Supreme Court New South Wales Medium Neutral Citation: R v MEYN, John Michael (No 6) [2013] NSWSC 243 Hearing dates: 8 March 2013 Decision date: 28 March 2013 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Offender convicted. Sentenced to a term of imprisonment of sixteen years and six months from 8 April 2011 with a parole period of five years and six months. Catchwords: CRIMINAL LAW - sentencing - murder - domestic homicide - intoxication - conviction following trial - self defence rejected by jury - whether intent to kill - mitigating factors - whether remorseful - general deterrence, retribution and denunciation. Legislation Cited: - Crimes Act 1900 - s 19A, s 558 - Crimes (Sentencing Procedure) Act 1999 - s 21A, s 44(2), s 54A, s 61(1) - Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: - MAH v R [2006] NSWCCA 226 - Markarian v R [2005] HCA 25; 228 CLR 357 - Muldrock v R [2011] HCA 39; 244 CLR 120 - R v Way [2004] NSWCCA 131; 60 NSWLR 168 - R v Chen [2010] NSWSC 64 - R v Christov (No 2) [2006] NSWSC 1179 - R v Heffernan [2005] NSWSC 739 - R v Koloamatangi [2011] NSWCCA 288 - R v Meyn (No 1) [2012] NSWSC 1441 Category: Sentence Parties: Crown (Prosecutor) John Michael Meyn (Offender) Representation: Counsel: T.W. Thorpe (Crown) Keith Chapple SC (Offender) Solicitors: Crown (Director of Public Prosecutions) George Sten & Co (Offender) File Number(s): 2011/116480 Publication restriction: Nil Judgment 1On 19 November 2012 John Michael Meyn was arraigned before me on an indictment that charged that he on 8 April 2011, at Colyton, did murder Yvette Rathbone. At the time of her death, Ms Rathbone was his former de facto partner, and the mother of their two young children. 2The trial proceeded but for reasons that are unnecessary to describe the jury had to be discharged. On 28 November 2012 the offender was again arraigned before me and entered a plea of not guilty. The trial then proceeded to a verdict. On 14 December 2012, the jury returned a verdict of guilty to the charge of murder. 3On 8 March 2013 I heard submissions on behalf of the offender and the Crown on sentence. 4At the outset I note that it was not submitted by the Crown that I should impose the maximum penalty of life imprisonment (Crimes Act 1900, s 19A). I am required to impose a life sentence if I am satisfied that the level of culpability involved 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 form of sentence (Crimes (Sentencing Procedure) Act 1999, "the Sentencing Act", s 61(1)). This is not such a case. 5Pursuant to s 54A of the Sentencing Act the standard non-parole period for the offence of murder is twenty years. The Sentencing Act does not require me to undertake the sentencing exercise by treating the non-parole period as the necessary starting point or the end point in fixing the sentence (Muldrock v R [2011] HCA 39; 244 CLR 120 at [17]). Nor am I required to commence by asking whether there are reasons for not imposing the standard non-parole period in this case (Muldrock at [25]). Instead, I am required to bear in mind those two legislative guideposts. I am required to identify all the factors relevant to the sentence, discuss their significance and then determine the appropriate sentence (Muldrock at [26], citing Markarian v R [2005] HCA 25; 228 CLR 357 at [51] per McHugh J). Background 6The following is taken from the evidence led at the trial. It includes some parts of the offender's evidence at the trial. Unless otherwise stated, the evidence was not disputed. 7The offender met Ms Rathbone sometime in 2005 or 2006. Within a few months she had moved into the offender's home. At that time the offender lived in a converted garage at the rear of his parents' home. They lived in that garage before moving to various other premises. There were two boys born of their relationship, Taylor born in xxxx 2008 and Robbie born in xxxx 2010. The relationship broke up in late 2010 to early 2011 while they were living at Rooty Hill and during a period in which the offender was not working. The offender returned to living in the converted garage and returned to work as a truck driver and forklift operator. Ms Rathbone stayed at the Rooty Hill residence with Taylor and Robbie. 8The offender described the initial period of their separation as amicable. He stated that despite their separation he and Ms Rathbone had sex once or twice per week. He stated that during this time they had an informal agreement whereby Taylor stayed with him in his converted garage one or two nights per week. The offender stated that he had little contact with his youngest son, Robbie, because "[h]e was only a baby". 9After a period, relations between the offender and Ms Rathbone deteriorated. There were a number of instances of conflict between them that were the subject of the evidence adduced in the trial, although the Crown and the offender relied on them for different purposes. 