New South Wales Supreme Court CITATION : R v Bennett [2009] NSWSC 1382 HEARING DATE(S) : 2 December 2009 JUDGMENT DATE : 4 December 2009 JUDGMENT OF : R A Hulme J DECISION : Sentenced to imprisonment for 18 years with a non-parole period of 13 years 6 months. CATCHWORDS : CRIMINAL LAW - sentence - murder - multiple blows to the head with a hammer - intention to kill - early plea of guilty LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY : Sentence PARTIES : Regina Stephen Lawrence BENNETT FILE NUMBER(S) : SC 2009/8920 COUNSEL : Mr P Barnett SC (Crown) Mr G Turnbull SC (Offender) SOLICITORS : Solicitor for Public Prosecutions Campbell Paton & Taylor IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION R A Hulme J 4 December 2009 2009/8920 Regina v Stephen Lawrence BENNETT JUDGMENT 1 On 9 June 2009 in the Local Court at Orange, the offender, Stephen Lawrence BENNETT pleaded guilty to the murder of Lee Mintern at Gowan on 28 March 2008. He was committed to stand for sentence in this Court and he has adhered to his plea of guilty. He appeared before me on 2 December 2009 when I heard and received evidence and submissions on sentence. 2 The crime of murder has prescribed for it a maximum penalty of imprisonment for life (s 19A Crimes Act 1900) and a standard non-parole period of 20 years (Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999). Facts 3 Ms Mintern was 44 years old when she was killed. The cause of death was blunt force head injury. An autopsy examination revealed there was "massive skull fracturing" mainly to the right side of the head. There were a number of "punched out" well defined areas of skull fracturing on the left side, characteristic of having been caused by a hammer or similar implement. The right mastoid bone was partially traumatically separated from the base of the skull. This is said to be a heavy, rugged bone and the forensic pathologist's opinion was that it would take a large amount of force to physically separate it from the rest of the skull. It was estimated that at least six blows would have been required to cause the amount and severity of skull fracturing. 4 Ms Mintern's body was found in a shallow grave at Gowan, approximately 24 kilometres north east of the city of Orange, on 13 August 2008. She had been reported missing by her son on 2 April 2008. Initial inquiries by uniformed police found no trace of her. The investigation was passed to detectives on 10 April. Exhaustive inquiries were made but there was still no trace. 5 The last contact Ms Mintern had with anyone was on 28 March 2008. Inquiries in relation to her telephone showed that one of the last contacts it had was with a telephone used by the offender and that was at 1.39pm on 28 March 2008. 6 The offender was spoken to by police on 13 April and he made a statement. He recounted how he had met Ms Mintern about 12 months previously in connection with the Seven Seas Takeaway food shop in Glenroi Avenue, Orange that he owned jointly with his wife. He described how Ms Mintern had attended at the shop and struck up a conversation with him. He said that he thought she was, to use his term, "hitting" on him. He saw her again some three or four months later. She took to regularly attending the shop with her partner. Somehow she found out his mobile phone number and made numerous calls to him, trying to arrange to meet him. He claimed that he agreed that they could talk as friends but insisted that he would not become involved with her. He said that these calls from her would persist for two months and then there would be no contact for months. This pattern was repeated. He said she had been in contact with him in the two weeks prior to police first speaking to him (Senior Constable Little contacted him on 4 April 208) and she was talking about separating from her partner but being scared to move out. The offender told police that he did not know Ms Mintern "that well". He claimed that he did not even know her surname. 7 The police inquiries continued. Information they gathered suggested that the relationship between the offender and Ms Mintern was not as he had described. Ms Mintern had told others of meeting with the offender on a number of occasions of an evening and being driven to areas of new housing estates where the offender was working. He worked evenings in the takeaway food shop and during the day at his job with KLMR Civil Pty Limited, an earthmoving business primarily involved in the construction of housing subdivisions. 8 On 12 June 2008 Ms April Orcher made a statement to police. In that statement she said that Ms Mintern, who was her cousin, had told her about a month before she disappeared that she was "running around" with the offender. She had given Ms Orcher a handwritten note which she asked to be delivered to the offender. It read, "Steve, Please ring the Ophir [the Ophir Hotel]. There is something I need to tell you or my mobile 0413 424 839. It's very important or I will ring your wife and let her know what happened. Lee". Ms Orcher had not delivered the note. She gave it to police. 