Supreme Court New South Wales Medium Neutral Citation: R v Smith (No 4) [2011] NSWSC 1082 Hearing dates: 17 August 2011 Decision date: 16 September 2011 Jurisdiction: Common Law - Criminal Before: BUDDIN J Decision: For the murder of Russell Lyons, the offender is sentenced to a non-parole period of 12 years with a total term of imprisonment of 18 years to date from 30 April 2010. The total term will expire on 29 April 2028 and the offender will be eligible for release on parole on 29 April 2022. Catchwords: Criminal law - Sentencing - murder - offence committed during course of robbery in circumstances of aggravation - "stale" offence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: MAH v R [2006] NSWCCA 226 R v Armstrong [2010] NSWSC 800 R v Blanco (1999) 106 A Crim R 303 R v FD & JD (2006) 160 A Crim R 392 R v Hathaway [2005] NSWCCA 368 R v Isaacs (1997) 41 NSWLR 374 R v Jacobs; R v Mehajer (2004) 151 A Crim R 452 R v Previtera (1997) 94 A Crim R 76 R v Shorten [2005] NSWCCA 106 R v Simpson (2001) 53 NSWLR 704 Category: Sentence Parties: Regina Darren Paul Smith Representation: Counsel: C Everson (Crown) D Yehia SC (Offender) Solicitorsl: S Kavanagh (Solicitor) Director of Public Prosecutions Legal Aid Commission of NSW File Number(s): 2009/50517 Judgment 1Darren Paul Smith (the offender) stands for sentence following his conviction by a jury of the murder of Russell Lyons at Fairfield on 3 June 1995. The maximum penalty for the offence is life imprisonment. As the offence was committed before the legislation which provides for the fixing of standard non-parole periods was introduced, it follows that no standard non-parole period is applicable in this case. 2It now falls to me to determine the factual basis upon which the offender should be sentenced. In doing so I must proceed in accordance with the principles enunciated in R v Isaacs (1997) 41 NSWLR 374 at 377 - 8. My task in this regard is made considerably easier because the areas in relation to which the parties are in dispute fall into a narrow compass. 3The deceased's body was located in a carpark at the end of a laneway which runs off Smart Street in Fairfield at about 8.40 am on 3 June 1995. According to Dr Peter Ellis, who conducted the post-mortem, his death was caused by head injuries with alcohol toxicity also said to have been a contributing factor. Indeed the deceased had a blood alcohol reading of 0.287. When his body was discovered, the deceased was fully clothed but his wallet and shoes were missing. Despite a lengthy police investigation, it was not until 7 June 2009 that the offender was arrested. Indeed, he only came to the attention of investigating police when a DNA profile matching his profile connected him to the crime scene. His DNA profile was not entered onto the national database until 2008 following his apprehension in Queensland in relation to an offence of stealing a bicycle. Following analysis, a match was made between the offender's profile and DNA material that was located inside each shoe of a pair of Adidas running shoes. The shoes themselves were located on 5 June 1995, a short distance from where the deceased's body was found. Also found on the shoes was blood which matched the deceased's DNA profile. A DNA profile matching that of the offender was also located in the area of the rear right pocket of the jeans which the deceased was wearing when his body was discovered. The Crown case, which the jury clearly accepted, was that the offender killed the deceased whilst he was in the process of robbing him of his wallet. It is common ground that it is implicit in the jury's verdict that the Adidas shoes had been worn by the offender but had then been discarded by him when he realised that the deceased's blood had found its way onto them during the course of the fatal attack. It is quite possible that the offender then placed the deceased's shoes on his own feet when he left the scene. 4The narrative of events however commenced several hours prior to the discovery of the deceased's body. At about 3.30 am an attempt had been made to steal the deceased's wallet during an altercation which occurred on The Crescent, Fairfield. That incident was witnessed by the deceased's friends and drinking companions, John Byrne and Ian Cross. Their evidence was to the effect that they had been out drinking in the company of the deceased at various establishments that evening and that they were making their way home at the time that the incident occurred. It is apparent that each of them was, by that stage, extremely intoxicated. Each of them gave evidence that the deceased had crossed the street when they heard him call out words to the effect of "he's got my wallet". The effect of their evidence is that they then ran across the road in order to assist the deceased. They described his assailant as being an Australian with a goatee beard. It is common ground that the jury must have concluded that that person was the offender. I will proceed upon that basis. Their evidence also establishes that the deceased retrieved his wallet which had fallen to the ground. Shortly thereafter three males, described as being of Islander appearance, joined in the altercation. In due course the deceased ran from the scene of the altercation and turned into Smart Street. He then ended up in the carpark to which I referred earlier. The jury clearly accepted that it was at that location that the deceased received the fatal injury or injuries, having been pursued there by the offender. 