Supreme Court New South Wales Medium Neutral Citation: R v Marsh [2012] NSWSC 208 Hearing dates: 23 September 2011 - 30 September 2011 4 October 2011 - 28 October 2011 1 November 2011 - 11 November 201114 November 20112 December 201124 February 2012 Decision date: 09 March 2012 Jurisdiction: Common Law - Criminal Before: Price J Decision: Sentenced to imprisonment for life Catchwords: Criminal Practice and Procedure - sentencing - murder - life sentence - worst category. Legislation Cited: Crimes Act 1900 s 19A, 19(A)(2), 19A(3), The Crimes (Sentencing Procedure) Act 1999 s 21(1), s 61(1) The Personal Responsibility and Work Opportunity Reconciliation Act 1996 (USA) Cases Cited: Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126 Ibbs v The Queen (1987) 163 CLR 447 Muldrock v The Queen [2011] HCA 39; (2011) 281 ALR 652 R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 R v Isaacs (1997) 41 NSWLR 374 R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 R v Phuong Canh Ngo (No 3) [2001] NSWSC 1021; (2001) 125 A Crim R 495 R v Pilley 56 A Crim R 202 R v Vachalec [1981] 1 NSWLR 351 Category: Sentence Parties: Crown Walter Ciaran Marsh Representation: Mr M Tedeschi QC (Crown) Mr K Chappel SC (Walter Marsh) Ms Daleo (Director of Public Prosecution) Ms E True (Director of Public Prosecution) Mr B Archbold - Archbold Legal Solutions Pty Ltd (Walter Marsh) Ms L Gittani - Archbold Legal Solutions Pty Ltd (Walter Marsh) File Number(s): 2010/125831 Remarks on Sentence 1HIS HONOUR : Walter Ciaran Marsh, the offender has been found guilty by a jury of the murder of Michelle Beets on 27 April 2010. 2Michelle Beets died as a result of the infliction by the offender of multiple knife wounds to her neck and chest. At the time of her death, Ms Beets lived in Holland Street, Chatswood. She was the nurse manager of the emergency department of the Royal North Shore Hospital. 3The maximum penalty for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment. Those two guideposts are to be borne in mind when the court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the offender: Muldrock v The Queen [2011] HCA 39; (2011) 281 ALR 652 4It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202 at 204. 5At the commencement of the proceedings on sentence, the Crown sought to place before the court, material that related to an alleged attempt by the offender to kill Tammy Marsh-Leland, his ex-wife and to two articles referred to at p 2.5 of the report of Dr Yvonne Skinner (ex B). The Crown subsequently withdrew that material and it has played no part in the sentence that is to be imposed upon the offender. 6I should state from the outset that I am satisfied beyond reasonable doubt that the evidence of Samantha Marsh, the offender's wife, of her husband's confession to her of the murder and of the preparatory steps that he took to kill Ms Beets, was honest and reliable. The detail of her testimony, included material that had not been made publicly available by police and could not otherwise have become known to Mrs Marsh, unless she had been told by the offender. I am also satisfied that the evidence given by XX XX, the offender's brother-in-law, was honest and reliable. The offender did not give evidence during the trial, but gave a statement to police on 4 May 2010 and entered into an electronically recorded interview (ERISP) on 10 May 2010. Simply stated, the offender maintained that he did not kill Ms Beets, which was rejected by the jury. 7The offender, a citizen of the United States of America, commenced employment as a registered nurse in the emergency department of the Royal North Shore Hospital on 9 February 2009. He had been interviewed by telephone for this position by Ms Beets, and Karen Steinbergen, a nursing unit manager. A decision was made to offer the offender employment at the hospital for twelve months. The letter of offer dated 30 December 2008, confirmed that the offender's appointment was "to the full time position for the sponsorship duration of one year, effective on and from 9 February 2009 until 9 February 2010." 8The New South Wales Department of Health had lodged on 8 October 2008, a nomination for the offender as a registered nurse, with the Department of Immigration, which that Department approved. On 4 February 2009, the offender applied for a 457 visa (business long-stay temporary visa) in conjunction with the approved nomination, which was granted on 19 February 2009. The 457 visa was valid for a period of four years. A condition of the visa was that upon the visa holder ceasing employment, new employment had to be obtained with an approved employer within 28 days. Samantha Marsh was granted a spouse dependent visa. Mrs Marsh is a Vietnamese citizen. 9Whilst working in the emergency department, the offender developed animosity towards Ms Beets. He told his wife that Ms Beets had too much power and one day, she needed to go. He said that Ms Beets kept bullying staff and, he would not be able to forgive anyone, who had done that. 10Around December 2009, the offender said to Peter Neave, a security guard at the hospital, that "Michelle Beets is a fucking bitch [and] couldn't run an ED [emergency department] if she tried." Mr Neave described the offender's tone of voice as being very angry. There had been other times that the offender had expressed negative views about Ms Beets to Mr Neave. 