9 Police became aware that the offender regularly travelled through the area of Gowan and Freemantle east of Orange. On 10 July a tracking device was installed in his work vehicle and the following day a warrant was granted for the interception of his mobile phone service. The tracking device revealed that the offender travelled to a particular area at Gowan. By noting the GPS coordinates the police were able to identify a precise location that he attended on a number of occasions. Officers attended that location on 5 August and found a large mound of dirt and rocks about 1.5 by 3 metres in dimension. The mound was covered with lengths of timber, a tyre, broken bricks and stones, as well as dirt which was different from the local environment. 10 Meanwhile, the offender had become aware of the police interest in him. On 2 August a person known as "Trap" rang the offender and told him that two detectives had made inquiries in relation to the offender in connection with a missing person, wanting to know what the offender was doing "on the twenty-eighth or somethin'". On 12 August a person identified as "Mr Fardell" contacted the offender and told him that three detectives were making inquiries about him. The offender told him it was in relation to a missing person and he may have been the last person to see her. The caller asked who the person was and the offender replied, "Oh, some bloody girl ... She used to ... come to the shop... she was sort of harrassin' me for a while, and that's what started all the shit I think". He then described her as a, "Fuckin' bitch of a thing". 11 A search warrant was obtained and on 13 August police returned to the location at Gowan with a cadaver dog. At 8.52am that day there was a telephone conversation between the offender and his wife, Ms Vicki Bennett, in which she related to him the news she had heard on the radio that police were starting to search for Lee Mintern that day at 8.00am. One of the first things the offender said was "Search for her where?". She did not know but they both went on to say that they hoped that the police found her. 12 It became almost immediately apparent to the police that the mound they had discovered concealed a grave. Late that afternoon as the scene examination was being called off due to fading light the offender was seen to travel towards the area at high speed. Police secreted themselves and observed the offender to drive past, turn around, and then drive back in the opposite direction. 13 The following morning, 14 August 2008, police issued a media release in relation to the discovery of human remains. At 7.35am the offender called in sick from work. The tracking device then indicated to police that he had left Orange and was driving towards Sydney. A number of phone calls between the offender and his wife were monitored. They include discussion of the possibility that the police would come around to the home looking for him, there having been news that the police had found "her body". He stated that he had been to the location "heaps of times" and that he would get the blame for it. His wife endeavoured to reassure him that he had done nothing wrong, that he had an alibi for the entire day in question, and that he should come home and tell the police that he had done nothing wrong. He indicated a reluctance to come home because he was concerned about going to gaol but she continued trying to reassure him. 14 The offender was arrested at Medlow Bath at around 2.00pm that day. He had been heading towards Sydney but had turned around and was travelling west when he was arrested. He was taken to Katoomba police station. He agreed to be interviewed. The interview lasted almost two hours. The account the offender gave was to this effect. 15 He first met Ms Mintern on an occasion when he was at the Ophir Hotel with his wife. They were sitting together playing poker machines. When his wife went to the toilet, Ms Mintern "just started nudgin' me and tryin' to hit on me" (Q .219). This was about 12 months ago (Q. 223). The next occasion was when he was sitting out the front of the takeaway shop and Ms Mintern came and sat next to him and harassed him. He had to ring his wife to come and intervene (Q. 219). He described a continuing pattern of constant contact from Ms Mintern for months, no contact for a while, and then renewed contact. He painted a picture of persistent harassment. He spoke of receiving calls from her in the early hours of the morning (Q. 272). She also saw him at the takeaway shop. He tried to tell her to stay away, he was married and wanted nothing to do with her (Q. 229). He said "it was always sexual" (Q. 231). "It was just harassment all the time, wouldn't leave me alone" (Q. 232). Ms Mintern got his mobile phone number and he did not know how (Q. 235, 256, 263). 16 Up to this point in the interview the offender had painted a picture of unwelcome contact with sexual overtones from Ms Mintern. He was then asked, "Did you have a sexual relationship with Leeanne Mintern?" (Q.279). He replied, "Sort of, not, once if you can call, oh, twice, sorry if you call that a sexual relationship". He then described two occasions of sexual activity some months before 28 March 2008 (Q. 280 – Q. 290). Later in the interview, when speaking about the first occasion when there had been oral sex, he said they had driven to a location and that she had then asked to go somewhere quieter, "'cause she wanted to do somethin', I suppose". He said, "I wasn't that interested at the time but got to, to shut her up" (Q.697 – Q. 699). The second occasion was at the Wentworth Estate, a subdivision he was working at. He said he did not go there for the purpose of having sex, "I was just showin' her what we were doin'. She asked me to take her to show her what I do, so I did" (Q. 716 – Q. 717). 