5However, the evidence is silent as to precisely what occurred to the deceased between the point in time after he turned into Smart Street following the altercation on The Crescent which, as I have said, was at about 3.30 am and the discovery of his body some 5 hours later. That being so, it will now be necessary to refer to the conflict in the evidence between John Byrne and Ian Cross as to what occurred once the three Islander men involved themselves in the altercation. Ian Cross gave evidence that the three Islander men became engaged in an argument with the group which consisted of himself, the deceased and John Byrne. This was after one of the Islander men, whom he identified as having dreadlocks, had struck the offender. That had apparently occurred after the Islander man had been informed that the offender had attempted to steal the deceased's wallet. In response, the offender had said that in fact he was the victim of a theft at the hands of the deceased, an exchange that prompted the Islander man to then strike the deceased. Ian Cross gave evidence that he saw that man strike the deceased twice. He observed that those blows caused the deceased to bleed. The next thing that he observed of the deceased was that he had moved some distance away to the intersection of The Crescent and Smart Street. He said that at that location he had seen the same Islander man "belting into" the deceased. The effect of his evidence was that the deceased had been struck by the man, in all, on four occasions. In re-examination he said that he thought that the blows were struck to the deceased's face and that he was bleeding from the mouth in the way one does after sustaining a cut lip. 6John Byrne, on the other hand, gave evidence that the Islander man merely kicked the deceased in the leg. He also said that he saw the offender turn around the same corner (which was clearly a reference to Smart Street) that he had seen the deceased go around. The distance between them, he estimated, was "probably 20, 30 metres". Clearly enough, the blow which he observed the deceased receive could not have been fatal. 7The Crown submitted, on this aspect of the matter, that the evidence of John Byrne should be preferred to that given by Ian Cross. I would not be prepared to accept the evidence of John Byrne on any issue that was not otherwise corroborated. That is because of the astonishing amount of alcohol which he admitted having consumed, over an extended period of time, in the lead-up to the events about which he gave evidence. Moreover, his perception of events, and his capacity to recall them, must also have been affected by the fact that, as he said in his evidence, he had also been assaulted by one of the Islander men. That said, the fact that Ian Cross, by his own admission was also significantly intoxicated at the time, must also have affected his reliability. Nevertheless, he had been drinking for about 8 hours less than John Byrne. I am prepared to accept his evidence that he observed the Islander male strike the deceased about the face. Indeed, there is a measure of support for his version of events in the observations of two other persons, Alan Jones and Constable Black, who each gave evidence of having seen a person (whom it can be inferred was the deceased) go to the ground in that general area at about that stage of the night. I am unable, however, to determine the precise number of blows that were inflicted, or indeed the extent of any injuries that may have been occasioned to the deceased at that time beyond the fact that whatever occurred caused him to bleed. The consequence of that finding is that I accept that at least some of the injuries which the deceased sustained and which were apparent when his body was discovered, were not caused by the offender. On the other hand, the jury's verdict clearly establishes that, regardless of how many blows were administered to the deceased on The Crescent by the Islander male, that man did not cause his death. 8Dr Ellis created a number of diagrams which revealed the nature and extent of the deceased's injuries. It is readily apparent that the accused sustained a number of abrasions to his body and to the area of his head and face. The fatal injury however was a large subdural haematoma which he sustained to the back of his skull. Detective Flippence gave evidence that there were blood spatter patterns on the ground in front of where the deceased was lying as well as on a nearby wall. That evidence lent support to the proposition that the event that had caused those patterns had occurred in that vicinity and, in turn, to the related proposition that the fatal injury or injuries were occasioned to him in the area in which his body was located. Moreover, the fact that no trail of blood was found leading from The Crescent to where the deceased's body was located lends further credence to that conclusion. It is also clear that the extensive injuries which the deceased sustained were not capable of being completely explained by the kind of attack which Ian Cross described as having been inflicted upon him. 9The Crown case, being entirely circumstantial in nature, depended upon the drawing of inferences. The Crown relied upon a number of pockets of evidence, the centrepiece of which was the DNA evidence to which I have already referred. It was given by Dr Bruce, a forensic biologist with the Division of Analytical Laboratories. In respect of the DNA evidence, the jury was directed that there were two intermediate facts that had to be established by the Crown beyond reasonable doubt. The first was that the DNA profiles which were located inside the Adidas shoes and on the deceased's jeans were in fact those of the offender. (I interpolate that there was evidence that other DNA profiles had been located on the shoes and that the offender had been excluded as a contributor to those profiles). The second intermediate fact was that the DNA