Supreme Court New South Wales Medium Neutral Citation: R v Watson (No 3) [2022] NSWSC 1693 Hearing dates: 5-9, 12-15, 19, 21, 23 and 26 September 2022, 1 December 2022 Supplementary written submissions received on 6 and 7 December 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Common Law - Criminal Before: Walton J Decision: (1) The offender, Paul Anthony Watson, is convicted of the murder of William Chaplin. (2) The offender is sentenced to a non-parole period of 16 years and 9 months, commencing on 14 January 2022 and expiring on 13 October 2038. (3) The balance of term shall be for 7 years and 3 months, commencing on 14 October 2038 and expiring on 13 January 2046. (4) The offender will be eligible for release on parole at the expiry of the non-parole period on 13 October 2038. Catchwords: CRIME – sentence after trial by jury – verdict of guilty – murder – elements of murder – post-trial fact-finding – principal in the first degree – intention to kill – objective seriousness – whether offender used a weapon – whether provocation established – absence of motivation – whether offence committed in company – whether committed in deceased's home – reliability of Crown witnesses – mid-range of offending – subjective factors – no evidence of remorse – very guarded prospects of rehabilitation – serious criminal history – need for general and personal deterrence – pre-sentence custody for Victorian offences – whether appropriate to backdate and serve concurrently – impact of COVID-19 – delay – victim impact statement – parity – special circumstances – sentenced to a term of imprisonment – consideration of Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(c), 21A(2)(e), 21A(2)(ea), 21A(2)(n), 21A(3)(c), 21B Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21, 21A, 21A(2)(c), 21A(2)(e), 21A(2)(ea), 21A(2)(n), 21A(3)(c), 21B, 35, 44, 54D, 55, 61; Schedule 2 cls 51, 95 Crimes (Sentencing Procedure) Amendment Act 2022 (NSW) Crimes Act 1900 (NSW), ss 18, 19A, 23, 61 Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW) Evidence Act 1995 (NSW), s 165 Jury Act 1977 (NSW), ss 53B, 53C, 55G Cases Cited: Alesbhi v R [2018] NSWCCA 30 BIP v R [2011] NSWCCA 224 Cabezuela v R [2020] NSWCCA 107 Charbaji v R [2019] NSWCCA 28 Chen v R [2013] NSWCCA 116 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Colledge v State of Western Australia [2007] WASCA 211 DPP (Vic) v England [1999] 2 VR 258; [1999] VSCA 95 Fahs v R [2007] NSWCCA 26 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gore v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Katsis v R [2018] NSWCCA 9 KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 Louizos v R (2009) 194 A Crim R 223; [2009] NSWCCA 71 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McLaughlin v R [2013] NSWCCA 152 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Barbetta [2008] NSWSC 688 R v BDX (2008) 24 VR 288; [2009] VSCA 28 R v Blanco (1999) 106 A Crim R 303; [1999] NSWCCA 121 R v Borg [2010] NSWSC 951 R v Campbell [2010] NSWSC 995 R v Chen [2010] NSWSC 64 R v Dawson [2022] NSWSC 1632 R v Fahda [2012] NSWSC 114 R v Halloun [2014] NSWSC 1705 R v Harwood [2019] NSWSC 1695 R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 R v Heffernan [2005] NSWSC 739 R v Hickson (No 4) [2020] NSWSC 340 R v Hines (No 3) [2014] NSWSC 1273 R v Holcroft [2010] NSWSC 1294 R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238 R v Hull (1989) 16 NSWLR 385 R v Isaacs (1997) 41 NSWLR 374 R v Jarad Smith [2016] NSWCCA 75 R v Katsis [2015] NSWSC 1890 R v Knight (2006) 164 A Crim R 126; [2006] NSWCCA 292 R v Kwon [2010] NSWSC 671 R v Lechmana [2010] NSWSC 849 R v Lowe [1997] 2 VR 465 R v Lulham (2016) 263 A Crim R 287; [2016] NSWCCA 287 R v MAK & MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v O'Sullivan [2010] NSWSC 755 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Potts [2010] NSWSC 731 R v Schultz (1997) 68 SASR 377 R v Scott [2005] NSWCCA 152 R v Spathis; R v Patsalis [2001] NSWCCA 476 R v Tatchell and Wildsmith [2010] NSWSC 495 R v Taylor (No 2) (2008) 18 VR 613; [2008] VSCA 57 R v Tongahai [2010] NSWSC 227 R v Tuala (2015) 248 A Crim R 502; [2015] NSWCCA 8 R v Ward [2010] NSWSC 304 R v Washbrook [2019] NSWSC 1143 R v Watson (No 2) [2022] NSWSC 1243 R v Wilkinson (No 5) [2009] NSWSC 432 R v Yeo [2003] NSWSC 315 R v Yuke [2010] NSWSC 754 R v ZT [2022] NSWSC 511 Sumpton v R [2016] NSWCCA 162 Taha v R [2022] NSWCCA 46 TJ v R (2009) 76 NSWLR 167; [2009] NSWCCA 257 Toller v R [2021] NSWCCA 204 Versluys v R [2008] NSWCCA 76 Watson v R [2022] NSWCCA 208 White v R (2016) 261 A Crim R 302; [2016] NSWCCA 190 Williams v R [2010] NSWCCA 15 Yeung v R [2018] NSWCCA 52 Texts Cited: NSW Public Defenders, "Murder: 2010" (accessed 5 December 2022) NSW Judicial Commission, Sentencing Bench Book (accessed 8 December 2022) Category: Principal judgment Parties: Rex (Crown) Paul Anthony Watson (Offender) Representation: Counsel: P Kerr and A Dixon (Crown) J Agius SC (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Timothy Hemsley & Associates (Offender) File Number(s): 2019/324972 Judgment 1. On 5 September 2022, Paul Anthony Watson ("the offender") was arraigned before the Court and a jury on an indictment containing a single count. The count averred that the offender between 31 March 2010 and 31 May 2010, at Gerogery in the State of New South Wales, did murder William Chaplin ("the deceased"). 2. The trial commenced with a jury of 14 jurors. On 15 September 2022, one juror – known as the "witness juror" – was discharged pursuant to s 53B of the Jury Act 1977 (NSW) ("Jury Act"). The Court, as presently constituted, also made orders that the remaining jury be discharged pursuant to s 53C(1)(a) of that Act but stayed that decision: R v Watson (No 2) [2022] NSWSC 1243. The offender appealed to the Court of Criminal Appeal and the appeal was allowed: Watson v R [2022] NSWCCA 208. The trial then proceeded with the 13 remaining jurors other than the witness juror. 3. Immediately before the jury retired to consider its verdict, a ballot was conducted under s 55G of the Jury Act so that only 12 of those jurors retired to consider the jury's verdict in the proceedings. 4. On 26 September 2022, the jury returned a verdict that the offender was guilty to the single count. The sentencing hearing was held on 1 December 2022. On the application of the Crown, leave was granted on 6 December 2022 for both the Crown and senior counsel for the offender to file supplementary written submissions. 5. Murder is a crime contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) ("Crimes Act"). It carries a maximum sentence upon conviction of life imprisonment: Crimes Act s 19A. The Court may nonetheless impose a sentence of imprisonment for a specified term: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21(1) ("Sentencing Act"). However, s 61(1) of the Sentencing Act states that the Court is to impose a sentence of imprisonment for life if "the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence". 6. It is for the Crown to establish that the offence falls within s 61(1) of the Sentencing Act but it submitted that this was not the case for the imposition of life imprisonment. In my view, it is appropriate, notwithstanding the objective seriousness of the offence, and having regard to the circumstances of the offence and the offender, to impose a finite term, and not, therefore, impose the maximum sentence. 7. A standard non-parole period of 20 years imprisonment is specified for the offence: Sentencing Act s 54D. Careful attention must be paid to the maximum penalty and standard non-parole period, and they must be taken into account on sentencing: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) ("Muldrock"). However, Muldrock at [31]-[32] makes clear that the standard non-parole period says little about the appropriate sentence for this particular offence. The relevant standard non-parole period does not have "determinative significance" nor is it the "starting point" in sentencing for a mid-range offence after conviction. 8. In sentencing, the Court must take into account the moral culpability of the offender for his offence. The Court must consider questions of general and specific deterrence. The Court must also consider the aggravating and mitigating factors specified in s 21A of the Sentencing Act as revealed by the evidence. Any objective or subjective factor revealed by the evidence that affects the relative seriousness of the offender's offence must also be taken into account. 9. All the relevant factors must be taken into account by way of the instinctive synthesis which McHugh J discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That requires that all of the factors relevant in the offender's case be considered, their significance discussed and a judgment as to the appropriate sentence for the offender's offence be made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15] (Howie J, with whom Barr and Grove JJ agreed). 10. The sentencing judge is required to find the facts material to the sentence which emerged during the trial or in the course of the sentencing proceedings: see Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [12]-[17] (Gleeson CJ, Gummow and Hayne JJ) ("Cheung"). In sentencing, it is for the Court to find the facts which are material to the exercise of the judicial discretion in sentencing (R v Isaacs (1997) 41 NSWLR 374 at 378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, as her Honour then was) ("Isaacs")) having regard to the provisions of s 21A of the Sentencing Act. 11. The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70] (Gageler J). Any findings of fact that are adverse to the offender must be proved beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). 12. The fact-finding role following a jury verdict is that described in Isaacs and Cheung. It is the duty of the sentencing judge to find the facts relevant to sentencing. Some will emerge from the evidence at the trial while others may emerge only in the course of sentence. A judge's finding of facts is based "both on what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196] (Heydon JA, as his Honour then was). However, the fact finding by the trial judge is subject to two important constraints. 13. The first constraint on the exercise of the aforementioned decision-making role was discussed in Isaacs at 378 as follows: The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury. 1. The second constraint is that findings of fact made against the offender by a sentencing judge must be arrived at beyond reasonable doubt. 