10On 31 March 2011 they quarrelled on the telephone about some parcels the offender arranged to have delivered to Ms Rathbone's home. The offender went to her house to pick up the parcels. According to the offender the visit descended into an argument about the parcels and about an exchange of text messages that had occurred earlier in the day. In one of those text messages the offender had said to Ms Rathbone "you just have the kids". The offender stated that he regretted sending the text message and asked her to delete it. He said that she refused and threatened to show the text message to their children. At some point the offender told Ms Rathbone that he would report her to Centrelink for residing with him while receiving a supporting pension. 11The argument that ensued culminated in the offender smashing Ms Rathbone's phone. Ms Rathbone responded by damaging his car, and the offender said he damaged her car in retaliation. 12After this incident Ms Rathbone replaced her mobile phone. She did not give her new telephone number to the offender, however he was still able to contact her via email. 13The offender did not see Ms Rathbone again until 5 April 2011. He went to her home at around 3am, demanding to see his children. The offender explained that the cause of the visit was his anxiety over a nightmare that he had in which their eldest son had been poisoned. Ms Rathbone refused him entry and threatened to call the police. Following that, the offender sent a series of facebook messages to Ms Rathbone's landlady threatening to report her and Ms Rathbone to Centrelink. 14The offender next saw Ms Rathbone on the evening of 7 April 2011. During that day they exchanged very friendly emails. It was arranged for Ms Rathbone and the two boys to visit the offender in the evening after work. 15The offender returned home from work at approximately 8pm on 7 April 2011. Shortly afterwards Ms Rathbone and their children arrived. They left after half an hour. One of the reasons they arranged to meet that night was to have sex, but that did not eventuate. 16The offender asserted that he did not eat on 7 April 2011, but instead consumed a large amount of alcohol from the time he returned home from work at 8pm until 3am the following morning when he went to sleep. I discuss the state of his intoxication later (at [44]). 17Early the next morning the offender was woken by his mother. After waking he telephoned his employer at 6.25am and told him that he would not be coming in to work that day. He said that he decided not to go to work because he thought he was "over the limit". He said that he kept drinking throughout the morning. 18From 7.30am the offender and Ms Rathbone emailed and telephoned each other. Following those exchanges she and Robbie went to the converted garage. In cross examination it was suggested to the offender that he and Ms Rathbone had arranged on the evening of 7 April 2008 to meet up again the following morning and have sex. The offender denied this, saying that they had arranged to meet up after his work when she would hand over the children, and he would look after them for the remainder of the weekend. The offender said that Ms Rathbone only came over that morning following those emails and telephone conversations. I accept that evidence. It is supported by an email bearing the time 10.03am but probably sent at 9.03am from the offender to Ms Rathbone stating "I'm home today; come over with Robbie". Taylor had been dropped at childcare shortly after 9am. 19The offender said that Ms Rathbone and Robbie arrived at 9.30am. Shortly after 10.30am they all walked to a nearby store. They were seen by a local shopkeeper. 20It was the Crown case that at some time after leaving the store, between 10.30am and 12.30pm on 8 April 2011, the offender bashed and strangled Ms Rathbone. 21He was next sighted at approximately 12.30pm leaving Ms Rathbone's home. In his evidence he said he went there to get a bottle of milk for Robbie. At 12.53pm, Ms Rathbone's neighbour, Mr Spencer Da Palma, received a text message from her mobile phone number which read "call me". Mr Da Palma called her mobile phone number. The offender answered and asked him "What is going on between you and Yvette?" Mr Da Palma replied "Nothing, nothing is going on". Later the offender rang him again from his own mobile phone, repeated the question and asked why his number was on Ms Rathbone's phone. 22The offender also attempted to call his mother. He made three calls at around 1pm. He then drove to ANZ's St Marys branch. At 1.23pm he withdrew approximately $8,500.00 from his savings account. 23At 1.50pm the offender spoke with his mother on his mobile phone. He asked her to go home. She asked "What's the matter?" He replied "I'll tell you when you come home. I'm sorry. You won't like it. I'm sorry". She again asked what the matter was. He said "I'm sorry, I will tell you when you get here. I can't tell you on the phone". The offender then drove to Taylor's preschool and signed his son out shortly before 2pm. 24The offender drove westwards towards the Glenbrook National Park. At around 3pm the offender purchased some beer from a liquor shop in Blaxland. 