11In early February 2010, the offender was informed by Ms Beets that his twelve month contract was soon to end and there was not at that time any chance of the contract being extended. The offender's employment at the Royal North Shore Hospital ceased on 9 February 2010. 12The offender then applied for positions as a registered nurse at the Royal North Shore Hospital, at other hospitals and through various recruitment agencies, but without success. The offender came to believe that his inability to obtain an appointment was due to bad references given about him by Ms Beets. He told Samantha Marsh that Ms Beets would say bad things because she did not like anyone working with her. He said he was not surprised that she had given him a bad reference, but was annoyed and that one day, Ms Beets needed to be gone. 13In February 2010, the offender owed $50,900.00 USD in child support payments for the daughter of his marriage in 1990 to Tammy Marsh-Leland. They had divorced in 1996 and an order had been made at the time of the final Decree of Divorce by the District Court of the Travis County, Texas that the offender was to make monthly child support payments to Mrs Marsh-Leland but he had fallen into arrears. He had asked Samantha Marsh and XX XX, to forward child support payments on his behalf to his brother Frank Marsh and to James Woodward, a friend, both of whom resided in the United States. The offender made these arrangements as he did not want the child support agency to ascertain where he lived. 14Samantha Marsh and the offender had discussed living in the United States, but decided not to, as the offender was worried that the US authorities, would trace him over the arrears of child support as soon as they arrived in that country. They had discussed living in Vietnam, however, the salary for a registered nurse in Vietnam was too low. It was their intention to live in Australia for a further two years before returning to Vietnam. 15The offender believed that the US government would seize his passport, as he was more than $2,500 (USD) behind in child support payments. He had one page left in his passport. The offender's apprehension was well founded. The Personal Responsibility and Work Opportunity Reconciliation Act 1996 (USA) provided that, if an applicant for a US passport was in arrears of $2,500 (USD) in child support payments or more, a passport would not be issued. The policy also applied to a US citizen, whose passport was about to expire or could not be used as there were too many stamps in it. 16On 25 February 2010, the offender travelled to the United States to resolve his child support issues but was unsuccessful. Whilst in the United States, the offender discussed his concerns about his passport with James Woodward. He told Mr Woodward that he had one page left in his passport and asked Mr Woodward if he knew of any method of obtaining more pages. He asked Mr Woodward to investigate his passport to see if there were any free pages that could be transferred into the offender's passport. There was discussion about unstitching the stitches in Mr Woodward's passport but Mr Woodward was uneasy about doing that and nothing was done. 17Upon his return to Australia on 14 March 2010, the offender continued applying for positions as a registered nurse. He told Samantha Marsh that he was worried that, one day the immigration people would knock on their door and kick them out of the country. His anxiety increased when his attempts to obtain work proved fruitless. He told Alki Georgallis, a recruitment specialist, that he was desperate to look for work and had been off work for a month. During a further telephone conversation, Ms Georgallis asked the offender if a senior management person could be contacted. The offender responded by referring to the female as "a bitch". He had previously informed Ms Georgallis that his boss was a female. I have no doubt that the offender's derogatory reference was to Michelle Beets. 18One of the difficulties that confronted the offender in successfully obtaining employment was that he did not name his previous "line manager", Ms Beets, in his applications as a referee. He tried contacting her. About three or four weeks prior to her death, Ms Beets told Alan Grochulski, a psychiatric nurse in the emergency department, that she was receiving phone calls from the offender and messages were being left for her to return the calls. Ms Beets said that she was distressed, that she did not know what she was going to do, that she did not wish to speak to the offender and had been avoiding him. 19Initially, the offender intended to scare Ms Beets. He told his wife that he wanted to confront Ms Beets, by pretending to distribute Mormon books and by wearing a Mormon uniform to "freak her out" and scare her. However, his intention became an intention to kill. The offender said to Samantha Marsh that he had received permission from the organisation in Ireland to kill Michelle Beets. The reference to an Irish organisation was part of the offender's fantasy that he had an Irish connection. 