Supreme Court New South Wales Medium Neutral Citation: R v Ray [2013] NSWSC 767 Hearing dates: 12 June 2013 Decision date: 12 June 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Imprisonment for 24 years with a non-parole period of 18 years Catchwords: CRIMINAL LAW - sentencing - murder - intent to cause grievous bodily harm - savage unarmed assault - significant history or violence - offence while on parole and apprehended domestic violence order - future dangerousness Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Category: Sentence Parties: Regina Jole Ki Ray Representation: Counsel: Ms H Wilson (Crown) Dr R Webb (Offender) Solicitors: Solicitor for Public Prosecutions Voros Lawyers File Number(s): 2011/117034 Judgment 1HIS HONOUR: Jole Ki Ray, the offender, is to be sentenced for the murder of Ms Priscilla Perry at The Entrance on 9 April 2011. He was found guilty of this offence by a jury on 9 May 2013 after a trial at Newcastle. 2The killing of Ms Perry was not something that the offender intended or planned. What he did intend was to inflict really serious bodily harm upon her in a savage assault with his fists and feet. This occurred when he exploded in rage as a result of a combination of relatively trivial matters at a time when Ms Perry was particularly vulnerable. 3The offender is a violent man, particularly against women. He killed Ms Perry only two months after having been released on parole in respect of the brutal assault of another young woman. 4The crime of murder is one that is punishable by imprisonment for life. The maximum penalty for an offence is reserved for those falling in the worst case category of their type. It has not been suggested by the Crown that a life sentence should be imposed in this case and that concession is realistic. 5In determining the appropriate sentence it is necessary that the statutory guideposts of the maximum penalty and the prescribed standard non-parole period of 20 years be borne in mind, along with all other facts and circumstances pertaining to the offence and the offender. Pricilla Perry 6Before turning to the offence and the offender I want to say something about Ms Perry. 7She was 37 years old. She completed Year 12 at high school and thereafter worked in the food and hospitality industries. She is described as having "worked very hard to become a very good pastry cook" and she was skilled at cake decoration. She had her own difficulties in life but remained a kind, caring and loving family member. In turn she was much loved and her passing has left a considerable void in the lives of many. 8I wish to acknowledge the grief of Ms Perry's mother, step-father and brother who bravely made victim impact statements that were tendered at the sentencing hearing this morning and two of which were read. I again thank them for providing such valuable insights into the life of their beloved Priscilla and I extend my sincere condolences. Criminal history 9Before turning to the facts of the case I will also say something about the offender's criminal history in order to provide some context. It includes offences of violence as well as of dishonesty but I will focus largely upon the former. 10The offender was born in 1981 and so he is now aged 32. His criminal history commenced at the age of 14 when he was dealt with for a number of offences including three of assault. The worst of these attracted a custodial sentence of 3 months. 11At the age of 15 he was placed on probation for two years for breaching an apprehended violence order. 12Six months later, at age 16, he was cautioned for breaching an apprehended domestic violence order ("ADVO") on two separate occasions. 13A little over a year later he was placed on probation for 2 years for contravening an ADVO and resisting a police officer in the execution of the officer's duty. 14A couple of months after that he was put on an 18 month bond to be of good behaviour for another offence of resisting a police officer. 15At age 18 he was dealt with for two offences of assaulting a police officer. 16At 20, and while on probation for a dishonesty offence, he was convicted for an assault and placed on a good behaviour bond for 2 years. This assault was upon a security guard at a hospital. 17Within 6 months he was charged with an offence of assault occasioning actual bodily harm for which he was sentenced to 6 months weekend detention. That incident involved an unprovoked attack using a steering lock implement upon a total stranger, causing a large cut to the victim's head which required sutures as well as grazing, swelling and bruising to the body. The victim ran off and the offender chased him for a short distance but then came back and set about damaging the victim's car by smashing various windows. This occurred, of course, while the offender was the subject of a good behaviour bond. 18Having to attend gaol two days a week did not deter Mr Ray. A month after that sentence was imposed he was charged and convicted of assault and of resisting a police officer in the execution of the officer's duty. He was sentenced to full-time gaol for 6 months. The assault concerned the offender's father. He went to his parents' home one day asking for money. Eventually his father gave him some money and he left. However, a short time later he returned and punched his father in the head a number of times. Police went to the offender's home the following day to arrest him. He violently resisted the officers, even after having been sprayed with capsicum spray and struck with batons in attempts to quell his aggression. 