Supreme Court New South Wales Medium Neutral Citation: R v David John DUNN [2013] NSWSC 237 Hearing dates: 21 March 2013 Decision date: 26 March 2013 Before: Adamson J Decision: (1) For the offence of armed robbery, he is sentenced to a fixed term of imprisonment for three years, to date from 9 September 2010. (2) For the murder of Rebecca Apps, he is sentenced to imprisonment for 19 years and 6 months, commencing 9 March 2012, with a non-parole period of 12 years and 6 months. The earliest date upon which the offender is eligible for release on parole is 8 September 2024. Catchwords: CRIMINAL LAW-sentence-murder-moral culpability- diminished where intellectual disability compromises tolerance and responses to frustration- causal nexus between delusion and criminal act CRIMINAL LAW-sentence-armed robbery- R v Henry features present Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: - McLaren v R [2012] NSWCCA 284 - Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - Pearce v The Queen [1998] HCA 57; 194 CLR 610 - R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 - R v Henry [1999] NSWCCA 111; 46 NSWLR 346 - R v Previtera (1997) 94 A Crim R 76 - R v Olbrich [1999] HCA 54; 199 CLR 270 - R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 Category: Sentence Parties: Regina David Dunn (Offender) Representation: Counsel: L L Lungo (Regina) M J Ierace SC and P J Pearsall (Offender) Solicitors: New South Wales Director of Public Prosecutions (Crown) Legal Aid New South Wales (Offender) File Number(s): 2010/301016 2010/398990 Publication restriction: Nil Judgment Introduction 1On about 8 September 2010 David John Dunn (the offender), who was armed with a tomahawk axe, robbed Hengyi Zhang of $85 at Georges Takeaway, Mount Warrigal. 2On 9 September 2010, in the early morning, the offender picked up Rebecca Apps, who was working as a prostitute, for the purpose of having sexual intercourse with her. He later struck her on the head several times with the axe and killed her. He took her body in the boot of a car he had stolen to a reserve and put her in a ditch which he covered with a piece of metal. 3A neighbour, who observed the relevant events, rang the police who arrested the offender and took him to the station where he was interviewed. The Electronically Recorded Interview of a Suspected Person (ERISP), and the transcript are in evidence before me. I have watched the ERISP. 4The offender was committed for trial by the Wollongong Local Court. On 5 April 2012, prior to his arraignment in this Court, Latham J determined that an inquiry ought be conducted to determine whether the offender was fit to be tried. On 13 August 2012 Johnson J determined that there was no longer any need for a fitness hearing since both psychiatrists considered the offender to be fit. Ultimately the matter was stood over for arraignment before Latham J on 7 December 2012. 5The offender pleaded guilty to both counts on the indictment: armed robbery and murder. Facts 6The following facts are taken from the Statement of Facts prepared by the Crown and agreed by the offender (the Agreed Facts) as well as admissions made in the ERISP, some of which are extracted in the Agreed Facts. I have also taken into account the evidence at the sentence hearing. In addition to the ERISP and the Agreed Statement of Facts the Crown tendered the offender's criminal history, the autopsy report and a report of Dr Martin, psychiatrist. The offender tendered reports of two psychiatrists, Dr Furst and Dr Chew, and Dr Hepner, neuropsychologist. 7As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts are agreed or have been established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. Armed robbery 8At about 6.36 pm on Wednesday 8 September 2010, Mr Zhang, the victim, was cleaning up his takeaway shop at Mount Warrigal in preparation for closing the shop. He was standing behind the counter when the offender entered the shop through the open door and approached him. The offender ordered $4 worth of chips. The victim responded that he was closing the shop. 9The offender held up the axe in his left hand at waist height and said: "Money". The victim held out three $20 notes. The offender responded: "All of the money." 10The victim then took out a $10 note and three $5 notes from the till and handed a total of $85 to the offender, who left the shop. The victim rang his wife and called Triple-0. He heard a car start up and drive away. 11CCTV footage depicted the offender wearing a dark grey long-sleeved jumper over a white hood over a dark beanie. He also wore dark coloured trousers. The victim described the offender as being between 20 and 25 years old, about six foot in height, Caucasian, facial hair. According to the victim, he spoke calmly and with an Australian accent. He wore tan coloured footwear and carried a chrome-coloured tomahawk axe in his left hand. The offender's appearance matched the physical description given by the victim. Murder 12At about four or five o'clock on the following morning, Thursday 9 September 2010, the offender had a shot of methylamphetamine, also known as ice. Not long afterwards he drove into Port Kembla to pick up a prostitute. He was driving a silver Hyundai Excel which he had stolen a couple of days previously. 