Supreme Court New South Wales Medium Neutral Citation: R v Lauren Mae Batcheldor [2012] NSWSC 1398 Hearing dates: 30 - 31 July 2012; 1 - 2 August 2012; 6 - 8 August 2012; 14 - 17 August 2012; 2 November 2012; 22 November 2012 Decision date: 22 November 2012 Before: Bellew J Decision: 1. In respect of the offence of specially aggravated kidnapping of Matthew Digby, the offender is sentenced to a fixed term of 7 years imprisonment, commencing on 22 October 2011, and ending on 21 October 2018. 2. In respect of the offence of the murder of Matthew Digby, the offender is sentenced to a non-parole period of 18 years imprisonment commencing on 22 October 2011 and ending on 21 October 2029, with an additional term of 6 years imprisonment, commencing on 22 October 2029 and ending on 21 October 2035, that is a total of 24 years imprisonment. 3. The offender will be eligible for release on parole on 22 October 2029 and her sentence will end on 21 October 2035. Catchwords: CRIMINAL LAW - Murder - Crown case one of constructive murder based on foundational offence of specially aggravated kidnapping - Sentence following verdict of guilty by jury Legislation Cited: Crimes Act 1900 Crimes (Sentencing and Procedure) Act 1999 Cases Cited: Butters v The Queen [2010] NSWCCA 1 Josefski v R [2010] NSWCCA 41 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 R v Berg [2004] NSWCCA 300; (2005) 41 MVR 399 R v JB [1999] NSWCCA 93 R v Jacobs (2004) 151 A Crim R 452 R v Isaacs (1997) 41 NSWLR 374 R v Mills (NSWCCA 5 April 1995 unreported) R v Newell [2004] NSWCCA 184 R v Previtera (1997) 94 A Crim R 76 SBF v R [2009] NSWCCA 231 Category: Principal judgment Parties: Regina (Crown) Lauren Mae Batcheldor - Offender Representation: M Grogan - Crown J Spencer - Offender Director of Public Prosecutions (NSW) - Crown William Whitby Lawyers - Offender File Number(s): 2010/47811 Publication restriction: Nil Judgment INtroduction 1On 30 July 2010, Lauren Mae Batcheldor ("the offender") was jointly indicted with Richard James Walsh ("Walsh") in the following terms: (i)that they, between 22 January 2010 and 25 January 2010, whilst in the company of each other, detained Matthew Digby without his consent, and with intent to obtain an advantage, namely to obtain information about property previously stolen, and that at the time of the detaining, actual bodily harm was occasioned to Matthew Digby. (ii)that they between 22 January 2010 and 25 January 2010 at Dapto in the State of New South Wales, did murder Matthew Digby. 2The offender pleaded not guilty to each of those charges. 3On 17 August 2012 the jury returned verdicts of guilty in respect of both charges. I heard submissions in respect of sentence on 2 November 2012. 4The Crown case against the offender in respect of the second count in the indictment, namely the offence of murdering Matthew Digby ("the deceased") was one of constructive murder. The Crown alleged that the deceased was killed during the commission, by the offender and Walsh ("Walsh"), of the offence in the first count, namely the offence of kidnapping in circumstances of special aggravation, pursuant to s. 86(3) of the Crimes Act. 5The offence of specially aggravated kidnapping carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period prescribed. 6The offence of murder carries a maximum penalty of life imprisonment. Pursuant to s 54A of the Crimes (Sentencing and Procedure) Act 1999 ("the Sentencing Act") a standard non-parole period of 20 years imprisonment is prescribed for that offence. 7In written submissions the Crown drew my attention to the provisions of s 61(1) of the Sentencing Act which mandates the imposition of a life sentence for the offence of murder if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. However, the Crown did not submit that the offence of murder committed by the offender fell into that category and I am satisfied that it does not. Accordingly, the imposition of a life sentence is not warranted. SENTENCING PRINCIPLES General considerations 8As I have indicated, the offence of murder carries a standard non-parole period of 20 years imprisonment. I must therefore adopt an approach to sentencing in which all of the relevant factors are identified, and a conclusion reached as to the appropriate sentence, having regard to such factors. Such an approach is mandated by the relevant statutory provisions generally, and by the provisions of ss 55B(2), 54B(3) and 21A of the Sentencing Act in particular (see Muldrock v R (2011) 244 CLR 120 at [26] citing Markarian v R (2005) 228 CLR 357 at [51]). 9The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It therefore represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27]; [31]). 10For the purposes of determining an appropriate sentence, I am required to make findings of fact in relation to the circumstances of the offending. Any factual findings I make must be consistent with the jury's verdicts. In particular, I must accept such facts as are established by those verdicts and I must not determine any factual issue in a way which is inconsistent with those verdicts (see R v Isaacs (1997) 41 NSWLR 374). The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation, on the balance of probabilities. 