Supreme Court New South Wales Medium Neutral Citation: R v Sean Lee King [2013] NSWSC 801 Hearing dates: 8 April, 10-12 April, 15-18 April, 22-24 April, 26 April, 29 April; 6 June 2013 Decision date: 21 June 2013 Jurisdiction: Common Law - Criminal Before: Bellew J Decision: The offender is sentenced as follows: (i) In respect of the charge of assaulting Kimberly Lasaqa thereby occasioning actual bodily harm to her, the offender is sentenced to a fixed term of 9 months imprisonment commencing on 1 October 2011 and ending on 30 June 2012. (ii) In respect of the charge of recklessly inflicting grievous bodily harm upon David Lindsay, the offender is sentenced to a fixed term of 2 years and 6 months imprisonment, commencing on 1 April 2012 and ending on 30 September 2014. (iii) In respect of the charge of murdering Jazmin-Jean Ajbschitz I fix a non-parole period of 24 years imprisonment, commencing on 1 April 2013 and ending on 31 March 2037, with a balance of term of 8 years imprisonment, commencing on 1 April 2037 and ending on 31 March 2045. (iv) The total term of imprisonment is one of 33 years and 6 months. (v) The total non-parole period is one of 25 years and 6 months. (vi) The offender will be eligible for release on parole on 1 April 2037. (vii)The sentence will expire on 31 March 2045. Catchwords: MURDER - sentence following verdict of guilty by a jury - where offender and deceased in a domestic relationship - where previous acts of violence by the offender towards the deceased in the course of that relationship - necessity to determine sentence in the context of that relationship - where offence of murder aggravated by the offender having been released on conditional liberty only three months earlier - where offender's expressed remorse appeared genuine - where prospects of rehabilitation dependent upon commitment and adherence to treatment to address drug addiction - where offender's conduct of trial reflected a willingness to facilitate the course of justice SENTENCE - Intoxication - where offender used ice and consumed alcohol leading up to commission of the deceased's murder - where evidence of increased aggression and violence as the result of use of ice - where offender aware for some time beforehand of the likely consequences of his drug use in terms of his behaviour - where offender chose to continue his drug taking - where offending aggravated by intoxication as a result SENTENCE - where additional offences of violence occurred prior to the offence of murder Legislation Cited: Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Cases Cited: Alvares v R [2011] NSWCCA 33 AM v R [2012] NSWCCA 203 Baghdadi v R [2012] NSWCCA 212 Barrett v R [2011] NSWCCA 213 Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 Connelly v R [2012] NSWCCA 144 Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236 Callaghan v R (2006) 160 A Crim R 145 Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312 KW v R (No. 2) [2013] NSWCCA 84 Markarian v R (2005) 228 CLR 357 Mendes v R [2012] NSWCCA 103 Muldrock v R (2011) 244 CLR 120 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 Pham v R [2010] NSWCCA 208 PK v R [2012] NSWCCA 263 R v Coleman (1990) 47 A Crim R 306 R (Commonwealth) v Elomar and ors [2010] NSWSC 10 R v Fletcher-Jones (1994) 75 A Crim R 381 R V Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Isaacs (1997) 41 NSWLR 374 R v McCullough [2009] NSWCCA 94; (2009) 194 A Crim R 39 R v Mansour; R v Hughes [2013] NSWCCA 35 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Previtera (1997) 94 A Crim R 76 R v Rae [2001] NSWCCA 545 R v Robinson [2007] NSWSC 460 R v Rosenberger (1994) 76 A Crim R 1 R v White [2012] NSWSC 1573 R v Williams [2005] NSWCCA 99 Stanford v R [2007] NSWCCA 73 Windle v R [2011] NSWCCA 272 Category: Sentence Parties: Regina - Crown Sean Lee King - Offender Representation: Ms K Shead - Crown Mr J Stratton SC - Offender S Kavanagh Solicitor for Public Prosecutions - Crown Gregory Goold - Offender File Number(s): 2011/230096 Judgment INTRODUCTION 1On 8 April 2013 Sean Lee King ("the offender") was indicted for the murder of Jazmin-Jean Ajbschitz ("the deceased"). The offender pleaded guilty to manslaughter when indicted but the Crown did not accept that plea. Accordingly, the offender proceeded to trial before a jury. 2On 29 April 2013 the jury returned a verdict of guilty on the charge of murder. 