Supreme Court New South Wales Medium Neutral Citation: R v WILLMOTT [2012] NSWSC 824 Hearing dates: 15 June 2012 Decision date: 20 July 2012 Jurisdiction: Common Law - Criminal Before: Price J Decision: The offender is sentenced to a term of imprisonment with a non-parole period of 21 years which is to commence on 13 October 2010 and is to expire on 12 October 2031 and a balance of term of 7 years which is to commence on 13 October 2031 and will expire on 12 October 2038. The earliest date the offender is eligible for release to parole is 12 October 2031. Catchwords: CRIMINAL LAW - sentencing - murder - guilty plea - limited provocation - seriousness of offence of a high order - offender on parole - convictions for personal violence offences - intoxication and illicit drug use - utilitarian discount for plea - parole revoked - when sentence to be commenced. Legislation Cited: Crimes Act 1900 s 19A, s 19A(2), s 19A(3) Crimes (Domestic and Personal Violence) Act 2007 s 4 Crimes (Sentencing Procedure) Act 1999 s 21(1), s 21A(2), s 21A(2)(d), s 21A(6), s 21A(3)(b), s 21A(3)(c) s 21A(3)(i) (i)-(ii), s 61(1) Criminal Code Act 1899 (Qld) Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Fernando [2002] NSWCCA 28 R v Harrison (1997) 93 A Crim R 314 R v Israil [2002] NSWCCA 255 R v Koloamatangi [2011] NSWCCA 288 R v McNaughton [2006] NSWCCA 242; (2006) NSWLR 566 R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 R v Previtera (1997) 94 A Crim R 76 R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436 R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589 Stanford v R [2007] NSWCCA 73 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Yang v R [2012] NSWCCA 49 Category: Sentence Parties: Regina (Crown) Kelvin Robert WILLMOTT (Offender) Representation: Mr L Lungo (Crown) Mr J Fitzgerald (Offender) File Number(s): 2010/340090 REMARKS ON SENTENCE 1Kelvin Robert Willmott pleads guilty to the murder of Shane Curphey on 13 October 2010. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of 20 years imprisonment. These two legislative 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) 244 CLR 120. The standard non-parole period does not have determinative significance in sentencing the offender: Muldrock at [31], nor is it a "starting point" for the sentence, nor does it directly apply as the offender has pleaded guilty. 2Shane Curphey died as a result of the infliction by the offender of numerous knife wounds, predominately to the neck and the left side of the chest. He was 35 years old when he was murdered. 3A statement of facts agreed between the Crown and the offender was tendered by consent and formed part of exhibit A. The agreed facts are: "1. The Waterfront Tourist Park is a caravan and tourist park located in Beach Parade, Canton Beach on the NSW Central Coast. This location caters for permanent and semi-permanent residents, as well as visitors. 2. The Offender, Kelvin WILLMOTT, had been residing with his mother, Roberta 'Bobbie' WILLMOTT, in a caravan within the park since May 2010. The Offender's two brothers also reside within the caravan park. 3. The Deceased, Shane CURPHEY, was not a resident of the Waterfront Tourist Park however he was a regular visitor as he had friends within the park. The Deceased is distinctly identifiable by his physical stature and appearance as he was 193cm tall and wore his hair in a long pony tail. 4. On the morning of Wednesday 13 October 2010, Daniel CURDS, a resident of the caravan park, who is an alcoholic, began drinking at around 8 am. His friend Jodie MURRAY, another caravan park resident, came to his cabin soon after and they began drinking together. At around 9 or 10 am, CURDS went to drink at the Canton Beach Sports Club with MURRAY. While they were there, the Deceased made a telephone call to his friend CURDS, and arranged to meet CURDS and MURRAY at the Club. The Club was a short distance from the caravan park. 5. The Deceased arrived at the Club and started drinking alcohol and playing the poker machines with CURDS and MURRAY. After some drinks, MURRAY and CURDS walked back to CURDS' cabin in the caravan park. The Deceased dropped his car home, and later arrived at CURDS' cabin with 3 longneck bottles of beer. 6. Between 1.30 and 2pm, the Offender, who was a friend of CURDS and had met MURRAY before, came to CURDS' cabin. He saw that the group was drinking and said that he would go and get some drinks and come back later. The Offender left, returning after around half an hour with a bottle of vodka and a 4-pack of vodka pre-mixed drinks. 7. Around 3pm, the Deceased ran out of beer. The group walked back to the Club so that the Deceased could buy more alcohol, and so the Offender could buy something to eat. They had a drink each at the Club then bought some take-away alcohol and returned to CURDS' cabin. They were all very intoxicated, and they continued drinking. 8. At some stage the Deceased and MURRAY went into CURDS' cabin, and the Offender and CURDS remained outside. The Offender handed CURDS one of the pre-mixed vodka drinks and said "skull it, skull it. Don't be a weak cunt'. 