11Finally, in circumstances where the offender has been convicted of two offences, I must have regard to principles of totality (see Pearce v R (1998) 194 CLR 610). Sentencing in cases of constructive murder 12As I have already noted, the Crown case against the offender in respect of the second count was one of constructive murder. Counsel for the offender submitted that this should lead to the imposition of a lesser sentence than would have been imposed had the Crown put its case against the offender on the basis that she had intentionally killed the deceased. In my view, that submission should be rejected. 13In R v Mills (NSWCCA 5 April 1995 unreported) Gleeson CJ rejected the proposition that cases of constructive murder involve a lower level of culpability, such that they should attract a lower sentence than would apply to a case of an intentional killing. That principle has been confirmed in a number of cases since. For example in R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452 Wood CJ at CL (with whom Kirby and Sperling JJ agreed) said (at [332]): "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 NSWCCA 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 the death: R v JB [1999] NSWCCA 93. THE VICTIM IMPACT STATEMENTS 14The court received victim impact statements from John Digby, the deceased's father (which was read to the court by Mr Digby on behalf of both himself and the deceased's mother Dianne Digby), and from Marcus Digby, the deceased's brother. Mrs Digby also read to the court a victim impact statement on behalf of her son, Leighton. 15Unsurprisingly, the members of the deceased's immediate family continue to suffer considerable grief following the loss of their son and brother. Their grief stems not only from the fact of the deceased's death, but also from the circumstances in which that death occurred, and from what occurred in its aftermath. 16I wish to take this opportunity of expressing my condolences to each of the members of the deceased's family upon their loss. It is to be hoped that the opportunity that they were given to provide their statements to the court will go some way to assisting them in their grieving. 17In his written submissions, the Crown Prosecutor raised an issue regarding the continuing applicability of the statement of principle contained in R v Previtera (1997) 94 A Crim R 76 pertaining to victim impact statements. In doing so, the Crown Prosecutor drew my attention to the provisions of ss 3A(g) and 21A(2)(g) of the Sentencing Act, and to the decision of the Court of Criminal Appeal in R v Berg [2004] NSWCCA 300; (2005) 41 MVR 399. Section 3A(g) of the Sentencing Act provides that one of the purposes for which a court may impose a sentence upon an offender is to "recognise the harm done to the victim of the crime and the community". Section 21A(2)(g) of the Sentencing Act includes, as an aggravating factor, a circumstance where "the injury, emotional harm, loss or damage caused by the offence was substantial". 18In Previtera Hunt CJ at CL observed: "A victim impact statement was provided by the deceased's son ... In my opinion however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case". 19Having explained why this was so, his Honour said: "The victim impact statement in the present case, as I have said, speaks of the reactions of the deceased's son and daughter to the murder. That material is relevant to any compensation which they may seek from the Victims Compensation Tribunal but it is irrelevant to the task which I have to perform here in sentencing the prisoner. It is therefore inappropriate to consider it in determining the sentence to be imposed upon the prisoner in this case". 20In Berg Wood CJ at CL, in reference to the decision in Previtera, observed (at [42] - [43]; 407): "[42] That case does suggest that a victim impact statement is not relevant to the sentencing exercise, at least in the circumstances considered in that case, where there had been a death. [43] The reasons given in Previtera may need to be reconsidered in an appropriate case, by reason of the inclusion of the statement of the purposes of sentencing in s 3A of the (Sentencing Act). I refer particularly to the reference in s 3A(g)...". 21In SBF v R [2009] NSWCCA 231 Johnson J (at [86]) said: "A sentencing judge must approach victim impact statements (from the family of a deceased) within the confines laid down in R v Previtera at 84-87; R v Bollen (1998) 99 A Crim R 510 at 529-530; R v Tzanis [2005] NSWCCA 274 at [15]-[18] and Whybrow v R [2008] NSWCCA 270 at [17]." 