25In the meantime his mother had returned home. She did not find any one in the house. She went to the converted garage. She found Ms Rathbone's body lying on the floor parallel to the bed. She called her daughter to tell her what she had found. Her daughter called the police. At about 2pm two police officers arrived at the house. They found Ms Rathbone's body. There was a blanket over the lower part of her body and a pillow over her head. She was naked underneath the blanket. While the police were at the scene the offender rang his mother again. He said "I'm sorry, mum, can you look after the kids? I want to spend as much time as possible with them before I hand myself in to the police". He assured her the children were safe. 26The offender then continued driving to the Glenbrook National Park. Apparently he and his friends rode their bikes there when they were children. He parked and walked with the children to the lookout at Mount Portal. At around 4.30pm the offender called his long-time friend, Mr Benjamin Deller. Mr Deller said the offender was hysterical, could not get full sentences out and was very upset. He recalled him stating that he had killed Ms Rathbone and that he was apologetic and saying "she didn't deserve it". Mr Deller also said that the offender stated "he just strangled her, there wasn't a fight, there were happy moments before it, yeah". In his evidence the offender agreed that he told Mr Deller "I've killed Yvette" over and over and that "I think I have strangled her". He said he remembered seeing marks around her neck before he left the scene. 27After this call, the offender's brother called him and the offender told him "[s]he didn't deserve what I've done". Around the time of this call, at 4.38pm, a police helicopter began circling above the lookout. The helicopter filmed the offender and his two children standing on the viewing deck. 28The police arrived soon afterwards. They approached the offender. He was drinking a stubby of beer. After a short discussion the offender handed the two children over to police. At approximately 4.45pm he was arrested and taken to Penrith Police Station. He was interviewed in three sessions beginning at 7.36pm on 8 April 2011 and concluding at 3.23am on 9 April 2011. He was then charged. 29In R v Meyn (No 1) [2012] NSWSC 1441 ("Meyn (No 1)") I rejected a challenge to the admissibility of the offender's interviews with the police which was based on an assertion that the police had persisted in interviewing him, knowing that or reckless as to whether he was too intoxicated or exhausted to participate. I outlined the circumstances of that interview in Meyn (No 1) at [12] to [55]. I will not repeat them here. It suffices to state that in the first session the offender told the investigating officers that after Ms Rathbone came to the garage they put Robbie to sleep and had sex (A244). He said that after they had sex and while she was dressing he asked her "how she was goin[g] on PlentyofFish" which he said angered her (A248). "PentyofFish" is an internet dating site. The offender had found out she was seeking to meet people on that site by using a "dummy profile" (ie posing as someone else). The offender initially stated that he could not remember what happened next (A258) and that the next thing he could recall was her lying on the floor (A259). However in the last session the offender stated that he recalled an argument and an altercation in which she bit his chest (A511). He was asked about the blood on Ms Rathbone's head and he said "he might have hit her with something" (A562) and that he "might have choked her" (A565) but that he "didn't mean for her to die" (A567). Forensic Evidence 30The post mortem examination was conducted by Dr Orde. His examination revealed that Ms Rathbone suffered substantial bruising and fractures in the head and neck areas consistent with her being bashed and strangled. In particular, Dr Orde found substantial bruising or grazing over most of the head including the jaw region, near her left cheekbone and the temporal region. Dr Orde described the injuries to her eyes as "devolving black eyes". Dr Orde said the back of her head was sodden with blood because of "two quite large and quite deep lacerations or tears to the scalp". 31Dr Orde's internal examination also revealed fracturing near the left eye socket caused by a blow to the eyelid. Dr Orde said Ms Rathbone had suffered bleeding around the brain. A neurologist found bruising and swelling to the brain which Dr Orde described as "in keeping with the application of significant blunt force, likely by way of multiple blows to the head or the head striking hard objects several times". 32Dr Orde also found substantial evidence that Ms Rathbone was strangled. He said the facial features were congested and engorged with blood, and that there were "pinpoint haemorrhages within the linings of the eyes", suggesting that the veins "most probably in the neck, would have been obstructed by pressure". Dr Orde noticed some bruising to the neck area and a bloodstain to the right ear canal. His internal examination found "multifocal bruising to the muscles of the neck largely around the voice box" and around the hyoid bone found at the base of the tongue. However this bone and the larynx were intact. 