19While still the subject of the earlier mentioned 2 year bond, and also while serving the 6 month gaol sentence, he contravened another ADVO. Prior to going to gaol he had been in an intimate relationship with a 14 year old girl, Jasmine, which was against her parents' wishes. He wrote numerous love letters and the like and made telephone calls to her from gaol in breach of a condition of the order which prohibited him having any contact with her. He was placed on another good behaviour bond, this one for 12 months. 20Two months later, on 26 December 2002 and having been released from gaol only days before, he breached this ADVO again by calling the child, telling her that he loved her and that "if someone is giving you any crap, I'll get them for you". For this he was sentenced to a nominal term of imprisonment. 21In about early 2003 the offender commenced a relationship with a woman by the name of Kiera. She ended the relationship on 15 November 2003. But the following morning he went to the home where Kiera was with her mother and younger siblings. He was aggressive and abusive and threatened Kiera that he would "punch her fucken face in". He was convicted for two offences of intimidation with intent to cause fear of physical or mental harm and was sentenced to 7 months gaol, with a non-parole period of 21 days. It was recommended that he receive counselling whilst in custody for drug and alcohol issues as well as anger management and he was to be supervised by the Probation and Parole Service following his release on parole. 22A little over a month after being released on parole he was charged and convicted for assault and contravening an ADVO. He was gaoled for a further 6 months and his parole for the previous matter was revoked. These offences involved him having moved to live with Kiera in a caravan park in Maitland. This alone constituted a breach of the ADVO. One day in January 2004, after drinking a considerable amount of alcohol, he assaulted Kiera by pulling her by the hair back into the caravan as she had attempted to leave. She then ran away but he pursued her and then assaulted her, including by punching her to the nose and mouth. 23In November 2004, at the age of 23, he was charged with aggravated enter dwelling with intent to steal. He was sentenced to imprisonment for 4 years 6 months with a non-parole period of 2 years 3 months. Offences of assaulting and resisting a police officer in the execution of the officer's duty were taken into account. They involved him kicking and head-butting the officers who arrested him for the primary offence. It ultimately took four officers to bring him under control when he continued his violent conduct at the police station. The primary offence involved the offender and another person entering a home and assaulting the occupants whilst demanding money. I was told that the sentencing judge found that the offender required an extended period of parole supervision and that he had good prospects of rehabilitation. 24He was released on parole at the age of 25 on 15 February 2007. He was back before the Local Court the following December when he was gaoled for a total of 12 months, with a non-parole period of 9 months, for assault occasioning actual bodily harm and assault. These offences were committed while he was on parole. They involved assaults upon Ms Tyla Singleton (a prosecution witness in the trial) and Ms Kristy Woods (his cousin) after leaving a hotel at closing time. Ms Singleton sustained bruising to an eye and a small laceration to the back of her head. Ms Woods sustained soreness to an eye, lip and lower back. The offender was arrested immediately afterwards and it was found that there was an outstanding warrant for his arrest for having breached his parole; it having been revoked by the Parole Authority in August 2007. 25The offender served his sentence and was again released on parole on 5 December 2008. A little over 3 months later he was charged with damaging property. The offender and Ms Singleton had been in a relationship but she ended it. About two weeks later he argued with her to the extent that she sought to flee in her car. He jumped onto the bonnet and smashed the front windscreen. Although the 3 month sentence he received for this offence expired in July 2009, he remained in custody serving the balance of parole from earlier sentences until 21 October 2009. 