17 The offender said that his wife was not impressed about the contact between he and Ms Mintern, although she did not know about the sex. He was asked if he had concerns about her finding out and he said he did. He added, however, that he was not concerned enough "to do all this ... it was never in me mind to hurt her because I thought she might go and tell me wife" (Q. 705 – Q. 708). A little later he said that he was not worried about his wife finding out because Ms Mintern was always drunk, his wife would understand, and he could probably lie his way through it (Q. 736). His wife would believe him rather than her (Q. 739). Ms Mintern had spoken of telling someone about what was going on but he "tried to get it through her head" that nothing was going on, there was not going to be a relationship and he was not going to leave his wife (Q. 740 – Q. 741). 18 He said that in the six or seven weeks leading up to her death he did not have any sexual relationship with her (Q. 303), although he saw her "probably two or three times" (Q. 303 – Q. 308). On the day of her death she contacted him first, in the morning, and was harassing him (Q. 310). She was trying to see him and he kept on saying "No" but in the end he gave in (Q. 311). It got too much for him so he agreed to meet her in his lunch break (Q. 313). That morning he spoke to her by phone "two, three or four times", he had no idea (Q. 314). This was her telephoning him (Q. 315). He was asked if he had called her back and he said, "Oh, I would of probably, yeah, I think so" (Q. 316). 19 They arranged for him to pick her up at the Information Centre in Byng Street (Q. 318). He had told her it would be half an hour before he could get there (Q. 320). He was just sick of it but that he would see what she wanted, what she kept going on about, "Tryin', I just want an end to it, I just wanted to end it, finish it" (Q. 321). He wanted her to understand that he wanted nothing to do with her (Q. 322). In interpolate here that if this is what he truly wanted he could easily have simply refused to come and meet her. 20 The interviewing officers then disclosed that they had phone records which indicated that on the night of 27 March his phone attempted to make contact with Ms Mintern's phone "quite a number" of times (Q. 357 – Q. 359). In fact, there were 12 unsuccessful attempts to call Ms Mintern that evening in a period of 1 hour 25 minutes. The offender could provide no explanation, suggesting that perhaps his wife had got hold of his phone and was trying to "find out who it is" (Q. 361 – Q. 363). He rejected the suggestion that this indicated someone who was "pretty keen to get in contact with her" because he was "tryin' to end things off, not get keen with her. I didn't want anything to do with her". (Q. 364 – Q. 365). He then suggested another explanation for these unsuccessful attempts – perhaps she had called and left a message, or he had spoken to her and then tried to ring her back. Perhaps if she was at home and her husband or boyfriend was there she would not answer the phone (Q. 367). 21 The police then told the offender that the records indicated that some two hours before these unsuccessful attempts were made to call Ms Mintern there had been a 227 second call from his phone to hers. He had no idea what that call was about (Q. 369 – Q. 371). 22 He was then asked about the Friday, 28 March. He had picked her up at lunchtime and driven out to the property where the body had been found. He estimated it was 25 or 26 kilometres out of town and the drive would have taken about 20 minutes (Q. 375 – Q. 377). He said they did not talk about much during the drive because she was "off her face, she was drunk and she was virtually just arguing". It was like before, she wanted him to leave his partner and go away with him (Q. 378). He was asked why he had driven to that location and he said he had no idea, "we started drivin' out the road just kept on drivin'. ... I know all that country out there anyway, so, so just drove out that way. ... She said just keep on goin' straight so I just kept on goin' straight" (Q. 383). He stopped where he did because he had had enough, it was getting too far, he had to get back to work. He was only supposed to have 20 minutes for lunch (Q. 384). 23 He then described what had happened after he stopped the car. "I was, well, she was talkin' for a little while and again she give a head job and then she asked, started arguin' 'cause she straight away said, please leave your wife and whatever and come or do, I said, no, and that's when she started" (Q. 387). A little later he said that after they arrived at the location there was conversation – "Same as always, leave your wife and come, get, we'll move away, go away" (Q. 455). Then, "she's said, at least you can satisfy me or somethin', I said, oh, no, then she come around, that's when she started. 'Cause I said I wanted to go home, I wanted to go back. It was always the same with her, always" (Q. 457). He had earlier given a detailed account but there was no mention in that account of any sexual activity (Q. 43 – Q. 128). 