13The deceased, who was working as a prostitute at the time, was standing on the corner of Wentworth Street, the main street of Port Kembla, opposite two hotels. She was wearing a denim skirt and a white top. She got into the offender's car and introduced herself as "Crystal". When she told the offender that she wanted heroin he drove her to Warilla because he knew of a dealer there. He parked the car behind a service station and went with the deceased to see the dealer. He took the axe with him so that he could use it to threaten the drug dealer and rob him of heroin. When they arrived at the expected location, the offender knocked but there was no answer. 14The offender told police in the ERISP that the deceased abused him for not procuring the drugs and that this made him angry. Although I am satisfied that the offender became angry, I am not satisfied that his response arose from anything the deceased did or failed to do. The offender concedes that there was no provocation by the deceased that could be taken into account in mitigation. 15At some point the deceased removed her denim skirt so that the offender could have sex with her but he was unable to have intercourse. He then hit her on the head with the axe. By this time she was lying on the ground. She screamed at him and begged him to stop. She told him to think about his children. The offender then "snapped" and hit her again. He hit her a total of four or five times. 16The deceased gasped for air. Blood started to come out of her mouth. The offender dragged her by her arms from where she was lying to where he had parked the car. The offender then felt her chest to see whether her heart had stopped. When he realised that she was dead he lifted her into the boot of the car and stowed the axe in a white box in the car. He then picked some grass and threw it over her body in an endeavour to soak up her blood. 17The offender realised that his clothes were covered in blood. In order to avoid detection he removed his outer clothing, blue jeans and black jumper, and left his hooded top on. He intended to burn his, and the deceased's, clothes and dispose of the axe in a creek. 18He drove around for about half an hour, with the deceased in the back of the car, reflecting on how stupid he was for killing her. He then drove into a bushland reserve at Oak Flats, which he chose because it was secluded. 19When the offender arrived at the reserve he used the axe to cut the rest of the deceased's clothes off her body because he did not want his DNA to be found on her clothes. He stowed her clothes in the white box with the axe. 20The offender then dragged the deceased's body to a ditch and threw her in the ditch. He used some carpet which he found in the stolen car to cover her body. When he noticed that parts of her feet were still visible he moved her body into a foetal position so that her body could be more effectively hidden. The offender took a piece of tin from a trailer that was parked in the reserve and used it to cover the ditch. 21The offender then returned to the car. He had been sitting in the car for about five minutes when the police arrived, arrested him and charged him with murder. 22The police had been called by Mr Ryan whose property backs onto the reserve. Shortly after 8 am, Mr Ryan observed the Hyundai Excel parked in the reserve, only about four inches from the back of his fence. He noticed the rear hatch door of the car was open and was facing his fence. He walked to the rear of his backyard and placed a milk crate beside his back fence. He observed the offender trying to pull a body, which was limp and motionless, from the back of the car. Mr Ryan then saw the offender walking backwards, dragging the deceased, who was partly naked. 23Mr Ryan, who was fearful that the offender might see him, crouched down and used his mobile phone to call the police on Triple-0. From his rear yard, Mr Ryan could see the offender sitting in the car with the door open. 24When the police arrived, the following exchange took place: Sergeant Smith: 'What are you doing?' The offender: 'Nothing.' 25Sergeant Smith placed the offender on the ground and observed blood on his bare feet and ankles. The offender was handcuffed. Sergeant Smith said, 'Where is she?' The offender said, 'I don't know.' Sergeant Smith said, "I'm going to ask you again and if you lie, I'm going to break your fucking nose.' The offender said, 'She is under the tin over there.' Sergeant Smith said, 'Is she alive?' The offender said, 'No.' 26Sergeant Smith ran to the ditch and lifted the piece of tin. He saw the deceased lying naked underneath a piece of carpet. He checked for a pulse but found none. There was a significant amount of blood around her nose and mouth. 