33Ms Rathbone also suffered bruising to the wrists and upper arms as well as grazing and scratches to the hips and legs. 34Dr Orde concluded that the "most likely" explanation for her death was the "combined effects of both the blunt force head injuries and the compression of the neck, leading to the element of asphyxiation". In cross-examination by Counsel for the offender, Mr Chapple SC, Dr Orde accepted that it was possible that the trauma to the head of Ms Rathbone could have been caused by a hard fall or collision with objects in the room, and that the injuries in the neck region could have been caused by the "application of hands around [Ms Rathbone's] neck but not to the extent they actually strangled her". Issues at the trial and findings 35The Crown case was that, after the offender and Ms Rathbone had sex on the morning of 8 April 2011, the offender upset her by raising her use of "PlentyofFish" and her fears about Centrelink, which led to her becoming angry and him responding by bashing and strangling her. The Crown contended that an intention on his part to inflict death or grievous bodily harm could be inferred from the nature of the injuries he inflicted. 36In his evidence the offender told the jury that after they had sex he made mention to Ms Rathbone of the web site "PlentyofFish" and said something that would have indicated to her that he had fooled her by communicating with her via a dummy profile. He said that this angered her and she became abusive. He said that he then asked her "[h]ave you heard from Centrelink". To this stage the Crown case and his case coincide, but from this point they differ. The offender said that Ms Rathbone became violent. He said that she attacked him in an extreme rage, hitting and biting him. He asserted that he simply shoved her to get away from her. He denied hitting her with any object and explained that the injuries she sustained probably occurred as a result of him pushing Ms Rathbone and her colliding with various pieces of furniture, or possibly hitting her head on the ground. He stated that at one point he held her down by the neck but only for a short period to restrain her. 37In support of his version the offender pointed to aspects of Ms Rathbone's conduct on the occasion in March 2011 noted previously (at [11]), as well as three other incidents. The first was around 2006 when the offender and Ms Rathbone visited Newcastle and stayed in a motor home. The offender said they were both drunk, argued, and that Ms Rathbone became violent and bit him. The second was around the same time when they were living in the converted garage. The offender said that during an argument she picked up a knife in his presence. He said he left the room. The third was an incident described by the partner of one of the offender's friends when a dog licked one of the children in the face at social gathering. Ms Rathbone was said to have become upset and left yelling. This incident only struck me as an example of her demonstrating parental anxiety. The other two incidents were more serious but they are well in the past and in each case the offender was able to leave her presence. 38The offender's version of events put in issue two matters in relation to the offence of murder that the Crown had to negate. The first was whether he ever formed an intention to inflict death or grievous bodily harm. The second was whether he acted in self defence. In addition, the evidence of the offender's drinking raised an issue as to the degree of his intoxication and its ability to affect his capacity to form the requisite intention and alter his perception of events. The jury were instructed accordingly. Their verdict reflects their satisfaction to the appropriate standard that the Crown had proved he had the necessary intention, was not intoxicated to an extent that precluded him from forming that intention, and was not acting in self defence. In particular I am satisfied that the jury accepted that he bashed and strangled Ms Rathbone. He inflicted the harm upon her with at least his fists and possibly an object. He placed his hands around her neck and strangled her. 39The jury's verdict did not determine whether the offender intended to kill Ms Rathbone or only inflict grievous bodily harm. The Crown submitted that I should find the former established beyond reasonable doubt. Further, Mr Chapple SC correctly submitted that the jury's verdict does not necessarily mean that there was not some element of the offender defending himself in the lead up to the death of Ms Rathbone, or that he was not intoxicated to some degree. Those matters, if present, can be still called in aid to reduce the offender's culpability notwithstanding the jury's verdict (see R v Heffernan [2005] NSWSC 739 at [48] to [54] per Hoeben J as his Honour then was). 