2. The application of those principles in the exercise of the Court's sentencing discretion in the present matter is accompanied by some complexity for reasons I will discuss. This is, in part, because some matters that have been raised in the submissions by senior counsel for the offender were not put to the jury. 3. At the trial, the jury was instructed that the elements of murder, which the Crown must prove beyond reasonable doubt, were as follows: 1. The deceased died; 2. There was a deliberate act of the offender that caused the death of the deceased. An act is deliberate if the offender intended to commit that act; and 3. The act causing death was done with an intention to kill the deceased or to inflict grievous bodily harm. 1. In closing submissions, the Crown submitted that the offender is criminally liable for the death of the deceased as a principal in the first degree. It was the Crown's submission that "it was Paul Watson alone who decided that William Chaplin would be killed, when he would be killed and where he would be killed, and how his body would be disposed of". The Crown submitted to the jury that the offender instigated the murder, inflicted the act which caused the death and did so with the intent to kill the deceased. 2. The jury returned a verdict of guilty. The only conclusions consistent with the jury's verdict and having regard to the evidence in the proceedings is that the following facts were established beyond reasonable doubt: 1. The offender, his wife (Ms Samone Watson) and their two children (CW and DW) lived at Main Street, Gerogery, at the relevant time. 2. The deceased was living with the offender at the Main Street address at the time of his murder. 3. ZT, aged 16 years, was also living with the offender at the Main Street address at the time of the murder. 4. The offender inflicted the fatal injury to the deceased (as a deliberate act to kill the deceased) and intended to kill the deceased. 5. After his death, the deceased's body was concealed under a blue tarpaulin within an area in a paddock behind the home of the offender. That area, which was known as the "round yard" was a circular formation of car and truck tyres, stacked upon each other, and was used to train horses. 6. The tyres in the round yard were removed and a shallow grave was dug where the tyres had once been. The offender and ZT then carried the body to the round yard to be buried in a shallow grave. 7. NSW Police interviewed Ms Watson, who disclosed her involvement in the concealment of the deceased's body and the body's possible location. 8. NSW Police located the partial remains of a human skeleton buried in a shallow grave under the tyres in the round yard. The DNA profile sourced from material in a tooth was positively linked to the DNA profile of Marlene Carter, the deceased's biological mother, and hence the deceased. FACTUAL ISSUES IN CONTENTION 1. On the evidence, the exact circumstances of the murder – or put simply, the precise acts of the offender that caused the death – cannot readily be identified with specificity. There is scant evidence as to how or where the deceased was killed. 2. At the sentencing hearing, there were certain facts in contention between the Crown and the offender. I will now address each in turn. Whether the Offender Used a Weapon? 1. The Crown submitted that the offence involved the use of a weapon and that the offender, with the assistance of ZT restraining the deceased, caused the death by stabbing the deceased. On the Crown's submission, this amounted to an aggravating factor under s 21A(2)(c) of the Sentencing Act. 2. At trial, Dr Denise Donolan, a Forensic Anthropologist who worked at the University of Sydney Anatomy and Histology, gave evidence about her examination of bones from the skeletal remains. In her evidence, she stated that there was a hinge fracture that was "very close" and "probably a few millimetres" from an artery. 3. This evidence was qualified in three respects. First, Dr Donolan stated that "the bone is broken away at one end of the hinge fracture, so I can't see exactly where that hole would be for the artery". 4. Secondly, she accepted that it was possible that the hinge fracture could have been caused without damage to the artery and that the damage could have been caused before or after death. In cross-examination, she stated: Q. … Could the hinge fracture have been caused without damage to the artery? A. It is possible. Q. It is possible. Thank you. But in any event you say, don't you, that the damage that you saw to C6 and 7 could have been either before death or after death? A. Yes. 1. Thirdly, Dr Donolan stated under cross-examination that "[a]s a forensic anthropologist, I don't normally provide cause of death" and noting that "that's the expertise of the pathologist". 2. In addition to the hinge fracture, Dr Donolan observed that there was a small depression on the posterior (back) surface on the right rib. Dr Donolan's evidence was that it was unclear whether this was caused by an object or natural events like scavenging. She was also unable to determine whether it was caused before or after death. 3. There was evidence in the trial of telephone conversations between Ms Watson and ZT. In none of those conversations did ZT ever say that the deceased was stabbed by anyone. In those telephone conversations, ZT admitted that he had cut the throat of the deceased using a knife even though Ms Watson observed no relevant marks on the deceased's neck when she was shown the body. But there were no statements made that the offender stabbed the deceased. 4. The hinge fracture and depression on the right rib were the only evidence that could support the Crown's submission that the offender used a weapon to kill the deceased as an aggravating factor. The evidence does not positively establish beyond reasonable doubt that that fracture or depression occurred before the time of death or that the cause of the fracture or depression damaged an artery. In my view, the evidence is not capable of establishing beyond reasonable doubt that the offender used a weapon to stab the deceased. What was the Motivation for the Offence and was the Offence Provoked? 1. In Louizos v R (2009) 194 A Crim R 223; [2009] NSWCCA 71 ("Louizos"), Howie J (with whom McClellan CJ at CL and Grove J agreed) stated at [102]: An offence is not mitigated by the fact that no comprehensible motive can be shown. Motive is like any other aspect of the circumstances surrounding the commission of an offence. The Crown is only required to prove the elements of the crime charged. If the Crown wishes to rely upon motive as an aggravating feature, the Crown must prove it beyond reasonable doubt. If the accused contends that the motive is a mitigating factor, the accused is required to prove it on the balance of probabilities. 1. Senior counsel for the offender submitted that the Court can be satisfied, on the balance of probabilities, that the offender was motivated to murder the deceased because the offender found the deceased in a sexually compromising position with CW. It was submitted that, although this would not establish a defence of provocation under s 23 of the Crimes Act, it amounted to provocation for the purposes of s 21A(3)(c) of the Sentencing Act as a mitigating factor in sentencing. 2. In R v Heffernan [2005] NSWSC 739 ("Heffernan"), Hoeben J (as his Honour then was) stated at [50]: While provocation in law was not open to the degree that may have reduced murder to manslaughter, that is not to say that the question of provocation is not of relevance for an assessment of the prisoner's objective criminality. There were as I have found circumstances which did amount to provocation, albeit that they did not reach the level required to reduce murder to manslaughter, and accordingly provocation can be taken into account as mitigating the objective severity of the conduct of the prisoner. 1. In R v Fahda [2012] NSWSC 114 ("Fahda"), Harrison J at [30] found that words uttered to the offender by the deceased, in combination with his particular mental health issues and his perception that the deceased was preventing him from leaving the service station, amounted to provocation for the purposes of s 21A(3)(c) of the Sentencing Act although insufficient to constitute an excuse or defence at law. His Honour took this into account in mitigation of the objective criminality of the offence. 2. To support provocation in mitigation, senior counsel for the offender relied on statements made by two Crown witnesses at the trial. 3. The first was from Ms Watson, who stated in examination-in-chief that the offender had told her, after the deceased had died, that "the reason he did what he did to William Chaplin was because he walked in on him with my daughter [CW] with her nappy half undone". This occurred a few days after the deceased's death "when we were told not to say anything to anyone". 4. In cross-examination, senior counsel for the offender questioned Ms Watson whether she believed the explanation given by the offender and whether Ms Watson was concerned for CW's wellbeing. Her evidence was as follows: Q. I put to you that that conversation never took place with the accused, and I don't want to go over that ground again, but when you were told that, were you concerned about CW's well being? A. No, because it wasn't happening. Q. Because he was dead? A. No, because I didn't feel that it was happening. I didn't believe that. Q. You didn't think that it was true? A. No. 1. It is clear from Ms Watson's evidence that she heard the offender give the explanation but did not believe the explanation was true. Ms Watson did not believe "it was happening" and was not concerned for her daughter's wellbeing. She did, however, accept the offender's admission as to having committed the murder. 2. The second was from Jarryd Brown. Mr Brown had testified that the offender admitted to the murder of the deceased when Mr Brown was playing PlayStation with the offender at the offender's house. Mr Brown's evidence in examination-in-chief relevantly included: Q. Now on this occasion when you were playing video games at Paul Watson's house did you have a conversation with Paul Watson? A. Yes, I did. Q. What was that conversation? A. I said, "What happened to the guy that crashed the car in the paddock?" Q. And did he respond? A. He responded, "I killed him" because he tried to rape his daughter. Q. Now when you say he killed him because he tried to rape his daughter, were they the actual words that he used? A. (Witness nods) Exactly. 