26In April 2010, he was charged with assaulting Ms Shantell Dargan and causing her actual bodily harm. They had been in a relationship for about 6 months. On the day in question they had consumed alcohol and drugs. He became angry with her. He punched her in the face and kicked her to the body and face. Her nose began to bleed and some of the blood got onto his shirt. For this he punched her to the face, grabbed her hair, punched her to the face again and pushed her to the floor. He then left her to clean his shirt and some towels. A short time later he spat on her and punched her to the face again. She ended up on the ground where he kicked her to the body. She suffered a broken nose as well as bruising and soreness to her torso. Photographs taken of her in hospital show large areas of her face were dark purple and both eyes were so swollen they were completely closed. 27For this the offender was sentenced in the Local Court to 20 months imprisonment with a non-parole period of 15 months. He appealed against the severity of the sentence and the District Court reduced it to one of 16 months with a non-parole period of 10 months. He was released on parole on 11 February 2011. It was a condition of his parole that he accept supervision by the Probation and Parole Service and counselling as to alcohol and anger management issues. 28The murder of Ms Perry occurred 2 months later, at which time the offender was not only on parole but also the subject of an ADVO. The conditions of the ADVO included that he not go within 100 metres of premises in which Ms Dargan worked or lived and that he not approach or contact her. Facts 29The facts of the matter, based upon the evidence given in the trial and, in respect of critical matters of which I am satisfied beyond reasonable doubt, are as follows. 30I have mentioned that the offender had been in a relationship with Ms Shantell Dargan from sometime in 2009 until he committed the last of the offences mentioned above and went to gaol. For some reason she agreed to resume the relationship after he was released from gaol in February 2011, notwithstanding the currency of the ADVO. 31Ms Dargan and Ms Perry had met in 2010 and they became friends. In about February 2011 they decided to lease and move into a two-bedroom apartment at The Entrance. The offender moved in and shared one of the bedrooms with Ms Dargan. 32On 8 April 2011, there was an informal social gathering at the unit. By about 10.00pm some other people had left and there was just the offender, Ms Dargan, Ms Perry and another young woman, Catherine Wills present. All were drinking, although the offender claimed that, in contrast to the others, he was only drinking in moderation. There was loud conversation and music and also, albeit it seems relatively briefly, some physical violence involving the women. A neighbour was driven to get out of bed in the middle of the night and go to the unit to tell the occupants to quieten down. 33Ms Perry and Ms Wills seem to have become significantly intoxicated. The three women went to sleep at around 3.00 or 4.00am. The offender said in his evidence in the trial that he stayed up and cleaned the house. He said that he laid down for about half an hour but did not go to sleep. The fact that he had been using the drug known as "Ice" might explain that. He said that he got up at around 6.00am and cooked breakfast for everyone. 34There was an argument between Ms Dargan and the offender. She said that he slapped her in the mouth and threw food in her face. According to Ms Wills he grabbed Ms Dargan by the hair and flung her to the ground. (The difference in the two accounts is immaterial). Ms Wills told him to stop fighting and to leave Ms Dargan alone. Ms Dargan hurriedly fled the unit and ran towards a nearby service station. The offender chased after her and pleaded with her to return but she did not. According to the statement that Ms Dargan made on 10 April 2011, he threatened to "flog Priscilla" and that he would "smash the house up" if she did not return. When she got to the service station, which according to CCTV material was at about 10.30am, she asked the attendant to call her a taxi. The attendant saw she was in some distress and inquired about her health. She told him that her boyfriend had been hitting her. She then went to her mother's home in a nearby town on the Central Coast. 35Meanwhile, Ms Perry had spoken by telephone with a friend who lived in a suburb of Gosford at about 9.30am. She then went to this friend's home at about 10.30am and gave her a lift to a shopping centre at Tuggerah and then returned to the unit at The Entrance. 