40Thus there remain aspects of the offence that were not necessarily resolved by the jury's verdict and, to the extent that it is possible, it is necessary for me to resolve them so that the offender's criminality can be properly characterised. 41The first two issues are whether the offender intended to inflict death or grievous bodily harm and whether there was any element of self defence in his conduct. 42It is apparent from the events of that morning and those afterwards that the offence was clearly not premeditated. The attendance of the offender, Ms Rathbone and Robbie at the local shop prior to the offence and the offender's communications with his family and friends after the offence are completely inconsistent with some predetermined plan on his part to physically harm Ms Rathbone. Instead the offence erupted out of his needling of Ms Rathbone. A moment's thought reveals how cruel that conduct was. She was facing the reality of raising two young boys mostly by herself. She had just had sex with her ex-partner. He then mocked her efforts to move beyond their relationship by his reference to "PlentyofFish" and his dummy profile. He then caused her even greater anxiety about her future by his reference to Centrelink. The Crown opened on the basis that this provoked her to anger and the offender testified that it did. It would be surprising if it had not. A single mother was being tormented by an ex-partner who did not want be with her, but wanted her for sex, and was trying to stymie her efforts to live her own life and look after her children. 43It is difficult to determine if Ms Rathbone's anger spilled over into violence. At the time of his ERISP the only injuries apparent on the offender were a bite mark and some minor bruising. They are equivocal. The bite mark could have been occasioned during sex and all the injuries may have been inflicted on the offender while Ms Rathbone was defending herself. Nevertheless given the nature of his taunts I accept that Ms Rathbone's anger may have led her to become abusive and possibly aggressive to a small extent. However, that is all. There was a discrepancy in her size compared with that of the appellant, and there were massive discrepancies in the injuries they suffered. There were few signs of a struggle in the converted garage. I am satisfied beyond reasonable doubt that, from a very early point in the confrontation, the offender's aggression dwarfed any aggressive conduct by Ms Rathbone. The violence that was inflicted upon her probably took place over a small period of time, but it was savage. Further, given the evidence as to her strangulation injuries, I am satisfied beyond reasonable doubt that, albeit for a brief period while he was in a fit of rage, he intended to kill her. 44As I have stated, the jury's verdict did not necessarily determine that the offender was not affected by any alcohol at the time he killed Ms Rathbone. I have referred to the evidence concerning the offender's alcohol consumption from the evening of 7 April 2011 until the time of his apprehension late in the afternoon of 8 April 2011 (at [16] to [17] and [28]). I accept that he consumed some alcohol but not the amount he claimed in his evidence or enough to affect his self control to any material degree although it may have made him slightly more aggressive. Neither the witness who saw him at the nearby shop that morning nor the witnesses who saw him in the afternoon observed him to be affected by alcohol. It is to be remembered that he collected his sons and drove a considerable distance to the lookout. 45The offender's actions in the afternoon of 8 April 2012 are revealing as to the factors that motivated him. One of his first actions was to contact a male whose number was on Ms Rathbone's mobile phone and interrogate him as to whether he was seeing her. His desire for some form of control continued after he believed that he had killed her. However many of his calls to his family and friends reveal his genuine distress at the death of Ms Rathbone. Further his desperate drive west to the Glenbrook National Park involved him returning to a place he played at in his youth with his sons to spend his last hours with them before his incarceration for a long period. Victim Impact Statements 46Victim impact statements were delivered by Ms Rathbone's mother Vivianne Hotson, her sister Valda Chalker and her stepmother Wendy Rathbone. Ms Hotson said that Ms Rathbone was not only her daughter but her close friend. They saw each other almost every day as she lived nearby. Since her daughter's death she has been unable to cope with everyday tasks and she has no desire to get up in the morning. 47Ms Chalker said that she and her sister were very close as they grew up and faced a difficult childhood together. She described her sister as a devoted mother to her sons, and said that Ms Rathbone "adored them with all of her heart". She said that Ms Rathbone wanted nothing more than to have a "happy family life". She described her as a generous and caring person. Ms Chalker feels emptiness and anger at the loss of her sister. As time has passed she has become increasingly bitter. Her relationships with her family and friends have suffered, as well as her drive and enthusiasm for work and life generally. Sadly, she finds herself often thinking of what her sister's last moments would have been like, and desperately hopes that she did not suffer from the injuries she sustained. 