9. CURDS decided to skull the drink and once he had finished, the Offender laughed and said, 'I just drugged you'. CURDS took what the offender said as a joke. 10.At some stage the Deceased went to use the toilet in the cabin and noticed CURDS passed out on his bed. The Deceased then asked the Offender if he had slipped anything in CURDS' drink and the Offender replied "I don't have any drugs". Shortly after this, the Offender made a comment toward MURRAY involving calling her a "slut". The Deceased said "You don't have to go talking to women like that" and told the Offender "Get out". The Offender apologised and said "I'm sorry, I was out of line ". The Deceased said "Just make sure it doesn't happen again". The Deceased then started getting argumentative and asking the Offender again to get out. 11.After some arguing, the Deceased said to the Offender "we don't hang out with people like you" and told the Offender to get his stuff and get out of CURDS' cabin. The Offender apologised again and said "I was out of line". The Deceased said "I don't care I just want you to leave because you're starting to piss me off and if you don't leave I will make you leave". The Deceased offered to "take it outside" and the Offender and (sic) said "I don't want to fight, I don't know how to fight". 12. The Deceased told the Offender "if you come back here again you will know about it. Don't come back here again". The Offender picked up his bag and bottle of vodka and went to leave. The Deceased followed the Offender outside. The Offender walked away. The Offender had not behave (sic) aggressively while in the company of the Deceased, CURDS and MURRAY. 13. MURRAY and the Deceased went back inside the cabin. The Deceased became more agitated and decided he wanted to go looking for the Offender to confront him physically. After around 20 minutes, he got up and walked out and said "we'll go for a walk and see where he is". 14. The Deceased walked through the caravan park looking for the Offender, and approached a male in the park and asked him where the Offender lived. 15.ln the meantime, the Offender had returned to his mother's caravan. The Offender's mother saw that he was angry and very agitated and could tell that he had been drinking alcohol, as he almost fell through the door into the caravan. 16. The Offender said "Mum quick give me a sharp knife". She replied "we don't have any sharp knives. What do you want a sharp knife for? Don't be stupid go to bed". The Offender said "No, they're coming for me in a couple of seconds". 17. The Offender opened the top cutlery draw and took out two small steak knives. The Offender put the knives inside the waistband of his pants and walked out. The Offender's mother states that he was very angry and very agitated. 18. Just after the Offender left his mother's caravan, his mother saw the Deceased walking past her van. The Deceased approached her and asked "Where's Chooky?" Chooky is the nickname of the Offender's brother Kevin. The Offender's mother said "he's asleep and sick". The Deceased then walked away, and he and MURRAY then walked out of the front gate of the Park. 19.After leaving his mother's caravan, the Offender went to the nearby caravan of John LEGGE. LEGGE also noticed that the Offender was angry and agitated. The Offender said "I'm pissed off". LEGGE asked "Oh what's wrong?" The Offender said "have you got a big knife?" LEGGE said "I haven't got a big knife". The Offender then pulled his shirt up and LEGGE saw the black coloured plastic handles of knives in the band of his shorts, either side of his waist. The Offender pulled out one of the knives, which LEGGE then saw was a serrated kitchen type knife. 20. The Offender said "I'm going to go and bash someone". LEGGE tried to take the knife off the Offender and ended up with a cut to his index finger. The Offender walked out with the knife still in his hand, and said "I'm going to go and fix this bloke up". 21. By this time, it was shortly after 5:30pm, and there were numerous members of the public of varying ages, from young children to elderly people, in the area - walking, sitting and eating, and spending time with family members in the area around the lake foreshore, as well as travelling along Beach Parade in vehicles. 22. The Deceased and MURRAY were on the footpath of Beach Parade a few steps away from the Park gate, returning to the caravan park after having decided to go back to CURDS' cabin, when they heard the Offender call out "Hoi, Hoi". They turned and saw the Offender walking towards them. They stopped to let him catch up with them. 23. The Offender approached the Deceased and MURRAY and said to the Deceased "What's your problem?" The Deceased said "you drugged my mate" and the Offender replied "No I was joking about that. Daniel's my mate too I just came over to have a few drinks with him". 24. The Offender and the deceased began yelling and swearing at each other. Several witnesses state that they heard the Deceased say to the offender "Don't be so gutless" and 'Come on do it, do it', as he pointed to his stomach area. While this was being said, the offender stood still with his arms crossed behind his back, holding a knife. The Deceased yelled aggressively at the offender, with his face close to the Offender's. At one stage the Deceased was pulled 2 to 3 metres away by Jodie MURRAY, but moved back to the Offender and continued yelling at him. MURRAY then got the Deceased to move away from the Offender and speak to her. 25. The Deceased then approached the Offender again and pushed him with both hands to the front of his chest. The Offender stumbled back and fell over. He then got up and produced a knife from behind his back. 26. The Deceased told MURRAY to run, and gave her his phone. MURRAY then walked back towards the entrance to the Park. 27. The Offender, armed with two knives, then commenced a frenzied attack upon the Deceased stabbing him repeatedly in the neck and torso. 28. The Offender continued stabbing as the Deceased turned his back to the Offender. The Offender was seen to leap from the ground to enable him to land blows in the back of the Deceased's neck. Witnesses at the scene described the Deceased as stumbling around, and making no effort to defend himself when this was happening. 