36Ms Perry, Ms Wills and the offender remained in the unit for the balance of the day. The offender spent considerable time calling and texting Ms Dargan. Much of these conversations related to how they loved each other but she also expressed exasperation about arguments and fighting between them. Ms Dargan said that in one of those calls he said he was going to drive Ms Perry's car over (presumably to Ms Dargan's mother's home) and that "Priscilla's going in the boot". She also said that the offender spoke of "wigging out" (which seems to be an expression he used to indicate that he was stressed) and that Ms Perry was arguing with him. 37A neighbour in the unit block said that at about 11.30am she heard sounds of arguing in the unit and that a male voice said in a forceful, aggressive tone, "Just do it now". 38The same neighbour said that at about 4.00pm she passed by the unit and she heard more arguing. She heard a female voice (I am satisfied this was Ms Perry) saying, "I've had enough. You don't pay rent, you don't pay for anything. I'm sick of it. I just want you to get out". 39At about 4.30pm, another neighbour heard noises from the unit which included a female crying and whimpering. 40At around this time the offender had a telephone conversation with Ms Dargan. Ms Dargan said that she could hear Ms Perry in the background. According to Ms Dargan, what the offender said included: You'd better get here. I'm going to wig out. Priscilla is carrying on. I can't handle it. 41Ms Dargan told him to stop arguing with Ms Perry and to "just go". 42Soon after this the offender sent a series of text messages to Ms Dargan and others, including her sister Angelene. The content indicates that he was in a distressed state. I am satisfied that this was after he had seriously assaulted Ms Perry. For example, in a message split over two texts sent at 5.21pm he said: I lost it ange prescilla carry on I tie her up n dnt know what 2 do she carry on bout shanny [a reference to Shantell Dargan] bash her n Katie [Ms Wills] last nite n try call cops plz get shanny asap im wiggn n dnt know what 2 do 43Various calls and texts which followed involved the offender presenting a false picture of what had occurred and minimising his culpability. Later communications included reference to him wanting to kill himself. 44I am satisfied that what occurred was this. Ms Perry and the offender did not get on. It seems that she was annoyed at him for living in the unit that she and Ms Dargan had rented. On 9 April 2011, Ms Perry (and Ms Wills for that matter) were drinking heavily as they had done the night before. The offender's evidence was to the effect that whilst he consumed some alcohol, his intake was relatively minimal. 45As early as the morning to that day the offender was expressing displeasure and a contemplation of assaulting Ms Perry. Later in the day, in her disinhibited state, Ms Perry gave vent to her displeasure about the offender's presence in the unit. This was the argument overheard by a neighbour at about 4.00pm. 46At this point the offender completely lost his temper and savagely assaulted Ms Perry. He kicked her more than once to the mouth, causing the complete dislodgement of both of her upper front teeth. Given the number of injuries she sustained it is highly likely he punched her a number of times. I am satisfied that he also stomped on her head given the severe injuries to the same areas on both sides of her head. The assault was likely over by about 4.30pm when the neighbour heard a female in the unit crying and whimpering. 47The offender may have tied Ms Perry up, but of this I cannot be certain. He made reference to doing so in subsequent statements that he made. Rope was present with blood on it, but there were no rope marks on the body. 48After Ms Perry had died, the offender rolled her up in a doona in her bedroom, placed pillows or cushions on top, and then positioned a mattress over her. As a further indignity he stuffed toilet paper in her mouth. He then set about an amateurish effort to clean up all the blood stains in the unit. 49Police came to the unit at about 9.30pm. It was locked and in darkness. They pressed the intercom button and the offender saw on a video screen that it was the police. When the officers tried to access the unit via a bedroom window, the offender fled via the front door. He made his way on foot to Ms Dargan's mother's home where he hid in the garage. He endeavoured to avoid being located by the police by taking the battery out of his mobile phone. He claimed in his evidence in the trial that he simply wanted to see Shantell before turning himself in or being arrested. That was nonsense; hiding in the garage was not going to achieve that aim. Ultimately the police found him there and he was taken into custody. 