24 He claimed that they had been arguing when he was sitting in the driver's seat of the utility and she was standing at the driver's door. According to him she then went to the rear of the vehicle, obtained a hammer and proceeded to the passenger's side. She partially entered through the passenger's door and swung the hammer at him. She did not make contact and the hammer fell at his feet (Q. 56 – Q. 81; Q. 391 – Q. 400). 25 Later in the interview, when retelling what occurred after the claimed act of oral sex he said, "Yeah, 'cause I just, as soon as she finished I said, I've had enough, I want to go, I've had enough of this shit. And that's when she got the shits big time, she just snaps, she's just, she's got a shockin' temper" (Q. 470. Also Q. 775) 26 He said that after the failed attempt to strike him he reacted straight away, "'cause I just had enough of it" (Q. 69 – Q. 70). He said, "I just, just lost me cool big time" (Q. 401. Also, Q. 74). "I was as cranky as" (Q. 405). "Oh, I was bloody cranky 'cause she swung it at me, could of hit me in the head and bloody, anything, I would of done to her but" (Q. 406). Later he said, "Well, I just seen red, I dunno, I just lost it, I just cranky as 'cause she had the hide to swing at me" (Q. 778). 27 He picked up the hammer and went around to the passenger side of the utility where he "hit her on the head straight away" (Q. 410). That blow either knocked her out or killed her (Q. 415). Earlier he had said, "I don't know if I killed her straight away or not, I dunno" (Q. 89). She fell to the ground and did not move (Q. 416 – Q. 418; Q.784 – Q.785). He then kept on hitting her while she was stationary on the ground (Q. 420 – Q. 423). He was asked how many times he hit her after she hit the ground and he said, "Probably another two times or three times, I dunno, I just, it just happened that quick, it was just ... I was that cranky, you got no idea, I was shakin' and it just happened, just, just a blur" (Q. 427 – Q. 428. See also Q. 98). Later he said that the second blow was "virtually straight away, I was just cranky, cranky as, lost a cool completely" (Q. 789). The third blow was "virtually same time, all the time nearly" (Q. 791). 28 I reiterate at this point that the forensic pathologist said that there would have been at least six blows. 29 The offender continued, "She, was, like, she was dead, she wasn't, she was not, I wasn't doin' it 'cause she was still breathin'. She was actually, there was no, first blow it was virtually, there was no, 'cause I didn't no [sic – know?], 'cause I kept on hittin', hittin', about three or four times or whatever it was. Then I stopped then she wasn't moving, she wasn't, but she wasn't movin' when she first hit the ground she just, there was no noise, nothing and it was just instant straight away" (Q. 793). 30 He was then asked, "And what, what point did you realise you', that she'd ..." and he interrupted to answer, "Well, too late then she was dead after I hit her and done it all" (Q. 795). 31 He then dragged her by the feet a short distance away from the utility, dug a shallow grave and buried her (Q. 69; Q. 102 – Q. 105; Q. 432; Q. 446 – Q. 449). 32 The interviewers took the offender back to his claim of having had a sexual relationship with Ms Mintern and having engaged in sexual activity twice with her prior to the day of her death. He remained insistent that there were only those two occasions. He was then asked about the statement of a witness who said that he had picked Ms Mintern up from her house on occasions. He agreed that he had, on two occasions, but denied that these were occasions when they had engaged in sexual activity (Q. 506 – Q. 509). 33 At various stages of the interview he agreed that he had subsequently visited the gravesite on a number of occasions. Once was the day after when he took a trailer load of soil to put on top of the grave. On subsequent occasions it was for the purpose of ensuring that there was no interference with the grave by feral animals. He had become aware of the police search for the body and he went for a drive to see if the police knew what they were looking for (Q. 667 – Q. 682). Rejection of offender's version 34 In assessing the credibility of the offender's version of events there are a number of matters which must be borne in mind. First, the confession came after a time when the offender knew that the police were closing in on him. He must have been aware that it was likely he would be asked for his version and so he had time to think about what he might say. Secondly, the version he gave was not on oath and it was given in circumstances in which he could not be tested in the way he might have been if he gave evidence in court and was cross-examined. Thirdly, it is appropriate to have regard to independent evidence and assess the degree to which it confirms or conflicts with the version that he gave. Fourthly, it is appropriate to assess the version itself and to consider whether it is logical and rational. 