29. The Deceased then fell to the ground in the roadway outside the driveway of the Park. The Offender continued to stab the Deceased in the face and neck. The Offender was heard by witnesses shouting things like "how does that feel?" toward the Deceased. The Offender kicked the Deceased a number of times while he was on the ground. A witness, Jeffrey STEVENSON, who was watching and describing the attack to a 000 operator out of a nearby window, states that the Offender was laughing and dancing around the Deceased and appeared to be enjoying himself. 30.At some stage the Offender's mother had come out to the front of the Park after being told that the Offender was involved in a fight. The Deceased was on the ground and the Offender momentarily stopped attacking the Deceased, leaving him lying in the gutter upon the roadway. The Offender approached his mother and spoke with her, touching her on the shoulder. 31. The Offender then continued to attack the Deceased. Witnesses observed the Offender walk back and forth between his mother and the Deceased, each time stabbing the Deceased in the chest and torso, and sometimes kicking him in the head. When the witnesses Allyson and Steven CHAPMAN came driving past the scene, they saw the Offender stabbing the Deceased, then stop and look up at his mother, have a brief (up to 5 second) conversation with her, and then resume stabbing the Deceased. 32.At some stage the Offender started to slash the knife across the Deceased's throat in a manner that witnesses described as trying to cut the Deceased's head off. The Offender held the Deceased by the hair at some stage while slicing at the Deceased's neck, and banged his head against the roadway. 33. STEVENSON described the Offender stopping to undo a gold chain that was around the Deceased's neck. After removing the chain the Offender threw it in the direction of the driveway and continued cutting at the Deceased's throat. 34. STEVENSON and his partner, Carla PRESBURY also stated that at some stage the Offender stopped and stood up. He looked at the Deceased and then crouched back down and started cutting at the Deceased's ear with the knife. After a short time he said to his mother "how's this?" or "have a fucking look at that". 35.Around this time, Tracey MCKAY and Michele HOWITT, who were travelling in a vehicle along Beach Parade, arrived at the scene and saw the Deceased lying in the gutter while the Offender was pacing between the Deceased and his mother. They slowed their vehicle and stopped close to the Deceased. At the time they had their windows down, and the Offender walked towards them, staring straight at the witnesses in their vehicle with a smirk on his face. He said 'I don't care I'm not finished' and then returned to the Deceased and continued sawing and stabbing at his throat. 36. By this stage several 000 calls had been made, and a passing driver had driven to the nearby Toukley police station to report the attack. 37. Detectives arrived at the scene and saw the Offender crouched over the Deceased's body still stabbing him in the head and neck area. The Offender continued this at a rapid pace while Detectives drew their service firearms and yelled at him to drop the knife. They saw that the Offender was covered with a large amount of blood over his chest, face, hands, arms and legs. 38. The Offender complied with the direction, dropped the knife that was in his hand and walked toward the centre of the road with his arms up. The Offender laid face down on the road as requested. The Offender said to police "You got me, you got me, I got him okay, you got me" and then said to police "come on have a go. Come on, just shoot me, shoot me". 39.A witness, Alan POTTER, heard the Offender yell out to his mother "I had to do what I had to do. Mum, forget about me. I'm dead. I love you. Mum, it's my fault, not yours.", while alternating between yelling and laughing. 40. The Offender was heard by police to say "fucking bikies won't get me. Coming to cut my head off. Who's fucking dead now" and laughing. He also said "I tried to cut his head off. I would have but it got hard at the back". 41. The Offender was then placed into a police vehicle. At this stage he said "whose blood is this? Why am I in handcuffs? Whose blood? Why do I have claret on me, why am I under arrest?". Police replied "you're under arrest for murder". The Offender responded "Who? What do you mean what have I done?" 42.A short time later Ambulance Officers arrived and could immediately see that the Deceased had suffered fatal injuries. A blanket was placed over his body. 43. The Ambulance Officers then tended to the Offender, who had a laceration to the palm of his right hand. 44. Police located two broken steak knives upon the roadway in close proximity to where the Offender was arrested. Also located nearby was a small paring knife. The Deceased's gold neck chain was located in the driveway. 45. The Offender was transported to The Entrance Police Station. The Custody Officer noted that he appeared to be under the influence of alcohol or drugs and that he was very talkative and speaking quickly. After being read his rights under the Law Enforcement Powers and Responsibilities Act, he said "Life is good", "Apparently some guy got stabbed tonight and is going to die", "I need a shower, I've got some other guy's blood on me", "life's good when you have a mental illness", "Apparently a guy got stabbed and he said he was a bikie. He was threatening my family and he got fucked up. Apparently I tried to cut his fuckin' head off", "Where's the CIB here? I want to know what's going on. Apparently I killed a guy" and "Apparently I stabbed someone and it was daylight". 