Naghten test or rule. In that respect he observed that the Offender knew at the time of committing the offence as to what he was doing and that he understood that what he was doing was wrong but that his understanding would have been "in the abstract".

56 Dr Roberts in his initial report had recorded a history of the Offender's heavy consumption of alcohol from the age of 15, which would have produced brain damage. Dr Roberts said that the Offender told him that he had no recollection of the attack upon the deceased. He, however, said that he remembered being at the Hotel. He said that he could not believe what had happened and he had loved his grandmother. Dr Roberts opined:

"He has a cluster of psychopathologic entities including the Axis I diagnosis of Substance Abuse Disorder and an Axis II diagnosis of a Personality Disorder of the antisocial personality type.

Other factors, including cerebral deterioration, chromosomal abnormalities, the Lesch-Nyhan Syndrome and epilepsy should all be considered as possible contributing factors.

This is a complex case and in my view all evidence should be before the Court."

57 On 3 April 2012 a report on a second MRI scan was received. It was to the effect that the brain stem and cerebellum showed no abnormalities. This result is accordingly inconsistent with the initial MRI, to which I have referred.

58 In his report dated 11 July 2012, Dr Roberts stated that the appropriate diagnosis was "psychopathy" and that he would have had virtually no emotional response to killing his grandmother.

59 The offender was treated by Dr Deepinder Miller, consultant psychiatrist, from 28 April 2010 until 23 June 2010. In the detailed history taken from the Offender, Dr Miller noted the following:

1. A sense of abandonment by his biological mother and society in general;

2. A significant pattern of self-loathing and self-hate that manifested itself in significant deliberate self-harming behaviour.

3. A lack of empathy towards others with feelings of uncontrollable rage and an impulse to harm others.

Submissions

60 In the written submissions for the Offender, Mr Walsh conceded that the attack upon the deceased was entirely an unprovoked and vicious one involving an elderly and vulnerable woman.

61 He submitted that it was a difficult task to assess the objective seriousness of the criminality of the Offender due to a combination of circumstances. Whilst it was conceded that the crime was a callous one Mr Walsh submitted that based on the nature of the wound caused by the Offender it could be concluded that he did not have an intention to kill but an intention to inflict grievous bodily harm or that he acted with reckless indifference to human life. In that respect Mr Walsh referred to the cause of death as determined by Dr Irvine, namely asphyxia by occlusion of the outer airways as well as haemorrhage within the soft tissues anterior to the spinal column of the neck suggestive of hyperextension of the neck. This was said to have contributed to the asphyxia.

62 Mr Walsh acknowledged that the Offender's level of intoxication is not a matter which can be properly taken into account by way of mitigation. It was observed in that respect, however, that it may provide an explanation for irrational behaviour. It was also submitted that it could support the contention that the offence was unplanned, unpremeditated and spontaneous. In that respect, reference was made to the remarks on sentence in R v Sheather [2011] NSWSC 1239. In that case, Hoeben J (as his Honour then was) stated that, on the day the offence of murder was committed, the offender in that case had consumed a considerable quantity of alcohol and three cones of cannabis. His Honour noted that the circumstances of the offence, together with the very intoxicated state of the offender, made it clear that the offence was unplanned and unpremeditated and occurred as a spur-of-the-moment act. Nonetheless, it was also clear in that case that the offender had a determination to use knives against the deceased.

63 Mr Walsh also referred to the observations of Johnson J in R v MJR [2010] NSWSC 653 at [67] and [68]. There, his Honour noted that the assessment of the objective seriousness of the crime of murder there under consideration involved:

"... consideration of facts which relate directly to the commission of the offence, including those which may explain why it was committed and which bear upon the Offender's moral culpability."

64 There is a need to closely assess the facts established in the evidence in the present proceedings in determining whether the offence was an unplanned, unpremeditated or spontaneous act, as Mr Walsh submitted.

65 On the Offender's behalf it was submitted that he appeared to have an otherwise good relationship with his adoptive grandmother. There was no suggestion that he had broken into her house although it was conceded that, owing to the relationship with his grandmother he would have easily been able to gain access to the home. Significantly, Mr Walsh observed, there did not appear to be any evidence that the Offender had planned to murder the deceased and it may well have been a spontaneous but callous attack.

66 Mr Walsh conceded that the use of a knife to inflict a wound upon the deceased's cheek was an aggravating factor in terms of s 28A(2)(c) of the Sentencing Act.