48Wendy Rathbone said that she had a role in helping raise Ms Rathbone from when she was six years old. She describes her as a shy but happy little girl with an "enormous amount of love to give". Like Ms Chalker, she describes Ms Rathbone's devotion to her sons. Wendy Rathbone also described the impact upon her husband, Ms Rathbone's father, of the loss of his daughter. She has observed him to become angry and depressed. She attempts to describe the depth of his pain. 49Brian Rathbone was a witness at the trial. After his evidence was completed he observed the balance of the trial from the back of the Court. It was obvious from his presentation as a witness that his daughter's death and the events surrounding it have wounded him deeply. The trial would have been a searing experience for any father. The intimate details of his daughter's private life were laid open. There were repeated suggestions that at times she had been volatile and aggressive. These matters were raised because they were necessary for the consideration of the issues that arose at the trial, however that would not make them any easier for a parent to listen to. They certainly did not present anything close to a complete or even fair portrait of his daughter. That has been provided by Ms Hotson, Ms Chalker and Wendy Rathbone. 50The two victims most profoundly affected by this crime are Taylor and Robbie. In the case of Robbie, it is unlikely that at present he has any real appreciation of what he has lost. Even for Taylor it will no doubt be many years before he appreciates the full extent of what has been taken from him. As time passes he and his brother will compare their lives to those of the children around him who have one or more parents. They will see parents helping and supporting their children with the little tasks, the very big, and the ones in between. Taylor and Robbie's position and the challenges for what remains of their family was best expressed by Wendy Rathbone in her victim impact statement: "As for Taylor and Robbie I wonder what the future has in store for them and how do we answer their questions, especially when they ask 'what happened to Mummy' or 'how did Mummy die' and 'where is Daddy'. How do we answer these questions not wanting to see them upset? How do we do that?" 51The significance of victim impact statements was discussed in MAH v R [2006] NSWCCA 226 at [61] to [63] per Grove J, with Hidden and Kirby JJ agreeing. I am not to treat them as evidence which I can act on, or material which operates in aggravation of the offence, or as otherwise adverse to the offender. Nevertheless, the Court acknowledges the profound loss to Ms Rathbone's family, especially her sons, caused by her death at the hands of the offender. The offender's personal history 52Tendered at the sentencing hearing was a report from a psychologist, Mr Mark Howard. Mr Howard's report conveniently summarised aspects of the offender's background and addressed a number of issues concerning his present functioning. As I will explain some aspects of the report are predicated on a version of events that was rejected by the jury. 53The offender was born on 1 May 1978. He was 32 years old at the time he committed the offence and is currently 34. He is the third eldest of four children. Mr Howard described him as having a stable upbringing. The evidence at the trial suggested that he had and maintains a supportive family. 54The offender attended primary and secondary school and completed Year 10. His educational performance was described as being slightly below average in core subjects, although he excelled in practical subjects. Generally he appeared to have a good work history and a reasonably strong work ethic. While he was at school he worked in retail and at his father's boat mechanics business on a casual basis. After he left school he was employed in furniture polishing and cabinet-making for two to three years. In his early twenties he obtained a truck driver's licence and obtained employment as a delivery driver. He later worked as a self-employed sub-contractor. In late 2010 he resigned from his position and took some time off work. He resumed full time work some time around early 2011. 55Mr Howard noted that the offender did not have a history of repeated use of illicit substances. However, he commented upon his excessive alcohol consumption. The psychologist noted that the offender accepted that his "use of alcohol may contribute to his risk of problem behaviour". I have already adverted to aspects of the evidence of his alcohol consumption around the time of the offence. 