22More recently, in Josefski v R [2010] NSWCCA 41 Howie J, with specific reference to the decision in Berg as well to the same legislative provisions as those to which the Crown drew my attention, said (at [36]): "The Crown, however, relied upon s 3A of the Crimes (Sentencing Procedure) Act 1999 particularly having regard to what the Chief Justice said in R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399 as to the implications of that section upon the continued application of the principle enunciated in R v Previtera (1997) 94 A Crim R 76. That decision held that a court could take into account the effects of the death of the deceased upon family or others when sentencing for murder. [37] The particular of s 3A relied upon is s 3A(g) which in effect states that one of the purposes of punishment is to "recognise the harm done to the victim and the community". Reliance is also placed upon s 21A(2)(g) of the Act, that in effect provides that it is an aggravating factor for the purposes of sentencing that "injury, emotional harm, loss or damage caused by the offence was substantial". In Berg the Chief Justice questioned whether the existence of s3(A)(g) and 21A(2)(g), and the introduction of victim impact statements into sentencing proceedings, might result in a need to revisit Previtera. In R v Tzanis [2005] NSWCCA 274 a specially constituted Court of five judges was convened to reconsider Previtera but, after hearing argument in the matter, the Court determined that it was not a suitable vehicle for that purpose. This Court has continued to apply Previtera and the obiter of the Chief Justice in Berg has never again been considered in that regard. [38] In my opinion neither the existence of s 3A(g) or s 21A(2)(g) leads to a conclusion that the common law of this State has been altered by the introduction of those provisions." 23In my view, it is clear from these authorities that the statement of principle of Hunt CJ at CL in Previtera, concerning the use of victim impact statements provided by the members of the family of a deceased person, remains applicable. THE CIRCUMSTANCES OF THE OFFENDING 24The Crown submitted, and counsel for the offender accepted, that it was evident from the jury's verdict on the first count in the indictment that they were satisfied beyond reasonable doubt that: (1)the offender detained the deceased; (2)she did so knowing that he was not consenting; (3)she did so with the intention of obtaining information from him concerning the robbery; (4)she was acting in the company of the co-offender Walsh in do doing; and (5)actual bodily harm was inflicted upon the deceased whilst he was detained. 25Bearing these matters in mind, and also bearing in mind the fact that the jury found the offender guilty of murder based upon her commission of the offence in the first count, I am satisfied that the circumstances of the offending were as follows. The burglary at the offender's home 26Between about 14 and 15 January 2010 the offender's home was the subject of a burglary. As a consequence, various items of property were stolen. Amongst those items, and of particular significance in the present case, was a gold necklace. A coin collection belonging to Walsh, who was a long standing acquaintance of the offender, was also stolen. The disposal of stolen property by the deceased 27On or about 18 January 2010 the deceased sold the gold necklace which had been stolen from the offender's premises to a second hand dealer in Wollongong for a sum $250. How that item came to be in the possession of the deceased is not entirely clear. There was some evidence given in the trial that the deceased had told the offender that he had acquired the necklace from a prostitute. In any event, it is not necessary for present purposes that I reach an affirmative conclusion in relation to that issue. 28Evidence was given at the trial, which was not disputed, that on the afternoon of 18 January 2010 the offender visited the second hand dealer in the company of a friend, Evren Agdiran ("Agdiran"). On that occasion, she identified the necklace as the one which had been stolen from her home. She also managed to identify the deceased as being the person who sold it to the second hand dealer earlier that day. 29Agdiran subsequently made a statement to the police and was called by the Crown to give evidence at the trial. Despite his attempts to resile from his statement, I am satisfied that after attending the second hand dealer, the offender said to Agdiran, in reference to a proposed visit to the deceased's premises: "I'm going to go there and get my shit back. I'm going to baseball bat, smash the house". 30I am satisfied that upon learning that the deceased had been responsible for selling her necklace to a second hand dealer, the offender formed a suspicion that the deceased was responsible for the burglary at her home, or that he might at least have information regarding the burglary. It was in these circumstances that she initiated an attendance, by herself and others, at the deceased's home. The offender's attendance at the deceased's premises 31On the evening of 18 January 2010 the offender, Walsh and Cihan Karaoglu ("Karaoglu") all attended upon the deceased's premises. Another person, in respect of whom there are non-publication orders, and to whom I will refer as "A", accompanied them. A was originally charged with the deceased's murder. However, that charge was withdrawn, and A was granted an indemnity by the Attorney-General. A gave evidence for the Crown. Having observed A give evidence, I formed the view that generally speaking, A was doing the best to be truthful. 