1. In relation to Ms Watson and Mr Brown, senior counsel for the offender put to them in cross-examination that the offender never admitted killing the deceased or gave that justification. After the trial, senior counsel for the offender now seeks to, not only rely on the fact that the admission and justification were made by the offender, but that the justification was true. 2. When viewing the evidence as a whole, the offender said to words to the effect that he killed the deceased because he had witnessed the deceased with CW's nappy half undone (in the case of Ms Watson) or that the deceased was trying to rape CW (in the case of Mr Brown). However, to establish provocation or the offender's motivation, I must be satisfied as to the truth of the assertions. 3. There is no direct or first-hand evidence, apart from the assertions of the offender, that those events occurred. Unlike the admissions of murder, the making of assertions that it was motivated by sexual impropriety or rape on the part of the deceased was in the offender's self-interest. These assertions sought to justify what would otherwise be considered as a horrific act of taking someone's life. When the admission and assertion are stated together, the assertion has the effect of making a listener less inclined to report the matter to police on the basis that the murder was justified. 4. It is significant that Ms Watson – who was CW's mother – did not believe that the assertion was true. Ms Watson gave evidence that she never had any concerns about the deceased in the company of her daughter. She had never seen the deceased act improperly in any way and there is no evidence that the deceased had ever behaved inappropriately with any child. It is clear that both Mr and Ms Watson trusted the deceased around their children. 5. Furthermore, there is no objective evidence, including the antecedents or criminal history of the deceased, that indicated a tendency to act inappropriately, sexually or otherwise, towards children. 6. I accept the authorities in Heffernan and Fahda that provocation can be a mitigating factor under s 21A(3)(c) of the Sentencing Act even if it is insufficient to constitute a defence at law. However, the weight of the evidence does not support the truthfulness of the offender's assertions. I am not satisfied on the balance of probabilities that the offender was motivated to kill the deceased because the deceased had been found with CW with her nappy half undone or that the deceased had raped CW. I am not satisfied on the balance of probabilities that the offender was provoked on these bases. 7. There is no evidence upon which the Court could make a positive finding as to the offender's actual motive in murdering the deceased. In circumstances where the Court cannot determine what motivated the offender, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing: Louizos at [102]. Whether the Offence was Committed In Company? 1. The Crown submitted that the offence was committed in company and in the presence of a child under 18 years of age under ss 21A(2)(e) and (ea) of the Sentencing Act. The Crown relied on the fact that ZT was convicted of murder as evidence that the offence was committed in company. ZT was 16 years at the time of the offence. The Crown submitted that the offender recruited ZT to assist in carrying out the crime and thereby exposed a child to the unlawful murder of a person. 2. The words "in company" in s 21A(2)(e) have the same meaning as they have at common law and also where the fact the offence was in company is an element of an aggravated offence: Gore v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [100]-[101] (Howie AJ) ("Gore"). Being in company requires more than just mere physical presence. It "relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person": Gore at [101]. In White v R (2016) 261 A Crim R 302; [2016] NSWCCA 190, Simpson JA stated at [94]: The decisions concerning the construction to be placed on the element of an offence being committed in company are, therefore, in my opinion, relevant to the construction to be given to s 21A(2)(e). I do not take those statements to be an exhaustive statement of what might be held to be "in company". Each case will depend upon its own facts. It is appropriate, however, to focus on at least three questions: (i) whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation, or otherwise; (ii) whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or "emboldening" that person; (iii) whether the evidence establishes that the other person is present, sharing a common purpose with the offender. 1. The purpose of s 21A(2)(ea) of the Sentencing Act can be seen in the Minister's second reading speech in the Legislative Council, where it was stated: [T]his amendment is also directed at providing additional protection for children in our community. It requires the courts to give particular regard to offences that are committed in the presence of a child. … Offences of violence that are perpetrated regardless of the presence of a child or children are particularly reprehensible. No child should be directly exposed to criminal activity of any kind. 1. Howie AJ explained at [104] in Gore that s 21A(2)(ea) "is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional well-being of a child. The commission of the offence may also be deleterious to the child's moral values". It is noteworthy that an offence is not aggravated under s 21A(2)(ea) where the judge made no finding that the child was actually present or witnessed the offences: McLaughlin v R [2013] NSWCCA 152 at [31]–[32] (Button J, with whom Latham J and Barr AJ agreed); Alesbhi v R [2018] NSWCCA 30 at [55]–[56] (R A Hulme J, with whom Simpson JA and Hidden AJ agreed). 2. At the sentencing hearing, the Crown submitted: ZT was convicted of the murder of Mr Chaplain, and your Honour could draw from that, the Crown said, that the murder was committed not only in the presence of [ZT] but with [ZT] as a part, as you Honour said, of an extended joint criminal enterprise. 1. It must be remembered that, when sentencing the offender, the Court is to look to the evidence that was in the trial of the offender or in the sentencing hearing. In my view, the Court is not permitted to use the evidence or judgment in the trial of ZT to sentence the offender in these proceedings. This stems from fundamental legal principles, including that the Crown must prove its case beyond reasonable doubt and that the offender must be afforded procedural fairness. It would not be in keeping with these very important, time-honoured principles for the offender to be sentenced on the basis of evidence at another trial where he did not have the opportunity to put his case. The verdict in a separate proceeding where the offender took no part cannot alone, without more (including tendering the evidence in these proceedings), establish facts beyond reasonable doubt in this proceeding. In determining whether the aggravating factors in ss 21A(2)(e) and (ea) of the Sentencing Act have been established, I can only have regard to the evidence in the offender's trial or the sentencing hearing. The Crown bears the responsibility to put evidence in this proceeding to prove beyond reasonable doubt the aggravating factors that it seeks to rely upon: 2. Ms Watson gave evidence that ZT had told her, about one to two months after the murder happened, that he "helped" the offender in killing the deceased. Her evidence in examination-in chief was as follows: Q. Did [ZT] ever say to you that he was responsible for William Chaplin's death? A. No. Q. Did [ZT] ever say to you that Paul Watson was responsible for William [Chaplin's] death? A. No. Q. In phone calls? A. Not that I recall. Q. Did [ZT] ever tell you that he helped Paul Watson kill William Chaplin? A. Yes. Q. Yes? A. Yes. 1. In cross-examination, she stated that she believed the account of ZT, as follows: Q. When [ZT] told you later that he had assisted the accused to kill Mr Chaplin, did you believe it? A. (Witness shook head.) I don't know who I believed. Q. Well, did you believe him when he told you that? A. Yes, I did. Q. And do you still believe that was the case? A. Yes. 1. Ms Watson did not witness the death of the deceased. When she arrived home, the offender mentioned that "it would be a lovely day for Too Tall, or [the deceased], to be sunbaking". The offender asked her if she wanted to see something, and she said yes. The offender and ZT took her to the round yard at about 1:00pm where the deceased was lying on his back, covered to his chest in a tarp. Ms Watson observed that the deceased did not appear to be alive. The offender and ZT carried the body to the round yard to be buried in a shallow grave. Ms Watson and ZT covered the body with wood and the offender started the fire with a lighter and petrol. The bonfire was about 1 metre tall and burnt for two to three days. 2. I accept Ms Watson's first-hand account that ZT and the offender together were involved in burning, burying and desecrating the body of the deceased after the deceased had died. However, it must be emphasised that, for the aggravating factors found in ss 21A(2)(e) and (ea) of the Sentencing Act, ZT must be in the company or the presence of the offender, respectively, at the time of the act causing death. This is because the offender has been charged and found guilty of the offence of murder, not an offence relating to the disposal of the body. 3. Ms Watson's evidence that ZT told her that he helped the offender kill the deceased was hearsay evidence. Although senior counsel for the offender failed to take the appropriate objection and her testimony in that respect became part of the evidence before the jury, the nature of the evidence affects the weight that the Court can place on it to prove the truth of the assertion. 4. Apart from Ms Watson's evidence as to what ZT told her, there is no other evidence in these proceedings that establishes that ZT was with the offender at the time of causing the death or otherwise took part in the killing. The evidence of Ms Watson placed ZT at the property the next morning when she arrived home and ZT's participation in the burial does not establish to the requisite standard that ZT was involved in the killing itself. 