27The offender was placed under arrest for murder and cautioned. A crime scene was established. At the time of his arrest several items were found in the car including a chrome tomahawk, a dark grey long-sleeved jumper, a white blue beanie, tan coloured boots and blue denim jeans. At 8.50 am the offender was taken to Port Kembla Police station. 28In the course of the interview, the offender said that his intention when he hit the deceased with the axe was to "shut her up". He also said: "I didn't mean to kill her but that was the only thing. I just wanted her to be quiet." 29The offender also said: "A. She said something about. Think about your kids, this and that, blah blah. Q. And it's the case that you hit her again? A. Yeah, 'cause both my kids are dead. . . ." 30Dr Duflou conducted an autopsy of the deceased. He opined that the direct cause of her death was a head injury. She suffered from multiple complex wounds to the head which were consistent with blows with an axe. There was associated fracturing of both outer and inner tables of the calvarium of the skull. The autopsy report does not reveal whether there had been sexual intercourse. 31Toxicological testing of the deceased revealed a range of drugs including benzodiazepines and their metabolites, cannabis metabolites, methylamphetamine and alcohol. Dr Duflou concluded that although the methylamphetamine level was in the potentially lethal range, the injuries to her head were such that the drugs detected had no significant effect on the direct cause of death. 32Dr Duflou noted that quantities of grass were observed on the body. This is consistent with what the accused told the police: that he had thrown grass over her body with the intent of soaking up the blood. Factors relevant to sentence 33I turn to the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Act). In dealing with each of the offences I take into account the purposes of sentencing that are set out in s 3A which include punishment, specific and general deterrence, protection of the community, rehabilitation of the offender and a recognition of the harm done to the victim and to the community. 34Section 21A of the Act requires the Court to take into account both the aggravating factors referred to in s 21A(2) and the mitigating factors referred to in s 21A(3) that are relevant and known to the Court, together with any other relevant matters. 35Section 22 of the Act requires the Court to take into account the fact that the offender has pleaded guilty, the time at which the offender pleaded guilty and the circumstances in which he did so. It entitles me to impose a lesser sentence than I would otherwise have imposed as long as the sentence is not thereby rendered unreasonably disproportionate to the nature and circumstances of the offence. The discount for the utilitarian value of the plea is largely determined by its timing: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1. I do not consider that the period during which he was thought unfit to be tried ought count against the offender in assessing the timing of his plea. 36The Crown accepts that the offender ought be regarded as having pleaded at the earliest available opportunity and is therefore entitled to a discount of 25%: R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. I consider a reduction of this order to be appropriate since, shortly after he was found fit to be tried, the offender pleaded guilty. Murder Objective seriousness 37The sanctity of human life is of great significance. The unlawful and intentional taking of a human life is a heinous crime. 38The offence of murder carries a maximum sentence of life imprisonment. The applicable standard non-parole period (SNPP) is 20 years. The SNPP represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness (s 54A(2)) whereas the maximum sentence is to be given only in the most severe of cases. The SNPP and the maximum sentence are legislative guideposts that inform the exercise of sentencing discretion: Muldrock v The Queen (Muldrock) [2011] HCA 39; 244 CLR 120, at [27]. 39The Crown, in my view correctly, did not contend that this murder is in the category of offences for which a life sentence ought be imposed. 40I do not accept the offender's statement in the ERISP that he did not intend to kill the deceased. His plea has the effect that the offender admits, at least, that when he killed the deceased he intended to cause her grievous bodily harm. It may be that when he first struck her with the axe he intended to cause her grievous bodily harm but not to kill her but I am satisfied that when she continued to scream and beg for mercy his attitude changed to one of an intention to kill and that the final blows were inflicted with that intention. 41I raised with the Crown whether it contended that the victim's vulnerability because of her occupation as a street prostitute was an aggravating factor. The Crown submitted that although the wording of s 21A(2)(l) referred to occupations where workers were typically vulnerable, the list did not evince an intention to include the deceased's occupation and that, accordingly, I ought not take it into account. 42That the offence involved the actual use of a weapon, the axe, is an aggravating factor. 