50The offender's defence at trial was that the injuries to Ms Perry that caused her death were sustained by her through a combination of having been assaulted by Ms Dargan the night before and by various falls that Ms Perry experienced because of the extent of her inebriation. He reluctantly acknowledged some involvement in her death but this was limited to a single kick and a push in reaction to her assaulting him. 51The Crown called Professor Lyons, a most experienced forensic pathologist. He noted "thirty plus injuries" to Ms Perry's head, neck, torso and upper and lower limbs. It was the combination of injuries to the head which caused death. The most significant of the injuries included a prominent area of blue-black bruising to the left eye orbit; significant bruising and injury to and around both ears; boggy swelling and oedema around the right ear; minor injuries in the nature of abrasions to the right ear lobe; a laceration and bruising to the upper lip; a laceration and blue-black bruising to the lower lip; avulsion of both upper front teeth, including the loss of the root structure of these teeth; and a discoloured abrasion underneath the chin. 52These injuries resulted in significant brain injuries. Professor Lyons found a marked sub-scalp haemorrhage around the swelling of both the left and right ear areas, spreading to the parietal and occipital areas; extensive sub-dural and sub-arachnoid haemorrhage; cerebral oedema and transtentorial herniation; and bruising and shearing within the tissue to the brain at the inferior temporal lobes. It was his view that the head and brain injuries were consistent with there having been a severe beating. The avulsion of the two upper teeth was consistent with being caused by forceful kicking to the mouth. I am satisfied that there were at least two forceful kicks, given the two wounds on the offender's left ankle which were at right angles to each other. The injuries to the ears were typical of what is seen if an individual's head is on its side on the ground and is stomped upon. The combination of injuries were inconsistent with Ms Perry having fallen. 53The defence called Dr Byron Collins who spoke in general terms about how blunt force trauma can cause injuries to the head, and how victims of such trauma can experience a "lucid interval" of up to 24 hours or more before succumbing to death as a result of injuries to the brain. The inference being advanced in the defence case was this was consistent with the fatal injuries having been sustained the previous night. 54The significant distinction between the evidence of the two pathologists was that Professor Lyons related his opinions to the specific injuries sustained by Ms Perry, whereas Dr Collins spoke about general concepts and general propositions. He did not explain how it was that a person could suffer the specific injuries Ms Perry sustained by the mechanisms suggested by the defence case theory. The jury obviously preferred the evidence of Professor Lyons. 55Aside from the forensic pathology evidence, two other matters brought about the offender's undoing at trial. The first was that his evidence was completely incredible. I say this not only because of what he said and but also because of the manner in which he presented in the witness box. His account gave the distinct impression that it was well rehearsed and tailored to meet the evidence given in the prosecution case. For example, where he had occasion to repeat his evidence on a particular topic, he often did so in almost verbatim terms. There were many features of his account that were implausible; one example which was quite absurd was that after kicking Ms Perry in the mouth, once, she complained of having a chipped tooth and said, "Look what you done to me you fucking cunt". A short time later he apologised, cuddled her and tried to comfort her by telling her a lie that his cousin was a dentist. 56A number of statements made by the offender after the killing were also his undoing. One was a telephone call to Ms Dargan that, unbeknown to him, was recorded by a police officer. During the course of this conversation he told Ms Dargan: I was trying to drink a glass of fuckin wine, trying to drink a fuckin bit of port today. And she fuckin, I grabbed her by the hair babe and fuckin, I kicked her teeth out, like I kicked her and fuckin I got her tooth stuck in me foot, me foots all sore and that. 57Another was in a telephone conversation just after midnight with Detective Sergeant Vanderwolf who was trying to encourage the offender to turn himself in. The offender told him: It wasn't fuckin like meant to happen or anything, it was just a split second fuckin, she's screaming her fuckin head off ... Goin, 'Ah I'm gonna ring the cops you scum bag', and that, 'Fuck you', in me face and fuckin carrying on. Talke to me girl [i.e. Ms Dargan], she's been doin it fuckin like a lot lately ... and getting on the wine and we've been good and we haven't been drinking and that cause we've had drinking problems. And, and fuckin trying to do the right thing and she's been drinking in the house every day and fuckin, just fuckin doing me head in like, I'm fuckin. It was like, fuckin, I know how easily like you can fuckin like someone can hit their head and die and things like that but I never fuckin planned it or thought of anything it just went bang, fuckin, next minute I think she's alright, I was talking to her too, and like cause I chipped her tooth". 