5. Overall, I am not satisfied beyond reasonable doubt, on the evidence in the offender's trial, that ZT was in company with the offender at the time of killing the deceased. There is scant evidence that ZT was physically present when the offender inflicted the fatal injury. And I am not satisfied beyond reasonable doubt that the offender recruited or shared a common purpose with ZT to kill the deceased on the evidence in these proceedings. Whether the Offence was Committed in the Home of the Deceased? 1. The Crown submitted that it is appropriate to have regard to the fact that the offence was committed in the home of the deceased as an aggravating factor under s 21A(2)(eb) of the Sentencing Act. The Crown relied on R v Lulham (2016) 263 A Crim R 287; [2016] NSWCCA 287, where Bathurst CJ (with whom Beazley P, as Her Excellency then was, agreed) noted at [5] that the word "home" extended to an area on the same premises as the physical residence and "at least reasonably adjacent to that building". 2. Ms Watson gave evidence that the offender, ZT and the deceased were friends before the murder. Indeed, there were occasions in which the deceased would sleep in the middle room, which was the "computer room", of their Main Street property. The deceased would also sleep on the couch in the lounge room on occasions. Her evidence was as follows: Q. William Chaplin stayed at your home in Gerogery on a number of occasions. You have given that evidence? A. Yes. Q. And you said that he was pretty much living there in early 2010, February, March, is that correct? A. That's correct, yes. 1. In my view, the Crown has established beyond reasonable doubt that the Main Street property was the "home" of the deceased. The deceased was more than a mere guest. He was "pretty much living there" and had stayed overnight at the house on several occasions. 2. However, I am not satisfied beyond reasonable doubt, on the evidence in the offender's trial and sentencing hearing, that the deceased was murdered at the Main Street property. In the offender's trial, the evidence of Ms Watson was that the offender's body was disposed of in the round yard. But, as I have explained, the circumstances of disposal, burning and burial after the death are not to be assumed to be identical to the circumstances of where the killing took place. The Crown has not proved positively beyond reasonable doubt that the deceased was killed in his own home. 3. I note that the Crown relied on the finding in R v ZT [2022] NSWSC 511 ("the ZT Judgment"). In that matter, it was not contested that the evidence showed that the deceased was murdered in the round yard on the Main Street property. However, as I have already alluded to, I cannot sentence the offender in the instant case based on evidence in another trial unless that evidence was admitted into this one. In the instant case, senior counsel for the offender submitted that "[t]here was actually no evidence at all as to precisely where … the deceased was killed". There is only evidence about where the deceased's body was disposed of. But there is no positive evidence about the location of the killing. Whether the Offence was Premeditated or Planned? 1. The Crown conceded that the evidence does not rise to the level of planning required under s 21A(2)(n) of the Sentencing Act to make it an aggravating factor. That provision is not satisfied by some degree of planning but requires a more extensive criminal undertaking: Fahs v R [2007] NSWCCA 26 at [21] (Howie J, with whom Simpson and Buddin JJ, as her Honour then was, agreed); Williams v R [2010] NSWCCA 15 at [20] (McClellan CJ at CL, with whom Simpson and Hidden JJ, as her Honour then was, agreed). 2. The Crown submitted that the murder of the deceased was, to some extent, premeditated. It was submitted that it was "not a spur of the moment reaction by the offender that caused him to lose control" but that "some premeditation of the crime ultimately committed". The Crown did not point to the parts of the evidence that, on its submissions, demonstrate premeditation. 3. A court is not entitled to make a finding that an offence was planned or premeditated when such an adverse finding is not open: BIP v R [2011] NSWCCA 224 at [50] (Johnson J, with whom Bathurst CJ and James J agreed). In my view, the evidence is not capable of establishing beyond reasonable doubt that the offence was premeditated. Although there is no evidence that the offence was unplanned, impulsive or committed spontaneously, this does not, without more, allow a positive finding adverse to the offender that there was premeditation. I am not satisfied to the requisite standard that the murder was calculated or involved a degree of sophistication. OBJECTIVE SERIOUSNESS 1. The Crown submitted that the offending "sits above the mid-range". Senior counsel for the offender submitted that the offending "falls below the mid-range". 2. As I noted earlier in my judgment, the Crown's case was that the offender was a principal in the first degree and murdered the deceased with an intent to kill. It can be inferred from the jury's verdict that the offender was solely responsible for the decision to kill the deceased. 3. It can also be inferred that, when the offender caused the death of the deceased, he committed that act with the intention of causing his death. An intention to kill is a consideration generally tending to greater objective seriousness than an intention to inflict grievous bodily harm: Charbaji v R [2019] NSWCCA 28 at [180] (Beazley P, as Her Excellency then was, Price and Wilson JJ agreed); Versluys v R [2008] NSWCCA 76 at [32] (McClellan CJ at CL, with whom Simpson and Price JJ, as her Honour then was, agreed). 4. I have had regard to the objective factors set out earlier in my judgment. I am not satisfied that the offender used a weapon; that the offender was provoked or had a motivation; that the murder was committed in company; that the murder was committed in the deceased's home; or that the murder was premeditated or planned. 5. There was an issue between the Crown and senior counsel for the offender about the extent to which the offender's act of burning and burying the body can be considered in assessing the objective seriousness of a crime. 6. It is well-accepted that the objective seriousness of offending is based on the actual conduct and intent of an offender at the time the offence was committed. It has been held, however, that post-offence events can be taken into account in assessing the objective seriousness of a crime provided that it is directly related to the crime and is properly to be regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61] (Johnson J); DPP (Vic) v England [1999] 2 VR 258; [1999] VSCA 95 at [18] (Brooking JA, with whom Batt and Chernov JJA agreed). Poor treatment of a deceased person's body can be taken into account in homicide cases for the purpose of assessing the seriousness of the offence: R v Yeo [2003] NSWSC 315 at [36] (James J). This includes callous and disrespectful treatment of the body (Colledge v State of Western Australia [2007] WASCA 211 at [10], [15] (Wheeler JA, with whom Owen and Miller JJA agreed)), concealing the body (R v Lowe [1997] 2 VR 465 at 490 (Winneke P, Brooking JA and Southwell AJA)) and incinerating the body (R v Schultz (1997) 68 SASR 377 at 384 (Perry J, with whom Cox and Williams JJ agreed)). 7. In R v Knight (2006) 164 A Crim R 126; [2006] NSWCCA 292 ("Knight"), McClellan CJ at CL (with whom Adams and Latham JJ agreed) stated at [28]: The applicant submitted that her mutilation of the deceased's body following his death was not relevant to the objective seriousness of the offence. In my opinion this submission must be rejected. As this Court said in R v Yeo [[2003] NSWSC 315] at [36] the offender's treatment of the deceased's body can be taken into account in assessing the seriousness of the offence (see also R v Garforth unreported, NSWCCA, 23 May 1994; DPP v England (1997) 186 A Crim R 99). 1. Senior counsel for the offender submitted that Knight should be confined to its own facts because there was evidence in that case that the deceased had been tortured and was found to have suffered "extreme trauma" before his death. I reject that submission. I see no basis in authority, nor good reason in principle, to limit the consideration of post-offence events to those cases where there was extensive pre-offence conduct. The treatment of a deceased person's body is relevant to the objective seriousness in homicide cases because it goes to the intent of the offender and/or the contempt he had for the deceased. 2. The evidence of Ms Watson was to the effect that she observed: 1. After the deceased's body was placed in the shallow grave, the offender and ZT placed timber and other combustible material over the deceased's body, forming a bonfire. 2. The offender poured an accelerant over the bonfire. 3. The offender ignited the petrol and the bonfire began to burn. 4. After the bonfire had burned out, the deceased's body was buried and the previously removed tyres were replaced so as to conceal the presence of the shallow grave. 1. Ms Watson also gave evidence that the offender told both herself and ZT that no one was to know about the killing. Ms Watson stated that she kept the secret until she was interviewed by the police in 2019. She stated that she "feared that I would end up the same way and in that round yard as well." 2. Senior counsel for the offender sought to attack Ms Watson's credibility by reference to a warning that I gave to the jury under s 165(2) of the Evidence Act 1995 (NSW). My warning was that Ms Watson's evidence was of a kind that may be unreliable in that she received a benefit by giving evidence. The matters that may cause it to be unreliable include the fact that Ms Watson received a reduction in her sentence and she waited 7 years before informing the police that the offender had told her he killed the deceased. 3. At the trial, the Crown accepted that some parts of Ms Watson's evidence should not be accepted, namely that she had knowledge of her phone calls being intercepted by police. The evidence of Detective Inspector Wallace indicated that she would not have been informed, as this would have been a breach of the warrants which were obtained and his professional duties. 