67 In relation to the Offender's previous conviction for the offence of malicious wounding, Mr Walsh relied upon the decision of this Court in R v Shankley [2003] NSWCCA 253 for the proposition that a previous conviction for such an offence was relevant, not to increase the objective seriousness of the offence committed, but rather that "retribution, deterrence and protection of society would indicate a more severe sentence is warranted": R v Johnson [2004] NSWCCA 76; R v Wickham [2004] NSWCCA 193; R v McNaughton [2006] NSWCCA 242; (2002) 66 NSWLR 566.

68 The decision in McNaughton, supra, establishes:

1. That the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions

2. Prior convictions are pertinent to where, within the boundaries set by the objective circumstances, a sentence should lie, particularly with reference to an attitude of disobedience of the law and to the increased weight to be given to retribution, deterrence (relevantly personal deterrence) and protection of society."

69 Mr Walsh conceded that an aggravating circumstance of the offence under s 21A(eb) of the Sentencing Act was the fact that the offence occurred in the victim's home and she was elderly.

70 It was also acknowledged that the offence was committed in circumstances in which the offender's grandmother's credit cards were used: an offence committed for financial gain is an aggravating factor under s 21A(o) of the Sentencing Act.

71 Mr Walsh submitted that in terms of s 21A(3)(i) of the Sentencing Act the offender had demonstrated remorse. He had written to Kay Morris, daughter of Doreen McClelland and Robert McClelland, the son of Mrs McClelland. In the letter he expressed shame, shock and disgust and his disbelief for what he had done and the suffering he had caused. He also expressed sorrow and remorse to his mother and father and sister. He told Dr Roberts that he dearly loved his grandmother and that the commission of the offence was against his nature.

72 Mr Walsh submitted that the guilty plea had been entered at the earliest practicable opportunity having regard to the Offender's complex psychiatric history. Dr Roberts' final report, Mr Walsh noted, was dated 11 July 2012. It was submitted that, in all the circumstances of the case, it was appropriate that a discount is allowed for the Offender's plea.

73 In the submissions made on his behalf, Mr Walsh emphasised a number of factors relating to what he termed "a most unusual and complex subjective background": Written Submissions at [118].

74 Reference was made to the well-established principles applying in the sentencing of an offender who suffers from a mental disability or incapacity. Those principles were summarised in R v Pitt [2005] NSWCCA 304 at [22]. These include:

1. Sentencing persons who suffer from mental disorders confronts judicial officers with the need to make a sensitive discretionary decision: Regina v Engert (1995) 84 A Crim R 67 at 68 per Gleeson CJ.

2. Where deterrence of others is of lesser importance in a case of an offender who suffered a mental illness, it may however mean that protection of society is of greater importance or might at the same time increase the importance of deterrence of the Offender himself or herself; Engert, supra, at 68 per Gleeson CJ.

Consideration

75 The Court may not take facts into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the Offender relies upon in mitigation of penalty, it is enough if those matters are proved by the offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27]-[28].

76 In the context of criminal responsibility cognitive deficits or mental illness may be relevant in one or more ways. Mental impairment may have a direct causal link to the relevant offending. It may have an indirect link. In some cases although there may have been an absence of a causal association, such impairment or mental illness may affect an offender's mental functioning at the time of the offence or in the lead-up to it.

77 An offender's cognitive functioning is part of his or her subjective circumstances. It may reduce his or her moral culpability for the offence, it may reduce the role of general and/or specific deterrence in the sentencing exercise. It can in some cases render the term of imprisonment to be served more onerous.

78 Whether mental illness or disorder does any or all of these things depends upon the nature and severity of the alleged mental condition. The point is that, provided it is factored into the sentencing exercise, it allows for the imposition of a sentence that is commensurate with both objective and subjective circumstances.

79 It was not submitted by Mr Walsh, nor could it have been, that the Offender's mental health disorders were directly causative of the offence. Rather the submission was that those matters are to be taken into account in the assessment of the Offender's subjective case. In that context the submission was the Offender's mental disability or incapacity is an important factor to be considered: Written Submission for the Offender at [118] and [119].

80 The medical evidence establishes that the Offender suffered from a number of interrelated psychiatric conditions that became increasingly problematic over a period of at least 6 years between 2004 and the date of the offence, 24 June 2010. These included an anxiety and depressive condition, an antisocial Personality Disorder, a substance abuse disorder and self-harm behaviours.