32When the offender and the other three persons arrived at the deceased's premises, the deceased was not present. The only person in attendance was Michael Small, who was an acquaintance of the deceased. I am satisfied, having regard to the evidence given at the trial, that upon the arrival of these four persons at the deceased's premises, the offender who asked for the deceased. I am also satisfied that the offender, having determined that the deceased was not there, asked Mr Small to telephone the deceased, following which the offender and the deceased had a conversation. 33Following that, Walsh and Karaoglu started searching the premises. In light of the offender's evidence that she had told Walsh and Karaoglu that there might be jewellery at the premises, I am satisfied that although the premises were not personally searched by the offender, they were searched by persons on her behalf. 34Whilst the offender and the others were still there, the deceased arrived home, having been driven there by a friend, Tini Eli, who gave evidence in the trial. The deceased told Mr Eli that the "big boys" wanted to speak with him. I infer that this comment, and the deceased's arrival at his home, were consequent upon his earlier telephone conversation with the offender. 35Mr Eli also gave evidence, which I accept, that he remained outside the premises and could hear shouting and swearing. He also gave evidence that when all of the persons (including the offender) came out of the premises one of them said to the deceased words to the effect "you'd better get that stuff back". 36Agdiran also gave evidence, and I am satisfied, that following the visit to the deceased's premises the offender had said (in reference to the deceased): "He didn't want to buckle, you know, he's staunch". 37The offender admitted when giving evidence at the trial that she was "not calm" when she attended the deceased's premises, and that the tone of the conversation was "not polite". She also agreed that the atmosphere "would have been a little bit stressful" for Mr Small, because there were "three strangers there that he didn't know". I am satisfied that the attendance of the offender and the others at the premises would have been equally stressful for the deceased. Subsequent contact between the offender and the deceased 38On 19 and 20 January 2010 there was regular mobile telephone contact between the offender and the deceased. I am satisfied that this contact was in relation to the offender's stolen property. It culminated in the deceased and the offender attending the second hand dealer on 20 January 2010, where the deceased redeemed the necklace which he had previously sold and returned it to the offender. The meeting at Beaton Park 39There was no dispute at the trial that a meeting took place at Beaton Park between the offender, Walsh and the deceased at about 12.30am on 23 January 2010. It was the offender's case at trial that this meeting was a completely innocent one, and involved no more than the deceased offering to sell her an "X-Box" console. It is evident from the jury's verdict that they rejected that account, and that they accepted the Crown case that the deceased was detained without his consent at that meeting, for the purposes of obtaining further information from him regarding the burglary at the offender's premises. 40There was evidence in the Crown case at trial that between 20 January 2010 and 23 January 2010 the offender was in regular telephone contact with the deceased and Walsh. That telephone contact included contact between the offender and the deceased at 12.02am on 23 January 2010 (being a telephone call from the offender to the deceased) and further contact at 12.03am by way of an SMS message from the offender to the deceased. I am satisfied that the telephone contact between 20 January and 23 January to which I have referred related, at least in part, to the subject of the stolen property, and that in the course of that contact arrangements were made for the meeting at Beaton Park to take place. Just has she had previously initiated the search of the deceased's premises, I am satisfied that the offender also initiated the meeting at Beaton Park. 41According to the offender a fourth person, Stacey Callaghan, was also present. Ms Callaghan had originally provided a statement to the police in relation to that matter. Only a matter of days later, she provided another statement to the offender's solicitor, the contents of which were, at least in part, contrary to