4. However, in my view, these factors do not significantly detract from the balance of her evidence or the overall impression of her evidence. Close observation of Ms Watson's evidence shows that she is a witness of credit. She was responsive to questions when examined. Her answers were clear, considered, thoughtful and frank. She made appropriate concessions, sometimes adverse to herself. She was frank about her involvement in the burning and burial of the deceased and, relevantly, she placed herself in these events. Further, notwithstanding the benefit, it was clear that Ms Watson gave evidence adverse to the offender in circumstances where she was clearly fearful of him. 5. I accept Ms Watson's evidence as to how the offender burnt and disposed of the body and the significant fear imparted by the offender through threats so that she conceal both the offender's admission to killing the deceased and what she witnessed as to the disposal of the deceased's body. Her evidence was corroborated, in part, by the offender's statements during the telephone intercepts which indicated that he was plainly present during the disposal of the deceased's body. 6. Both the Crown and senior counsel for the offender accepted that there was at least one person who was unassociated with the murder who was present and in attendance during the burning and bonfire. Ms Watson's evidence was that Jack Lekic was at the bonfire but her evidence in re-examination was that she was unsure who invited Mr Lekic to the bonfire. 7. Mr Lekic gave evidence that he was invited to a bonfire at the Main Street property by ZT. He recalled the offender, ZT, Ms Watson and CW being at the bonfire with him. The bonfire was in the round yard. Importantly, he was at the round yard before the bonfire was lit. He observed a large pile of branches and sticks. He could not recall who lit the fire but did recall that the bonfire was lit using petrol poured over the timber, which was then set alight (which was consistent with Ms Watson's account of the lighting of the fire). 8. I am not satisfied beyond reasonable doubt that ZT invited Mr Lekic to attend the bonfire. But I am satisfied to the requisite standard that the offender acquiesced to the attendance of Mr Lekic. This is particularly so given the offender's dominance and control over what occurred on his Main Street property. The bonfire was lit when Mr Lekic was in the round yard. 9. The burning of the deceased's body, burying of the body in the grave and the placement of tyres over the grave is evidence, not only of the offender's contempt towards the deceased, but also his attempt to conceal his offending and make it more difficult for the deceased's body to be discovered. Although I am not satisfied that the offender invited Mr Lekic, I am of the view that his acquiescence of the attendance of Mr Lekic and his daughter, CW, as the body of the deceased was being set on fire, after being covered in tree branches and doused in petrol, demonstrates the offender's callous indifference to the sanctity of life. It shows a blatant disregard for the deceased's remains. 10. The written submissions of senior counsel for the offender extracted the judgment of Harrison J in Fahda at [45]-[48]. In summary, his Honour noted the submissions of counsel that: 1. "Offences without planning will usually fall below the mid range of objective seriousness"; 2. "[E]vidence of "a measure of provocation" and the absence of premeditation brought an offence of murder below the mid range"; 3. "[T]he circumstances of this particular offence do not have characteristics of gratuitous violence or brutal cruelty often present in cases at or above the mid range of objective seriousness"; and 4. "While the use of a weapon is an aggravating feature, it "is not unusual in this kind of offence"". 1. Senior counsel for the offender submitted "the judge appears to have accepted" the principles that I have just set out. I disagree. First, although Harrison J accepted that the crime was spontaneous and unplanned (at [60]), involved an element of provocation (at [62]), was not associated with any gratuitous cruelty, additional violence or degrading conduct (at [61]) and involved the offender shooting the deceased (at [59]), his Honour found that the murder fell in the mid range of objective seriousness (at [59]). 2. Secondly, I respectfully doubt that Harrison J was seeking to lay down strict rules or guidelines as to determining the objective seriousness of the offence of murder. When the passages cited by senior counsel for the offender ([45]-[48]) are read in the context of the whole judgment, it is clear that his Honour was merely summarising the submissions of counsel for Mr Fahda. I do not believe his Honour was seeking to depart from the well-established principle that the objective seriousness of the offence is to be determined "wholly by reference to the nature of the offending" in each case: Muldrock at [27]. 3. Overall, I am of the view that the offending falls within the mid-range of offending. DETERRENCE 1. The purposes of sentencing are set out in s 3A of the Sentencing Act as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are 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. 1. The Crown submitted that the principles of specific and general deterrence should both carry significant weight in the sentencing of the offender. 2. I agree that general deterrence must feature in the sentence to be imposed. Murder is a very serious crime. Together with the offence of large commercial drug supply, murder is the most serious offence in the criminal law of New South Wales. The offender's killing of the deceased was unprovoked. The burning and burying of the deceased's body was particularly egregious. The sentence should reflect the admonition and disapprobation with which the offender's act must be viewed by Australian society: R v Dawson [2022] NSWSC 1632 at [22] (Harrison J) ("Dawson"). 3. It is important that any person similarly placed or similarly minded be deterred from committing such heinous acts in the future. There is a need in this case to ensure the offender is adequately punished and to make him accountable for his actions. There is a need to denounce the intentional taking of one's life and recognise the harm done to the family of the deceased and the wider community. 4. In support of the submission relating to specific deterrence, the Crown tendered extracts from the evidence-in-chief of both Ms Watson and Shannon Devos from the trial in ZT. This evidence was received without objection from the offender. 5. The evidence of Ms Watson was that she observed her husband, the offender, assault Ms Devos on one occasion in the presence of ZT and Mr Lekic. Ms Watson described the assault in the following terms: Q. Can you tell us what happened, what you saw? A. I only remember from I came home, I must have been in town or something, and Jack came running out to me saying that Paul [the offender] was flogging into Shannon and then I went inside and he most certainly was flogging into Shannon and I could not stop him. 1. Ms Watson also described the offender assaulting her whilst in the presence of ZT. Her evidence was as follows: Q. Now in the presence of [ZT] behind me did Paul Watson ever assault you? A. Yes. Q. How many occasions in the presence of [ZT]? A. It possibly would have been maybe four or five but there was the one that stood out to me was when he had me in a choke hold in the kitchen and he yelled out to come and grab our daughter because she was standing at the kitchen door watching. 1. Ms Watson's evidence also described abuse and violence perpetrated against her by the offender. Her evidence was as follows: Q. For the first two years of [CW's] life at home, is it correct that you said in your statement that things started to turn rather nasty as far as Paul was concerned? A. Yes. Q. And he began abusing you, is that right? A. Yes. Q. He was violent towards you? A. That's correct. Q. And manipulative, is that right? A. (No verbal reply) Q. There is a number of occasions— HIS HONOUR: The witness is nodding, Mr Dalton, but the answer is, yes, I think. WITNESS: Sorry, yes. DALTON: Yes, thank you very much, your Honour. Q. There are a number of occasions when he would hit and kick you and was very abusive towards you? A. Yes. Q. And sometimes when he did this, you would go back to his parents' place for a few days, is that right? A. That's correct, yes. Q. Naturally you were very scared when he used to abuse you in this manner. A. Yes. Q. He was regularly threatening to kill you, is that right. A. Yes. … Q. Sometimes he'd be nice to you? A. Yes. Q. Other times very abusive? A. Very abusive, yes. Q. Highly manipulative, is that right? A. Yes. Q. And this infatuation later led to fear as he took control of your life through threats and physical abuse of yourself and the children? A. Yes. 1. Mr Devos' evidence related to an attack by the offender on her in the following terms: Q. You said that Paul Watson pulled a knife on you? A. Yeah. Q. Just tell us what happened? A. He ended up jumping on me and putting the blade to my throat, grabbed my hair, kind of pulled my head back and put, it was a large hunting blade, put it to my throat, and said you know what do you think we're talking shit, you want to be, do you want to go next, something like that. I ended up just, I don't know, I don't really recall what I've said but anyway, did that for five or ten seconds and then he ended up getting off me and that was about it. Q. And what did you do? A. I ended up leaving a short time after. 1. Senior counsel for the offender sought to attack the weight that should be attributed to the evidence of Ms Watson and Mr Devos. It was noted that neither individual reported their incidents to the police. It was submitted that Ms Watson was seeking to deflect attention away from ZT and onto the offender, and Ms Watson is not a reliable witness. It was also submitted that Mr Devos was "a bit stoned" at the time of the alleged threat by the offender and that he is "very good friends" with ZT. 2. The attack by senior counsel for the offender was not made good. I have found earlier that Ms Watson was not unreliable as to the preponderance of her evidence. As I have noted, the direction as to the unreliability of her evidence was limited in scope and while her evidence as to knowledge of police recording her calls may not be accepted, it would be wrong to assume that all her other evidence was unreliable (including evidence at the trial of ZT tendered without objection). The fact the incidents have never been reported to police is relevant (as was the evidence as to how she came to report the murder to police) but, given the threats directed by the offender towards Ms Watson and others as evidenced by the telephone intercepts (including the threatening tone used by the offender in those calls), this factor should not be given an overbearing weight. Overall, I am satisfied that the offender engaged in violent assaults towards both Ms Watson and Mr Devos. 