20Notwithstanding his dislike of Ms Beets, the offender's principal motivation for the murder was that he believed she was blocking his applications for employment as a registered nurse and his employment prospects would be enhanced by her removal. The offender understood that the retention of his 457 visa was in jeopardy. He considered that because of the child maintenance problems, a return to the United States was not an option, nor did he wish to return to Vietnam, as the salary for a registered nurse in that country was insufficient. The offender wanted to retain his Australian lifestyle. He went about planning her murder in a meticulous way. His careful preparation for the killing was not confined to its actual execution, but extended to the means of eliminating evidence that might incriminate him. 21The offender commenced carrying out surveillance of Ms Beets. He rang her home phone number on different days and at different times to check her routine. Ms Beets' landline telephone number and home address were listed in the White Pages. I am satisfied beyond reasonable doubt that the offender rang Ms Beets' landline on 5 April 2010 at 17.15.49, on 15 April 2010 at 12.42.09 and 18 April 2010 at 16.48.52. The telephone calls on 5 April and 18 April were made from Telstra payphones located outside Grace Bros at Chatswood and the remaining call was made from a Telstra payphone in Victoria Street, Darlinghurst. 22The offender told Samantha Marsh that he knew where Ms Beets lived, had ridden on a bicycle to her neighbourhood a few times and checked on the neighbourhood. He told her that the area was really quiet and he assumed only old people were living there. He said that there was a sensor alarm in the front of Ms Beets' house and the only way to escape detection was to either to spray black paint on the sensor or to turn off the electricity box, which was situated in the front of the house. He described a few kids' pushbikes being in the front of the house, which he did not think, had been used for ages. The offender told his wife that he knew Ms Beets' routine. He assumed that she was a lonely woman, who had neither a partner nor anyone else living with her. 23The offender purchased clothes from the 'St Vinnies' store at Chatswood. He practised on Samantha Marsh and XX XX a technique of attacking a person from behind, with the cutting of the victim's throat, stabbing into the victim's chest and other parts of the body. Mr XX demonstrated to the jury the attack from behind that the offender practised on him. I found it to be so egregiously similar to the technique shown in US Marine Sergeant Tyler's demonstration video that I am satisfied beyond reasonable doubt that the offender learnt that technique during his service in the United States Marine Corps. 24Mrs Marsh saw the offender opening and closing a flick knife, repeating it and making it fast, for over half an hour, whilst sitting on the couch in their apartment about a week before Ms Beets' death. She said that she saw this on more than one occasion before the death. XX XX described the offender, chopping with a folding knife, a cucumber that Mr XX had been asked to hold. Mr XX had seen the offender with this knife on other occasions when he was waving it back and forward. Although Mrs Marsh and Mr XX described the knife as a flick-knife or a folding knife, I am satisfied that they were referring to the same knife (the flick-knife). 25On 23 April 2010, the offender spoke to Mr XX about going to the home of a nurse, to look around and tell him whether or not any person came in. It is plain that the offender was asking Mr XX to undertake surveillance of Ms Beets' home, which he did not do. I am satisfied beyond reasonable doubt that all of these acts were taken by the offender to prepare for the killing of Ms Beets. 26There was evidence in the trial of the offender modifying a Ka Bar knife and having it sharpened. The Ka Bar is a large knife used by the US Marine Corps. However, the Crown contended that the flick-knife was the murder weapon. In the first week after the murder, the offender told Mrs Marsh that he had thrown the Ka Bar away, as it was not good to have such a weapon in their home, if police came and checked. When Mrs Marsh drew his attention to a media article about a knife found by police, the offender said that the knife he had used, was not that big and whoever used such a big knife would be very stupid. During his ERISP interview, the offender told police that he threw the Ka Bar knife in a trashcan at his apartment complex about a week prior to 10 May 2010, but he did not remember which trashcan he threw it in. It is impossible to know precisely what knife was used in the killing, as the offender disposed of it, but neither Mrs Marsh nor Mr XX saw the flick-knife after the murder. About a month before the murder, the offender said to his wife that if someone else's blood was on a knife, it should be thrown away because the blood would be on the knife forever. 