New South Wales Supreme Court CITATION : Regina v Steer [2006] NSWSC 1198 HEARING DATE(S) : 11/09/06 to 20/10/06, 10/11/06 JUDGMENT DATE : 17 November 2006 JUDGMENT OF : Whealy J at 1 DECISION : In relation to the offence of robbery, armed with an offensive weapon, I sentence you to a fixed term of imprisonment for 4 years. The sentence is to commence on 23 February 2005 and to expire on 22 February 2009. In relation to the offence of the murder of Warren Leslie Dickson, I sentence you to a term of imprisonment comprising a non-parole period of 22 years and the balance of term of 7 years and 4 months. This sentence is to commence on 23 February 2007 and the non-parole is to expire on 22 February 2029, the date upon which you will be eligible to be released to parole. The balance of the term will expire on 22 June 2036. CATCHWORDS : Criminal practice and procedure - Murder - Armed Robbery - standard non-parole period 20 years for murder - reasons to increase standard non-parole period - objective seriousness of crime - aggravating factor: burning the body of the deceased - absence of remorse LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 PARTIES : Regina v Brian James Steer FILE NUMBER(S) : SC 2006/239 COUNSEL : Mr P. Barnett - Crown Mr D. Stewart - Offender SOLICITORS : Office of the DDP - Crown Ross Hill & Associates - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J FRIDAY 17 November 2006 2006/239 - REGINA v Brian James STEER SENTENCE 1 HIS HONOUR: The tragic events involved in this trial occurred late in the evening on 13 February 2005. The scene of the tragedy was a small house at 90 Commerce Street Taree. About midnight, or shortly after, neighbours noticed the smell of smoke. Peter Moy, who lived at 88 Commerce Street Taree, on closer examination, saw a fire flickering inside the house and smoke pouring out the back of the house. Mr Moy rang the Fire Brigade at about 12.28am on 14 February and alerted other neighbours to the fire, which by this time was burning strongly. 2 The Fire Brigade responded to the call and arrived soon after the emergency call. Two trucks arrived at the scene and the fire fighters set about trying to control the blaze. It seems the fire was quite fierce for a time, particularly towards the front part of the house. Eventually, the fire was brought under control and, during this period of time, police officers arrived at the scene. Members of the fire brigade had observed in the main bedroom the badly incinerated body of a male person. This was, in fact, the occupant of the house, Warren Dickson, whom I shall refer to as the deceased. Detective Sergeant Whayne Day arrived at the crime scene at about 4.45am on 14 February 2005. He observed that the deceased had sustained full depth burns to the majority of his body. The deceased was lying on his back on the floor with his legs on the remains of a bed and his head and torso were pointing towards the entry door to the bedroom. Detective Sergeant Day observed a significant area of injury to the front portion of the neck of the deceased. He also observed large amounts of what appeared to be blood in the kitchen of the house, particularly near the rear door, which led to the backyard. Tests were done and these showed strong positive reactions for the presence of blood on the kitchen floor. Commerce Street itself was closed off to traffic and a crime scene was established in accordance with police protocol and procedures. 3 Detective Day's further observations indicated to him that the kitchen window had been broken from the outside and that this had happened prior to the fire. The fire had very substantially damaged the house and parts of it were destroyed. The seat of the fire appeared to be in the main bedroom area. There were marks in the hallway and near the bedroom, which indicated that the deceased's body may have been dragged from the kitchen area through into the bedroom where the fire appeared to have been started. 4 The officer-in-charge of the initial investigation and subsequent matters was Detective Sergeant Rodney Blackman. He arrived at the premises at about 2am on 14 February and inspected the house and the body of the deceased. He said: - "The corpse was terribly burnt. The extremities of the corpse were burnt beyond recognition, the general person was unrecognisable save for, I could establish that it was a deceased male". 5 A little later Dr Lyons a forensic pathologist came to the crime scene and made observations of the deceased's body. Later, Dr Lyons conducted a post mortem on the body. 6 The post mortem carried out by Dr Lyons on 15 February 2005 at the Newcastle Department of Forensic Medicine revealed the following: there were two substantial wounds to the neck of the deceased. The first, although not necessarily the first in point of time, was a gaping wound on the middle of the front of the neck in which the trachea and the oesophageus had been cut right through to the top of the vertebral column. The major structures that were observed in the wound were separated by a gap of approximately 70 millimetres. The second injury was an oblique wound extending under the sternomastoid muscle involving a partial transection of the carotid artery. This is the main artery from the aorta. It distributes blood to the brain. In this instance, there was a gap of 80 millimetres by 20 and, as I have said, the wound was oblique at an angle. 7 Dr Lyons concluded that the deceased had been dead at the time of the fire. The deceased's urine level had been tested for alcohol and Dr Lyons concluded that the tests showed a result consistent with the deceased "having been involved in a light drinking session". He thought the death of the deceased was caused by a combination of mechanisms that related to the two wounds he had sustained. There would have been an inability to breathe normally because of the transection of the airway; and there would have also been a transection of the major vessels resulting in a significant blood loss. Dr Lyons' opinion was that the deceased would have become rapidly unconscious and died within a matter of a few minutes. Either injury would, of itself, have been sufficient to have led to the death of the deceased. The injuries were consistent with the loss of the entire blood volume of the deceased's body. Dr Lyons thought this was consistent with the amount of blood he had observed in the kitchen area. 8 He described the first wound as "an incised wound" and the second as "being consistent with the application of blunt force trauma". In other words, the first was consistent with a slash wound, and the second was consistent with being a stab wound. 9 The police investigation focussed next on two particular individuals. The first was a young lady named Nicole Deluca. She came from Koorainghat, an area just outside of Taree. She lived there with her parents and two children and was involved in running a poultry-egg distribution business. The second person was Brian Steer. (I shall refer to him as the offender, as it later became clear that it was he who killed the deceased). He lived at Hughes Street Taree with his four young children. The offender had been previously married but the marriage had ended sometime before. 