was deposited in the shoes and on the jeans in the circumstances asserted by the Crown and not as a result, for example, of contamination or secondary transference. Although a spirited challenge was made to the DNA evidence, particularly in relation to the issue of secondary transference, it is readily apparent that the jury accepted the Crown's contention that there was no reasonable doubt about either of those intermediate facts. Next, there was evidence, from which it could be inferred that the offender had had the opportunity to commit the crime, because for a period of time during the first part of 1995 he had lived on The Horsley Drive, Fairfield. That location was within walking distance of the crime scene. There was also evidence that the offender matched the description given by the eyewitnesses, John Byrne and Ian Cross, of the person who had attempted to steal the deceased's wallet on The Crescent. Although there was no direct evidence of his appearance on 3 June 1995, there was photographic evidence, as well as oral evidence given by witnesses who knew the offender during the relevant timeframe, that he was accustomed to sporting a goatee beard at around that time. There was also evidence from a podiatrist, Dr Paul Bennett, who compared the Adidas shoes which were seized from the crime scene with footwear taken from the offender, together with impressions and plaster casts made of the offender's feet, in 2009. Dr Bennett's opinion was that he was unable, in light of his conclusion that there were points of similarity between the wear patterns on the Adidas shoes and those on the offender's footwear as well as the other items to which I have referred, to exclude the offender as the probable wearer of the shoes. The effect of his evidence was that whilst the offender may have been the wearer of the Adidas shoes, equally he may not have been. The jury was nevertheless warned about the potential unreliability of Dr Bennett's opinion. 10As was his entitlement, the offender did not provide his version of events to police. Nor did he give or call evidence in his case at the trial. The case which was presented on his behalf was that he was not responsible for the death of Russell Lyons, or for attempting to steal his wallet on The Crescent. It was contended by counsel for the offender that there were a number of other persons who could have been responsible for the death. Indeed, there were a not inconsiderable number of persons whom the police initially suspected may have been responsible for his death (who were described as "persons of interest") together with other persons upon whom suspicion should, so it was submitted, have descended. Understandably, there was considerable focus upon that issue at the trial because the Crown was required, in seeking to prove its case, to exclude the reasonable possibility that someone other than the offender was responsible for Russell Lyons' death. In that context, counsel for the offender was critical of various aspects of the initial police investigation and, in particular, the failure to explore lines of enquiry which, it was suggested, ought to have been pursued. Counsel for the offender submitted to the jury that one of the persons who either was, or should have been, under suspicion, may have been one of the three unidentified Islander males who involved themselves in the altercation with the deceased on The Crescent. 11An alternative submission was put to the jury on behalf of the offender in the event that it concluded that he was the person who attempted to steal the deceased's wallet on The Crescent. It was again central to this submission that the fatal blow was administered by the unidentified Islander male on The Crescent. The submission rested upon the evidence of Ian Cross, to which I referred earlier, and to parts of the evidence of Dr Ellis. In cross-examination Dr Ellis conceded that one punch may have caused the fatal injury. Furthermore, he agreed that he could not exclude the reasonable possibility that that punch may have been inflicted during the altercation on The Crescent. Moreover, he agreed that he could not exclude the reasonable possibility that the deceased had then made his way around the corner and into the laneway where his body was discovered. He also agreed that he could not exclude the reasonable possibility that the deceased had then fallen onto the concrete slab causing the fracture of his nose. Finally, Dr Ellis concluded that he could not exclude the reasonable possibility that the deceased had then tried to raise himself up but had once more fallen onto the concrete slab where there was a pooling of his blood. The jury also rejected this alternative argument. 12The Crown case on murder was put on alternative bases. According to the first basis, the offender caused the death of Russell Lyons by an unlawful and deliberate act that was done with either an intent to kill or to do grievous bodily harm. According to the alternative basis, which is described as either felony murder or constructive murder, the offender caused the death of Russell Lyons by an unlawful and deliberate act done in an attempt to commit, or during or immediately after the commission by him of a crime punishable by imprisonment for life or for 25 years. The foundational crime upon which the Crown relied in the present case was an offence of stealing or robbery committed in circumstances of aggravation. The relevant elements of that offence, which is to be found in s 96 of the Crimes Act 1900, are that the offender stole property from the person of Russell Lyons (being his wallet and shoes) and during the course of that theft he used physical violence upon Russell Lyons thereby inflicting grievous bodily harm to him. The parties are in agreement that I should proceed to sentence the offender upon this alternative basis. I see no reason not to do so. Certainly the location of a DNA profile consistent with that of the offender inside the deceased's rear right pocket (which is where he kept his wallet) provided powerful evidence that the offender was intent on robbing the deceased of his wallet, which as I have said, was not recovered. The location of a profile consistent with the offender's DNA profile inside each of the Adidas shoes serves to strengthen that inference. As I have said, no evidence was adduced to explain the presence of that material. 