27Five days before the murder, the offender demonstrated his dislike for Ms Beets in a conversation that he had with David Ellis, a security guard at the Royal North Shore Hospital. In referring to Ms Beets, he said, "that bitch is useless, she couldn't run shit." He told Mr Ellis, either that his contract had run out or it was running out, and "that bitch won't give me a reference." 28The offender's presence in Holland Street had been noticed. Six days before her death, Ms Beets was asked by Katrina Kyneur, a nursing unit manager, had she given the offender a reference. Ms Beets replied, "No, but I saw him the other day. He walked past me in my street." She told Ms Kyneur that she put her head down and kept walking. 29On the day of the murder, the offender went to Ms Beets' home before 6pm. In order to eliminate the sensor light, he turned off the power supply by moving the main switch in the electricity box to the "off position" at 6pm. He broke a glass panel in the laundry door to pretend that there had been an attempted burglary. He lay in wait for Ms Beets, who had been delayed by a flat battery in her vehicle at Chatswood Chase. He wore a beanie that only showed his eyes and had a hoodie over his head so that he would not be recognised. 30When Ms Beets arrived at her home shortly before 6.15pm, she reversed her vehicle into the driveway, which was not her usual practice. It seems that she did so, to enable the vehicle's defective battery to be more easily attended to. Ms Beets went to the front door of her home, but stepped backwards as she realised that the light had not come on. The offender told Mrs Marsh it was then that he grabbed Ms Beets from behind and put her on the ground. He said that Ms Beets started screaming and he was unable to stop her, until he promised that if she stopped, he would not hurt her. Ms Beets agreed to stop, saying that she had been afraid she would be hurt. The offender said that as soon as she stopped screaming he took out a knife and cut her throat. 31The offender's account to his wife of Ms Beets' screaming, is supported by the evidence of Emma Owens, a next door neighbour, who heard short, sharp high-pitched screaming that came out in two separate lots. She described hearing the first scream and then there was a gap for a couple of seconds before the screaming started again. Gordon Bevan spoke of hearing screaming, there was a break and then more screaming. Slapping followed the screaming, which he said, was intermittent as well. I am satisfied beyond reasonable doubt that notwithstanding the offender's promise and Ms Beets' compliance with it, he showed no mercy whatsoever to her. The attack that followed was brutal. 32The offender cut Ms Beets' neck with a knife and stabbed her in the area of her chest multiple times. The cuts to the neck were inflicted with such ferocity that when Dr Rebecca Irvine, the pathologist, attended at the murder scene, she could see that the neck had been cut through. She recounted being able to actually see the vertebral column through the defect in the front of the neck and the cut ends of the carotid arteries. 33Dr Irvine said that the most significant finding, during the autopsy, was an incised wound across the front of the neck. Dr Irvine observed that there had been a complete transection of all of the soft tissues in the neck that would normally be in front of the vertebral column. The soft tissue of the neck and the larynx had been cut across. In addition, there was another cut that did not go completely across one of the carotid arteries and there were three cuts across the bone of the spine in the neck. There was another cut across the larynx, which indicated, Dr Irvine said that there had been multiple cuts across the neck. Dr Irvine was unable to say how many cuts there had been to the neck, other than there had been more than one. 34The infliction of these hideous wounds upon Ms Beets was extraordinarily cruel. The offender told Samantha Marsh that he cut Ms Beets' throat many times, as he tried to pretend that it was the work of an amateur. He also said that the knife was not as sharp and as good as he expected. 35Dr Irvine described a cluster of eight stab wounds on the upper left chest area. Six of these wounds went through the chest wall and some of them perforated into the chest cavity and into the left lung. There was a single stab wound of the lower central chest, which went through the skin and soft tissue, through the cartilage at the bottom of the rib cage, entered the sac around the heart (the pericardium) and incised the wall of the right side of the heart. Dr Irvine identified a total of 17 incised wounds to the deceased's hands, which, she said, were classic examples of "defence wounds". She also identified two stab wounds on the front of the deceased's left upper hand and superficial incised wounds underneath the clavicle and in the area of the left breast. 