3. The offender was previously charged and convicted of reckless wounding against Brian Persoon on 30 December 2011. In its written submissions, the Crown relied on the police fact sheet which alleged that the offender, in an unprovoked attack, stabbed the victim from behind with a knife and then drove it further into his flesh. At the sentencing hearing, the Crown Prosecutor conceded that the offender had told the police that he was acting in self-defence and it is not clear from the record before this Court as to the version of facts that was accepted by the Magistrate sitting in Albury Local Court. There was no transcript or reasons for judgment produced from that Court. 4. The Crown is required to establish beyond reasonable doubt any factor that is adverse to the offender. I am not satisfied beyond reasonable doubt that the allegations in the police fact sheet are established. However, I have regard to the fact that the offender pleaded guilty to reckless wounding, which is an offence under s 35(4) of the Crimes Act. Before the amendments made by the Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW) commenced, to be guilty of reckless wounding, the prosecution needed to prove that the offender had inflicted a wound and, at that time, the offender foresaw the possibility of a wound occurring: see Chen v R [2013] NSWCCA 116 at [64] (Button J, with whom Hoeben JA and Campbell J agreed). 5. The offender was sentenced in Albury Local Court to a period of imprisonment of 6 months but was suspended on entering into a good behaviour bond under the former s 12 of the Sentencing Act. 6. I am mindful that, in the instant case, the offender is not to be sentenced for his actions towards Ms Watson, Mr Devos or Mr Persoon nor can past offending aggravate the sentence imposed on the offender. He is only being sentenced for the charge of murder. However, the uncontested evidence of Ms Watson and Mr Devos, as well as the offender's past offending against Mr Persoon, is relevant because it demonstrates the offender's history of inflicting serious physical violence on others. In this respect, I consider that personal deterrence should feature in the sentencing of the offender. SUBJECTIVE FACTORS 1. Senior counsel for the offender submitted that there were the following subjective factors and special circumstances: a. He is 52 years of age… b. He will be at a disadvantage when [it] comes to the impact of Covid and its various adaptations. c. In NSW he has no family or friends to visit him. d. His children live in Victoria and its likely that he will have no contact with them, the same will apply to Samone. e. He is likewise estranged from his first wife and his children with her. f. When released he will have no assets. He will be starting life in a very much changed world. g. He will not have visits from his aged mother and [it's] likely he will never see her again. 1. I have taken into account the above factors submitted by the offender. Overall, this is not a strong subjective case although I am mindful that the penalty I will impose will result in the offender remaining in custody until a late age. 2. The offender's criminal history is serious. As I will discuss later in my judgment, the Victorian sexual offences demonstrate serious criminal offending to the offender's children. As I have discussed earlier in my judgment, there is the reckless wounding offence against Mr Persoon. Otherwise, the offender's criminal record is relatively minor. Between 1990 and 1992, the offender was charged with offences for assault (Crimes Act s 61), an offence relating to goods in custody and driving with a high-range prescribed concentration of alcohol. All three offences resulted in fines of $400, $200 and $1000, respectively. The latter also resulted in a licence disqualification for two years. The criminal history does, however, suggest that the offender's offending has been more serious over the past 10-12 years until he was incarcerated for the Victorian offences, as compared to any other time in his life. 3. There is no evidence of rehabilitation on the part of the offender so far. There are three aspects of the evidence that result in the conclusion that the prospects for rehabilitation in the offender's case are very guarded. First, as I have outlined earlier in my judgment, there is a prior history of serious violence. Secondly, this violence has continued after the murder as evidenced by his attack on Mr Persoon. Thirdly, there is an absence of remorse. The offender continues to deny his offending. The lack of true remorse can affect the determination as to whether an offender is unlikely to re-offend and has good prospects of rehabilitation: R v MAK & MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [41] (Spigelman CJ, Whealy and Howie JJ). 4. It must be emphasised that the offender's criminal history, lack of remorse and low prospects of rehabilitation are not factors that aggravate or otherwise justify the imposition of a heavier sentence. However, it does mean that the offender is not entitled to leniency that would otherwise be given. 5. I have had regard to the fact that the offender's conditions in custody have been rendered more onerous because of the imposition of restrictions by prison authorities in response to the threat posed by the COVID-19 pandemic: Cabezuela v R [2020] NSWCCA 107 at [131]-[132] (Walton J, with whom Hoeben CJ at CL and Harrison J agreed); Toller v R [2021] NSWCCA 204 at [25] (Beech-Jones J, as his Honour then was, with whom Macfarlan JA and Davies J agreed). 6. As I explained in Taha v R [2022] NSWCCA 46 at [68] (with whom McCallum JA, as her Honour then was, and Fullerton J agreed): The COVID-19 pandemic and its implications for conditions of incarceration including hardships occasioned by restrictions put in place by custodial authorities to contain the spread of the virus and the consequential risks for prisoners may be taken into account in resentencing the applicant: Doudar v R [2021] NSWCCA 37 at [72] (per Hoeben CJ at CL, with whom Bellew and Wright JJ agreed) and Toller v R [2021] NSWCCA 204 ("Toller") at [25] (per Beech-Jones J, with whom Macfarlan JA and Davies J agreed). (That situation may be contrasted with an application brought on appeal where the offender's conditions in custody are being rendered more onerous because of the imposition of restrictions by prison authorities in response to the threat posed by the pandemic: Cabezuela v R [2020] NSWCCA 107 at [131]-[132] (per Walton J, with whom Hoeben CJ at CL and Harrison J agreed) and Toller at [25]). 1. Although vaccination rates have increased in the community and the same can be expected of inmates, prison workers and visitors, I have had regard to the fact that there has been and remains a need for prison authorities to impose restrictions and limitations including lockdowns to prevent the spread of the virus and ameliorate its effects. With different strains of the virus impacting the community, and the prison system at large, these circumstances may not be described as merely temporary hardships. OTHER CONSIDERATIONS 1. I turn next to the issue of delay. The Crimes (Sentencing Procedure) Amendment Act 2022 (NSW) ("Amendment Act"), which commenced on 18 October 2022, inserted s 21B into the Sentencing Act, which relevantly provides as follows: 21B Sentencing patterns and practices (1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing. (2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing. (3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if— (a) the offence is not a child sexual offence, and (b) the offender establishes that there are exceptional circumstances. 1. Clause 95 of Sch 2 of the Sentencing Act provides the following transitional provision: 95 Sentencing patterns and practices The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2022 do not apply to proceedings that commenced before the commencement of the amendments. 1. In TJ v R (2009) 76 NSWLR 167; [2009] NSWCCA 257 ("TJ"), the Court of Criminal Appeal considered a similarly worded transitional provision in cl 51 of Sch 2 of the Sentencing Act. McClellan CJ at CL (with whom Hidden and McCallum JJ, as her Honour then was, agreed) cited approvingly the observations of Gleeson CJ (with whom Grove and Studdert JJ agreed) in R v Hull (1989) 16 NSWLR 385 at 390 as follows: Criminal proceedings in this State are ordinarily, although not always, initiated by members of the police force or other officers who are charged with duties in relation to law enforcement. There are, broadly speaking, three methods by which the police or other law enforcement officials ordinarily proceed once a decision has been made that a person should be charged. In serious cases it is common for the proceedings to be commenced by arrests without warrant. A person who has been arrested must be taken before a magistrate without delay. The arrested person may be questioned and then charged. A second method involves the issue by a justice of a warrant for the arrest of a person where an information has been sworn before a justice. Such an information, which is usually laid by a police officer or other law enforcement official, will then result in an issue of a warrant. A third method, which can be used whether the offence in question is indictable or summary, involves the issue by a justice of a summons requiring the appearance in court of the person named in the information. 