3Following the jury's verdict, I was informed by the Crown Prosecutor that there were two further matters ("the 2010 offences") to which the offender had pleaded guilty in the Local Court and in respect of which he was awaiting sentence in the District Court, namely: (1)a charge that on or about 17 April 2010 he did recklessly inflict grievous bodily harm upon David Lindsay (Crimes Act 1900 s. 35(2)); and (2)a charge that on or about 17 April 2010, he did assault Kimberley Lasaqa thereby occasioning actual bodily harm to her (Crimes Act 1900 s. 59(1)), 4On 10 May 2013, pursuant to s. 128(2) of the Criminal Procedure Act 1986, the Chief Justice granted an exemption from the operation of Practice Note No. SC CL 2 to enable an indictment to be presented by the Crown against the offender in this court in respect of the 2010 offences. When the matter came before me on 6 June 2013, an indictment was presented and the offender entered pleas of guilty to both matters. THE APPLICABLE MAXIMUM PENALTIES 5The maximum penalty for the offence of murder is one of life imprisonment pursuant to s. 19A of the Crimes Act 1900. A standard non-parole period of 20 years is prescribed for that offence pursuant to s. 54A Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"). 6Section 61(1) of the Sentencing Act mandates the imposition of a life sentence for murder if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. The Crown has not sought the imposition of a life sentence in the present case, and I am satisfied that such a sentence is not appropriate. 7In determining the appropriate sentence for the offence of murder, I am not required to assess whether, having regard to the standard non-parole period, the offence is in the middle range of objective seriousness. Similarly I am not required to commence by asking whether there are reasons for not imposing the standard non-parole period (see Muldrock v R (2011) 244 CLR 120 at [25]). The relevant statutory provisions require an approach to sentencing in which all of the relevant factors are identified and, having regard to such factors, a determination reached as to the appropriate sentence (see Muldrock at [26] citing Markarian v R (2005) 228 CLR 357. 8The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle range of objective seriousness". It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27] and [31]). 9As to the first of the 2010 offences, namely the offence of recklessly inflicting grievous bodily harm, the maximum penalty is one of imprisonment for 10 years. The prescribed standard non-parole period for this offence is 4 years imprisonment. 10In respect of the second of the 2010 offences, namely the offence of assault occasioning actual bodily harm, the maximum penalty is imprisonment for 5 years. No standard non-parole period is prescribed in respect of this offence. VICTIM IMPACT STATEMENTS 11Victim impact statements were read on behalf of each of the deceased's parents, and each of her brothers. 12Once again, I take this opportunity of expressing my sympathy to the members of the deceased's family. It is hoped that the opportunity that each of them has been given to provide a statement to the court will assist their process of grieving in respect of the loss of their daughter and sibling. The authorities make clear the approach which is to be taken by a sentencing judge in relation to statements of that kind in a case such as the present (see R v Previtera (1997) 94 A Crim R 76). 13I have also received a victim impact statement from David Lindsay, a victim of one of the 2010 offences. I have made reference to this statement below when dealing with those matters. THE CIRCUMSTANCES OF THE DECEASED'S MURDER Background 14In determining the circumstances of the offending, any factual findings I make must be consistent with the verdict of the jury. In particular, I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is inconsistent with it (see R v Isaacs (1997) 41 NSWLR 374). The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation on the balance of probabilities. 15The trial was conducted by both parties on the basis that the sole issue for the jury's determination was whether or not the Crown had established beyond reasonable doubt that the offender intended to kill the deceased, or intended to inflict grievous bodily harm upon her. It was the offender's case that as a consequence of smoking crystal methamphetamine ("ice") and consuming alcohol during the day on which he murdered the deceased, he was not capable of forming any relevant intention. The Crown case was that aspects of the offender's behaviour both before and after the deceased's murder established beyond reasonable doubt that notwithstanding his intoxication, he was capable of forming, and did in fact form, an intention to kill the deceased or inflict grievous bodily harm upon her. A considerable amount of expert evidence was lead both in the Crown case as well as the case for the offender, which touched upon these issues. It is apparent from the verdict that the jury was satisfied beyond reasonable doubt of the case put by the Crown. 