R v ELPHICK [2002] NSWCCA 273

New South Wales Court of Criminal Appeal

CITATION : R v ELPHICK [2002] NSWCCA 273 revised - 16/07/2002 FILE NUMBER(S) : CCA 60627/00 HEARING DATE(S) : 02/07/2002 JUDGMENT DATE : 2 July 2002

PARTIES : REGINA v Eric John ELPHIC JUDGMENT OF : Handley JA at 1,30 & 32; Dowd J at 2; Smart AJ at 31

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70026/00 LOWER COURT JUDICIAL Greg James J OFFICER :

COUNSEL : Applicant- Mr D Dalton Crown- Dr Patrick Power SOLICITORS : Applicant- S Calomeris-Legal Aid Commission Crown- SE O' Connor CATCHWORDS : Appeal against sentence-special circumstances-objective seriousness of crime Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 R v Barry NSWCCA 138 (Unreported, 13 April 2000) CASES CITED: R v Nixon NSWCCA (Unreported, 31 October 1995) R v Simpson NSWCCA 534, (Unreported, 19 December 2001) R v Veen (No 1) (1979) 143 CLR 458 DECISION : 1. Leave to appeal granted; 2. Appeal dismissed

- 8 -IN THE COURT OF CRIMINAL APPEAL 60627

HANDLEY JA DOWD J SMART AJ

2 JULY 2002 REGINA v Eric John ELPHICK Judgment 1 HANDLEY JA: I will ask Justice Dowd to give the first judgment. 2 DOWD J: This is an application for leave to appeal against a sentence, the applicant having entered a plea of guilty to an indictment alleging an offence of murder, which occurred on 29 December 1999. He was sentenced to fifteen years, commencing on 29 December 1999, expiring on 28 December 2014, with a non-parole period of twelve years, expiring on 28 December 2011. 3 The applicant and the victim had been involved in a domestic relationship for over two years, she being a drug addict, he a bricklayer. Psychiatric reports, accepted by the Sentencing Judge, Greg James J, accepted that their relationship was one of co-dependency. 4 The victim was dependent on the applicant for money and drugs. She took money, which he provided for her. She was also a prostitute. The relationship had a number of frequent volatile exchanges. He endeavoured, by every means, including hospitalisation, to wean her from the drugs, to which she was addicted. The victim had come to his place, taken goods and pawned them. She also stole money and destroyed his car in an accident. 5 There was a degree of physical violence in the relationship. The applicant provided money for the deceased to come to Albury to visit his family at Christmas. He, when she did not arrive, found her in Kings Cross, where he became agitated when he found that she continued to use illicit drugs and continued working as a prostitute to fund her habit. 6 He had resorted to alcohol during the relationship, and on this occasion had drank a small quantity of alcohol, obtained a boning knife, and went looking for the deceased, and upon finding her, stabbed her to death in a paroxysm of rage in the presence of other persons, whilst she was apologising to him and asking him not to do it. His aim was to cut her throat, having determined beforehand to commit that act. 7 The Learned Sentencing Judge found that the applicant's reasoning was disordered and confused at the time, he having taken the knife in contemplation of killing the deceased and harming himself, frustration at the deceased's association with drugs and prostitution, being the motive for the killing. The applicant said that he was scared and did not quite understand why he did it. 8 In an interview with the police after the killing, the applicant said that he had solved his problem and that he was not ashamed of what he had done. 9 His Honour found that the applicant's evidence was entirely egocentric and that it did not reflect contrition in terms of being sorry for what he had done, his contrition being only for his sorrow at breaking the law and that the applicant felt that it was the only way to relieve himself of the association with the deceased and her drug problems, and that his love for the woman was wholly egocentric. 10 It is submitted in this application that his Honour erred in setting a non-parole period less than three quarters of the term of the sentence pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"), as it was a compelling case for the setting of a non-parole period of less than three-quarters of the head sentence, as a result of special circumstances. 11 It was put that the Report of Dr Olav Neilssen opined that the applicant had a history of stable employment, stable relationships and that he would probably resume employment on release from prison. Dr Neilssen found that the applicant did not require psychiatric treatment in terms of psychiatric medication, but had responded well to counselling in gaol and was likely to benefit from further counselling. I accept this Report, in light of the expertise of Dr Neilssen in this area. 12 It was further submitted, in light of the history of only one prior period of imprisonment, some twenty years previously, that there was a strong case for special circumstances warranting the reduction of the non-parole period below the three-quarters of the overall sentence. It was further submitted that the non-parole period, being nine months longer than three-quarters of the total sentence, and the fact that his Honour did not even advert to special circumstances, demonstrated error. 13 The Crown, on the other hand, submitted that His Honour, the Learned Sentencing Judge, examined the relevant law and, in particular, had examined and considered various decisions relating to domestic murder, with relationship cases involving murder showing an average minimum term of just less than fourteen years, with an average additional term of five years and four months. The Crown further submitted that this sentence was well within the appropriate range for such a crime. 14 It was conceded by the Crown that the applicant's release would propose no risk to the community. It was submitted by the Crown that in following R v Simpson NSWCCA 534, (Unreported, 19 December 2001), where this Court dealt with s44(2) of the Act and this sentence being consistent with that decision, the finding of special circumstances is a discretionary matter. 15 It was further submitted by the Crown that there should be no judicial intervention by an appellate court unless it was possible to form a positive view that some other sentence was warranted in law, and that error has been shown. 16 In consideration of the matters placed before the Court, I particularly refer to the decision of R v Nixon NSWCCA (Unreported, 31 October 1995), to which both counsel have referred in written submissions and in the applicant's case orally, where Badgery-Parker J observed, at pages 7-8: "In Regina v Twala (CCA, unreported, 4 November 1994) where this Court set aside a sentence of life imprisonment imposed at first instance and in lieu thereof fixed a determinate sentence, I said, in a judgment with which Carruthers and Finlay JJ agreed, that: 'No direct comparison of one case with another is fruitful, but an examination of comparable sentences ... is of assistance in indicating the general range which the Court has regarded as appropriate for offences of relationship murder.'" 17 Badgery-Parker J in that case further observed, at page 4: "An examination of twelve cases determined under s 19A, where the murder of a woman by a man occurred in circumstances of a continuing or recently terminated relationship between them, reveals total sentences ranging from sixteen to twenty-two years, with minimum terms ranging from eleven years to sixteen years, and additional terms ranging from four years to seven years. The average length of sentence is just under nineteen years. The average length of the minimum term is 13.94 years, and the average length of the additional term is 5.33 years. Clearly the present sentence is well within that range and there is nothing about the sentence itself to attract concern." 18 The particular facts of this matter, taking into account that a boning knife was specifically taken by the applicant in his search for the victim, was a matter that comes within the sort of description given in R v Barry NSWCCA 138 (Unreported 13 April 2000), as being an horrific offence of high objective seriousness. 19 When considering the issue of s 44(2) of the Act in Simpson, referred to above, the Chief Justice, at paragraph 58, held: "The scope of the considerations relevant to the determination of 'special circumstances' must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole." 20 Clearly, the length of the minimum term of incarceration the Chief Justice held is the primary perspective. The Chief Justice in Simpson further went on to say, that a finding of 'special circumstances' for reducing the non-parole period below three-quarters of the head sentence is a discretionary matter and held at paragraph 62-3: "[t]he issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting 'special circumstances' of the requisite character, ie, that it is capable of justifying a variation in the statutory proportion which the Legislature has enacted.