1. The Court of Criminal Appeal in TJ rejected the approach of the Victorian courts in R v Taylor (No 2) (2008) 18 VR 613; [2008] VSCA 57 and R v BDX (2008) 24 VR 288; [2009] VSCA 28 which held that indictable proceedings commence when presentment is made in the County Court or Supreme Court. The Court of Criminal Appeal in TJ held that criminal proceedings are taken to have "commenced" when a person is arrested or charged or an information is laid before a Magistrate. I respectfully agree with the conclusion in TJ in this respect, of which I am bound to follow in any case. 2. As the offender was arrested and charged well before the commencement of the Amendment Act on 18 October 2022, s 21B of the Sentencing Act does not apply. Accordingly, the offender is to be sentenced according to the general sentencing principles and patterns of sentencing at the time the offence was committed insofar those practices can be ascertained: Katsis v R [2018] NSWCCA 9 (Hoeben CJ at CL, with whom Schmidt and Campbell JJ agreed) ("Katsis"). 3. The Crown provided sentencing statistics from the NSW Public Defenders website (accessed 5 December 2022) <https://www.publicdefenders.nsw.gov.au/Documents/murder-2010.pdf> with respect to 23 sentences imposed in 2010 in which an offender was convicted of a single count of murder. Of the 23 sentences, 13 of them involved an offender found guilty at trial, about which the Crown provided further details. 4. The Crown also produced a document setting out the 13 sentences where an offender pleaded not guilty at trial. Of the 13 sentences that the Crown highlighted, four were "below mid-range" or "below mid-point objective seriousness"; four were "slightly below mid-range" or "marginally below mid-range"; three were at the "mid-range"; one was "slightly above mid-range"; and one was "well above mid-range". It is clear that the range of objective seriousness was diverse. There was also great diversity between the mental elements, as well as the subjective factors in each case. The offences considered were R v Chen [2010] NSWSC 64; R v Tongahai [2010] NSWSC 227; R v Ward [2010] NSWSC 304; R v Tatchell and Wildsmith [2010] NSWSC 495; R v Kwon [2010] NSWSC 671; R v O'Sullivan [2010] NSWSC 755; R v Yuke [2010] NSWSC 754; R v Potts [2010] NSWSC 731; R v Lechmana [2010] NSWSC 849; R v Campbell [2010] NSWSC 995; R v Borg [2010] NSWSC 951; and R v Holcroft [2010] NSWSC 1294. 5. In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [54]-[55]: [54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". [55] As the plurality said in Wong [v The Queen (2001) 207 CLR 584]: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." 1. Having considered the sentencing statistics proffered by the Crown and the cases referred to in their submissions, I am not able to ascertain any clear and purposeful sentencing pattern although I take them into account. 2. In Katsis, Hoeben CJ at CL stated at [85]: As was made clear in Magnuson v R [[2013] NSWCCA 50], RL v R [[2015] NSWCCA 106] and MPB v R [(2013) 234 A Crim R 576; [2013] NSWCCA 213], an important guide in sentencing for historic offences is the maximum penalty and objective gravity of the offending. 1. In the instant case, it is noteworthy that the maximum penalty and standard non-parole period, which are the two legislative guideposts to be considered in sentencing (Muldrock at [27]), did not change between 2010 and 2022. 2. The Crown submitted, and senior counsel for the offender did not disagree, that there should not be a favourable finding for the offender in relation to the delay. In R v Blanco (1999) 106 A Crim R 303; [1999] NSWCCA 121, Wood CJ at CL said at [16]: The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach. 1. Most of the delay in this case stems from the offender's concealment of the murder of the deceased: R v Katsis [2015] NSWSC 1890 at [56] (Fagan J) (this aspect was not disapproved on appeal); R v Hickson (No 4) [2020] NSWSC 340 at [58] (Davies J). Some of the delay is also attributable to the offender's incarceration in Victoria, which resulted in a delay in extraditing him from Victoria so that he could be charged with murder in New South Wales. After he was charged, there was no delay, properly understood, during that period that is or was anything out of the ordinary that could be attributed to the police, prosecution or the Court: Dawson at [33]. It follows that any delay in this matter does not favour a finding for the offender. 2. The Crown sought to rely on a victim impact statement made by Marlene Carter, who is the mother of the deceased. This was tendered without objection from the offender but was not read aloud in Court. 3. Section 3A(g) of the Sentencing Act provides that one of the purposes for which a Court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community". One aspect of the role of the criminal law is to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: R v Washbrook [2019] NSWSC 1143 at [23] (Walton J). 4. In Sumpton v R [2016] NSWCCA 162, Hoeben CJ at CL (with whom Hall and Bellew JJ agreed) cited approvingly the observations of McCallum J (as her Honour then was) in R v Halloun [2014] NSWSC 1705 at [46] that victim impact statements "give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way". The effect of the murder of the deceased on the immediate family is an aspect of harm done to the community: R v Harwood [2019] NSWSC 1695 at [23] (Walton J). 5. In R v Tuala (2015) 248 A Crim R 502; [2015] NSWCCA 8, Simpson J (as her Honour then was, with whom Ward JA, as the President then was, and Wilson J agreed) reviewed the authorities concerning Victim Impact Statements. Her Honour stated at [78]-[79] the following: [78] … Where no objection was taken to the victim impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. … [79] Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents. 1. The Court acknowledges the understandable statements of grief that have been expressed by the deceased's mother and the continuing impact that the murder has had upon her. 2. I do not propose to recite the entirety of Mrs Carter's statement and the expressions of hurt. I will, however, refer to some parts of the statement. Mrs Carter stated: I do feel sadness and anger at losing my son. My Children have seen me get angry about the loss but not cry. I went and hit the shed after I heard his body was exhumed. I was so angry that someone had killed my son and though whoever did this to my son deserves to pay as they have taken my sons life away. … The last I saw of William was when he said he was going to see his father in QLD. The year before he went to QLD, my other son and William's brother died in a car accident. William wanted to sort things out with his dad as they had not been getting on well. He did see his dad, and someone told me he had returned to NSW, but we had no contact. He wasn't answering anything on Facebook, so I just left greetings on Facebook. Somebody said they thought he was in jail. We tried to find him in system, but he was not there, so we thought he had left the jail and was living life. I hoped he would contact me and let me know he was going to be a dad as it [was] something he said he always wanted to do. He wanted to carry on the last surname as he was the only son left in the family. … I still can't believe what has happened to William. I could not sleep after knowing what happened to the body. Why did they do it. … William's sisters are sad their children will not see their uncle and that he is missing out on seeing them all. I am sad I will never see a grandchild of his. … Only in the past year have I been able to say one son passed in a car accident and the other was murdered before that I would only mention daughters. That way I could avoid having to talk about my boys. I change the subject if discussing William as it overwhelms me that which makes it difficult to write a victim impact statement. 1. The fundamental and guiding principle must be that all life is sacred and of equal value and that equality before the law means that courts should not put a value on one life that is greater than another: see R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84] (Hamill J). No human life can ever be equated with a term of imprisonment. No jail term can return a loved one and a life should never be measured simply by the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 at [18] (R A Hulme J, with whom McCallum and Schmidt JJ, as the Chief Justice then was, agreed). 2. The Court cannot try to put a value on an individual human life or what the loss of that life means to the loved ones of the deceased or the community in general and nor is that the purpose of punishment or the presentation of victim impact statements: see R v Barbetta [2008] NSWSC 688 at [18] (Howie J). The sentence that I will shortly impose does not and cannot measure the value of the deceased's life. 3. ZT was sentenced to a term of imprisonment of a non-parole period of 8 years and the balance of the term of 4 years. There are significant differences in the respective roles of ZT and the offender in the murder of the deceased in three major respects based upon the ZT Judgment. 4. First, ZT was found guilty of murder on the head of liability of extended joint criminal enterprise. It was found that, based on the evidence in that trial, that ZT was manipulated by the much older co-offender. In the instant case, the offender was the principal in the first degree. The offender was the instigator and principal of the decision to murder the deceased. 5. Secondly, ZT was 16 years old at the time of the offence. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law: R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25] (Powell JA, R S Hulme and Dowd JJ); KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [20]-[26] (McClellan CJ at CL, with whom Hall and Price JJ agreed). Significant consideration was given in sentencing ZT for his youth, which reduced the criminality involved in his offending. Similarly, the weight given to retribution and deterrence was reduced given ZT's youth and immaturity. In the instant case, the offender was 40 years old at the time of the offence. As I have explained earlier in my judgment, this is a case warranting general and specific deterrence. 6. Thirdly, ZT had a strong subjective case. The Court, as presently constituted, found that ZT was required to move out of his parents' house from a young age; was exposed from a young age to a manipulative and violent man who had a history of violence and sexual offending; had a history of mental health problems; had been diagnosed with Bipolar disorder; was experiencing severe levels of depression and anxiety; was being treated for a dependence on opioid drugs; and had a low chance of reoffending. In the instant case, as observed earlier in this judgment, the offender does not have a strong subjective case. 7. I have had regard to the sentence imposed on ZT but, in my view, the parity principle is of a more limited relevance in light of the significant differences that I have described. 