those of the first statement. Although Ms Callaghan was issued with a subpoena to attend and give evidence she did not do so and her whereabouts were unknown. The contents of both of her statements were before the jury but in circumstances where her evidence was not tested, I am not able to determine whether or not she was present at the meeting at Beaton Park. 42I am satisfied on the evidence that the deceased arrived in his own vehicle at Beaton Park, that he met with the offender and Walsh, and that at that point he was detained. I am further satisfied that the deceased left Beaton Park in the company of Walsh, in a vehicle owned by A, the deceased's own vehicle remaining at Beaton Park at that point. The death of the deceased 43According to the offender, she left Beaton Park, after which Walsh and the deceased then attended her premises, at which time the deceased informed her of the whereabouts of the stolen property. I am not satisfied that such a visit occurred. If it were the case that the deceased wanted to convey that information to the offender, he could simply have done so by telephone. A personal visit to her premises in the early hours of the morning was simply not necessary for that purpose. 44I am satisfied that having left Beaton Park, the offender made her way to A's premises, separately from Walsh who had the offender detained in his car. On the way, the offender told A that she and Walsh were on their way to her premises and upon her arrival, the offender asked A to open the garage door. A short time later, Walsh arrived, drove the vehicle in which the deceased was detained into the garage, and entered the premises through an internal door, telling A that he "had (the deceased) in the car". 45At that stage Walsh told A that he was going to speak to the deceased "to find out what he knows and where the things are", following which he returned downstairs to the garage. At about this point, the offender left the premises. There was a subsequent altercation in the garage of the premises between Walsh and the deceased, in the course of which the deceased was killed. As I have set out more fully in my reasons for sentence in relation to Walsh, I am satisfied that the deceased was killed by the act of Walsh in the course of an altercation between the two of them in the garage of A's premises. 46As I have already observed, there had been a considerable amount of telephone contact between the offender and the deceased leading up to their meeting at Beaton Park. The last such contact was recorded as having occurred at 2.46 am on 23 January 2010. There is no evidence that the offender tried to contact the deceased after that time. I am satisfied that she did not do so because she was aware that the deceased had been killed. Events following the deceased's death 47At some point later in the morning of 23 January, the offender returned to A's premises. In the presence of the offender, Walsh told A to move the deceased's car from where it had been left at Beaton Park. This, I am satisfied, was to create the impression that the deceased had simply left of his own accord, rather than raise some suspicion that he had left with Walsh. The offender then drove A to Beaton Park and she identified the deceased's vehicle. A then followed the offender out of Beaton Park in that vehicle and drove it to the Botanical Gardens nearby, where it was left. 48On 24 January 2010 Walsh told A that he needed some masks. I infer that this request was made due to the fact that the deceased's body was decomposing. A and the offender then drove to Kiama where they acquired what A described as two "rubber masks". They then returned to A's premises, at which time Walsh directed A to go to Wollongong Hospital to obtain a quantity of syringes. According to A, Walsh told her to walk inside so as to be depicted on CCTV footage. When A asked why, Walsh explained, in the offender's presence, that he was going to dispose of A's vehicle, in which the deceased still remained. It is apparent that this was an attempt at creating some alibi for A. The offender then drove A to the hospital. 49Subsequently, A received a telephone call from Walsh asking her to collect him from an area known as Mount Murray. I am satisfied that Walsh had driven to that location in A's vehicle, and had set fire to the vehicle with the deceased's body still inside. A then used the offender's vehicle to collect Walsh, before returning home. 50At about 7am, on 25 January 2010, the body of the deceased was found in a burnt out vehicle in bushland at Mount Murray. His body had been chained to the front passenger seat of the vehicle. 