56Mr Howard administered a number of tests to the offender. They revealed that he was experiencing high levels of depression and a significant degree of stress. He concluded that they were consistent with the offender's presentation and "reported difficulties adjusting to the outcomes of his offending and isolation from his children". He indicated that the offender was "experienc[ing] a moderate level of psychological distress which is consistent with clinically significant features of depression". I accept this evidence. 57The offender had a relatively minor criminal record. He was convicted of minor driving offences in the late 1990s and 2001. In 1999 he was convicted of common assault and damaging property. For those offences he was fined and placed on a two year recognisance under the former s 558 of the Crimes Act 1900. 58Mr Howard noted that the offender had attempted self harm when he was 18 or 19. He considered that the offender had difficulty "regulating [his] behavioural responses to stress, within the context of progressive relationship breakdown and acute physical conflict". This appears to be consistent with the evidence led at the trial. However Mr Howard also stated: "... it appears that [the offender's] risk of similar maladaptive behaviours was precipitated by increasing acrimony and dispute with [Ms Rathbone] following the cessation of their relationship in February 2011, distress associated with restricted access to his children, and an altercation at the time of the offence in which the victim reportedly enacted physically aggressive behaviours. It is likely that [the offender's] capacity to inhibit problem responses to such stressors at the time of the offence was also aggravated by extensive use of alcohol on the night and morning prior to the offence." 59I reject this opinion. There is no evidence that as between the offender and Ms Rathbone there was any attempt by her to impose restrictions on his access to the children. If anything she was seeking help from him in looking after them. It appears from the earlier part of Mr Howard's report that his reference to Ms Rathbone's "aggressive behaviours" in this extract is to the version of events the offender gave in his evidence concerning Ms Rathbone which both the jury and I have rejected in large part. I have also addressed the effect of his alcohol consumption. Aggravating and mitigating factors 60Sub-section 21A(2) of the Sentencing Act lists a series of aggravating factors that the Court is to take into account in determining the appropriate sentence. Sub-section 21A(3) lists a series of mitigating factors. One of the specified aggravating factors is that the offence involved the use of a weapon (s 21A(2)(c)). I have already found that the offender may have used an object to strike Ms Rathbone around the head. A finding expressed in those terms is not sufficient to establish the presence of an aggravating factor as it must be established beyond reasonable doubt. 61In relation to mitigating factors, four are potentially relevant. 62First, the offence was clearly not a planned or organised criminal activity (s 21A(3)(b)). I have described the events surrounding the killing of Ms Rathbone above. It was clearly not premeditated, but was instead the result of an explosion of anger on the part of the offender. 63Second, ss 21A(3)(e) and (f) refer to the offender not having any significant record of previous convictions and being a person of good character. I have described his criminal antecedents above. I accept that he does not have any significant record of previous convictions. Beyond that I am not prepared to positively find that he was a person of general good character. 64Third, ss 21A(3)(g) and (h) refer to whether the offender is unlikely to offend and whether the offender has good prospects of rehabilitation, whether by reason of his age or otherwise. Leaving aside acts of violence in a domestic or relationship context, I am satisfied that the offender has low prospects of re-offending on his release. Nothing in his background suggests that he has any real propensity to act violently outside of the domestic context. 65However the circumstances of the offence namely that, following the break-up of his relationship, he cruelly needled Ms Rathbone and then when she responded angrily, killed her in a fit of rage raises obvious concerns about his behaviour in the future in the event that a further relationship sours. However, any prediction of his propensity to commit acts of violence in a domestic context in the future must be undertaken against the background that he will be significantly older before he is placed in any such a situation again. Whether incarceration will assist or hinder him in controlling his emotions in that context is a difficult question to answer. 66In the end result, while I am satisfied that he has very low prospects of re-offending outside of a domestic context, I assess the likelihood that he may commit some act of violence in a domestic context as moderate. 67Fourth, s 21A(3)(i) of the Sentencing Act provides that it is a mitigating factor in sentencing if there is remorse shown by the offender for the offence: "... 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)." 