43The method of killing was particularly violent and was carried out in total disregard of the deceased's pleas for mercy. She was vulnerable and posed no threat whatsoever to the offender. Her last minutes of life must have been spent in terror, horrendous pain, and despair. 44I regard the objective seriousness of the offence as being above the middle of the range. Other matters relevant to sentencing including the offender's moral culpability and his subjective circumstances 45The offence was committed while the offender was on conditional liberty: a s 9 bond for 12 months from the Wollongong Local Court on 11 August 2010 for an offence of dangerous driving. This is an aggravating factor. 46I accept that there was little in the way of pre-mediation. The murder was an impulsive one caused by ephemeral frustrations and irritations and with which he was ill-equipped to deal because of his mental impairment and the drugs he had taken. It was not part of a planned or organised criminal activity. Subjective circumstances 47The offender was, as the medical experts have noted, an unreliable historian. It is therefore difficult to make findings of fact based on his history alone, particularly as to his childhood and family background, when there is no corroboration of such matters. I am however satisfied to the requisite standard of the facts set out below because they are consistent with the offender's behaviour, have been corroborated or have been repeated by him in different contexts in a consistent way. 48The offender was born in Wollongong on 29 November 1983. His mother does not appear to have participated in his rearing or care. His father was an alcoholic who regularly bashed him. The offender was, at times, in foster care. He did not fit in well at school and was frequently suspended for fighting. He was found with knives and drugs. He engaged in fights and some sexual conduct in the playground. He was violent with his teachers and threatened one with a blade. 49He had great difficulty concentrating and was restless and impulsive. He had learning difficulties. He had neither learned to read or write with any proficiency. He could not keep up with his peers. He was asked to leave school in Year 9. 50His deprived childhood led to an even more impoverished and compromised adulthood. He has been unable to form stable relationships. His capacity to control himself and respond appropriately was substantially compromised by his early years and by his drug-taking from a young age. 51From about the age of nine, the offender has taken illicit drugs, including cannabis and amphetamines. He has used heroin, cocaine and methylamphetamine on a regular basis as an adult. Prior to the offence he used to go on a "bender" every fortnight for about three days. His drug-taking depended on how much money he had been able to steal. 52The offender first had contact with the Department of Juvenile Justice when he was nine years old. His criminal history shows that a control order was imposed on him in 1999 for assault with intent to rob armed with an offensive weapon. He was then 15 years old. He has had a lengthy criminal record since that time and has spent some periods in custody. He has led a disordered life, punctuated by convictions for offences, including common assault and break and enter which in the main have been dealt with summarily. His record includes entries for violence when he was a juvenile. However, but for an assault in 2007, his adult record has been free from violence, until September 2010 when he committed the offences for which he is to be sentenced. 53These matters are relevant to the sentence, although not to the objective seriousness of the offence. Justice demands that allowance be made for life's adversities, particularly when, as here, they have deprived the offender from a very young age of any real opportunities in life. Moral culpability 54As sentencing judge I must assess the moral culpability of the offender, which is a separate matter from the objective seriousness of the offence: McLaren v R [2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing. This requires a consideration not only of the facts relating to the commission of the offence, but also those that shed light on why it was committed. Although the offender accepted that he had not established that he was not fully aware of the consequences of his actions because of a disability, he submitted that his moral culpability for the murder was reduced because of his mild intellectual disability; polysubstance dependence; chronic psychotic illness, namely delusional disorder; and undiagnosed antisocial personality disorder. 