10 Ms Deluca and the offender met during chat sessions over the Internet. This occurred back in December 2003. Sometime afterwards, they entered into a relationship. They did not live together but generally spent each weekend together. They appeared to have a good relationship but by January 2005, Ms Deluca was becoming dissatisfied and looking for other interests. 11 On Friday 28 January 2005, Ms Deluca went out with friends. During the evening, she met the deceased. She had not met him before this occasion. They spent the early part of the evening together at the Manning Hotel and then all went back to the house of a friend, Michelle Bennett. Ms Deluca, who later expressed embarrassment about this, was obviously attracted to the deceased and spent the night with him on this occasion. They slept together and it is clear that she was attracted to the deceased and quite interested in extending the friendship. 12 In the following week, this relationship between the deceased and Ms Deluca was rekindled. They met once more and socialised together on both the Wednesday and Thursday of the following week. On the Friday, Ms Deluca stayed the night at the deceased's place and slept with him again. Ms Deluca did not however, tell the offender, in any substance, about her newfound relationship. It seems she rather avoided the topic because she found it difficult to tell the offender that she had decided that their relationship should come to an end. The offender, however, spent some time on the evening of 4 February 2005 trying to locate Ms Deluca. He drove past Michelle Bennett's house and went out to Ms Deluca's home at Koorainghat. He was unable to find her at either place and he surmised, accurately as it happened, that she had spent the night with another man. 13 On 5 February 2005 the offender and Ms Deluca met and gave back their respective keys to each other's house. Thus it was that, by this symbolic and practical gesture, the relationship was brought to an end. 14 The offender, however, did not leave the matter there. He persisted in endeavouring to resecure Ms Deluca's affection during the following week. On 11 February Ms Deluca went to the deceased's house in the early evening. Later, they went to the movies and spent the night again at 90 Commerce Street Taree. Unbeknown to them, the offender followed them home from the movies and, by this stratagem, found out where the deceased lived. On Saturday 12 February, the couple again socialised during the early part of the evening and came back by taxi to 90 Commerce Street Taree where again they stayed the night. Once more, unbeknown to them, the offender, earlier in the evening, had visited the house and observed that both their cars were there, even though the couple apparently were still in town at the time of this clandestine visit. 15 On the afternoon and evening of Sunday 13 February, Ms Deluca continued to enjoy her developing relationship with the deceased. They went to a barefoot skiing competition, and, afterwards, came back to the deceased's home. In the late afternoon, Ms Deluca went to pick up her daughter and returned home to her house at Koorainghat. She did not see the deceased alive again. It was, it will be recalled, during the latter part of this evening that the deceased met his death and the house at 90 Commerce Street Taree was set on fire. 16 The police notified Ms Deluca about 5.30am on 14 February 2005 that the body of Warren Dickson had been found deceased in the burning house at Commerce Street. She was undoubtedly very distressed by this news but went about her usual task of taking her daughter Jamie to the bus stop near the Old Bar turnoff. There, to her surprise, she encountered the offender, waiting for her with his four children. She told him that a friend had been found dead in a house but the offender feigned ignorance about the matter. He gave her a photograph, which had been taken the previous year, of Ms Deluca and himself when they had been on holiday at Lord Howe Island. He asked Ms Deluca whether she would be prepared to move in and live with him. Ms Deluca, who was upset and in tears, indicated that the suggestion was inappropriate at that point of time. Later on the same day, a dozen red roses, which had been ordered the previous Friday by the offender, arrived at Ms Deluca's house. It was Valentine's Day and this gesture, together with his attempts earlier that morning, were plainly manoeuvres calculated to reinstate his relationship with Ms Deluca. 17 On 15 February 2005, the offender sent a text message to Ms Deluca. The message said: - "The police have been to see me. I hope you don't think I had anything to do with this". Ms Deluca assured him that she did not. 18 In fact, the police officers (Detective Sergeant Blackman and Detective Hartcher) had visited the offender's house at 19 Hughes Street during the afternoon of 15 February 2005. Detective Blackman had told the offender that the police were there to ask some questions about the fire in Commerce Street. The offender told them that he had been expecting them. He said: - "Lucky I didn't know the guy or I would be the prime suspect". 19 He went on to say that he had been seeing Nicky and that Nicky was seeing the deceased. The offender also said that he did not know the deceased, he just knew of his name. He agreed to provide a statement on the next day. 20 On 16 February 2005 the offender provided a written statement to the police at Taree Police Station. In one part of this statement, the offender said that he had not left his home on the evening of 13 February 2005. In another part, he indicated (Exhibit "T" para 29) that he did not know the deceased; he did not know where the deceased lived or worked and that this could be verified if the police were to speak to Ms Deluca or Michelle Bennett. 21 Later that afternoon, the police, by arrangement with the offender, inspected his house and his motor vehicle. During the course of the search, Detective Buining apparently detected blood on some portion of the offender's motor vehicle. It seems this threw him into a panic and he decided to collect his children from school to take them up to their mother's home in Ipswich, Queensland. The journey commenced later that evening, after he had been to a barbecue at the home of a friend of his, Jeremy Moy. 22 The offender arrived in Ipswich early the next morning and had a conversation with his ex-wife. He told her, in relation to the fire at Commerce Street, "I did it, I killed him". The offender told his ex-wife he had informed his children on the way to Ipswich as to the events of the evening when the deceased met his death. She asked him if there was any other way he could have handled it and he replied, "No. I am sick of being walked on and shitted on. The things that I am going to have to do to survive". 23 He told his ex-wife that the police had found blood on his car and indicated that this would mean he was "stuffed", or words to that effect. The offender also said to Ms Matthews, regarding the deceased "the bastard deserved it". 