35 There are features of the offender's account of the relationship that he had with Ms Mintern that I do not accept. He claimed that he was reluctant to engage with her. However, there is no satisfactory explanation as to how she obtained his mobile phone number. His explanation of receiving calls from an unidentified number and ringing that caller back do not ring true (Q. 272). The frequency of telephone contact with her, and in particular calls made by him to her, is inconsistent with his claimed frustration at her harassment of him. The fact that he would take her for a drive in his car on at least five occasions, including to show her where he worked, is also inconsistent with that claim. 36 There were a number of calls made from his phone to her phone between 12 and 28 March 2008. There were 38 calls between their two phones on 27 and 28 March 2008. The 12 attempts to call her in a relatively short period of time on the evening of 27 March are not satisfactorily explained. I agree with the description of the interviewing police officer that this indicated a concerted effort by him to make contact with her. This is particularly so having regard to the fact that they had a 227 second conversation only 2 hours earlier, that call having been initiated by the offender. 37 I am not persuaded that the offender found contact with Ms Mintern as unwelcome as he would have it. It is more likely true that he was willingly involved in some type of relationship with her that included sexual activity. 38 There are features of the offender's account of the circumstances surrounding Ms Mintern's death which I do not accept. He claimed that his actions in killing Ms Mintern were in response to an attack made upon him with a hammer. He claimed that the killing was entirely spontaneous and not premeditated. However, his account of the circumstances of their meeting that day are difficult to accept. He claims that he did not want to meet her and that he was only permitted 20 minutes for a lunch break. There was a call made by her to him at 1.36pm. He then rang her back 3 minutes later and a conversation for 2 minutes 40 seconds ensued. Then, after ringing his wife, he left his work place and drove into central Orange where he picked up Ms Mintern and drove her 24 kms out of town. He claimed that the sexual activity that then took place was spontaneous and initiated by Ms Mintern. That he would quite randomly drive so far out of town and stop in a remote location, in a position that was obscured from passing traffic, is rather incredulous. 39 The rear of the utility vehicle had an enclosed canopy (Q. 340 – Q. 341). The offender's account is that Ms Mintern left the driver's door area, went to the rear, opened it up and retrieved a hammer for the purpose of attacking him. Then, rather than returning to the driver's door area, she proceeded to the passenger side and attacked him while he was sitting in the driver's seat and as she was entering the passenger seat. I do not find this at all logical. 40 The offender was interviewed by Dr Stephen Allnutt, forensic psychiatrist, on 4 October 2009. He gave the doctor an account which included features not present in the account given to the police. They included that after Ms Mintern had swung the hammer at him and missed, he thought "that she would kill him" and that "he was not sure what she was going to do next". He told Dr Allnutt that he then held the hammer in his hand and walked around to the other side of the utility "partly to find out what she had done". He also claimed that Ms Mintern had a bag at her feet and "he was not sure if she had something else like a gun or a knife in the bag". Then, as he was hitting her with the hammer, "he thinks he was scared that she was going to get back up". He did not tell the police about any of these thoughts. What he told the police was that as soon as she had swung the hammer at him he just "lost it". The police had asked him what he was thinking while he was hitting her and he said, "Oh, I don't know, I still dunno, why, or how I done it. I dunno, wish I didn't, bloody hell, dunno" (Q. 794). 41 The only account I have of the circumstances of the killing is what the offender said to the police and to Dr Allnutt. He did not give evidence before me. Mr Turnbull SC submitted that I should accept the offender's account in the interview because it is corroborated wherever corroboration is possible. I am not satisfied of that. Indeed, it is more the case that where independent evidence is available it conflicts with what the offender has said. I do not accept the offender's version as a reliable one. 42 I do accept that he killed Ms Mintern by striking her a number of times to the head with a hammer. The forensic pathologist's evidence confirms that. I am doubtful that it was in response to an attack made upon him by Ms Mintern. The offender has been persistent in claiming that it was and for that reason the possibility cannot be dismissed completely. However I am not persuaded that it is more probable than not. 43 Rejecting the offender's version as to these matters means I have no basis to draw any reliable conclusion as to why the offender acted as he did. He claims to have suddenly lost control but I am not persuaded that this is more probable than not. One could speculate about possibilities such as a motive to ensure that a sexual relationship with Ms Mintern was not disclosed to others, including the offender's wife. I do not accept that he was relatively unperturbed at that prospect as he claimed in the interview. He had lost two previous wives because of his infidelity. One could speculate that the killing was premeditated with this motive in mind. However, any findings that I make that are adverse to the offender must be made to the criminal standard of proof, beyond reasonable doubt. The evidence is insufficient for me to make such findings to that standard. I am left with the bare fact that the offender killed Ms Mintern by inflicting at least six heavy blows to the head with a hammer for reasons that have not been satisfactorily established. I cannot be satisfied beyond reasonable doubt that the killing was planned. 