51On that same morning, A drove to the offender's home in the offender's vehicle. As she was leaving home, Walsh placed a bag in the vehicle which he said he wanted burned, and which contained the clothing that he was wearing when he set alight to the vehicle containing the deceased's body. Upon arrival at the offender's premises, A told the offender that Walsh had incinerated the car, and that the deceased's body was inside it. The offender said nothing by way of response. I am satisfied that this was because she knew of the deceased's death by this time. 52A also informed the offender of the bag which Walsh had placed in the car, and of his request that it be burned. I am satisfied that the offender telephoned her then boyfriend to have him come and collect the bag and dispose of it, and that in the course of doing so she said to him: "Please don't ask questions Mick, just can you do it for me, there's one thing I need you to do, that's that". 53The offender's boyfriend then removed the bag from the vehicle. I am satisfied that he disposed of it, although where and how he did so is not known. 54On the evening of the same day, 25 January 2010, at 11.31pm, the offender sent an SMS message to her boyfriend which read: "After everything that's happened you still accuse me of lying. I can't believe you Mick, I am really on edge you know. Why would you do this to me, I'm really sorry I got you involved. But I do thank you very much for helping me. I would be fucked if you didn't and will never forget what you did for me." 55I am satisfied that this message referred, at least in part, to the disposal of the bag by the offender's boyfriend. 56As A had no vehicle, she continued to use the offender's vehicle over the ensuing days, before the offender asked for its return. At the offender's suggestion, arrangements were made for A to obtain a rental car for a short period, for which the offender paid. 57Finally, in his statement to police, Agdiran said that at some time after 26 January, the offender had said to him: "Do you know if there is a website where you can check whether there are CCTV cameras like at Macquarie Pass or Beaton Park because that's where we met him, at Beaton Park. I don't know if there's cameras there?" 58Despite Agdiran's attempts to resile from his statement, I am satisfied that these words were said by the offender. THE OBJECTIVE SERIOUSNESS OF THE OFFENDING 59The gravamen of the offence of specially aggravated kidnapping is the unlawful detaining of a person. There are a number of factors which can be relevant in making a determination of the seriousness of such offence. They include the circumstances of the detention, its period, and its purpose. The nature of the advantage sought to be obtained is not conclusive as to the seriousness of the offence. In particular, the presence or absence of a ransom as the advantage is not decisive in a determination of the seriousness of the offence (see R v Newell [2004] NSWCCA 184 at [32]. 60The offender was apparently not satisfied with having visited the deceased's premises, and intimidating and frightening him in the manner I have previously described, nor was she satisfied with having retrieved the stolen necklace. She proceeded to make arrangements with the deceased to meet him at Beaton Park. The jury's verdict in respect of the first count reflects an acceptance of the Crown case that the deceased was detained at that point, for the purpose of obtaining information regarding the burglary. On the Crown case, the offender was not directly responsible for detaining the deceased in a physical sense, although once he was detained she exhibited little or no regard for his welfare. Although the evidence is not precise, I am satisfied that the deceased's detention extended over some hours, during which time the deceased would obviously have been in great fear. Thereafter, the offender was instrumental in assisting to remove the deceased's car from Beaton Park, so as to avoid suspicion. 61From the time at which she discovered that her home had been broken into, the offender, like all citizens who regrettably find themselves the victims of burglary and similar criminal activity, had available to her a conventional, lawful and non-violent avenue of redress: she could simply have reported the burglary to the police, and allowed them to undertake the necessary investigation. That she chose not to take that course, and resorted instead to detaining the deceased in the manner I have described, renders the specially aggravated kidnapping offence a serious one. The end result serves as a stark reminder what can occur when people inappropriately choose to take the law into their own hands. 