81 The Offender had a history of periodic binge drinking related to his substance abuse disorder. Dr Miller noted that over a period of months in 2005 when she treated him she had attempted to decrease his alcohol consumption during the period of her treatment of him. In that regard she noted that he only binge drank on two occasions. Both of these occasions Dr Miller noted were reported to her at the time that each occurred. This history Dr Miller noted was confirmed by the Offender's mother's account.

82 Accordingly, in the months preceding the offence the Offender had demonstrated an effort under specialist medical supervision, to do something about reducing his alcohol consumption. He was partly successful in doing so for a period. According to his account to Dr Roberts he finished work early on the day of the offence and said that he "let my guard down" and consumed a large quantity of various forms of alcohol during the afternoon and evening of the offence. His account in that regard is consistent with the evidence, in particular that of Dr Miller.

83 As to the Offender's consumption of alcohol on the day of the offence, whilst it presents as a voluntary course of action, is to be seen in the context of his long-standing alcohol abuse disorder which in turn may be seen in context with the anxiety and depressive conditions for which he received treatment in the years preceding the offence. That said, he having previous knowledge of the effects that excessive alcohol could have on him, it cannot be said that he was free of responsibility for his level of intoxication in the lead-up to the callous and tragic attack upon the deceased.

84 Dr Nielssen noted the prior history of the Offender's criminal offending behaviour in 2006 occurred whilst he was heavily intoxicated.

85 Dr Nielssen in that same report noted that in relation to the offence, the subject of these proceedings, the Offender was affected by a moderate amount of alcohol at the time of the offence and that the Offender said that he could not recall it. Dr Nielssen, however, observed that he was able to drive his car to his grandmother's house and was also able to later find his way to a nearby hotel and back. The Crown submitted that this is relevant to the issue of whether the Offender had an intention to kill. His account of complete amnesia of the events, Dr Nielssen noted, was not consistent with a typical alcoholic blackout which would normally be associated with blood alcohol levels that are too high for many forms of purposeful behaviour. Dr Nielssen's analysis, accordingly, throws doubt on the Offender's account to a number of examining doctors as to having had a complete absence of memory in relation to the offence. This comment also applied to certain of his answers to police in the ERISP conducted on 29 June 2010.

86 Although the Offender suffered from a significant level of psychiatric disability, Dr Nielssen concluded, like Dr Roberts, that he did not have a mental illness that would be considered in law to be a disease of the mind such as to provide him with a mental illness defence.

87 The reports of the psychiatrists in this case do not establish a direct causal link between a particular diagnosed mental disorder in the Offender and the offence. Dr Roberts, however, did observe in his report of 11 July 2012 that he considered that there was evidence of "disordered brain function".

88 I have concluded that the opinions expressed in the psychiatric reports as to the mental health issues concerning the Offender are to be taken into account as operating as relevant subjective matters in determining the sentence to be imposed.

89 I have taken into consideration the question of motive in terms of financial advantage to the Offender in the commission of the crime. Whilst at least at some point during the evening of the offence, the offender determined upon using his grandmother's credit card, the evidence does not permit a conclusion, to the required standard, that he entered her home solely with that purpose in mind.

90 I have also taken into account the Offender's age, namely, as earlier noted, 26 years. His age at the time of the offence and his level of maturity are matters also to be taken into account.

91 In determining the sentence to be imposed specific deterrence is an important factor to be taken into account, as is the protection of the community from the Offender. I have considered both. Finally, I have also borne in mind the need for the promotion of the Offender's rehabilitation in determining sentence.

The issue of criminal intent

92 The principal issue on which the Crown's submissions differed from those on behalf of the Offender was whether or not the Offender's attack upon the deceased was undertaken with an intent to kill or whether, as submitted on behalf of the Offender, the attack upon the deceased was done with an intent to cause grievous bodily harm or with reckless indifference to human life.

93 The Crown's submissions referred in particular to the use of a weapon, namely the knife, and the nature of the stabbing wound using that knife inflicted by the Offender. The Crown observed that the stabbing produced a wound track of 8.1cm. The Crown also observed that either before or after the stabbing the deceased's head was pulled backwards. These facts, it was submitted by the Crown, indicated that an attack upon an 80-year-old woman while seated would have been undertaken with an intent to kill.

94 The Crown referred to relevant authorities. In R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [34] it was held that the defence involving an intent to kill is generally more serious than one involving an intent to inflict grievous bodily harm. However, as the Crown also observed in R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252, the Court held that although it will generally be the case that the intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, that is not always the case.

95 In Hillsley and in R v Nelson (unreported 25 June 1996, NSWCCA) decisions to which the Crown referred, it was noted that there may be circumstances in a particular case where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill.