16Whether the offender intended to kill the deceased, or whether he intended to inflict grievous bodily harm upon her, is the principal factual issue which I am required to determine on sentence. That issue aside, and bearing in mind that there was little or no dispute as to much of the evidence adduced by the Crown at the trial, I find the circumstances of the offending in respect of the deceased's murder to be as follows. Events leading up to the deceased's murder 17At the time of her death the deceased was aged 18 and the offender was aged 25. They had met at a music festival in 2009 and commenced a relationship shortly thereafter which continued up to the time of the deceased's death. It was clearly a volatile relationship, and was marked by episodes of violence by the offender towards the deceased, a fact which the offender conceded when giving evidence before the jury. 18On the evening of 9 July 2010 the deceased spent the night with the offender and returned home on the following morning. At that time she lived in an apartment in Ultimo belonging to her mother, who had left Sydney only a few days before having secured work in Western Australia. 19There was considerable evidence led in the offender's case at trial concerning his use of ice, and his consumption of alcohol, during the afternoon and the early evening of 10 July. The offender himself gave evidence of those matters, as did a number of other persons called on his behalf. They included two persons with whom he smoked ice on that day. Those particular persons, and the offender himself, were obviously affected to some degree as a result. Members of the offender's family gave evidence of their observations of the offender's demeanour at the time. The essence of their evidence was that they observed the offender to be affected. 20I am satisfied that the offender smoked ice and consumed alcohol in the hours leading up to the deceased's murder. However, the evidence does not permit me to reach a conclusion as to precisely how much ice was smoked, or precisely how much alcohol was consumed. There is no scientific evidence, such as the results of a blood or urine sample, which might assist in determining that question. However, what can be said is that despite his use of drugs and alcohol, the offender's behaviour in the period leading up to the deceased's murder exhibited, in some respects, quite ordered thinking. This is a matter to which I will return. 21During the course of the afternoon and early evening of 10 July the offender and the deceased communicated via text messages. Those messages exhibited a degree of volatility which was not atypical of that which characterised their relationship. Although one of those messages might be regarded as being consistent with the deceased having decided to end the relationship, the Crown specifically disavowed the proposition that the offender's act in murdering the deceased was committed in response to learning that this was the case. 22During the latter part of the afternoon of 10 July the offender met with a friend ("D"). After spending a period drinking at a local hotel, the offender drove with D from the Campbelltown area to the city. According to the offender he smoked a further quantity of ice on the way. 23Earlier in the day, the deceased had met with two friends, Carol Rabuatoka and Awhita Wihapi. The three of them went to another friend's place and had some drinks, before returning to the deceased's apartment at approximately 7:00 pm. Following their arrival, all three of them commenced smoking cannabis. It was during this period that the deceased received a number of telephone calls from the offender. On some of the occasions on which she received these calls, the deceased placed her phone on loud speaker thereby enabling one or both of her friends to hear what was said. 24Ms Wihapi gave evidence of hearing perhaps four conversations between the offender and the deceased. In one of those calls, and in a voice which she described as "very angry", Ms Wihapi heard the offender say: "You don't know what I can do" 25In another conversation Ms Wihapi heard the offender say: "You think I'm joking .... I'll kill you and then anybody else that you're with". 26In another conversation overheard by Ms Wihapi the offender told the deceased that he was coming to see her. When he asked whether she would see him, the deceased replied: "You can come to the city, but I'm not going to come and see you". 27Ms Rabuatoka gave evidence (at T86 L25 and following) about one particular conversation she overheard between the offender and the deceased, during which the offender said, in what she described as an "angry" tone: "I'm going to fucken kill you, wait till I see you." 28In the course of his sworn evidence before the jury (at T499 L40 - 50) the offender did not dispute that he had threatened to kill the deceased, but asserted that he did not mean it. I am satisfied that the statements attributed to the offender by Ms Rabuatoka and Ms Wihapi were in fact said. For the reasons I have discussed further below, I do not accept the offender's evidence that those threats were not meant. 