44 Mr Turnbull submitted that it was a reasonable possibility that the first blow caused death, and that this blow was accompanied by an intention to cause grievous bodily harm rather than an intention to kill. As a consequence, so it was submitted, I could not be satisfied beyond reasonable doubt that the act causing death was accompanied by an intention to kill. However, the cause of death was blunt force head injury. There was massive skull fracturing which was inflicted by at least six heavy blows with a hammer delivered in rapid succession. I am satisfied beyond reasonable doubt that the delivery of those blows was accompanied by an intention to kill. Indeed, striking a person with multiple heavy blows to the head with a hammer bespeaks of no other intention. Objective seriousness of the offence 45 It is necessary to make a determination as to where in the range of objective seriousness for an offence of murder this particular case falls. All murders are regarded as extremely serious but the circumstances in which murder can be committed are widely variable. For the worst examples there is the maximum penalty of imprisonment for life. It has not been contended that this case is in the worst category. 46 The Crown Prosecutor submitted that I should find that the objective seriousness of the offence fell "at the bottom of the middle range". Mr Turnbull, on the other hand, submitted that it fell below the middle of the range. I am satisfied that the offence is in the middle of the range of objective seriousness, albeit it at the lower extremity. It involved the brutal slaying of a defenceless woman in a remote location in a ferocious attack using a hammer as a weapon. It was accompanied, as I have found, not by an intention to cause serious bodily injury but by an intention to kill. I am not satisfied that it was a premeditated killing. If it was, the offence would be at the upper end of the midrange, or perhaps beyond. Subjective features 47 The offender was born on 18 August 1960 and so he was aged 47 at the time of the offence and is 49 now. 48 He has a criminal history which commenced in the Children's Court when he was aged 15. There are a variety of convictions for relatively minor offences as an adult, most notably two counts of assault at the age of 27 and a further assault in 2007 when he was aged 47. For the latter offence he was placed on a s 9 bond to be of good behaviour for a period of 12 months from 22 November 2007. That bond was, of course, current at the time of the present offence. Apart from that, the record is not of much significance. At most it denies to the offender any claim of leniency that might be justified in the case of a person with no record. 49 As the offender has not given evidence the only sources of information I have as to his personal circumstances are the report by Dr Allnutt, a number of testimonials tendered on his behalf, and the oral evidence given by his sister, Ms Susan Bennett. 50 He was born in Bathurst, the eldest of three children. There does not appear to have been any negative issues in his family environment. He left St Stanislaus' College upon being expelled in Year 10 at the age of 15. He was subjected to sexual abuse in the form of indecent touching by a priest in charge of his dormitory when he was in Year 9 or 10. 51 He has consistently been in employment, at times running his own business, being the takeaway food shop I have referred to earlier. He is described as having a good work ethic. 52 He has been married four times. The first marriage broke down when he became depressed over the death of his father with whom he was close. The second and third marriages broke down because of his infidelity. He claimed to Dr Allnutt that he might have a sex addiction. He estimated that he had had about 300 to 400 sexual partners. 53 Dr Allnutt's report includes that the offender became stressed in the period between the offence and his arrest. He claimed to have been relieved when he was finally arrested because he felt "so guilty and bad" and that "it was a weight off (his) shoulders". He also claimed to have "felt sorry for the victim's family because he knew they were stressed out". He told Dr Allnutt that "if I could change it I would a million times over", "the victim's family are feeling bad", "she had some children", and "they lost their mum". Later in his report the doctor said that the offender described feeling remorse for the deceased and her family as well as his family. 