96 I have carefully considered the submissions made on behalf of the Crown and the Offender on this issue. I have concluded that the nature of the wound caused by the Offender does not, in the whole of the circumstances of the case, support a conclusion that the Offender's intention was only to inflict grievous bodily harm upon the victim.

97 An examination of Dr Irvine's very detailed report including, in particular at pages 3 and 5, would, in my assessment, support beyond reasonable doubt that the Offender at the time of the attack intended to kill her. Support for that conclusion is to be found in Dr Irvine's detailed analysis concerning the nature and location and depth of the knife wound in conjunction with the haemorrhage to the soft tissue anterior to the spinal column of the neck. On Dr Irvine's analysis, it is consistent with forceful action, described as hyperextension of the neck. Dr Irvine noted that that wound is consistent with the deceased having been seated in the lounge room with the level of hyperextension, as described in the report, producing contusion on the chin. The nature and location of the stab wound together with the forced hyperextension of the neck requiring forceful action supports the conclusion that the Offender acted with the intention to kill.

98 That conclusion, of course, is a material matter in the assessment of the objective seriousness of the criminality of the Offender.

99 It is not possible to conclude on the evidence, to the required standard, that the offender had an intention to kill the victim before entering her home. That intention I find was formed at some later point in time.

Aggravating factors

100 I have earlier referred to the submissions of Mr Walsh in relation to the aggravating features relied upon by the Crown. The Crown submitted that the following are aggravating features pursuant to s 21A(2) (of the Sentencing Act):

• The offence involved the actual use of a weapon; s 21A(2)(c)
• The Offender has a record of previous convictions particularly for serious personal violence; s 21A(2)(d)
• The offence was committed in the home of the victim; s 21A(eb)
• The victim was vulnerable because she was very old; s 21A(1)
• The offence was committed for financial gain; s 21A(o)

101 I accept the Crown's submissions as to the aggravating factors.

Prior offending

102 In relation to the Offender's criminal record, as Mr Walsh, observed the offence of malicious wounding committed by the Offender in 2006 involved a violent attack upon a vulnerable victim whilst the Offender was grossly affected by alcohol.

103 In Veen v R (No 2) [1988] HCA 14; 164 CLR 465, the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) observed:

"The principal for proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender." (At 472)

A little later the Court observed:

"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of a sentencing discretion having regard to the protection of society among other factors which is permissible."

104 Prior convictions are pertinent as to where, within the boundaries set by the objective circumstances, a sentence should lie, particularly by reference to an attitude of disobedience of the law and to the increased weight to be given to retribution, deterrence (relevantly personal deterrence) and the protection of society: R v McNaughton, supra, at [25] per Spigelman CJ.

105 An assessment of the objective seriousness of the crime of murder in this case involves a consideration of the facts to which I have referred that relate directly to the commission of the offence, including those which may explain why it was committed and in particular those which bear upon the Offender's moral culpability.

106 The Crown submitted that the aspect of future dangerousness is relevant in this case. In that respect reference was made to the observations of the High Court in Veen v R (no 2) set out above at [103].

107 The Crown submitted that the protection of society is of paramount importance in this case in the light of the Offender's history and psychiatric condition. It was noted that he had, over the years, been prescribed a number of drugs and had attended counselling, including an alcohol treatment program.

108 The Crown submitted that in the circumstances I should make a positive finding in relation to future dangerousness. The Crown submitted that the Offender had a history of vicious attacks upon women and that the Offender had had the opportunity of extensive ongoing treatment but notwithstanding that he committed the crime, subject of the present proceedings. These factors along with Dr Roberts' diagnosis establishes, the Crown submitted, "an ongoing danger to society".

General and specific deterrence

109 I have concluded that the mental health disorders that existed both prior to and at the time of the commission of the offence renders the Offender less suitable to be a medium for general deterrence. It is unclear on the material presently available as to what the longer term future will hold for him in terms of his future custody, there being little evidence on that subject. To be balanced with these considerations is the need to protect the public in the future, and the need also for appropriate treatment and support to prepare the Offender for his future release into the community. I have taken all of these matters into consideration in determining sentence in accordance with the principles in R v Engert, supra, at 70-71 and R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [92] - [118].

110 I have earlier referred to the evidence as to the Offender's contrition and remorse for his crime which I accept to be a genuine expression by him. References in the medical reports confirm the depth of his contrition and remorse. I take that into account.