58Another was a telephone conversation he had with a former girlfriend, Ms Tyla Singleton, in a call he made at about 1.00am. In it he referred to having "kicked" and "stomped" upon the deceased. When he called Ms Singleton from gaol after his arrest (Exhibit X), what he said included: This chick's just drunk carrying on and that and that and fuckin' I couldn't handle it ... I got a bad temper at times so I could only take so much of it. 59The offender is not to be punished more for the fact that he has been dishonest in his account of the circumstances of Ms Perry's death. The significance of his evidence being so incredible is that claims that he made, such as that Ms Perry assaulted him, and that he only kicked her once and otherwise did not assault her, must be rejected out of hand. It is also significant in that is indicative of a lack of insight into the extent of his violent propensities and that in turn bodes unfavourably in terms of his rehabilitation prospects. 60Various statements by the accused in the hours and days following Ms Perry's death included that, "it was an accident". I am satisfied that all he meant by this, although he does not truthfully acknowledge it, was that it was not planned. He just lost his temper; he snapped and exploded in a fit of rage and extreme violence. 61It would seem likely that his temper was developing over a period of time; he told Ms Singleton and his brothers Korri and Dayn in telephone calls from gaol that his assault upon Ms Perry was a result of "a big build-up of things". And he acknowledged his bad temper not only in the excerpt from the call to Ms Singleton I have just referred to but also in a call to his brother Dayn when he said: I've got a fuckin' anger problem anyway and fuckin' people should've helped me fuckin' more to start with. 62That there was this "build up" is further indicated by his statement earlier in the day to Ms Dargan that he would "flog Priscilla" if Ms Dargan did not come back to the unit. 63I accept the Crown submission that another matter relevant to the objectivity gravity of the offence is Ms Perry's extreme vulnerability. She was a woman well affected by alcohol and the drug quetiapine to an extent that her cognitive function and motor skills would have been substantially impaired. Her ability to physically defend herself against a fit and strong man would have been virtually negligible. This, and all of the other matters I have mentioned which are relevant to the objective seriousness of the offence leads me to accept the submission by the Crown that it is one that is "gravely serious and requires the imposition of a significant custodial sentence". 64I will mention shortly some evidence given this morning by Dr Wayne Reid, clinical neuropsychologist. It was his opinion that the offender possibly suffered from a brain injury and this was the subject of a submission that this rendered the offence less seriousness than it otherwise might be. I will say something more about this later but for the moment I simply record that, having regard to his criminal history, any reduction of the offender's moral culpability for the offence is minimal. Matters personal to the offender 65The evidence on sentence comprised a report and oral evidence by Dr Reid and oral evidence by the offender himself. 66The offender's background, in terms of what he told Dr Reid, is summarised in the doctor's report as follows: Mr Ray's parents divorced seven years ago. He has three younger brothers. His parents are both unemployed and he told me had problems with drug and alcohol abuse [sic]. He described a disturbed and what seemed chaotic childhood associated with domestic violence and he told me he was diagnosed with Attention Deficit Hyperactivity disorder and was uncontrollable. At school he said he excelled in sport and was good at school work until problems started in primary school when he began to be bullied by other children and this continued when he went to high school. He told me he started to use marijuana and then amphetamines at the age of 13 and by the age of 14 he began to get into trouble with the law and entered the Juvenile Justice system. He left school in year 8 and obtained his first job pushing trolleys at a supermarket. This was short lived and he was out of work for a number of years. His last job was five years ago working in Western Australia building a railway for the mines. He told me this lasted for five months. Around the age of 18 or 19 he told me a mate of his killed himself with an overdose of heroin and in 2000 he found his friend hanging in the schoolyard. From that point on he said he attempted to get off drugs but