46. He was offered the opportunity to participate in an electronic interview. He initially agreed and commenced the interview, however a short time into it he requested to speak to a lawyer before being interviewed further. The interview was then terminated. The Offender participated in a number of forensic procedures before he was charged with the murder of the Deceased. 47.An autopsy was conducted on the Deceased's body. It was concluded that the direct cause of death was multiple stab injuries to the neck and chest and that many of the stab injuries would be regarded as being individually fatal. Approximately 107 injuries, including 105 stab wounds and a severe gaping wound to the Deceased's neck were identified. There was minimal evidence of defensive injuries. 48.lt was noted that the damage to the major blood vessels of the neck and shoulder would have caused a very rapid death due to blood loss and lack of blood supply to the brain. The Deceased would have been expected to become unconscious at some time before death." 4I make findings of facts in accordance with the agreed facts for the purpose of sentencing the offender. 5The offender's prolonged attack upon the deceased was extraordinarily savage. Included in the coroner's findings were seven stab injuries that had penetrated the chest cavity and an approximately 23cm long, 5cm wide transverse incised injury on the front aspect of the upper neck (injury 18). This injury was 8cm deep in the middle of the neck and extended up to the level of the cervical spine (C1 level). A series of at least 18 stab injuries were situated on the right side of the neck immediately below the ear and immediately right to injury 18. These stab wounds had penetrated into the deep neck muscles on the lateral aspect of the right side of the neck, through the skin and subcutaneous tissue to varying depths in complex manner. Internal structures damaged included jugular veins and carotid arteries. There were a series of 11 incised stab injuries, including a sharp nick, situated on the back aspect of the neck and mid upper back of the shoulder/chest. A series of nine incised stab injuries were situated on the outer aspect of the left side of the chest, approximately between the 5th and 9th ribs. It is an agreed fact that the coroner identified approximately 107 injuries, including 105 stab wounds and a severe gaping wound to the neck. 6The agreed facts disclose that although the deceased had been repeatedly stabbed in the neck and torso and had turned his back, the offender continued the stabbing and did not desist when the deceased had fallen to the ground. Notwithstanding the presence of his mother and the brief stops to talk to her, the offender resumed the attack upon the deceased who was lying in the gutter. The immense brutality of the killing is demonstrated by the slashing of the deceased's throat in a manner that witnesses described as trying to cut the deceased's head off, the banging of the deceased's head against the roadway, the removal of the deceased's gold neck chain and the cutting at the deceased's ear. 7I am satisfied beyond reasonable doubt that at time the offender attacked the deceased with the knives that he had the intention to kill him. The Crown did not invite me to find that prior to that time he had an intention to kill. I am satisfied beyond reasonable doubt that when he told Mr Legge that he was "going to go and fix this bloke up" and was armed with the knives, that he intended to inflict serious injuries to the deceased. 8The agreed facts reveal that after the offender caught up with the deceased, they began yelling and swearing at each other. The deceased was heard to say "Don't be so gutless" and "Come on do it, do it" as he pointed to his stomach area. The deceased yelled aggressively at the offender, with his face close to his. The deceased was pulled back twice by Jodie Murray, but approached the offender again. On the second occasion, the deceased pushed the offender with both hands to the front of his chest. The offender stumbled back and fell over. The deceased was 193cm tall. 9Mr Fitzgerald submitted that the deceased's conduct allowed for an assessment of provocation. Provocation by the deceased is a mitigating factor to be taken into account in determining the appropriate sentence: s 21A(3)(c) Crimes (Sentencing Procedure) Act 1999. Following the decision of the High Court of Australia in Muldrock, there has been some debate about the range of factors to be considered in determining the objective seriousness of the offence: see Yang v R [2012] NSWCCA 49; R v Koloamatangi [2011] NSWCCA 288. The High Court held at [27] that the objective seriousness of an offence is to be determined wholly by reference to the nature of the offending and without reference to matters personal to an offender. In my view, where provocation is established such that it is a mitigating factor under s 21A(3)(c) Crimes (Sentencing Procedure) Act, it is a fundamental quality of the offending which may reduce its objective seriousness. In any event, provocation is a factor relevant to the appropriate sentence to be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. I am satisfied on the balance of probabilities that the deceased's aggression towards the offender provided some provocation, but the attack that followed was far out of any reasonable proportion to the deceased's behaviour. Furthermore, the offender had caught up with the deceased with the intent to seriously injure him. I give very modest weight to the deceased's provocation in mitigation of the offence. 