29Unsurprisingly, the deceased started to fear for her safety. Her mother gave evidence before the jury of having had a conversation with the deceased at some time during which Ms Rabuatoka and Ms Wihapi were present, in which she reassured the deceased that the apartment was in a totally secure building and that the offender could not gain entry unless the deceased allowed him to do so. She advised the deceased to barricade the door, although it is apparent that the deceased did not do so. 30The offender and D were seen on CCTV footage arriving at the front door of the apartment building at 8.59 pm. The offender unsuccessfully attempted to use the security intercom system, before leaving again at 9.00 pm. 31The offender and D returned to the front of the apartment building at 9.02 pm, at which time the offender again attempted to use the security intercom system. At approximately 9.04 pm Shovgi Ibrahimov, a resident of the building, arrived at the front door with his young son. Mr Ibrahimov gave evidence that as he approached the entrance to the apartment block he heard the offender speaking in a way which he described as "loud ....a bit angry .... like frustrated". Mr Ibrahimov said that as he approached, the offender became "quiet" before asking to be allowed to enter the building. Mr Ibrahimov had no difficulty understanding the offender and when asked about the offender's demeanour (commencing at T174 L15) he gave evidence that the offender had, in effect, modified his behaviour and was keeping himself calm so as to be allowed to enter the building. 32Mr Ibrahimov allowed the offender and D to enter the building, following which all four persons entered the lift. Mr Ibrahimov activated the security in the lift and pressed level 5, having heard one of the men say words to the effect "I think its level 5". The offender and D got out at level 5 and Mr Ibrahimov continued onto his apartment upstairs. The offender then commenced to knock on the doors of other apartments looking for the deceased. He and D were seen on CCTV footage walking through the rear courtyard and out onto the street at 9.21 pm. 33The offender sent a text message to the deceased at 9.35 pm making reference to the fact that the battery on his telephone was dying. Consistent with this the offender gave evidence, which I accept, that when he left the building at 9:21 pm he went to a nearby convenience store in order to charge his telephone. Following telephone contact between himself and the deceased, the offender returned to the apartment building by himself at 9.59 pm and sat down outside the front entrance. The deceased exited the lift and came into the foyer at 10.02 pm. She had a short conversation with the offender through the glass security door during which the offender appeared particularly animated, repeatedly gesticulating with his arms in the air. 34At 10.03 pm the deceased opened the door and walked outside. She appeared to attempt to embrace the offender before their conversation continued. At 10.05 pm, they both entered the building and then entered the lift. That was the last occasion on which the deceased was seen alive. The offender was next seen coming out of the lift and exiting the apartment block at 10.31 pm in the circumstances I have described further below. The murder of the deceased 35I am satisfied that the deceased was murdered by the offender between 10.05 pm and 10.31 pm on 10 July 2011. The offender maintained in evidence that he was unable to recall any detail of what had occurred during that 26 minute period. That evidence does not sit comfortably with the fact that he was able to remember, in some detail, events which took place up to the time he entered the building with the deceased at 10.05 pm, along with events which took place after he left at 10.31 pm. In any event, and despite the offender's inability to recall, there is other evidence which leaves little doubt as to what occurred. 36Photographs of the crime scene tendered at the trial show the premises in complete disarray. Numerous items of furniture were upended and indiscriminately strewn about the premises. A dining chair had one of its timber legs broken, and a lamp lay smashed on the floor. There was an indentation in the wall, the shape of which was consistent with the bottom of the leg of a chair having been smashed into it. 37Deposited along the hallway leading to the bathroom were various items of clothing which had been worn by the deceased, including a scarf and a pair of "leggings". A shoe belonging to the deceased which she was seen to be wearing in the CCTV footage lay nearby. There were blood stains on various parts of the floor of the hallway leading to the bathroom. There was blood smearing present on an adjoining wall. There was further blood staining on the floor of the bathroom. Faecal material had been deposited in the shower recess. 