24 Shortly after this conversation, the offender left Ipswich. Apparently, he had seen a car out the front of Ms Matthews place and, fearing it was a police car, took instant leave and returned to New South Wales. 25 On 18 February 2005, the offender went to the Wauchope branch of the ANZ bank. This was at about 4.40pm on that day. He had, according to evidence he later gave, a replica pistol with him. He held up the bank, in the following circumstances: the offender stood in the queue and, when it was his turn, he approached Jacqueline Preston a young bank teller. He told her to be calm and uncovered a gun that he was holding in his right hand. This had been covered by a white calico bank bag that he had been holding in his left hand. He had an earpiece in his left ear with a wire coming from the bottom of the earpiece. The wires attached to the earpiece were in a plastic cover that went into his top pocket. It appeared to Ms Preston that he had one finger on the trigger of the gun when he showed it to her. She was distressed, as might be expected but the offender told her to be calm. He told her he wanted the money and asked her to give him whatever she had. He told her not to press the button but to remain calm. He said he was "wired" and pointed to the wire he had in his ear. He told her he was "wired to the police" and he could hear them if she were to call them. 26 The offender ordered Ms Preston to go over to the other teller, Mrs Walsh, and to inform her that he had a gun. She was to tell Mrs Walsh not to call the police or press the buttons. The offender then approached the two women, who by now, were standing near one another. He showed the gun to Mrs Walsh and told both women "Don't press the button". He demanded they give him whatever money they had in their teller boxes. The offender returned to where Ms Preston was removing the money. She said to him: - "Isn't there any other way? Are you sure you want to go through with this?" The offender replied: - "Once they find out what I did last week, that's it. I need the money". 27 Ms Preston, demonstrating a degree of courage, pressed the device in her teller drawer that activated a silent alarm and caused the cameras in the bank to activate. At the same time, she handed the money to the offender. He then said to her "Can you just wait until I get out the door before you ring the cops?" He then turned and walked out of the bank with the money he had collected from Ms Preston and Mrs Walsh. This amounted to approximately $23,430.00. 28 The offender left the vicinity of the bank. He had purchased a bike from Wauchope Sports & Trophies on that day for $437.00. It was an adult size Peak mountain bike. Later, on the same day, the offender bought a motor car, which was for sale in the Wauchope area and stashed the bike in that car. He had, prior to the bank robbery, abandoned his own vehicle in the State Forest area behind Timbertown at Wauchope. This vehicle was later found by Ms Hilder who was walking in the State Forest area. She reported the presence of the vehicle to the police. 29 On the next day, or shortly thereafter, the offender borrowed his mother's motor vehicle. He did so because the car he had bought on the day of the robbery proved unreliable and had broken down. He went to Sydney with the idea of "lying low" to avoid detection and later went to Bathurst. Eventually, the offender thought better of escape and decided to hand himself into the police. This happened on 23 February 2005 when the offender's solicitor made arrangements for the police to collect him near her Wingham office. He was arrested and taken to Taree Police Station where he was charged with both offences. The trial of the accused 30 On 14 September 2006 an indictment was presented against the offender containing one count. He was arraigned on a charge that, between 12 February and 15 February 2005 at Taree in the State of New South Wales, he did murder Warren Leslie Dickson. The offender pleaded not guilty to this charge. He had, however, earlier pleaded guilty to a second charge that, on 18 February 2005 at Wauchope in the State of New South Wales, armed with an offensive weapon, he did rob Jacqueline Lee Preston and Karen Anne Walsh of an amount of money the property of Australia and New Zealand Banking Group Limited. The offender had first pleaded guilty to this charge on 25 August 2006. He repeated his plea on 13 September 2006 and thereafter adhered to the plea. The maximum penalty for this offence is imprisonment for 20 years. 31 In relation to the murder charge, the jury returned its verdict on Friday 20 October 2006. The verdict was one of guilty of murder. The maximum penalty for this offence is imprisonment for life. There is a standard non-parole period prescribed under s 54B of the Crimes (Sentencing Procedure) Act 1999 of 20 years. 32 At the trial, the offender did not dispute that he had broken into the house at 90 Commerce Street Taree on the evening of 13 February 2005. Nor did he dispute that he had set fire to the house and to the body of the deceased. Moreover, the offender did not put in issue that the fatal wounds were inflicted by him on the deceased during the course of a struggle or confrontation between the two men. The defence case, however, was that the struggle was one in which the offender had struck the fatal blows while acting in self defence. It was his case that, when he broke into the house, he had been confronted by the deceased who had a knife in his hand, and who was acting in a singularly aggressive and violent manner. After an initial struggle between the two men, according to the defence version, the offender had the deceased pinned to the ground. The deceased, however, broke free and proceeded to beat the offender savagely about the head, arms and back with an iron bar. Again, according to this version, the deceased said that he was going to kill the offender and, it was at that stage, that the offender seized a knife and swung it defensively, thereby inflicting the fatal wounds. After the killing, the offender decided to cover up the evidence and burn the house and body. He said he did this out of concern for his children who, he feared, would be left without anyone to look after them. 33 There was a second major issue left to the jury: the accused gave evidence that, during the latter part of the struggle between himself and the deceased, the deceased had made some disgusting remarks to him about the deceased's sexual intentions towards the offender's children; and that this had engendered in him a feeling of anger and possible loss of self control. In short, there was left before the jury the issue of provocation, in addition to that of self defence. 34 In e-mails or letters written to various people shortly after the killing, the offender had, in fact, said that he had been confronted by the deceased with a knife when he entered the house and that he had been involved "in a life and death struggle". These somewhat self serving notes supported the contention that he had been acting in self defence when he killed the deceased. 