55Dr Hepner, a clinical neuropsychologist who assessed him at the request of Legal Aid, opined that the offender's long-standing history of problems with anger, aggression and temper control can be explained by a combination of his limited intellect, his psychiatric condition and self-reported heavy drug use. 56The offender suffers from a mild intellectual impairment. The use of the term "mild" is apt to connote something of little consequence. But this is not the case when applied to intellectual impairment. As the High Court has said in Muldrock at [50] a diagnosis of mild intellectual impairment means that he is mentally retarded. The offender has an IQ of about 65. Mr Taylor, the neuropsychologist who first assessed him as having an intellectual disability in 1999, said: "Mr Dunn's functioning was at a concrete and immature level, he was lacking in insight concerning the extent of his disability and he was impulsive, distractible and had a low frustration tolerance." 57Dr Chew, a forensic psychiatrist, treated the offender in a prison clinic from 1 June 2011 until 15 August 2012. Such sessions were often brief. He interviewed him on 19 February 2013, for the purposes of preparing a report for this hearing. He also gave oral evidence at the sentence hearing. He explained that those with an intellectual disability such as the offender's have low tolerance and difficulties in articulating their frustration with events or with others. They tend to respond physically, including violently, rather than verbally, because of their diminished repertoire of means of expression and their tendency to be impulsive. 58The offender submitted that at the time of the murder he was suffering from a delusion that the deceased was his ex-wife and that she had killed his two children. Each of these matters was delusional. He had never met the deceased before. I am satisfied by the evidence of Robyn Clark, solicitor, given by affidavit sworn 20 March 2013 that the offender does not have an ex-wife and has not fathered two children within the relevant period as alleged. 59In order to establish that his delusion played a part in the murder the offender relied on: (i) a statement from Shane Bennett who was an inmate at Kempsey Correctional Centre between 21 August 2009 and January 2010; (ii) a history that he had given to Justice Health two days after the murder; (iii) instructions he gave to his solicitor, Robyn Clark, on 1 November 2010; and (iv) a history given some time later to Dr Chew, a forensic psychiatrist, whom he saw for the first time on 1 June 2011. 60Mr Bennett recalled the offender being incarcerated at the Kempsey Correctional Centre some time between 21 August 2009 and the end of January 2010. He remembered the offender telling the other inmates that his wife had killed their two children. The expression of this delusional belief predated the murder by at least seven months. 61The offender gave the following history to Justice Health in the course of a mental assessment on 11 September 2010, two days after the murder: "States alleged victim was his ex-wife Married to her at age 16 Son was 2 Daughter was 4 months/ died in Wollongong hospital States "she threw them out of the window" on my birthday." 62Ms Clark, whose evidence was not challenged, said that on 1 November 2010, at her first conference with the offender, he told her, referring to the deceased: "She killed two of my kids. That's why I did it. I was engaged to her when I was 16 and I had two kids with her- Jessica born 1999 and Josh born 1997. I know her as Michelle. Both died at the same time- thrown out of the bedroom window. I was in Juvenile custody. My uncle had introduced us. She was about 10 years older than me. I had no contact with Michelle after the death of the children. I thought she was locked up." 63The offender told Dr Chew that he thought the deceased was his ex-wife. When Dr Chew asked the offender why he had not disclosed that in the ERISP, he explained that he thought that it would show that the murder was pre-meditated and that he would get a longer sentence. Dr Chew considered that the offender's belief that the deceased was his ex-wife was supported by the offender's history that he realised her identity when he saw a tattoo when they were having intercourse and that this was why he could not continue to have intercourse with her. As referred to above, I do not accept that the deceased and the offender had intercourse at all. 64The offender told police that he had never seen the deceased before. I consider that this admission represented his true mental state at the time of the murder. Although in the course of the ERISP the deceased mentioned his children and that they were dead, he did so most tellingly in the following context: A 352 Then when she mentioned my kids, that's when I lost it. Q 353 Why? Why did that make you lose it? A Both of my kids are dead, and a woman killed them. My ex wife. Q 354 How long ago was that? A Five or six years ago. Nah actually, I rephrase that, 11 years ago. It happened in '99. Q 355 How did Crystal know about your kids? A Nah 'cause we were talkin' about them. Q 356 Did you tell her what happened to them? A Nah. Q 357 So it's the case that she wouldn't have known that they were dead? A Don't think so, don't think I told her. [Emphasis added.] 