54 The offender has been in protective custody, apparently out of fear of retribution from family or friends of the deceased. He told Dr Allnutt that he had been moved seven times in the past year with the longest he had been in any one gaol being at Parklea for seven months. He claimed to have spent about five to six hours a day outside of his cell, depending upon the gaol. He found being in protection "hard" and he felt uncomfortable with some of his fellow inmates because of the nature of their crimes, for example, paedophilia. Being in protection also meant that he was unable to do any work, although I note that elsewhere in Dr Allnutt's report it is said that the offender had worked as a sweeper at Parklea early this year. 55 He told Dr Allnutt that he thought he might have suffered a stroke when he was at Parklea about six or seven months ago and he described some symptoms. At the conclusion of the interview Dr Allnutt spoke to Justice Health nursing staff and asked them to look into the matter. There was no further evidence on this topic tendered at the sentence hearing. 56 There are no issues with drugs, alcohol or gambling. He did have a problem with alcohol between the ages of 17 and 23 but then substantially reduced his intake. 57 He has back problems, with a collapsed vertebrae in his back. He is taking anti-depressant medication. Dr Allnutt said the offender had symptoms suggestive of a mild depressive disorder. There is no suggestion that this was in existence prior to going into custody. Dr Allnutt said that protective custody would probably act as an ongoing stressor. 58 The report concludes with recommendations that the offender would benefit from ongoing psychiatric assessment and treatment, psychological counselling, an urgent assessment by a neurologist and a medical examination to rule out a vulnerability to transient strokes, and that he would benefit from neuropsychological testing to examine whether or not his complaints of worsening memory relate to a cognitive impairment. 59 Eleven testimonials from family, friends and work colleagues were tendered. There is one from the offender's wife in which she expresses continuing support, although there is other evidence to the effect that the relationship is not what it used to be. The others attest to the offender's various good qualities, describing him as a diligent, hard and skilful worker, reliable, generous with his time and energy, honest, trustworthy, loyal, punctual and respected. There is disbelief expressed at the offender's actions and expressions of belief that his conduct was out of character. There are also expressions of a perception that he is remorseful. None actually convey what the offender said to support that conclusion and it is apparent that some of the authors have simply assumed that he would be remorseful because of what they otherwise know about his character. 60 Ms Susan Bennett, the offender's sister, gave evidence. She related how she had visited him in a variety of gaols accompanied by her mother and brother who, she said, were also present in court. She gave evidence of an incident that occurred at Bathurst gaol on 18 October last when threats were made to the offender by another inmate. She said that he had already been fearful of retribution from family or friends of Ms Mintern but this incident heightened his fear. She said that he had said that he intended to remain in protective custody. 61 Ms Bennett also gave evidence that she thought the offence was "totally out of character". She said that he had expressed regret and that he was very remorseful and ashamed for what he had done. The Crown Prosecutor pressed her to relate what he had said that supported these conclusions and she experienced some difficulty in articulating an adequate response. Ms Bennett also gave evidence that the offender's appearance had changed since he went into custody in that he had lost weight and that he did not appear as healthy. I should add that he did not look underweight standing in the dock although it might have been difficult to gauge as he was wearing a suit. Findings as to subjective matters 62 There has been much said in the evidence on the topic of remorse by people other than the offender himself. Without having heard from him I have no way of being able to judge whether he is sincere in what he has said. I do not even know exactly what he has said. It was submitted that his confession to police and plea of guilty were indicative of remorse. I rather think that by the time of his arrest the offender realised that the police were closing in on him. He had been aware for some days that they were making inquiries about him and when he heard that the body had been discovered his first instinct was to take flight. He realised the futility of that and was on his way back to Orange when he was arrested. It seems probable that his confession came out of an acceptance of the inevitability that his guilt was known. The same can be said about his plea of guilty. If there was some validity in the submission that was made then it was open to the offender to give evidence and persuade me of it. As it is, I am not satisfied that the requirements of s 21A(3)(i)(ii) have been met in order for me to make a finding of remorse in his favour. I am satisfied that he has accepted responsibility for his actions and that he has regrets and is sorry. I am not satisfied that he has sincerely acknowledge the loss that he has caused. 