35 So far as the bank robbery was concerned, the offender gave evidence that his intention in going to the bank on 18 February 2005 was to bring about a situation where his life would be ended by police officers shooting him dead. He told the jury, however, that, when he was in the bank, he became concerned about, and sympathetic towards, the young bank teller, Ms Preston. He had changed his mind and went ahead with the robbery instead. He also gave evidence that he did not make admissions to two other women namely, Elizabeth Mitchell (the wife of Jeremy Moy) and Ms Barkwill (the sister of Ms Mitchell). These two women had given evidence during the trial that the offender had made admissions to them. It was the offender's evidence that the only admissions he made were to Jeremy Moy and that these two women had made up this story in order to protect Jeremy Moy from being prosecuted as an accessory after the fact to both the murder and the bank robbery. The offender said Jeremy Moy had lent him vehicle number plates on 15 February 2005, so that he could travel with his children to Ipswich undetected. 36 In relation to the accused's version of the events, that is the events directly relating to the death of the deceased, I find, consistently with the verdict of the jury, that the offender's version was entirely fabricated. The offender was, throughout the struggle, the aggressor and it was the deceased who was fighting for his life. I reject completely the notion that the offender was acting in self defence. Rather I accept that, in the heat of the struggle, the offender made up his mind to despatch his rival and to eliminate him for good. I find, and do so beyond reasonable doubt, that the offender inflicted the fatal wounds while he had the deceased at a physical disadvantage and that he did so with the direct intention of killing him. Secondly, I am satisfied beyond reasonable doubt that the deceased did not provoke the offender by the offensive words and conduct attributed to him. No such words or conduct were used or carried out by the deceased. Further, I am satisfied beyond reasonable doubt that, when he killed the deceased, the offender had not lost his self control but was acting out of a deliberate decision, as I have said, to eliminate his rival. It was simply anger, jealousy and the expediency of the moment that prompted his decision to kill the deceased. It is clear from the description I have earlier given that he did so cruelly, savagely and viciously. Although it is difficult to be precise about the sequence of the injuries sustained by the deceased, I am satisfied that the first wound was a stabbing to the left side of the throat. When the deceased fell to the ground, the offender cut his throat with a second swing of the knife. 37 I am also satisfied beyond reasonable doubt that, once the offender realised that the deceased was dead, that is when he saw his body lying on the kitchen floor and saw his blood pump out, he set about, in a calm and calculated way, to destroy all possible evidence that might implicate him in the killing. This was the reason he set fire to the house, having positioned the body of the deceased in the bedroom where the fire was started. It is significant to note that he moved his car to a safer position before he started the fire. Equally, I am satisfied beyond reasonable doubt that the offender's behaviour on the next day when he met Ms Deluca, and his behaviour over the next couple of days, reflected a bold and calculated fulfilment of his plan to reinstate himself with Ms Deluca, without letting on that he had been involved so violently in the death of the deceased. It was the chance and unexpected discovery of possible blood stains in his car that caused him at that stage to panic and to plan and carry out the flight from Taree. Moreover, I reject the offender's stated reasons for the bank robbery. I am satisfied beyond reasonable doubt that the robbery was carried out precisely to enable him to obtain funds so that he could flee and avoid arrest by the police. 38 There are two areas where, however, I am unable to accept certain aspects of the Crown case beyond reasonable doubt. The first is the suggestion that the offender went to the house on that evening with the intention of killing the deceased. I do not accept that this was his intention at the time he arrived at the house. The offender "shimmied" up the pipe outside the rear window, broke the glass and climbed in. I am satisfied beyond reasonable doubt that he had an iron bar or a crowbar with him (not the piece of "reo" he described in his evidence). I am not able to be satisfied beyond reasonable doubt, however, that he was at that time carrying a knife. I accept that he went there "to bash" the deceased and indeed, he said so himself in Exhibits "K" and "W". His purpose in going to the house was to confront the deceased, to physically intimidate him and to hurt him, if necessary, so that he would cease being a rival for the affections of Ms Deluca. I reject the offender's story that he went to the house simply to check on the van and to confront the lovers. I find that he knew the deceased would be alone in the house and probably asleep. 39 I accept that the offender was wearing gloves, as he later told his daughter, Kimberley. I also accept that he was wearing a balaclava as he told Ms Barkwill. The deceased, as it happened, was woken by the noise of the entry and came from his bedroom to the kitchen area where the two men confronted and spoke to one another. The deceased assumed the intruder was a burglar and offered him money and "pot". Once a struggle ensued between them, it was at that point of time that the intention to kill the deceased formed itself in the offender's mind; and it was at that point of time, with that specific intention in mind, the injuries were inflicted. Although the murder weapon has never been located, I am satisfied that the offender killed the deceased with a knife from the kitchen. I am also satisfied beyond reasonable doubt that, during the early part of the struggle, the offender hit the deceased a number of times with the bar he had brought into the house. 40 The Crown argued that the entire sequence of events demonstrated that the offender went to the house with the intention to kill the deceased. The Crown argued that any other finding would be illogical because, had he simply gone there to assault the deceased, Ms Deluca would have discovered his actions and would have been unlikely to rekindle her relationship with him for that reason. There is, of course, some sense in this submission. It cannot be assumed, however, that the offender was acting in an entirely rational way. First, his desire to be revenged upon his rival was not necessarily to be equated with a desire to kill him. Secondly, he was, as I have said, disguised when he went to the house. Thirdly, I think that the offender had managed to persuade himself that the relationship between the deceased and Ms Deluca was not necessarily a long-term one; but, rather, one in which the deceased was some kind of sexual predator who had taken advantage of his girlfriend. This was, of course, not true. But that is the way it was perceived by the offender. In those circumstances, I consider that his mental state at the time was one in which he had convinced himself that if he could "bash" the deceased and physically intimidate him, this would advance his cause with Ms Deluca. At the very least, it would frighten the deceased away and persuade him to end his relationship with the young lady. There is simply not enough evidence to satisfy me beyond reasonable doubt that the offender went to the house with a pre-determined intention to kill. On the other hand, there is no doubt that his intention was to inflict serious physical injury upon the deceased; and that is what he set about doing when the two men first confronted one another in the kitchen. 