65In the ERISP, the offender emphasised the word "woman" which I have highlighted above in italics. Gender is the only apparent link between the deceased and the ex-wife. Dr Martin, a forensic psychiatrist, whose report was relied on by the Crown also viewed the ERISP and noted that the offender did not link the deceased with his ex-wife, except in the context of the passage set out above. Although Dr Chew had access to the transcript and a partial DVD of the ERISP the portion he was able to view did not include the passage set out above. 66Notwithstanding Dr Chew's opinion and evidence and Dr Furst's opinion, I am not satisfied to the requisite standard that the offender was acting under a delusion at the time of the murder that the deceased was his ex-wife who had killed their two children. Accordingly, I am not satisfied that there was a causal link between the murder and the offender's delusions. 67The death of the deceased was brought about by the offender's low tolerance to frustration which was further reduced by the drugs he had taken. My impression after having viewed the ERISP, and taking into account the other evidence, accords with Dr Martin's, who reported: "My summary of my impression from watching the interview is that he gives an account of having picked up a prostitute, that he had not met her before, that a row ensued in the context of trying to obtain drugs and him having an axe which he might have used in a robbery, and that he had been using amphetamines prior to the alleged offending. He gives an account of deliberately hitting her with the axe and then trying to dispose of the evidence to avoid arrest." 68Although I do not accept that, at the time the offender killed the deceased, he believed that she was his ex-wife who had killed their two children, I accept that he came to adopt that delusion as a way of explaining, if not justifying, even if only to himself, what he had done. That he had earlier been under the delusion that he had been married with children and that his ex-wife had killed his two children is an indication of his disordered thinking as well as his potential danger to the community on release. 69Dr Chew opined that the offender's prognosis with respect to delusional disorder is guarded. The diagnosis of mild intellectual disability, for which there is no specific treatment, is permanent. 70I accept that the offender's diminished capacity to reason and respond appropriately, by reason of his intellectual impairment and his anti-social personality traits, lessens his moral culpability for the murder. However, his capacity to control his impulsive responses was further compromised by his drug-taking in the hours prior to the murder. He had some appreciation that taking ice had the effect of making him "snap". Although he initially said that he did not know why he snapped he later admitted that it was because of the drugs he had been taking and that he had just "lost the plot". 71The offender, when he was asked by police what he was thinking at the time when he was hitting her: "I was just thinking, you nagging bitch fuckin' shut up, shut up, just let me think." 72That his criminal record as an adult indicates an offence of violence in 2007 but no other violent offences until the murder of the deceased is a further indication that the drug-taking was a significant cause of his violence towards the deceased, against the background of his already compromised mental state. 73Although the offender did not submit that his prospects of rehabilitation were good, he contended that there was some prospect that he could be rehabilitated by control of his drug intake, anger management courses and other instruction designed to moderate his responses and increase his tolerance. He submitted that his ability to overcome the delusion that the deceased was his ex-wife was evidence of his capacity to be rehabilitated. 74He is currently taking Quetiapine, an anti-psychotic drug, for his delusional disorder which is focussed around his fixed belief that his ex-partner killed his two children many years ago. His current dose is less than the maximum. 75I accept that there is some prospect that the offender's mental state will improve, at least in the controlled environment of custody. Already, his abstinence from illicit, non-prescribed drugs has improved his mental state, as has the anti-psychotic drug which he has been taking. 76The offender has requested that I make a recommendation about treatment while he is in custody. The expert evidence establishes that he is likely to benefit from such intervention, including anger management courses and treatment for drug and alcohol abuse, both while he is in custody and following his release. Accordingly I make the recommendation that the offender be provided with services that address his intellectual disability, his delusional disorder and his poly-substance abuse. 