13In summary, I accept that the offender followed the deceased from The Crescent into the carpark off Smart Street and whilst there again attempted to rob him of his wallet. Even though he was very intoxicated, it is highly likely that the deceased offered some form of resistance. I infer that in seeking to overcome that resistance, the offender then struck the deceased the blow to the back of his head which caused the subdural haemorrhage that proved fatal. The number of separate injuries which the deceased sustained to his face and head, and their location, tend to suggest that the deceased was struck on more than one occasion by the offender. That said, I accept that some of the abrasions may well have been caused when the deceased's head hit the ground. In any event, I am unable to determine precisely how many such blows were struck and indeed how they were administered. I am acutely aware that I must be satisfied beyond reasonable doubt of any fact that would serve to aggravate the offence. That being so, I cannot, for example, determine to the requisite standard that the deceased's blood found its way onto the Adidas shoes as a result of his having been kicked by the offender. What makes this case unusual is that at least some of the injuries which the deceased sustained, although not of course the fatal injury or injuries, were occasioned, as I have found, by someone other than the offender. That feature of the case also serves to complicate the sentencing process. In those circumstances, considerable mystery still remains as to the precise circumstances in which Russell Lyons died. 14As I have said, the offender stands to be sentenced upon the basis that he is guilty of constructive murder. In that respect, I must be guided by what was said in R v Jacobs ; R v Mehajer (2004) 151 A Crim R 452, in which Wood CJ at CL, with whom the other members of the court agreed, said: Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Cole JA and Sperling J, No 60306 of 1994, 3 April 1995). Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93. [at para 332] 15I have received victim impact statements from Russell Lyons' mother, Lorrain Lyons, his sister, Michelle and his brother Jason. The feelings which they have so eloquently and poignantly expressed and the grief which they and the remainder of their family have suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly, no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226. 16I have gleaned some background information about the offender from a psychological report, which was prepared on his behalf by Ms Debbie Case. The offender was born in 1966 and is now aged 45. His childhood was unremarkable. He grew up in the Liverpool area and left school after completing Year 8. He has two sisters with whom he remains in intermittent contact. His parents separated when the offender was 16. His relationship with his alcoholic father was marred by conflict and he has had only infrequent contact with him in recent years. However, the offender remains close to his mother and it is a measure of her enduring support for him that she attended his trial on a daily basis. 17When the offender first left school he was employed as an upholsterer. Since then he has worked as a truck driver and in a variety of positions entailing manual labour. Although for many years he lived a transient existence, he appears nonetheless to have remained in fairly regular employment. The offender's history suggests that he has developed a significant dependence upon alcohol and that he has been, for many years, a regular user of marijuana. He has been involved in a number of relationships, none of which have apparently lasted. In 2007 he met a woman in Bowen and they formed a relationship. The relationship flourished to the extent that the couple were due to be married in September 2009. A month prior to his arrest, the offender's first child, a daughter, was born. After he was remanded in custody the offender was able (at least initially) to maintain contact with his partner and their daughter. However, upon his release to bail some time later, his partner terminated the relationship and he has not had contact with either of them since. The offender expressed genuine distress and despair at the loss of that contact. He told Ms Case that he has experienced feelings of hopelessness about his present circumstances. He is also said to be anxious about the sentence which he will receive. Ms Case administered various tests to the offender and concluded that there was "no evidence of any formal thought disorder". It is accepted by counsel for the offender that since he continues to maintain his innocence, he is unable to obtain the benefit of any reduction of sentence for remorse. 