36I have no doubt that the slapping sound heard by Mr and Mrs Bevan, who were walking their dog in Holland Street, emanated from the blows with the knife with which the offender struck Ms Beets. The multiple defensive wounds to Ms Beets' hands demonstrate her efforts to ward off the offender's ferocious attack. These last moments of her life must have been horrifying. It was an act of barbarity for the offender to kill Ms Beets in the manner that he did. 37After becoming aware of Mr and Mrs Bevan, the offender ceased his attack upon Ms Beets. He left the verandah, picked up a backpack in which he had clothes to change into, and ran swiftly away from the scene of his crime. Ms Beets was still alive when he left, but died very shortly thereafter, whilst being held by Mr Bevan. 38The offender told Mrs Marsh that it didn't take much time to change his clothes. He threw the knife into a stormwater drain and discarded clothing that he had been wearing as he made his way to Westfield Chatswood to meet his wife. It is evident from the CCTV footage that the offender placed a bum bag into a rubbish bin at Chatswood Chase and shortly thereafter disposed of his jacket. He was no longer wearing a backpack. The first thing that he said to Samantha Marsh when he met her outside Westfield at 6.58pm, was that, "it was done, the bitch is gone. From now on I shouldn't have any more bad references, we should have a better future." 39On their walk home, the offender entered an apartment block in Mowbray Road, Chatswood, took off his clothes and jumped into a swimming pool for a quick wash. He previously had told his wife not to touch him, as he was "dirty". Upon reaching his apartment, the offender attended to the disposal of the clothes and pair of flip-flops that he had been wearing when he met Mrs Marsh. On the following day, he threw a backpack into a rubbish bin at the Chatswood Chase food court, after purchasing another backpack at K Mart. Two days later, the police located that backpack in a bin outside the offender's apartment block. On the same day, the offender purchased a further backpack at K Mart. I am satisfied beyond reasonable doubt that all of this conduct was taken by the offender to avoid detection for the murder. 40The callousness with which the murder was committed, is further disclosed in the CCTV footage, by the offender's calm and composed demeanour at the entrance to Westfield Chatswood, where he waited for his wife about half an hour after the killing, and the conversation with her that followed after they met, in which he expressed a concern that he had been unable to finish what he had planned and Ms Beets was still alive when he had left. 41Viewed objectively, this is a terrible crime that is at the top of the range of the offence of murder. 42The offender did not give evidence during the proceedings on sentence. His subjective circumstances are drawn from evidence in the Crown case and histories given to Dr Pauline Langeluddecke, Dr Stephen Allnut and Professor Bruce Brew, whose reports were tendered (exhibits 1-6). 43The offender was born on 21 September 1960 in Pennsylvania in the United States of America. He was 49 years old at the time of the commission of the offence and is now 51 years old. He has no criminal convictions in Australia or the United States. He served in the United States Marine Corps from November 1978 until November 1984. His postings included being stationed with the infantry unit of the 3 rd Battalion, 1 st Marines in November 1980, attending the Marine Security Guard School in Quantico in March 1982 and service as a marine security guard in the US embassies in Argentina and China. It appears that the offender also served in the US National Guard and Air Force. The offender started nursing school in 1993 and graduated in 1996. He initially worked at the Health Care Rehabilitation Centre in Austin Texas. As I have previously mentioned, he and Tammy Marsh-Leland divorced in 1996. He commenced a relationship with Samantha Marsh in Vietnam in 2007. The offender suffered a head injury in a traffic accident in Vietnam in about May 2008, was hospitalised and a right parietal craniotomy was performed. In August 2008, the offender travelled to Sydney to meet Samantha Marsh, who was then studying at University and they married on 13 October 2008. 44I do not propose to detail all of what is said in the medical reports tendered in the offender's case. Mr Chapple SC for the offender, said that these reports do not establish that the offender's head injury affected his actions at the time of the offence, but asked the court to take into account his epilepsy and future medical position in determining whether a sentence, less than a sentence of life imprisonment was appropriate. 