77The Crown accepts, and I am satisfied that, the offender feels a degree of remorse within the limits of his mental state. Special circumstances 78The offender submitted that there are four bases for the finding of special circumstances: his mental condition; his odd behaviour, which places him at increased risk of attack by fellow prisoners; his need for rehabilitation; and the fact that he is alone in the world and devoid of the support of friends or family. The offender points to the fact that he was assaulted by other inmates at Parklea in March 2012 which resulted in a blow-out fracture to his right orbit which required surgery to correct. He was placed in protective custody following this incident but, according to Dr Chew, he is no longer in protective custody. 79Although each of these four matters is capable of amounting to a special circumstance justifying a departure from the statutory proportion between the non-parole period and the term of the sentence, I am not persuaded that there are special circumstances in the instant case. Nor am I persuaded that if I had found special circumstances there would be any proper basis to disturb the ratio. The non-parole period needs to be of sufficient length having regard to the factors referred to above, of which the most significant are the objective seriousness of the offence and the need to protect the public. The desirability of having a parole period of some length to assist the offender to live in the community is also accommodated because of the length of the overall sentence. 80The effect of accumulation requires an adjustment to the statutory ratio that would otherwise apply with respect to the sentence for murder, in order to preserve the statutory ratio for the overall sentence: s 44(2B) of the Act. Armed robbery 81The maximum penalty for the offence of armed robbery is 20 years' imprisonment. There is no SNPP. 82The aggravating factor is that the offence was committed while the offender was on conditional liberty as referred to above. Mitigating factors are that the financial loss to the victim was not substantial and that the activity was not part of a planned or organised criminal activity. 83In the guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 the Court identified the following seven features commonly occurring in such cases at [162] and considered that sentences for offences of that character should generally fall between four and five years for the full term: (a)Young offender with no or little criminal history; (b)Weapon such as a knife, capable of killing or inflicting serious injury; (c)Limited degree of planning; (d)Limited, if any, actual violence but a real threat thereof; (e)Victim in a vulnerable position such as a shopkeeper or taxi driver; (f)Small amount taken; (g)Plea of guilty, the significance of which is limited by a strong Crown case. 84The offender's case substantially shares the guideline profile except for his more advanced age and more substantial criminal record. 85I am not obliged by s 54B(4A) of the Act to specify a non-parole period for this offence. Totality, accumulation and concurrency 86I am required to arrive at a total sentence that reflects the overall criminality of the offences committed: Pearce v The Queen [1998] HCA 57; 194 CLR 610. 87Although the two offences were committed on consecutive days, Wednesday evening and Thursday morning, there is little or no communality between them. There should, in my view, be some partial accumulation to take account of both offences. 88I am obliged to take into account time spent in custody. The offender has been in custody since he was arrested on 9 September 2010. Accordingly, it is appropriate that the sentence be backdated so as to commence on that date. Loss of the deceased 89The Crown tendered victim impact statements from the deceased's parents, from her sister and brother, and from her three sons. The deceased's brother, Shane, also described the impact of the deceased's death on him in a statement that was before the Court. The deceased's mother and sister read their statements to the Court. Such statements bear witness to the grief, pain and loss suffered by those who survive the deceased. 90Under the law, the loss suffered by the deceased and her loved ones cannot be reflected by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Rebecca Apps to her parents, siblings, children and other members of her family and to her friends. I take this opportunity to extend my personal sympathies to all those to whom she was dear. 91Retribution is one of the many aspects of punishment and is particularly significant when a life has been taken. However, under laws that have been in existence for a long time now, the loss suffered by the deceased and her family cannot be replicated by any sentence I impose. I am conscious of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87-88. It is the approach that I adopt. Sentence 92David Dunn: (1)For the offence of armed robbery, I sentence you to a fixed term of imprisonment for three years, to date from 9 September 2010. (2)For the murder of Rebecca Apps, I sentence you to a term of imprisonment of 19 years and 6 months, commencing 9 March 2012, with a non-parole period of 12 years and 6 months. The earliest date upon which you are eligible for release on parole is 8 September 2024. ********** 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: 26 March 2013