10It is a factor in mitigation that the murder was not planned: s 21A(3)(b) Crimes (Sentencing Procedure) Act. 11Although these are factors of mitigation, the seriousness of the offending is of a high order. The attack upon the deceased was extremely violent and hideous wounds were inflicted. I am satisfied beyond reasonable doubt that the only rational inference to be drawn from the combination of the gaping wound to the neck, the observations of witnesses and what was said by the offender (see [3.40] above), is that the offender tried unsuccessfully to cut the deceased's head off during the attack. Whilst the offender's intoxication and use of methamphetamine provides support for the finding that the murder was not planned, his intoxication and methamphetamine use for the reasons recounted at [19] - [27] below neither mitigate nor aggravate the offence. 12The offender does not have a prior criminal record in New South Wales. His criminal history in Queensland includes convictions for wilful destruction of property, possession of a knife in a public place (2004), common assault (2005), assault occasioning bodily harm and wilful damage (2006), grievous bodily harm with intent and wilful damage (2008). For the offences of assault occasioning bodily harm and wilful damage, he was sentenced on 24 July 2006 in the District Court at Bundaberg to concurrent terms of 18 months and 12 months imprisonment that were suspended for two years after six months of imprisonment was served. On 12 February 2008 for the offence of grievous bodily harm with intent, the offender was sentenced to imprisonment for four years and for the offence of wilful damage to imprisonment for one year. The sentences were to be served concurrently, but to commence at the end of the sentence imposed for the breach of the sentences that had been suspended. The earliest date he was eligible for release to parole was 19 August 2009. That criminal history deprives the offender of the consideration of leniency to which he may have been entitled if the current offence was an isolated act of criminality. 13The Crown submitted that the offender's record of previous convictions for serious personal violence offences and the commission of the murder whilst the offender was on conditional liberty are aggravating factors under s 21A(2) Crimes (Sentencing Procedure) Act. Mr Fitzgerald said that the offender did not cavel with the factors of aggravation identified by the Crown. 14Section 21A(2)(d) provides that an aggravating factor to be taken into account in determining an appropriate sentence is: "the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)." 15A serious personal violence offence "means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more": s 21A(6) Crimes (Sentencing Procedure) Act. 16The offence of murder falls within the meaning of a "personal violence offence" in s 4 of the Crimes (Domestic and Personal Violence) Act, but the offences committed in Queensland, do not fall within the definition as they are not offences "under, or mentioned in" the sections nominated in s 4(a). Nevertheless, s 21A(2)(d) is not confined to a record of previous convictions for serious personal violence offences. The offences of assault occasioning bodily harm and grievous bodily harm with intent are punishable under the Criminal Code Act 1899 (Qld) by terms of imprisonment of five years or more and are serious violence offences. I find the offender's prior record of serious violence offences to be a factor of aggravation when determining the appropriate sentence. The offender's prior record does not increase the objective seriousness of the murder, nor is it an objective circumstance for the purpose of the application of the proportionality principle and does not determine the upper boundary of a proportionate sentence: R v McNaughton [2006] NSWCCA 242; (2006) NSWLR 566. In view of the offender's prior violent offending I give more weight to personal deterrence and protection of society than otherwise would have been the case: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. 17At the time of the murder, the offender was on parole for the offence of grievous bodily harm with intent. He gave evidence that he had been released to parole on 21 June 2010, but that is inconsistent with the agreed fact that he had been living with his mother since May 2010 (see [3.2] above). In any event, the offender abused his conditional liberty by stabbing the deceased to death. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: R v Fernando [2002] NSWCCA 28; R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327. 18The offender was born on 10 March 1975 and is 37 years of age. He was 35 years old at the time of the murder. His personal history is taken from the report dated 2 April 2011 of Dr Olav Nielssen, psychiatrist (ex 1). The offender was born in Camperdown and was the only child of his parents. As his three half siblings were considerably older, the offender was effectively brought up as an only child. He moved to Queensland at the age of thirteen where he lived until his release from prison. The offender left school before the age of 15, has TAFE certificates in horticulture, landscaping and hospitality and has worked in various occupations. The offender has a son from a relationship that ended in 2003 who he was permitted to see once a month. 19The offender told Dr Nielssen that alcohol had been a big problem in his life, that he was affected by alcohol at the time of the assault of his father in 2006 and the further offence in 2007 was alcohol related. The offender reported use of cannabis from the age of about fourteen and periods of daily use of the drug in his late teenage years. His use of the drug had slowed after the birth of his son when he was aged 21 and did not report any heavy or regular use from that time. The offender said that he had not used cannabis after his release from prison. He denied taking other drugs and said that the only time he had taken methamphetamine was on the day of the murder. 