68This is a difficult matter to assess. In a number of the telephone conversations made by the offender to members of his family and friends on the day he killed Ms Rathbone, he expressed distress at his own actions and the fact that she was dead. The circumstances leading up to the offence make it clear that he still had significant feelings towards her although those actions had a strong possessive quality. However, his actions since that time do not suggest that he has truly accepted responsibility for his actions. I was not referred to any evidence that he had acknowledged the suffering that he had caused. I am not satisfied that this mitigating factor is present. Submissions on behalf of the Crown and the offender 69The Crown Prosecutor submitted that I should find that at the time he inflicted harm upon Ms Rathbone, the offender intended to kill her. To an extent, I have accepted that submission (see [43]). The Crown also submitted that a "significant period of imprisonment" was warranted. In order to assist the Court, the Crown referred me to a number of cases the facts of which it was submitted were broadly similar to those of this case. They involved sentences imposed after a trial at which the offender had pleaded not guilty and had attacked or strangled their current or ex-partner. Some involved spontaneous acts and others that were premeditated. One of the cases to which the Court was referred was the decision of Kirby J in R v Christov (No 2) [2006] NSWSC 1179, where a non-parole period of seventeen years was imposed, and R v Chen [2010] NSWSC 64, in which Rothman J imposed a non-parole period of seventeen years and six months. 70I have considered those two cases and the other cases that I was referred to. It is trite to observe that each case turns on its own facts. Further, Mr Chapple SC noted that all of the decisions that the Crown referred me to were decided prior to the High Court's decision in Muldrock. In particular, the judgment of Kirby J in Christov involved his Honour following the decision of the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; 60 NSWLR 168 and applying a two stage approach to sentencing by starting with a standard non-parole period and determining whether the various factors concerning the offence warranted moderation (at [49] to [57]). This approach was expressly disavowed in Muldrock at [25]. 71Otherwise I have already addressed the submissions of Mr Chapple SC including those concerning the presence of various mitigating factors. Mr Chapple SC urged me to "consider a sentence at the lower end of the range". Conclusion 72It is apparent from the nature of some of the findings that I have made that much is unknown about how and why events on the morning of 8 April 2011 moved from the offender spending time with Ms Rathbone and their young son, to their making love, to his provoking her and then murdering her. What is known from the evidence, the verdict and my findings is that his rage quickly erupted so that he inflicted a level of violence upon her that was out of all proportion to any possible threat that she posed. His conduct was savage but not planned. It has destroyed her life and most of his, deeply wounded the adults around him, inflicted irreparable harm on their two infant children and created a bitter legacy for them to inherit. 73As a consequence of the decision in Muldrock, there is now some doubt about whether sentencing courts are required or permitted to make an assessment of whether an offence in respect of which there is a standard non-parole period is in the low, middle or high range of objective seriousness (see R v Koloamatangi [2011] NSWCCA 288 at [19] per Basten JA, Adams and Johnson JJ agreeing). If I am required to make that assessment then it suffices to state that the objective features of this offence that I have outlined satisfy me that it falls slightly below the middle of the range of objective seriousness for the offence of murder (cf s 54A(2) of the Sentencing Act). Critical to this conclusion is the spontaneous character of the offence. That said, considerations of general and specific deterrence are especially significant in cases involving extreme levels of domestic violence, even if they are not premeditated. 74It was common ground that any term of imprisonment should commence from 8 April 2011. Sentence 75John Michael Meyn, for the murder of Yvette Rathbone you are convicted. You are sentenced to a term of imprisonment. 76Pursuant to s 44(2) of the Sentencing Act, I set a non-parole period of sixteen years and six months imprisonment commencing on 8 April 2011 and ending on 7 October 2027 with an additional term of five years and six months commencing on 8 October 2027 and ending on 7 April 2033. 77The total term of imprisonment is one of twenty-two years. The offender will be eligible for release on parole on 7 October 2027 and the offender's sentence will expire on 7 April 2033. ********** Amendments 08 April 2013 - Dates in fifth sentence anonymised. Amended paragraphs: 7 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: 08 April 2013