18I have also been furnished with affidavits sworn by Carol Ann Smith and Diana Micallef. Ms Smith is married to the offender's father and had contact with the offender after he moved to Bowen in the period around 2006/2007. She confirms the strength of his feelings towards his daughter and the sense of loss that he experienced when he lost contact with her. Ms Micallef is a very close friend of the offender's mother and has known the offender all his life. She also spoke of the offender's sense of grief following the loss of contact with his partner and their daughter. She reported that during the period whilst he was on bail, the offender undertook gardening and landscaping work at the property which Ms Micallef shared with her husband. Ms Micallef spoke highly of his personal qualities. She also reported that the offender had, whilst in custody prior to obtaining bail, "commenced studying the Christian faith and ... was regularly reading the Holy Bible". She also said that he had attended church services whilst in prison, a practice which he continued when he was released on bail. 19The offender has a criminal record both in this State and in Queensland. His criminal record in New South Wales commenced in 1982 when he was placed on probation in the Children's Court in respect of offences of break, enter and steal. Over the following twelve months he was dealt with on three further occasions in the Children's Court for offences of goods in custody; break, enter and steal; malicious injury and drive in a manner dangerous. In 1986 he appeared in the Local Court on three separate occasions and was dealt with for further offences of dishonesty. In 1987 he was convicted of a lower range PCA offence. His only prior offence of violence in this State was a conviction in 1988 for assault occasioning actual bodily harm in respect of which he received a fine of $150. In 1989 he was dealt with for behaving in an offensive manner. His only conviction in New South Wales since then was in 2003 when he was dealt with for possessing a prohibited drug. None of his convictions in New South Wales have resulted in the imposition of a custodial sentence. 20His Queensland record commenced in 1985 when he was dealt with for minor driving offences. Between 1988 and 1993 the offender appeared in courts in that State on a reasonably regular basis in respect of offences of receiving, wilful damage, possessing stolen property, possessing a prohibited drug and for breaching various court orders. In 1990 he was placed on a good behaviour bond for stealing from the person. Since 1995 he has been before the courts in that State on two occasions. In 1999 he was fined $200 in respect of an offence of assault occasioning actual bodily harm and in 2007 he was placed on a good behaviour bond for 6 months for stealing a bicycle, a matter to which I referred at the outset of these remarks. His only custodial sentence in Queensland was for a period of five months in 1990 in respect of an offence of unlawful use of a motor vehicle. 21In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case. 22The starting point for any assessment of the objective gravity of the offence is the fact that the life of an entirely innocent and blameless young man has been taken as a result of the offender's actions. It may be accepted that the death of Russell Lyons was not intended, and perhaps not even contemplated, by the offender. Nor is there any evidence that a weapon was used in the fatal attack. That said, and notwithstanding the fact that the Crown does not contend that the offence entailed the presence of any aggravating features, it is nevertheless to be observed that the offence occurred against the background of an attempt by the offender to commit the serious crime of robbery. Furthermore, the offence features a degree of persistence on his part. It is apparent that he was not deflected from his plan to rob the deceased of his wallet by what occurred during the altercation on The Crescent. On the contrary, he followed the deceased into Smart Street with the intention of completing his task. He was nothing if not determined. Moreover, it can be inferred that the deceased's state of intoxication made him an easier target in that respect than might otherwise have been the case, especially because, as I have found, he had already sustained injuries as a result of the assault upon him by the Islander man on The Crescent. 23Because the offence was committed more than 16 years ago, it is appropriate to repeat what I said in R v Armstrong [2010] NSWSC 800. In that case I had occasion to sentence an offender for a murder committed in 1991. I there said that: ...it is plainly apparent that the sentencing regime that now exists would expose the offender to a decidedly more severe penalty than the one which prevailed at the time of the offence. However, it is common ground that I must sentence the offender in accordance with sentencing practices and patterns which prevailed at the time the offence was committed: see R v MJR (2002) 54 NSWLR 368. Although caution must be exercised in relying upon statistical material, I have nonetheless derived considerable assistance from the Judicial Commission's report entitled "Sentenced Homicides in New South Wales 1990-1993". I have had regard only to the sentences imposed upon the offenders to whom s 19A of the Crimes (Life Sentences) Act 1989, which was inserted on 12 January 1990, applied. 93 such offenders were sentenced in the period covered by the study. 43% of those offenders received a minimum term greater than 8 years but not exceeding 12 years, whilst 35.5% of offenders received a minimum term greater than 12 years but not exceeding 16 years. 