20Dr Nielssen noted that the offender's mother described him as "very unpredictable and violent when he drank alcohol." Dr Nielssen diagnosed alcohol abuse disorder, dysthymic disorder (chronic low grade depressive illness) and possible bipolar mood disorder. Dr Nielssen opined that (ex 1 p7): "It seems that [the] main reason for the offence was Mr Willmott's state of intoxication and his association with other highly intoxicated people, which added to the risk of an alcohol fuelled altercation. Mr Willmott reported a heightened perception of threat, which might have been due to the physical presence of the deceased. It seems he has a pattern of becoming aggressive whilst intoxicated, which would have been increased by the effect of a moderate dose of methamphetamine taken several hours before the offence." 21The psychiatrist stated that there was no information to suggest that the offender was in a state of psychosis before he started drinking or in the period after his arrest, and the state of mind reported by the offender was probably due to intoxication, including intoxication with amphetamine. The offender's report of no memory of the offence itself suggested an alcohol related period of amnesia or black out. The offender was not thought to be mentally ill around the time of the offence, or to have a defect of reason arising from mental illness that might leave open the defence of mental illness. As to the possible mood disorder, Dr Nielssen stated that there was little information available to suggest the presence of an abnormality of mind prior to commencing drinking or taking amphetamine, and the applicant's abnormal state of mind at the time of the offence appeared to be largely due to the effects of intoxication. The diagnosis of dysthymic disorder was made on the basis of the offender's account of longstanding symptoms of depression that were not severe enough to prevent him from performing most social roles, such as working and forming long term relationships. 22Professor Starmer, a pharmacologist, recounts at par 5 of a report dated 7 September 2011, the amount of alcohol that the offender said that he had consumed on the day of the murder. Professor Starmer was also told that he had consumed two points of "ice", that he had not used "ice" before and "adrenaline was rushing through [his] body, sober from the alcohol, but really speedy." If the offender's recall of his alcohol consumption was accurate, Professor Starmer estimated that at the time of the murder, the offender's blood alcohol concentration would have been about 0.434g/100ml, which was described as being extraordinarily high. Professor Starmer reported that although the offender has been a heavy drinker, and was likely to have been very tolerant to alcohol, he would have displayed most, if not all, of the signs and symptoms of intoxication with a blood alcohol concentration well within the lethal range. 23When considering the effects of "ice" in combination with alcohol, Professor Starmer opined "that both methylamphetamine and alcohol are known to be associated with aggression and violent behaviour and it is likely that when taken in combination the effects would be at least additive": ex 2 p5-6. 24During his evidence, the offender said that he had no independent memory of the murder, but had never denied taking the deceased's life. He had been frank with Dr Nielssen and had given him his best recollection. He had given his solicitor his best recollection of his alcohol consumption and use of methamphetamine. The offender told me that he felt that he needed counselling, had spoken to a psychiatrist and was taking Avanza, an antidepressant and Epilim, a mood stabiliser, which he found gave him more control over his life and was willing to continue with this medication. He had realised the large part played by alcohol in the offence and said that he would never drink again. He continued to have the support of his 75 year old mother and of his extended family. In cross-examination by the Crown, the offender said that the first time he had been asked to remember how much alcohol he had consumed was probably a couple of weeks after the murder. When asked whether he had used amphetamines prior to the day of the murder, the offender replied that when he was a teenager he had "a little bit of it." He did not recall telling Dr Elliott, a prison psychiatrist, that he had injected amphetamines on three occasions at around 16 or 17. Dr Nielssen had noted that Dr Elliott elicited a history of the offender injecting amphetamines on three occasions at around the age of 16 or 17: ex 1 p4. 25The Crown submitted that caution should be used in accepting the amount of alcohol that Professor Starmer was informed the offender consumed on the day and the agreed facts pointed to one matter of inaccuracy. The Crown contended that the objective seriousness of the offence was not diminished by the mental state of the offender or by any significant intoxication on his behalf. The Crown did not invite me to find that the offender's intoxication aggravated the crime. 26Mr Fitzgerald submitted that the offender's intoxication and use of "ice" provided an explanation for the murder and the manner in which it was committed. What was described by counsel as the "staccato attack" upon the deceased, was said to be in keeping with the offender's intoxication and distraction of mind. Mr Fitzgerald did not contend that the offender's intoxication and use of "ice" mitigated the seriousness of the offence or that the offender fell within the "out of character" exception: see Stanford v R [2007] NSWCCA 73. 