41 The second matter relates to the alleged admissions to Ms Mitchell and Ms Barkwill. I am not satisfied beyond reasonable doubt that admissions were made to those women precisely in the terms given in their evidence. Moreover, I am not satisfied that the alleged admissions were made to them in the circumstances they each described. I accept that the offender did tell Jeremy Moy that he had been involved in the killing and that this happened on the day of the barbecue namely, 15 February 2005. I am also satisfied beyond reasonable doubt that there was further discussion between the offender, Jeremy Moy, Elizabeth Mitchell and Kelly Barkwill on early evening of 18 February 2005. The circumstances surrounding these meetings and conversations, I am satisfied, involved a situation where Jeremy Moy, with the knowledge of the two women I have mentioned, had allowed the offender to borrow number plates from a car in the possession of Jeremy Moy at the relevant time. This was done to help the offender escape detection when he took his children to Ipswich on the evening of 15 February 2005. 42 I do not accept however that the admissions made to Jeremy Moy were as limited as those recounted by the offender in the evidence he gave before the jury. In that evidence, the offender was at pains to limit the information he had given to Jeremy Moy. He said that he had not given any information about the killing directly to either of the two women. I am satisfied beyond reasonable doubt however, that the nature of the admissions he made to Jeremy Moy, and to the women during subsequent conversations on 18 February 2005, were more detailed than he was prepared to admit. They were generally consistent with the facts I have found in relation to the circumstances of the killing. It is clear from Ms Barkwill's evidence that a number of the matters she recounted could only have come from the accused, and not through the version allegedly given to Jeremy Moy. 43 In relation to admissions made by the offender, I should mention the evidence of Kimberley Steer, the 14 year old daughter of the offender. She gave evidence in the trial. The bulk of her evidence-in-chief was given by way of an audio-visual recording. In that evidence, Kimberley Steer told the jury that, on the evening of 15 February 2005, she had been provided with considerable detail by her father of the circumstances relating to the killing of the deceased. The young lady said that her father told her that he killed the deceased, that "he was struggling with the deceased because the deceased was trying to get a crowbar from him". She also said that her father told her that he killed the deceased "because he took his girlfriend away from him". 44 The offender had told Kimberley that he came in through the kitchen window and that the deceased had come into the kitchen after he had turned on the lounge room light. The offender had "hit the deceased over the head with the crowbar then pinned him to the ground and that was when he killed him". 45 The offender told his daughter, that after he killed the deceased, he dragged him into the room onto his bed. He put "liquid stuff" all through the house and then he lit it. He also told her that before he "lit" the house, he moved the car. In addition, he told her that he had put "the suit stuff" he was wearing, and all the weapons he used in a plastic bag and "got rid of it". Specifically, he mentioned to her the crowbar. He also said he had been wearing gloves but "he did not say what sort they were". He also told her that he had to open the car door with the hand that had blood on it. Although he washed the car afterwards he had missed a spot, "that was his one mistake". Kimberley said her father told her he did everything else right but that's what he got wrong. "That was his one mistake" she said. The subjective circumstances of the offender 46 The offender is a 40-year-old man who, at the time of the offences, was a single parent caring for four children whose ages ranged between 14 and 10. The offender was born in the United Kingdom but came to Australia as an infant with his parents. He grew up in Sydney. After his parents separated, he lived with his mother and step-father. His father, who is now in his early seventies, lives in the United Kingdom. His mother continues to reside in Taree. The separation occurred when the offender was about four. The offender was sexually interfered with by his step-father who was also violent to him on occasions. His step-father remained in the family home until the offender was about 10 or 12. 47 The offender was educated to the end of Year 9. He truanted from school but was never placed into a boys' home or a juvenile facility. He has worked in the past as a labourer, a kitchen hand, a shop assistant and in a timber yard. He had been with the mother of his children for about 13 years, but their relationship was not satisfactory. There was evidence in the trial that his former wife had affairs with a number of men, including during the time the offender was in prison. This engendered in the offender a particular sensitivity towards the issue of marital infidelity and this was evident in his relationship with Ms Deluca. 48 The offender has a reasonably long criminal history but most of it is not relevant to the present offences. There were a number of dishonesty offences committed between 1990 and 1995. There was, however, an offence of armed robbery in February 1996. Later, there were two offences in April 1998, each being an armed robbery. On the first matter, the offender was sentenced to a fixed term of two years and three months to commence on 21 February 1998. On the charges in the second indictment, the offender was sentenced to concurrent minimum terms of two years and six months commencing at the expiry of the fixed term I have mentioned, together with an additional terms of two years. These sentences were imposed by Howie DCJ (as he then was) and the sentences were confirmed by the Court of Criminal Appeal on 19 June 2000. There was also a conviction for fraud in the Australian Capital Territory in 1998. 