62The seriousness of an offence of murder needs no emphasis. However, I must have regard to the fact that there is no evidence that the offender, in detaining the deceased, contemplated that he would be killed. I must also have regard to the fact that she is not to be sentenced on the basis that she was responsible for the act which caused the deceased's death, and that she was not responsible for the incineration of the vehicle containing the deceased's body. She did, however, assist in other ways, including arranging the disposal of a bag containing the clothes worn by Walsh at the time he set alight to the vehicle containing the deceased's body. 63Taking all of these matters into account, it is my view that the offending in respect of each matter falls slightly below the mid range of objective seriousness. THE OFFENDER'S SUBJECTIVE CIRCUMSTANCES 64On behalf of the offender there was a large amount of documentary material tendered on sentence. The contents of that material may be summarised as follows: (i)a report of Dr Richard Furst, Consultant Forensic Psychiatrst dated 22 October 2012; (ii)clinical notes made available by the offender's General Practitioner; (iii)a number of testimonials; (iv)documentary evidence of rehabilitative courses which have been undertaken by the offender since being taken into custody at the conclusion of her trial. 65In addition to the written material, I heard evidence from the offender's mother as well as from John Pearman, the father of the offender's former boyfriend. I accept that both persons remain supportive of the offender, notwithstanding the jury's verdict. 66The offender is now 31 years of age. She has two children, a 12 year old son and a 7 year old daughter who are being cared for by their father and by the offender's mother. 67The offender has a long history of drug use, particularly amphetamines. Contained within the material tendered on sentence is a report of Alex Hains, Clinical Psychologist, of 2 May 2012, in which Mr Hains reported having treated the offender as a consequence of an escalation in her use of amphetamines in the period leading up to her trial. This treatment followed similar treatments undertaken by the offender, for the same reasons, in 2011. According to Mr Hains, she had "responded positively" to that treatment. 68The history provided to Dr Furst by the offender confirms her prior drug and alcohol use. In that regard Dr Furst reported as follows: "Ms Batcheldor has a history of drinking and cannabis abuse from the age of 14 years. She tended to drink on the weekends. She used amphetamines from the age of 15 years. There was a pattern of on going drinking in her teen and 20s. She was drinking on a daily basis about 6 years ago, generally one bottle of bourbon per day. There were no withdrawal symptoms when she did not drink, suggesting she was not dependent on alcohol. She used "ecstasy" (MDMA) between her teens and the age of 25 years, generally on an intermittent basis on weekends. She used 'ice' (crystal methyl - amphetamine) from the age of 25 years, which became a daily pattern of use during her post-natal depression 6 years ago. She generally used one gram per day at the time, with less drinking. She denied ever using heroin." 69 Dr Furst also recorded a history of the offender suffering from depression and anxiety. He also made reference to the fact that the offender was "under the care of a psychiatrist working for Justice Health in relation to her emotional distress and inability to cope away from her children and family". I do not have a report from the offender's treating psychiatrist before me, but I accept that she is undergoing treatment. I also accept, on the basis of the report of Dr Furst, that the offender is currently taking anti-depressant medication. 70Dr Furst diagnosed the offender as suffering from a major depressive disorder. He noted that she presented with a history of depression over a period of 10 years, with a particularly severe depressive episode following the birth of her daughter which coincided with the break down of her relationship with the father of both of her children. He also noted evidence of ongoing and severe depressive symptoms in 2010 that required treatment with medication, and a reported suicide attempt whilst the offender was on bail. 71Dr Furst expressed the view that the offender's custodial setting is likely to "weigh more heavily on (her) than the average inmate by virtue of her mental disorder". I have had regard to Dr Furst's opinion, although there is no evidence before me which might suggest that the offender will not be afforded appropriate medication, or that she will not otherwise be adequately treated, whilst serving any sentence. 72In addressing the offender's prospects of rehabilitation Dr Furst expressed the following opinion: "Ms Batcheldor is articulate and open to further psychiatric and psychological treatment. She has a good prognosis provided she receives adequate support, as outlined in the treatment plan above. There were no criminal antecedents of a violent nature, she has a history of gainful employment and long-term relationships, and she probably has a low risk of future offending despite the serious nature of the offences in question before the court." 73As I have previously noted, amongst the material tendered on behalf of the offender was evidence confirming that she has undergone at least one rehabilitative course since being taken into custody. In my view, that evidence supports a conclusion that the offender, in a short time, has exhibited some degree of commitment towards rehabilitation. 