27I am not satisfied on the balance of probabilities that the account of the offender's consumption of alcohol that founded Professor Starmer's assessment of the offender's blood alcohol concentration is entirely accurate. As the Crown pointed out, it is an agreed fact that the offender gave one of the pre-mixed vodka drinks to Daniel Curds, who drank it, whereas Professor Starmer was informed that the offender had consumed the four pack of Black Ice Vodka. It is not surprising that there is some inaccuracy in the offender's account as he was not asked to recall what he had drunk until a couple of weeks after the murder. I accept that he was intoxicated to a significant extent at the time of the offending but the extent of his intoxication did not prevent him from sustaining a prolonged attack upon the deceased. As Dr Nielssen observed, the offender had a pattern of becoming aggressive whilst intoxicated which would have been increased by the effect of the moderate dose of methamphetamine taken several hours before the offence. The offender's intoxication does not mitigate the seriousness of the murder but assists in providing an explanation for the crime and the horrific manner in which the deceased was killed. The offender's prior history of heavy drinking and of violent offending whilst affected by alcohol demonstrates that his intoxication was not out of character for him. He had previously used amphetamines as a young person. I conclude that his intoxication and consumption of methamphetamine neither mitigates nor aggravates the offence. 28Mr Fitzgerald did not submit that the psychiatric disorders diagnosed by Dr Nielssen should impact upon the offender's culpability for the offence or upon the part that specific or general deterrence might play in the sentencing exercise: see for example R v Israil [2002] NSWCCA 255; R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436. The evidence does not establish that the offender lacked the capacity to reason, or to make reasonable judgments, or to control his faculties and emotions or that the state of his mental health contributed to the commission of the offence in a material way: DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1. 29The Crown invited me to find that the offender's future dangerousness was of a high order in light of the circumstances of the murder, his prior criminal history and long-term alcohol use. Mr Fitzgerald argued that the Court would not be greatly concerned as to the offender's future dangerousness upon release because of his realisation of the part that intoxication had played in the murder, his taking of the prescribed medication and future professional assistance. 30A finding of future dangerousness does not need to be established beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. It is sufficient if the Crown establishes on the balance of probabilities that there is a risk of re-offending: R v Harrison (1997) 93 A Crim R 314. Unless the offender can overcome his alcohol abuse, the risk of future dangerousness that he presents to the community is high. The risk will moderate naturally with advanced age. The offender's prior alcohol related offending and return to the heavy consumption of alcohol upon release to parole encourages a pessimistic view being taken of his prospects of rehabilitation and the risk of violent re-offending upon release. I consider that the offender's prospects of rehabilitation are poor. I have no doubt that much will depend upon the insight that the offender develops into his alcohol abuse prior to release. That does not mean that I find that he has no prospects of rehabilitation. To do so would ignore his evidence of remorse, his realisation of the part played by intoxication in the murder, the steps that have been taken with medication, his family support and the possible benefits of future counselling. 31There is, in my opinion, a need for an element of specific deterrence in the sentence. I also give weight to the protection of the community. I have kept in mind the principle of proportionality and the sentence is not to be increased beyond that which is proportionate to the crime: Veen (No 2). 32Remorse as a mitigating factor is qualified by s 21A(3)(i) (i)-(ii) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by his actions. By his plea of guilty, the offender has accepted responsibility for the murder. Furthermore, during his evidence, he declared his sorrow for the loss and pain he has caused to the deceased's family and that he would give his life to bring the deceased back if he could. I conclude on the probabilities that he is genuinely remorseful and take into account his remorse as a factor of mitigation. 33The 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 of s 21(1) of the Crimes (Sentencing Procedure) Act (which authorises the passing of a lesser sentence than imprisonment for life). 34Section 61(1) of the Crimes (Sentencing Procedure) 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." 35The 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. The Crown submitted that, although the offence was of "a high state of objective seriousness...it may well fall below that level that would cause your Honour to consider life imprisonment." Mr Fitzgerald said that whilst he was not suggesting that "this is anything bar a matter of high objective seriousness...it is not of the highest and nor is it near the highest category of offences of that style." 36Although the offender's level of culpability is of a high order, I am not satisfied that it is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through a life sentence. 