63 I am satisfied that the offender has been, in the main, a person of good character. A qualification to this finding is his criminal history and his admissions of infidelity in his various marriages but aside from those matters he should have the benefit of that finding. 64 Another issue to consider is whether he has good prospects of rehabilitation and is unlikely to re-offend. I am not prepared to make those findings in his favour because I do not have a satisfactory explanation for his extremely violent conduct that brought about Ms Mintern's death. Even if one were to accept his version, there is no adequate explanation for such a violent loss of self control. Dr Allnutt offers no opinion on it. Certainly the offender has not behaved in this fashion before, but I am not in a position to say it could not happen again if he is faced with similar circumstances. 65 A submission was made that the offender's age was a relevant matter to take into account in mitigation of sentence. He is now 49. He will be in his 60's when is becomes eligible for release on parole. The age of an offender is always a relevant matter to be taken into account but the degree to which it is significant varies from case to case. It cannot be a factor that can produce a sentence that does not appropriately reflect the objective gravity of the offence. I bear in mind that the offender will be in custody for what would otherwise have been the best part of the balance of his working life. However, given that the crime for which he is to be sentenced involved the taking of the life of another human being, it is not a matter of any great significance in all of the circumstances of this case. 66 The evidence is incomplete on the topic of the offender being in protective custody. One thing to note is that his experience whilst on remand might not necessarily be the same throughout the time he is to serve his sentence. He has experienced gaols in which he has been allowed out of his cell for five to six hours a day as Dr Allnutt noted, and has had at least one experience of being able to work. Mr Turnbull informed me that at Bathurst gaol he has been confined to his cell for 23 hours a day. His classification has varied from Special Management Area Placements, to Limited Association to Non Association and this has depended upon the gaol he has been in. In some situations he has been kept away from a certain category of inmates but is free to associate with other protected inmates and, at the other extreme, he has been isolated from all other inmates. There is no evidence to enable me to predict what he will experience once he has been classified following sentencing. The best I can do is to factor into my assessment of the sentence the notion that he is likely to experience some limitations over and above those experienced by the general gaol population for a good part, if not the whole, of his sentence. Other sentencing considerations 67 I indicated at the outset of these remarks that the offender pleaded guilty in the Local Court. It was submitted on behalf of the offender, and conceded by the Crown, that this warrants a discount on the sentence I impose of 25 percent to reflect the utilitarian benefit to the criminal justice system. Whilst to some that might seem to be an inordinate reduction in sentence, it reflects the sentencing law and practice in this State and I see nothing in the circumstances of this case that would justify departure from it. 68 I also indicated earlier that a standard non-parole period of 20 years applies to the offence of murder. It is intended for an offence in the middle of the range of objective seriousness where there is a conviction after trial. Here, of course, the offender has pleaded guilty and so I am not going to impose the standard non-parole period. The authorities require, however, that it be kept in mind as a guidepost in the assessment of the appropriate sentence. 69 The offender was on a bond at the time of the offence. Committing an offence whilst in the community under a form of conditional liberty is an aggravating feature that I am required to take into account. 70 Of the various purposes of sentencing listed in s 3A Crimes (Sentencing Procedure) Act 1999, considerations of general deterrence, denunciation and making the offender accountable for his actions, as well as recognizing the harm that he has caused require particular attention in the assessment of sentence in this case. 71 The offender has been in custody since his arrest on 14 August 2008 and so his sentence should be back-dated to then. Victim impact statement 72 Ms Julie Smith, sister of the deceased, bravely read a victim impact statement to the Court. I wish to thank her for sharing with me and everyone else who was present the many ways in which the untimely loss of Ms Mintern's life has deeply affected a wide circle of family and friends. I acknowledge their grief and loss and I repeat that they have the condolences of myself and the Court. Sentence 73 Convicted. Sentenced to imprisonment comprising a non-parole period of 13 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence will date from 14 August 2008. The offender will be eligible for release on parole upon the expiration of the non-parole period on 13 February 2022. That is a total sentence of 18 years. Without the plea of guilty the sentence would have been one of 24 years. ********** 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.