began to drink heavily although made some attempts at settling down. He reported he then started to experiment with new drugs, it seems steroids and he said he became physically bigger and more violent towards people. Over the last couple of years he said his drug taking and alcohol intake escalated and he was in a relationship however due to his violence an AVO was placed on him. At the time of the alleged offence he told me he was using ice and alcohol. ... He told me he has seen many mental health practitioners throughout his life and has previously seen counsellors for management of his aggression and domestic violence. He complained of having problems sleeping as he has thoughts running through his head and he suffers from depression. He told me he has previously attempted suicide many times whilst in prison by trying to hang himself and overdose on heroin. 67Under the heading "Neuropsychological Examination", Dr Reid noted that "observations of [the offender's] behaviour revealed he was impulsive and had a low frustration tolerance". 68Under the heading "Emotional State", Dr Reid recorded that the offender presented as "tense and mildly depressed in effect. He reported a long past history of antisocial behaviour, symptoms consistent with conduct disorder and substance abuse disorder". 69A battery of psychometric tests were administered by Dr Reid. They revealed nothing of any particular relevance in terms of intelligence and memory. But Dr Reid's conclusions included: Examination of his frontal executive cognitive skills revealed no deficits in his planning and organisational abilities however marked impairment was evident in those aspects of his frontal executive skills affecting his verbal and non verbal reasoning, ability to think quickly and flexibly, impulse control and monitor his on-going behaviour. Overall from his long history of antisocial behaviour, violent outbursts, and pattern of cognitive functioning found on neuropsychological assessment I am of the opinion Mr Ray's behaviour and type of cognitive deficits are consistent with those seen in patients with damage to the region of the ventromedial pre-frontal cortex of the brain. This area of the brain plays a key role in impulse control and in regulation and maintenance of set and ongoing behaviour. Damage to this region can result in disinhibition and impulsivity with such associated behaviour problems as aggressive outbursts and sexual promiscuity. It is reported many patients with ventromedial pre-frontal cortex damage develop problems with social conduct, as well as defects in planning judgment and decision making. Damage to this region has been likened to "sociopathy". (Citation of references omitted) 70Dr Reid acknowledged in his evidence that there was an element of speculation in the suggestion of the offender having damage to the ventromedial pre-frontal cortex of the brain. No scans or other procedures have been carried out to confirm this. Persons who exhibit problems with impulse control, the ability to learn from negative experiences, and low frustration tolerance, as the offender's history demonstrates that he exhibits, are apparently more likely to be found to have such brain injuries. The offender told Dr Reid that he had received a number of knocks to the head during the course of his life which the doctor opined could have a cumulative effect in causing such injury. There is, however, no remedy or cure. The solution lies in the hope that with advancing age there will be a greater level of maturity, but more so if the offender was to engage in intensive rehabilitation programs in a controlled environment, something the doctor thought that he had the intellectual capacity to do. Whether he has the motivation to do so, however, is another matter. 71The offender's criminal history is replete with opportunities that have been available to him to engage in rehabilitation. Whatever attempts he has made to date have all resulted in utter failure. And he blames others for this; I have mentioned how in one of his telephone calls from gaol he spoke of it being other people's fault. He claimed in the course of his evidence today that he did acknowledge the problem he had with anger management and violence and that he was committed to doing something about it; engaging in programs and completely abstaining from drugs and alcohol. However, the offender's evidence, both at trial and now, is such that I am not prepared to accept any of it. The overall impression it left me with was that he was prepared to make any excuses for his past behaviour and offer whatever promises about the future that would advance his own interests. 