74I have had regard to each of the testimonials tendered on the offender's behalf. Although some of them do not expressly acknowledge an awareness of the jury's verdicts, I am satisfied that the offender will continue to have the support of a large number of people. 75I am satisfied, on the whole of the evidence, that the offender has good prospects of rehabilitation. However, no submission was made on behalf of the offender that I should find special circumstances, and accordingly I make no such finding. 76The offender's mother gave evidence that at or about the time of the death of the deceased, the offender was upset and ill. Section 21A(3)(i) of the Sentencing Act includes, as a mitigating factor, remorse which is shown by an offender, but only if: (i)the offender has provided evidence that he or she has accepted responsibility for his or her actions; and (ii)the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 77Counsel for the offender submitted that the evidence of the offender's mother should be regarded as evidence of remorse. The offender did not give evidence before me on sentence. However, s 21A(3)(i) does not require that an offender give evidence before remorse can be taken into account The section merely requires that an offender provide such evidence (see Butters v The Queen [2010] NSWCCA 1 per Fullerton J at [16]). 78However, even allowing for that, the evidence which is relied upon in this regard must nevertheless fall within the terms of section 21A(3)(i). In other words, there must be evidence: (i)that the offender has accepted responsibility for his or her actions; and (ii)that the offender has acknowledged the injury loss or damage caused and has made reparation for such injury loss or damage. 79In my view, even at its highest, the evidence of the offender's mother falls substantially short of amounting to evidence that the offender has accepted responsibility for her actions. It follows that I am not satisfied that there has been any expression of remorse on the part of the offender. 80Tendered before the court was the offender's criminal history which is limited to three entries, namely: (i)an appearance before the Wollongong Local Court on 29 April 2008 on a charge of possessing a prohibited drug for which the offender was fined; (ii)an appearance before the same court on 2 September 2008 for a further offence of possessing a prohibited drug in resect of which she was again fined; and (iii)an appearance before the Port Kembla Local Court on 16 November 2011 for possessing equipment for the use of administering prohibited drugs in respect of which she was again fined. 81Those entries are broadly consistent with that part of the report of Dr Furst which confirms that the offender has a previous history of drug abuse. There are no entries for any offence involving violence, nor indeed, for any offence remotely approaching the scale of seriousness of those of which the jury found the offender guilty. 82It follows that the offender does not have any significant record of previous convictions. That is a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act. PERIODS OF PRE-SENTENCE CUSTODY 83The offender was arrested on 23 February 2010 and was refused bail. She was granted bail by this Court on 10 December 2010. 84She remained on bail between 10 December 2010 and 17 August 2012, when the jury returned a verdict of guilty. She has been in custody since 17 August 2012. 85If these two periods are aggregated and then rounded up, they total 13 months. I therefore propose to backdate the commencement of the sentences by a period of 13 months so as to reflect the offender's total period of pre-sentence custody. conclusion 86The circumstances in which the offence of specially aggravated kidnapping was committed necessarily provide the context in which the offence of murder was committed. I have determined that in these circumstances, and having regard to principles of totality, the sentences should be served wholly concurrently. I have not set a non-parole period in respect of the sentence for the first count, having regard to the sentence for the second count. 87The offender is sentenced as follows: (i)in respect of the charge of specially aggravated kidnapping of Matthew Digby, the offender is sentenced to a fixed term of imprisonment of 7 years, commencing on 22 October 2011, and ending on 21 October 2018. I decline to impose a non-parole period in respect of that sentence. (ii)in respect of the charge of the murder of Matthew Digby, the offender is sentenced to a non-parole period of 18 years imprisonment, commencing on 22 October 2011 and ending on 21 October 2029, with an additional term of 6 years imprisonment, commencing on 22 October 2029 and ending on 21 October 2035, that is a total of 24 years imprisonment. (iv)the offender will be eligible for release on parole on 22 October 2029 and her sentence will end on 21 October 2035. ********** 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: 06 February 2013