49 Dr Bruce Westmore examined the offender in the Silverwater Prison Complex on 9 November 2006. He provided the Court with an extensive report dated 9 November 2006 (Exhibit 1). It appears that Dr Westmore was given a history by the offender of the circumstances relating to the death of the deceased. This version of events is the one that I have specifically rejected in making the findings of fact I did earlier in the decision. On page 7, Dr Westmore said: - "I have not made any formal diagnosis of the psychiatric type in relation to Mr Steer although I would accept that if he was sexually abused as he describes, then that would have impacted adversely on his personality structure and development. I notice his criminal antecedents, which suggests some anti-social personality traits. I am unable at this time to diagnose an anti-social personality disorder. I would accept that he was emotionally disturbed and distressed around the time his relationship with Nicky ended and with the circumstances of some of the events which he states followed that, in particular, her association with the deceased which apparently commenced shortly before his relationship with Nicky ended. He states that during the altercation with the deceased, the deceased threatened to harm and kill him. He said the deceased also made a derogatory sexual comment about his children and that resulted in "a rush of energy and anger"." 50 Dr Westmore expressed an opinion that because of the offender's history of being sexually abused as a child, the deceased's comments to him, if they had occurred, may have heightened his levels of anger and resulted in his extreme aggression towards the deceased. He may also have felt a sense of fear in view of the alleged threats towards him by the deceased. 51 As I have already said I do not believe the deceased made any threatening remarks to the offender and I reject, in particular, the suggestion that the deceased made offensive remarks regarding the children of the offender. 52 Nevertheless, Dr Westmore stated that the emotional drive which led the offender to enter the deceased's home would have included emotions of jealousy and anger; and that, in the past, the offender had been confronted with other episodes of infidelity when he apparently discovered his wife having sexual intimacy with another man. In addition, his mother left his father for another man and Dr Westmore thought it likely that the offender does have some personality vulnerabilities but he was unable to confirm or exclude that view because of the short period of time he had been able to make clinical contact with the offender. 53 Finally, Dr Westmore noted that the offender is currently in segregation and that, if that situation were to continue, this would make his period of incarceration a more difficult and stressful experience for him. 54 There was evidence placed before me from the MRRC indicating that the offender had been placed on a segregation order on 17 June 2006 at Parklea Correctional Centre. This suggests that the offender may have been actively seeking assistance to attempt to escape from Parklea. Mr Stewart, counsel for the offender, stated that his instructions were that no such escape had been contemplated by the offender. However, there was an appeal heard by the Serious Offenders Review Council and on 29 August 2006 the order was confirmed. The offender was received at the MRRC on 22 October 2006 and remains in segregation at the present time as a consequence of the matters I have detailed. I am led to believe that there will be a review of the segregation situation in about a month's time. Victim Impact Statements 55 During the sentencing hearing, a Victim Impact Statement written by Mrs Dickson, the mother of the deceased, was read to the Court by her brother, Mr Kerry Redman. The Court was also provided with a Victim Impact Statement by the son of the deceased, James Lochrin-Dickson. It should be understood that I have not used the contents of these statements to increase the sentence that I believe is otherwise appropriate. I certainly appreciate, however, the terrible consequences for the family of the deceased, and in particular the impact on his parents and on his two children, as a result of the loss of his life in such brutal, violent and entirely unnecessary circumstances. Those persons, indeed all the family, have the complete sympathy of the Court, I trust that the opportunity to express their feelings and emotions may go some little way in making more bearable the loss of their loved one. Objective seriousness – standard non-parole period 56 I consider that the criminality involved in the offence of murder in the present matter is at a high level. The Court needs to make it absolutely clear that in a situation where personal relationships go wrong; and one person is left by his or her partner to form a relationship with a new partner, there can be little or no sympathy extended to the rejected party who then intentionally takes a life in order to punish or eliminate his or her rival. That is essentially what happened here. In such circumstances, the Court needs to impose a sentence which is a substantial deterrence to others who might think it appropriate to behave in a similar way. Similarly, the Court needs to impose a sentence, which will denounce the actions of the offender and act as a personal deterrent to him. 57 As this is an offence to which a standard non-parole period applies, it is necessary to determine where, in the range of seriousness, the offence committed by the offender falls, taking into account those matters in s 21A of the Crimes (Sentencing Procedure) Act that affect the objective seriousness of the offence. The Crown submitted that the Court should find that it was above the mid range of seriousness although, in this regard, the Crown, in part, relied principally upon the assertion that the offender went to the home of the deceased with the specific purpose of killing him. That is, a matter I have rejected on the basis that I cannot be satisfied as to that matter beyond reasonable doubt. 58 The offence, however, is a serious example of homicide even though the intention to kill was not formed until the two men confronted one another in the house. It must be kept clearly in mind that the offender went to the home of the deceased, intending to inflict really serious physical injury upon him. The offender had disguised himself and had broken into the house of the deceased in the late evening when it would be expected the deceased was asleep in his bed. The deceased would have been completely unprepared for such an attack. He was, for example, wearing nothing beyond his underpants. It would have been difficult for him, in any event, to evade or escape from his assailant. The offender broke in through the back window. This point of entry to the house was at a remove from the bedroom of the deceased. The offender was armed with an iron bar of some kind. He clearly intended to use this to beat and injure the deceased in a substantial way. Indeed, on the findings I have made, he did strike the deceased with the iron bar on a number of occasions. When the deceased fought back, the offender cut his throat in a very brutal and terrible way. It is clear the offender intended to kill the deceased when he struck these blows with the knife. Moreover, the deceased had been asleep in his own home and had never met the offender. He had never done anything harmful towards the offender other than to reciprocate the affections shown to him by Ms Deluca. 