64.5% of offenders received a full term greater than 14 years and up to 20 years. The authors of the monograph conclude that "the typical sentence for murder under s 19A might be described as a minimum term of 12 years and an additional term of 6 years, making a total sentence of 18 years". In so concluding, it would appear that the authors made no differentiation between those offenders who pleaded guilty and those who did not. [at para 28] 24My attention has been drawn to a subsequent report entitled "Sentenced Homicides in New South Wales 1994-2001". It records the following information: Head sentences imposed on murder offenders in this study ranged from a minimum of 9 years to a maximum life sentence. Life sentences were imposed on 17 offenders. ... Non-parole periods imposed on murder offenders ranged from 5 years to life, while the longest determinate non-parole period was 35 years. The median non-parole period was 13 years 6 months. These figures were consistent with the Judicial Commission's first homicide study, in which all murderers received prison sentences of at least 9 years duration and a typical sentence for those sentenced under the new s 19A of the Crimes Act 1900 was a full term of 18 years with a minimum period of 12 years. Other research has also shown that in recent years, the sentencing pattern for murder has been quite consistent. Baker reported that murder sentences for the 8-year period of 1990-1997 were "stable", with the average non-parole period for 6 of the 8 years being in the range of 11 years to 12 years 2 months. Fitzgerald reported murder sentences as stable over the 11-year period of 1990-2000, with the annual average non-parole period ranging from 11 years 2.4 months to 15 years 8 months. Seven of the 11 years recorded average non-parole periods for murder in the range of 11 years 8.8 months to 13 years 2.9 months. 25I have also been furnished with summaries of 11 instances of what are said to be comparable cases decided in the period between 1991 and 1995, being cases in which the death in question occurred during the course of a robbery. Although I am of course aware of the limitations in considering material of that kind, I have nonetheless derived some additional assistance from an examination of it. 26I referred earlier to the offender's criminal record. It contains a number of entries for matters of dishonesty which the offender committed more than 20 years ago. Of greater relevance in the present context are convictions in 1989 for assault occasioning bodily harm and in 1990 for stealing from the person, although the penalties which those offences attracted suggest that they were not particularly serious instances of such matters. Although his record does not reflect favourably upon him, it merely operates to deprive him of the type of leniency that might otherwise have been afforded to him had he not come to the notice of the authorities. 27Since the commission of this offence in 1995, the offender appears to have matured considerably and the only matter of any real significance is the conviction in 1999 for assault occasioning actual bodily harm. In all the circumstances to which I have referred, and given the age which he will have reached by the time he is eventually released on parole, I would regard his prospects of rehabilitation as being more than reasonable. Indeed, the Crown did not suggest to the contrary. 28It is clear from what I have said that there has been a delay in bringing the proceedings to finality. In R v Blanco (1999) 106 A Crim R 303, Wood CJ at CL with whom the other members of the Court agreed, said: The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill , the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288. [at para 16] 29I have already referred to the offender's "demonstrated progress towards rehabilitation". This is not a case in which the state of "uncertain suspense" should weigh in the offender's favour. See R v Hathaway [2005] NSWCCA 368 [at 43] and R v Shorten [2005] NSWCCA 106 [at 19]. I am prepared however to factor, albeit in a fairly limited fashion, "a measure of understanding and flexibility of approach" into the overall sentencing process on account of the lengthy delay which has occurred in this case. 30The material contained in the Judicial Commission monographs reveals that the relationship which the minimum term or non-parole period bore to the head sentence during the relevant time period was usually less than the normal statutory proportion of 75% which now exists. The parties agreed that that consideration provides a sufficient basis for making a finding of "special circumstances". Nevertheless in setting the non-parole period, I have borne in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704. 31I have referred several times to the fact that the offender was for a period of time on bail. It is common ground that the offender spent 14 months and 8 days in custody prior to being released on bail. Bail was revoked on 7 July 2011 following the jury's verdict. In those circumstances, it is also common ground that the sentence should commence on 30 April 2010 to reflect that period of pre-sentence custody. Sentence 32For the murder of Russell Lyons, the offender is sentenced to a non-parole period of 12 years with a total term of imprisonment of 18 years to date from 30 April 2010. The total term will expire on 29 April 2028 and the offender will be eligible for release on parole on 29 April 2022. . 33I recommend that the warrant be endorsed in the following terms: That Darren Smith be monitored closely in connection with suicidal ideation. Furthermore that Darren Smith be assessed by an appropriate health professional in the Corrective Service institution where he is remanded and that he receive appropriate treatment. 34I direct that the report of Ms Debbie Case, dated 10 August 2011, be attached to the warrant and that it be brought to the attention of the appropriate authority within Corrective Services (NSW). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2011