45An MRI brain scan was performed on 2 September 2011 that demonstrated a large area of encephalomalacia within the offender's right temporal lobe, which given the head injury in the traffic accident, was likely to be traumatic in origin. The offender also had mild diffuse cerebral atrophy. In a report dated 8 September 2011 (ex 4), Dr Langeluddecke, a clinical psychologist, noted that the offender was at high risk of long-term neurobehavioral/personality change and that injury to the temporal lobe carried significant risk of post-traumatic epilepsy. Dr Langeluddecke, considered that some of the offender's dysfunctional behaviour during the neuropsychological assessment on 7 April 2011, was due to his brain damage. She thought it was possible that his traumatic brain injury exacerbated long-standing perfectionist tendencies, compromised his social judgement and capacity to monitor and control his behaviour. Dr Langeluddecke believed the offender's short-term memory and executive functioning difficulties to be neurologically based and the offender was unlikely to show further significant improvement with the passage of time. 46Dr Allnut, a forensic psychiatrist, in a report dated 16 September 2011 (ex 4) considered that the offender's capacity for insight and judgement appeared to be adequate. The offender would not be regarded as suffering a major depressive disorder, anxiety or psychotic disorder. It appeared that his grand mal seizure disorder was attributable to a traumatic brain injury. Dr Allnutt reported that there have been numerous instances where the offender has been observed to experience grand mal seizures both in America and Australia by different people. Particular reference was made to the offender being brought to the Royal North Shore Hospital on 1 May 2011 "following alleged seizures." He noted that the offender was taking Tegretol 300mg twice daily. In a further report (ex 6), Dr Allnutt recommended that the offender should continue to accept Tegretol for the seizure disorder. 47In a report dated 11 January 2012 (ex 7), Professor Brew, a consultant physician and neurologist, considered that the offender's traumatic brain injury was relatively mild. Professor Brew based that conclusion on the history provided, the fact that the offender was able to hold down a job and the neuropsychological report. Whilst noting there were several inconsistencies with what the offender mentioned to him as opposed to what had been previously recorded by other clinicians, Professor Brew opined that the cause of these inconsistencies was unlikely to be related to any significant traumatic brain injury. In relation to the offender's epilepsy, Professor Brew reported that there was no doubt that the offender has generalised seizures secondary to temporal lobe pathology from his traumatic brain injury. Nonetheless, the seizures themselves were not characterised by abnormal behaviour. Professor Brew expressed the opinion that the seizure disorder did not play any role in the murder. 48There is little in the way of mitigation. The offender has no prior criminal convictions and has served his country in the military and the community as a member of the nursing profession. I have concluded, however, that the offender's prior good character is completely overwhelmed by the objective seriousness of his offending. He has neither expressed remorse or shown contrition for the offence. His sentence is not to be increased for that, but no allowance in mitigation can be made for remorse or contrition. 49I do accept that the offender suffered a traumatic brain injury and, as a consequence, has generalised seizures secondary to temporal lobe pathology. Neither his traumatic brain injury nor seizure disorder contributed to the commission of the offence. Professor Brew's assessment that the traumatic brain injury is relatively mild appears to me, to be soundly based. There is no evidence that suggests the offender had any difficulty associated with the medical condition, coping with the demanding duties of a registered nurse in an emergency department of a public hospital. I appreciate that there is the likelihood of further seizures, for which he is taking Tegretol and the risk of neurobehavioral/personality change. There is, however, no evidence that the offender's reasonable needs for medical treatment will not be met while he is imprisoned, or that there is a serious risk of imprisonment having an adverse effect on his health or that his medical condition will make imprisonment more difficult for him: R v Vachalec [1981] 1 NSWLR 351. The offender has been in custody since 19 May 2010. 50The Crown invites me to find that the offender poses a significant risk in the future to those who come into contact with him and who are seen as thwarting his prospects. The Crown placed reliance upon the following opinion of Dr Yvonne Skinner, a consultant psychiatrist, in her report (ex B p 10): "Mr Marsh does not present a risk to the general community. His behaviour demonstrates tendencies to manipulate situations by deception and fraud, to maintain control and plan carefully. He does present a risk to any person who occupies a particular psychodynamic relationship to Mr Marsh, whether in an institution or on release. The issue would be Mr Marsh's perception that the person had caused him serious harm or distress." 