59 The deceased must have been terrified by the situation, which confronted him in his own home on the relevant evening. It follows from the findings of fact I have made that, throughout the confrontation, the offender was at all times the instigator and assailant; and that the fight was over very quickly indeed. There was some evidence from a Mr Jackson who lived nearby. This evidence suggested a prolonged and unusual sequel of events in the deceased's house that evening. But I reject Mr Jackson's evidence as being quite unreliable. As I have said, the confrontation would have ended promptly, probably within a matter of minutes. 60 The offender had obviously carefully planned breaking into the deceased's home and he did so in the context of a plan to inflict really serious physical injury upon the deceased. It must have been apparent to the offender that the victim might fight back or try to defend himself and that is precisely the situation that the offender met in the kitchen of the deceased's home. Whether the intention to kill the deceased was formed before going to 90 Commerce Street on 13 February or whether it was formed in the house, makes little difference, in the circumstances of this case, to the level of objective criminality. 61 Moreover, the offender burnt the body of the deceased in a callous and heartless fashion. This is a circumstance which I consider aggravated the offence of murder and demonstrated the utter indifference of the offender both towards the deceased and to the crime he had committed. 62 In that regard, I do not think that the offender has shown any remorse whatsoever for the death of his victim. He treated the deceased's body with contempt and I think that his attitude towards the deceased has remained contemptuous, even to this day. He told his former wife, only a few days after the event, "The bastard deserved it". During a conversation with Jeremy Moy, the latter said to the offender "Pricks like that deserve it". Although these words were not uttered by the offender, they clearly reflected an attitude, which the offender shared with Jeremy Moy. There are other examples sprinkled throughout the evidence of the offender's complete and utter indifference to the death of deceased. The fabricated version of the deceased's alleged remarks to the offender in the kitchen do no credit to the offender at all. In addition, the fabricated comment attributed to Ms Deluca at the bus stop on the morning of 14 February 2005 – that she was more distressed about the loss of her dog than she was concerning the death of the deceased – fall into the same category. None of these matters, demonstrating an absence of remorse, apart from the burning of the body, require that the sentence to be imposed on the offender for the murder be increased. Nor do they impact adversely upon the selection of a non-parole period. But they certainly disentitle the offender to any discount for contrition or remorse. 63 Mr Stewart's essential argument, focusing as it did on the state of mind of the offender, suggested that the criminality in the offence should be mitigated. This was because, according to the defence submission, the offender believed that the deceased had acted quite dishonourably towards Ms Deluca. Her infidelity to him, as he saw it, was something about which he was especially sensitive. In those circumstances, he was, in general terms, provoked by his perception of the deceased's actions towards Ms Deluca (and hence to their impact on him). It was in that state of mind that he committed the murder. 64 I accept that the offender's actions were motivated and directed in part by his feelings of jealousy, aggression and a desire for revenge. But they were also predicated upon the proposition that he wished to win Ms Deluca back. The offender's behaviour on the morning after the killing, when he met Ms Deluca near the Old Bar Road, reflects that there was a great deal more cunning and calculation in his actions than the rather simplistic motives attributed to him by Mr Stewart. I do accept that jealousy and anger played their part. But there was also the need, when it presented itself, to get rid of his rival altogether. The elimination of the deceased opened the way, as he perceived it, for a reconciliation with Ms Deluca. 65 Dr Westmore found no psychiatric disorder operative in the offender at the time of the killing. He was not able to diagnose a personality disorder, although he suspected one may have been revealed upon further clinical examination. In my view, there was nothing in the psychiatric evidence that is relevant in the determination of the objective seriousness of the offence of murder. 66 In my opinion, the offence falls above the mid range of objective seriousness for the reasons I have indicated. It follows that a non-parole period that is several years above the standard non-parole period should apply, except so far as it might be varied by reason of any subjective factors and the presence or otherwise of special circumstances. I have, to this point, considered some of the subjective matters already. But it is necessary to give further consideration to other specific matters raised by Mr Stewart in this regard. 67 First, I do not believe that the history of sexual abuse in the offender's background, sad though it is, has anything to do with the present matter. This is especially so, since I have rejected the offender's version of the events that occurred in the house on 13 February. In particular, I have rejected any suggestion that the deceased made offensive and disgusting suggestions to the offender regarding his children or, for that matter, Ms Deluca. 68 Secondly, for the reasons I have already stated, I do not think there is any remorse or contrition in the offender regarding the death of the deceased. 69 Thirdly, the lengthy imprisonment term that must be imposed upon the offender will inevitably result in a lengthy separation between the offender and his children. This, however, is not of such consequence as to make it a matter to be taken into account. Mr Stewart next points to the fact that the offender surrendered to police. I do not, however, consider that this entitled the offender to any discount on his sentence as his capture was inevitable. Similarly, although the offender admitted that he had killed the deceased and that he had broken into the house and set the fire, I do not think that this represented any particular facilitation of the course of justice. The offender, as he was entitled to do, maintained a plea of not guilty to the murder and still maintains to this day that he was acting under provocation, and in the course of defending himself. The admissions made at trial did not relieve the Crown of proving the essential ingredients of the charge in a major number of respects. The admissions might be appropriately seen as a forensic tactical decision designed to yield a more lenient verdict than one of murder. I do not suggest that there is anything inappropriate in adopting such a course of action, quite the contrary. However, the making of the admissions does not entitle the offender to any mitigation of his sentence. 