37The offender pleaded guilty to the murder during the committal hearing in the Local Court in December 2011. Although the Crown accepted that this was an early plea, it did not concede that the plea was entered at the earliest opportunity. Mr Fitzgerald submitted that the committal hearing was undertaken to examine Jodie Murray, a Crown witness, who had given two statements that had left the Crown case "as to the complete order of events on that day in some state of flux or contradiction." The contradictory statements together with the offender's lack of independent memory, required Ms Murray's cross-examination to see where the case lay so that the offender might receive advice and give proper instructions. At the conclusion of Ms Murray's evidence, the offender had pleaded guilty and had done so at the very first instance that the case against the offender was made known to him. Mr Fitzgerald contended that the offender's plea was entered at the first available opportunity. In reply, the Crown did not accept that Ms Murray had made inconsistent statements and pointed out that she was not a sole witness to the crime. There were numerous witnesses who had observed the stabbings and Ms Murray had left the scene a short time before. The Crown submitted that if a trial had proceeded, it would not have been overly complex. 38There were persons other than Ms Murray, who had witnessed the murder but Ms Murray was nevertheless an important witness. The discount for the utilitarian value of the plea is determined largely by the timing of the plea: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, though there will be exceptional circumstances where it is appropriate to give a full utilitarian discount notwithstanding the fact that the plea had not been entered at the earliest opportunity: R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 per Bathurst CJ at [2]. I am satisfied in the present circumstances, that the offender is entitled to a utilitarian discount of 20 per cent for his plea of guilty. 39Victim impact statements of Tammy Curphey, the deceased's sister and Jennifer Curphey, the deceased's mother were read to the Court. The contents of the statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them. 40Taking into account all factors that are relevant to sentence, the appropriate undiscounted starting point of the overall sentence I conclude, is 35 years. The overall sentence is reduced by 20 per cent to 28 years. 41The offender's parole was revoked with effect from the day of the murder as a result of its commission. At my invitation, a joint written submission (now marked MFI A) was made by the Crown and Mr Fitzgerald as to questions of accumulation and special circumstances. The parties have pointed out that if the sentence commences today, the period spent by the offender in continuous custody would be extended by approximately 21 months and one week. One of the other matters raised was that he was at liberty for a short period before returning to custody to serve the balance of parole of the 12 February 2008 sentence, but which took into account two prior periods in custody commencing on 25 April 2007. At the time of sentencing, the offender will have been in custody for the most part of the previous 5 years. 42Another matter raised was that the offender's imprisonment was likely to be more onerous because he suffers from psychiatric disorders and he will be held in maximum security. The evidence of his conditions of imprisonment was confined to that of the offender who testified that since his arrest, he had been in maximum security. He had initially been in an area marked "non-association", but was now in maximum security with limited association. It had been indicated to him that he would serve his sentence in limited association, maximum security. The offender was presently working as a leading hand in hygiene, which he would like to continue. 43I am not persuaded that the offender's custodial conditions will be more onerous than those of the general prison population so that they might be taken into account in mitigation of the sentence or in the finding of special circumstances. Furthermore, it was the offender's testimony that the medication prescribed by the psychiatrists was having a beneficial effect upon him. There is no evidence that demonstrates that imprisonment will be more burdensome for the offender because of his psychiatric disorders. 44Although it is usual principle that allowance is made for pre-sentence custody where it is exclusively referable to the crime for which the offender is being sentenced, I have taken into account as a circumstance of aggravation that the murder was committed whilst the offender was on parole. Moreover, he has been in custody for almost 5 years and I take into account the total period of imprisonment: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. Accordingly, the sentence will commence on 13 October 2010 and not upon the expiration of his current parole. 45I do not consider that special circumstances exist which justifies the balance of the term of the sentence exceeding one-third of the non-parole period. The balance of term of 7 years is a sufficient period under supervision to enable the offender to adjust to community life and to establish an effective treatment regime. 46Kevin Robert Willmott for the murder of Shane Curphey, I convict you. I sentence you to a term of imprisonment with a non-parole period of 21 years which is to commence on 13 October 2010 and is to expire on 12 October 2031. I set a balance of term of 7 years which is to commence on 13 October 2031 and will expire on 12 October 2038. 47The earliest date of eligibility for your release to parole is 12 October 2031. ********** 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: 25 July 2012