111 The various histories contained in the medical reports reveal that the Offender's adoptive family has throughout provided a very supportive home environment including care for his upbringing and welfare. That fact, of course, highlights the absolute tragedy of the crime in this case. It also, to a point, emphasises the complexity of the Offender's mental health issues that have affected him since at least 2004 and the need for an ongoing requirement for support, medical and otherwise, for the Offender in the future.

112 Dr Miller concluded in her report:

"Whatever the outcome of the current legal proceedings against Mr Huon, he will require ongoing psychodynamic psychotherapy and possibly a mood stabiliser such as Quetiapine in order to decrease his mood lability, decrease his self-harming behaviour and to address his sense of cultural and actual abandonment ..."

113 The Offender is presently held in custody in the mental health accommodation area of the relevant correctional institution. The report, dated 17 July 2012, of Dr Andrew White, who is employed by Justice Health, states that his behaviour whilst in custody has never given rise to concern and that he had been pleasant and polite on all interactions with staff. Dr White additionally stated that he is respected by staff who appreciate the amount of help that he has given in looking after the acutely unwell and vulnerable people in the relevant accommodation area. With antidepressant and anti anxiety drug treatment there has been improvement in the level of the Offender's anxiety. It is clear, however, from Dr White's report that it is not likely that there will be a pharmacological cure for the Offender's condition. He is stated to have recognised this and has undertaken as much counselling as is possible where he has been held. He sees the Chaplain for regular sessions and has undertaken a program with him. I have noted references from the Crossroad Bible Institute, Australia dated 27 April 2012 and credit certificates which attest to the Offender's willingness to undertake and complete lessons as part of a biblical correspondence course.

114 The positive reports from staff members in relation to the Offender's behaviour and the observation that he is endeavouring to understand his problems provides, according to Dr White, a basis for a prognosis that is more positive than the average both in terms of understanding his problems and seeking to avoid harmful conduct in the future.

115 However the evidence does not presently enable me to conclude that the Offender has good prospects of rehabilitation. That said, prospects for his improvement do exist although at this point they must, on the medical evidence to date, be considered to be guarded.

116 I have earlier set out the purposes of sentencing. In some cases, including the present, there are difficult and competing considerations that are relevant to sentence. The offence committed by the Offender, of course, is a very serious one and a significant sentence of imprisonment must be imposed.

117 In determining sentence, I have taken into account the evidence relevant to the objective seriousness of the offence, the Offender's previous conviction for a serious personal violence offence and the subjective circumstances of the Offender as referred to in these remarks on sentence.

118 There is, in my opinion, a need for an element of specific deterrence in the sentence. I also give weight to the protection of the community. I have kept in mind the principle of proportionality and the sentence is not to be increased beyond that which is proportionate to the crime: Veen (No 2).

Victim Impact Statements

119 I have referred earlier to the Victim Impact Statements of Kay Morris and Janet Huon, the deceased's daughters and Robert McClelland, son of the deceased. The contents of the statements, eloquently expressed, 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 I express on the community's behalf its sympathy and compassion for them.

120 At the outset of these remarks, I stated that the maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) of the Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (Sentencing Procedure) Act (which authorises the passing of a lesser sentence than imprisonment for life).

The Offender's plea of guilty

121 In relation to sentence, I have regard to the Offender's plea of guilty. I have referred earlier to the fact that the Offender pleaded guilty on 4 May 2012, noting the timing of Dr Roberts' final report (dated on 11 July 2012.

122 The discount for the utilitarian value of a plea of guilty is to be determined largely by the timing of the plea.

123 I assess the discount to be allowed for the utilitarian value of the plea of guilty in this case at 20 per cent.

124 There has been no application for a finding of special circumstances which justifies the balance of the term of the sentence as exceeding one third of the non-parole period but I do not in any event consider that special circumstances could be said to exist.

125 Tilak Neil Huon, for the murder of Doreen McClelland, I convict you. I sentence you to a term of imprisonment with a non-parole period of 16 years, which is to commence on 29 June 2010 and is to expire on 28 June 2026 with a balance of term of 5 years which is to commence on 29 June 2026 and to expire on 28 June 2031.

126 The earliest date that the Offender is eligible for release to parole is 28 June 2026.

Order

127 The Offender is sentenced to a term of imprisonment with a non-parole period of 16 years, which is to commence on 29 June 2010 and is to expire on 28 June 2026 and a balance of term of 5 years which is to commence on 29 June 2026 and to expire on 28 June 2031.

128 The earliest date that the Offender is eligible for release to parole is 28 June 2026.

**********

Decision last updated: 12 October 2012