70 Finally, there is the issue of the prospect of rehabilitation in relation to both charges. I am not prepared to find that rehabilitation is beyond the offender although, it must be said, the offender has, to this point, never acknowledged or accepted responsibility for his criminality and culpability in relation to the cruel despatch of Mr Dickson. Nor has the offender shown any insight into his own actions. Rather, he has continued to blame other people for the situation in which he now finds himself. The imposition of a substantial sentence, however, will provide him with ample time to reflect upon the cruelty of the actions involved in his killing and upon the completely unnecessary death of the unfortunate Mr Dickson. This factor operates, accordingly, in the offender's favour. 71 There are no special circumstances in the present matter. An application of the statutory relationship itself will produce a lengthy period of parole supervision necessary to address those problems that the offender might face in re-establishing himself in the community after a very lengthy period in custody. There is nothing that indicates that a shorter non-parole period should be fixed than that which would flow from the statutory relationship. In my opinion, there are no special circumstances to warrant a further reduction in the non-parole period. 72 In my view, the offender should be sentenced for the murder to a term of imprisonment comprising a non-parole period of 22 years and a balance of term of seven years and four months. 73 I turn now to consider the bank robbery offence. 74 There is no need for me to repeat the facts of the bank robbery, which are set out in the early part of these reasons. This is not an offence that involves a standard non-parole period. The objective seriousness of the offence, however, may be stated as mid-range for an offence of this kind. The circumstances of the robbery were obviously quite frightening to Ms Preston and she displayed a degree of emotional fragility when giving her evidence before the Court. That is, by no means surprising since she was confronted with a man who displayed what appeared to be a hand gun to her and demanded that she hand the bank's money over to him. There was a second bank teller who was similarly confronted and I have no doubt that the experience would have been most distressing and worrying for her as well. The Courts have said, time and time again, that offences of this kind are to be regarded as objectively very serious. That is the way in which this Court should approach an assessment of the objective seriousness of the present offence. The physical execution of the robbery was, however, not remarkable for any features of particular violence or unduly threatening behaviour. There was no actual violence and the offender remained calm throughout in his dealings with the bank tellers. 75 The offender pleaded guilty to the robbery but this plea occurred only a matter of weeks before the trial. The offender is entitled to a discount for the utilitarian benefit of the plea but it must fall into the lower range. I am prepared to allow a discount of 10% in all the circumstances. I am unable to discern any evidence of remorse for the offence and I note, in relation to the aspect of rehabilitation, that the offender has a significant record in relation to previous armed robberies. One can only infer that, apart from the passage of time in the custodial environment, there is scant evidence of any prospect for future rehabilitation in relation to this type of offence. It seems that the offender has, in the past, demonstrated that, whenever it suits him, he will commit an armed robbery to obtain funds for his financial needs. Nevertheless, I cannot say that rehabilitation in this area is beyond him. 76 The Crown submitted that the two offences, murder and armed robbery, are separate acts of criminality requiring separate condign punishment. The Crown asked that the sentences be imposed consecutively, although the Crown recognised that the dictates of totality may produce the need for some degree of concurrence. 77 Mr Stewart, on the other hand, argued that the bank robbery was an offence intimately connected with the murder, being part of a continuing course of conduct which included the burning of the house, the trip to Ipswich, and the contemplation of flight. In those circumstances, Mr Stewart argued that, having regard to the principle of totality, most of the sentence for the armed robbery should be served concurrently, with a partial accumulation. 78 In my view, the appropriate exercise of sentencing discretion requires the imposition of a fixed term of imprisonment for the armed robbery. This is permitted by s 45 of the Crimes (Sentencing Procedure) Act 1999. It is particularly appropriate in the present situation where there is to be imposed a very significant sentence for the murder, containing both a lengthy non-parole period and a lengthy balance of term period. The fixed term will be the equivalent of the appropriate non-parole period of the sentence that would have been imposed had the circumstances not called for such a fixed term. The duration of the fixed term to be imposed has taken into account the discount which has been given for the utilitarian value for the plea of guilty. 79 In all the circumstances, I propose to set a fixed term of four years for the robbery offence. I will backdate it to the date when the offender was arrested namely 23 February 2005. The sentence for the murder will be partially concurrent with the fixed term sentence. It should commence on 23 February 2007 with the non-parole period for the murder offence to expire on 22 February 2029. The balance of the term will be for a further seven years and four months to expire on 22 June 2036. The offender will be eligible for parole on 22 February 2029. 80 I recommend to the prison authorities that a review be conducted of the offender's segregation order and that such a review take place at the earliest possible time permitted by prison procedures and protocols. 81 Brian James Steer, in relation to the offence of robbery, armed with an offensive weapon, I sentence you to a fixed term of imprisonment for four years. The sentence is to commence on 23 February 2005 and to expire on 22 February 2009. In relation to the offence of the murder of Warren Leslie Dickson, I sentence you to a term of imprisonment comprising a non-parole period of 22 years and the balance of term of seven years and four months. This sentence is to commence on 23 February 2007 and the non-parole period is to expire on 22 February 2029, the date upon which you will be eligible to be released to parole. The balance of the term will expire on 22 June 2036. ********** 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.