51I am mindful that some of the material upon which the opinion was founded, namely those documents said to have been related to an alleged attempt by the offender to kill his ex-wife and the articles at p.2.5 of the report, were withdrawn by the Crown. 52Mr Chapple pointed out that the offender has no prior convictions and hence, no history of violence. He placed reliance on Dr Skinner's view only to the extent of her assessment that she did not consider the offender to be a risk to the general community. Mr Chapple pointed out that Dr Skinner had not had the opportunity of speaking with the offender. 53I accept that the offender is not a risk to the community in general. It is, however, plain from all the circumstances surrounding the murder, that the offender has the real potential to violently harm a person who he perceives, might seriously interfere with his plans or who otherwise to his mind, causes him significant distress. I am satisfied beyond reasonable doubt that there is a risk that the offender could offend again by killing such a person. I consider that the offender's prospects of rehabilitation are poor. 54In not extending the offender's contract term, Ms Beets was doing no more than exercising her judgement as the nurse manager of the emergency department. Furthermore, she was exercising her duty of care to the health system and to the public, by not providing the offender with an undeserved reference. The community interest in protection and deterrence requires that it be made absolutely clear that people in management positions are entitled to make decisions about members of staff, without the fear of violent retribution. 55The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) of the Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation s 21(1) of the Crimes (Sentencing Procedure) Act 1999 [the Crimes (SP) Act] which authorises the passing of a lesser sentence than imprisonment for life. 56Section 61(1) of the Crimes (SP) Act provides: "A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence". 57The maximum penalty of life imprisonment is intended for cases falling within the worst category of murder: Ibbs v The Queen (1987) 163 CLR 447 at 451-452; 27 A Crim R 465 at 468. The level of culpability of the offender in the commission of the offence and whether the case is one calling for a life sentence in the terms of s 61(1), is first to be considered, and if so, whether in the exercise of the discretion conferred by s 21(1), the subjective features relating to the offender justify a lesser sentence of imprisonment for a specified term: R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409, R v Phuong Canh Ngo (No 3) [2001] NSWSC 1021; (2001) 125 A Crim R 495. The primary focus of s 61(1) is an assessment of how extreme the offender's culpability is: R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 at [52]. The combined effect of the community interest in retribution, punishment, community protection and deterrence is critical to a conclusion that a life sentence is required. The absence of any one or more of the four indicia may make it more difficult for the conclusion to be reached that a life sentence is required, but will not be determinative: Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126 at [23]. 58The Crown submitted that the offence falls within a range that in its upper extent includes circumstances, which would justify a life sentence and its lower range would fall just short of that. The Crown drew my attention to the sentences imposed in three cases that were said to have some similarities to the present case. Mr Chapple accepted it was a very serious murder, but contended that something less than imprisonment for life was appropriate. Mr Chapple pointed to the offender's ongoing medical issues, his lack of prior convictions and Dr Skinner's assessment that the offender was not a threat to the general community, as subjective features that would justify a lesser sentence. 59The offender meticulously planned the murder of Ms Beets as he perceived that she was an obstacle to the retention of his 457 visa. The manner in which he killed her was cruel, merciless and abhorrent. The offender's crime falls within the worst category of murder. All four of the indicia in s 61(1) are present. There is nothing in the subjective circumstances of the offender, which justifies a lesser sentence. 60I am satisfied that the level of the offender's culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by a sentence of life imprisonment. A consideration of the cases referred to by the Crown supports my view that such a sentence is appropriate. 61Walter Ciaran Marsh for the murder of Michelle Beets, you are convicted. I sentence you to imprisonment for life. The sentence is to commence on 19 May 2010. ********** 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: 09 March 2012