8. Senior counsel for the offender submitted that this case is deserving of special circumstances. The Crown opposed a finding of special circumstances. 9. Senior counsel for the offender submitted that the risk of institutionalisation justified a finding of special circumstances. The written submissions of senior counsel for the offender appears to have extracted the following passage from the NSW Judicial Commission's Sentencing Bench Book (accessed 8 December 2022) <https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/setting_terms_of_imprisonment.html> (although he did not attribute it to the Bench Book): The risk of institutionalisation, even in the face of entrenched and serious recidivism, may justify a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]; Jinnette v R [2012] NSWCCA 217 at [103]. However, the existence of the factor does not require a finding: Dyer v R [2011] NSWCCA 185 at [50]; Jinnette v R at [98]. If institutionalisation has already occurred, the focus may be on ensuring that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism: Jinnette v R at [103]. 1. The penalty that I will impose, when combined with the penalty given in separate Victorian proceedings (which I will turn to momentarily), will mean that the offender will be imprisoned for a very long time. The offender has never served a sentence of imprisonment until arrested for the Victorian offences. He has been in custody since 21 June 2016. There is some evidence provided to the Court about the risk of institutionalisation. 2. I am satisfied that the offender's sentence of imprisonment will be somewhat harsher than usual given that it is highly unlikely that his estranged wife, biological children or aged mother will visit him. There is a rule of law that the relatively greater harshness of serving a sentence which a person might undergo than that suffered by the ordinary prisoner is a material matter to be taken into account on sentencing and given such weight as in all the circumstances it deserves: R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238 at [19] (Adams J, with whom Spigelman CJ and Newman J agreed). This is not to treat the offender more leniently than other prisoners but to treat him equally. 3. The evidence establishes that the offender does present a real risk of engaging in further violent offending once released on parole. There can be no question that he will require close and careful supervision. However, if the offender is to have a chance of being rehabilitated and live any kind of independent life, he will clearly need a significant amount of support when he is released on parole. When he is released, he will have little to no assets and he will be starting life in a very much changed world. 4. I am conscious of the need to avoid double counting with other factors in sentencing when finding special circumstances and varying the statutory ratio. Overall, I find that there are special circumstances to vary the statutory ratio in s 44 of the Sentencing Act. However, in imposing the sentence, I have been mindful to set a non-parole period that is in accordance with a proper application of the sentencing principles for which s 3A of the Sentencing Act provides. 5. For the reasons that I have given, I am satisfied that no penalty other than imprisonment is appropriate in these circumstances. I then turn to consider the offender's sentencing for which he is currently serving and, in particular, pre-sentence custody. I am mindful of the need to ensure that the overall sentence must be "just and appropriate" to the totality of the offending behaviour: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ). 6. In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, Kirby J at 341 referred to the necessity for a sentencing judge to consider whether a proposed sentence "offends the totality principle", a conclusion that will "more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform". 7. In 2017, the offender was charged, convicted, and sentenced to unrelated sexual offences in the County Court of Victoria. The offending in that case can be summarised as follows: 1. In 2017, undercover officers of the Queensland Police, who were targeting internet child pornography and sexual offending, identified the offender as the owner of an album of photographs entitled "single dad" that were located on a Russian based website. 2. In communicating with the undercover officers, the offender sent images and videos taken by himself that depicted his son and daughter and were pornographic in nature. The images and videos depict, amongst other things, the offender penetrating his daughter's vagina both digitally and with his erect penis, using his daughter's hand to masturbate his penis and placing his penis near his daughter's mouth and buttocks. 3. Forensic examination of the computers, laptops and USB drive found in the offender's possession a further 369 items which were categorised as being within Category 1 on the Child Exploitation Material Tracking System scale. This represented approximately 40% of the 903 items located on the offender's devices. 35 images fell into more serious categories of child exploitation material, which is approximately 5% of all the images located. 4. The offender pleaded guilty to and was convicted of nine charges, relating to production of child pornography, transmission of child pornography, incest, committing an indecent act in the presence of a child and possession of child pornography. 1. The offender was sentenced in the County Court of Victoria to a total effective sentence of 11 years imprisonment with a minimum term of 7 years and 6 months imprisonment before being eligible for release on parole ("the Victorian sentence"). Taking into account pre-sentence detention, the offender's non-parole period expires on 19 December 2023. The head sentence expires on 20 June 2027. 2. On 27 January 2021, the offender was extradited from Victoria and transferred into custody in New South Wales. The offender was arrested on the murder charge on 18 February 2021. As of 14 December 2022, the offender has served a period of 1 year, 9 months and 27 days in NSW custody relevant to both the murder charge and the Victorian sentence. 3. Senior counsel for the offender submitted that any sentence imposed upon the offender for the murder charge should be served concurrently with the Victorian sentence. 4. The Crown concedes that a portion of the period spent in NSW custody after the offender's arrest should be counted towards the sentence imposed upon him in this matter. The Crown submited that a "fair and just percentage" is 50% of the period already served in NSW custody. 5. Section 55 of the Sentencing Act relevantly provides as follows: 55 Sentences for offences generally (1) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender— (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served concurrently with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence. (2) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served consecutively (or partly concurrently and partly consecutively) with the other sentence of imprisonment or, if there is a further sentence of imprisonment that is yet to commence, with the further sentence of imprisonment. (3) A direction under this section has effect according to its terms. (4) In this section, a reference to a sentence of imprisonment is taken to be a reference to— (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set. 1. In Yeung v R [2018] NSWCCA 52 ("Yeung"), McCallum J (as her Honour then was, and with whom Hoeben CJ at CL and Simpson JA agreed) stated at [46] that s 55 of the Sentencing Act was not intended to create a presumption in favour of concurrency. Rather, her Honour explained that the default position was that the sentences are to be served concurrently if the sentencing judge does not expressly address the issue. It was emphasised that the discretion on the sentencing judge to direct that a sentence be served concurrently, partially concurrently with or wholly accumulative to another sentence remains unconstrained by s 55. 2. In Yeung, the sentencing judge had fully accumulated the drug offences with the driving offences. McCallum J (as her Honour then was) found at [47] that error was not established given "that the offending was of an entirely different nature" and there was "no overlap between the offences". However, her Honour noted that "a more lenient approach could have been taken". 3. In the present case, the offending between the Victorian charges and the murder charge are of an entirely different nature and there is no overlap between the offences. Totality has more limited application in the instant case. 4. In my view, it is not appropriate in these circumstances for the offender to be sentenced for the murder charge and serve the term of imprisonment fully concurrently with the Victorian sentence. I will, however, count 50% of the period spent by the offender in custody in New South Wales towards the pre-sentence custody. After rounding up in favour of the offender, the sentence will be backdated by 11 months. This will be reflected in the fixing of the commencement date of the sentence of imprisonment from 14 January 2022: Yeung at [48]. 5. In sentencing the offender, I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period (Muldrock at [27]) together with factors bearing upon the objective seriousness of the offence and subjective features. 6. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. 7. Finally, before passing sentence, I extend my condolences to all those who have suffered as a result of the murder of William Chaplin. Hopefully the conclusion of the proceedings today may provide some measure of relief although I acknowledge that some of the pain will be unrelenting. SENTENCE 1. Paul Anthony Watson, could you please stand. You are convicted of the murder of William Chaplin. I sentence you to imprisonment for a non-parole period of 16 years and 9 months commencing on 14 January 2022 and expiring on 13 October 2038 and the balance of the term of 7 years and 3 months commencing on 14 October 2038 and expiring on 13 January 2046. You will be eligible for release on parole at the expiry of the non-parole period on 13 October 2038. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2022