72Despite submissions to the contrary, I am not satisfied that the offender has good prospects of rehabilitation. Indeed, in the light of his criminal history, whether he has any prospects of rehabilitation is something that I am unable to forecast. This is not only because of his failure to pursue rehabilitation notwithstanding many past opportunities but also because of his lack of respect for orders made by courts and the Parole Authority when he has been permitted to live in the community under conditional liberty. The submission by the Crown that his prospects of rehabilitation are "bleak" is one I must accept. 73I am also not prepared to accept that the offender is genuinely remorseful. I accept that he expressed some shock and sorrow for Ms Perry's death in the immediate aftermath but this was not "contrition and remorse" as his counsel described it. His concerns at that time were mostly for himself and the predicament he had found himself in and it seems that the latter become his predominant concern as time went on. For example, in a conversation with his father on 27 June 2011, he was adamant that the charge of murder would fail ("there's no fuckin' way they're gunna fuckin' make me fuckin' murder shit stick on me") and that he would "get off on manslaughter". He added, "I just fuckin' feel sorry for meself think of fuckin' no kids fuck and things like that you know". Claims in his evidence today to be remorseful smacked of being rehearsed and insincere. Other sentence considerations 74I am prepared to accept, perhaps generously, that the offender's moral culpability for the offence is less than it otherwise might be on account of the possibility of him having the brain injury of which Dr Reid spoke. I have indicated that the extent that this is so is minimal; that is because the offender must have been well aware by 2011 at the age of 30 of his violent proclivities and of the situations in which he was more likely to snap. I am also prepared to accept that there should be a reduction of the extent to which general deterrence should be given weight, but that too should only be minimal. 75On the other hand, in light of the offender's history, personal deterrence remains of significance. And, there is also the fact that the offender has exhibited a continuing attitude of disobedience of the law in relation to crimes of violence. Unless he successfully engages in appropriate rehabilitation programs while serving his sentence, he will continue to represent a danger to the community, especially to women. 76That does not mean that his sentence can be extended merely to protect society; the law is clear that a sentence must remain proportionate to the offence. But with that constraint in mind, protection of the community is a significant consideration in this case 77The fact that the offence occurred in breach of both parole and an ADVO is a significant aggravating factor. 78The offender has been in custody since his arrest on 10 April 2011. Ordinarily that would mean that the sentence should be back-dated until then. However, his parole in respect of the sentence imposed for the assault upon Ms Dargan in April 2010 was revoked and he served the balance of that sentence until 11 August 2011. I appreciate that I have a discretion to order the commencement of the sentence at any time from the date of arrest until then. The principle of totality is the primary consideration. The period in question is four months. The offence concerning Ms Dargan was an entirely different matter. I have concluded that it would be appropriate to commence the sentence on 12 August 2011. 79No submission was made that I should make a finding under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that there are special circumstances warranting a reduction in the non-parole period of the sentence. I have considered the question nonetheless and have concluded that there should not be. Crimes (High Risk Offenders) Act 2006 (NSW) 80I am required to warn the offender that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to him because of the nature of the offence. In short, this means that the State may make an application at the end of his sentence for him to be made the subject of a continuing detention order or an extended supervision order for up to 5 years and that the State may continue to make applications for further such orders so as to keep him in custody or under extended supervision. I expect his legal representatives will explain this in more detail to him but the short message is that it would be in his interests to engage with rehabilitation programs whilst serving his sentence. If he does not, there is the potential for him to remain in custody for the rest of his life. Sentence 81Convicted. 82Sentenced to imprisonment comprising a non-parole period of 18 years and a balance of the term of the sentence of 6 years. The sentence will date from 12 August 2011. The offender will become eligible for release on parole after the non-parole period expires on 11 August 2029. 83That is a total sentence of 24 years with a minimum period in custody of 18 years. ********** 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: 13 June 2013