38The deceased's body was found lying in the area of the kitchen. Whilst there was no evidence of sexual assault, the lower half of her clothing had been removed in its entirety, and the upper half pulled up so as to reveal her breasts. The force with which the latter occurred was indicated by a corresponding tear in her clothing. 39Dr Isabella Brouwer, a Forensic Pathologist, gave evidence for the Crown at the trial. Leaving aside one particular issue which arose from Dr Brouwer's evidence (with which I have dealt below) I otherwise accept her opinions in relation to the cause of the deceased's death, the nature and extent of her injuries, and the manner in which those injuries were inflicted. 40Dr Brouwer gave evidence that the cause of the deceased's death was blunt force trauma injuries to the liver and heart caused by repeated stomping, and resulting in (inter alia) the right side of the deceased's heart being torn. Dr Brouwer's opinion was that the infliction of these injuries would have required the application of "an extreme amount of force" and that death would have occurred within a few minutes. In 20 years of experience, having performed what she described as "a few thousand" autopsies, Dr Brouwer said that aside from instances of high velocity motor vehicle accidents, she had never witnessed blunt force trauma injuries of the kind sustained by the deceased. 41However, the deceased's injuries were not restricted to those inflicted upon her heart and liver. Dr Brouwer gave evidence of several other injuries, including: (i)injuries to the left and right side of the face and head; (ii)haemorrhages on the left side of the neck, indicative of pressure being applied to the skin; (iii)bruising and abrasions of the left shoulder; (iv)bruising to the lower thoracic and upper lumbar spinal areas; (v)multiple bruising to the right arm and hand; (vi)bruising to the left leg; (vii)extensive bruising of the scalp with haemorrhaging to the tongue and bruising to the muscles on the left side of the neck; and (viii)multiple rib fractures. 42Dr Brouwer gave evidence that the injuries to the deceased's right arm were consistent with her having attempted to protect and defend herself in the course of being attacked. 43Dr Brouwer also gave evidence of having found rectangular, triangular and linear indentations on the deceased's body. She was not able to come to a conclusion as to precisely how those injuries were inflicted. However I am satisfied, from the distinct differences in their shape, that they were caused through the offender's use of three separate and distinct, albeit unidentified, objects. 44One of the injuries of which Dr Brouwer gave evidence appeared in the area underneath the deceased's chin. The Crown submitted that I would be satisfied beyond reasonable doubt that this injury was sustained as a result of the offender having "rammed the deceased's head into the toilet before he killed her". 45Dr Brouwer gave evidence (at T381 L13) that it was "possible" that forceful contact with the rim of the toilet bowl could have caused that injury. It was evident from the cross-examination of Dr Brouwer (commencing at T408 L31; T411 L41) that such a possibility depended upon a number of factors, including confirmation of the presence of blood in the water in the toilet bowl. However, that liquid was not subject to testing. Moreover, Dr Brouwer conceded (commencing at T411 L41) that she had not measured the rim of the toilet bowl to determine whether it was consistent with the measurement of the injury itself. These and other matters caused Dr Brouwer to expressly acknowledge that the injury could have been caused by some object other than the toilet bowl. 46I am not satisfied beyond reasonable doubt that this injury was occasioned in the manner urged upon me by the Crown. Dr Brouwer, taking all relevant matters into account, could only say that it was a possibility that this was the case. I should say however, that my finding in this regard does not alter my findings as to the nature of the attack, the brutality of which was candidly conceded by senior counsel for the offender. 47Neighbours gave evidence at the trial of hearing "thudding" type noises at a time which was, generally speaking, consistent with the time during which the offender was in the apartment. However, the evidence of those persons as to the period of time over which those noises were heard varied considerably. I am not able to determine the precise period over which the offender's attack upon the deceased took place, other than to say that it was during the 26 minute period in which he was inside the building. However, the extent of the injuries sustained by the deceased, and the state in which the premises were left, establish that this was not a case of some momentary lapse on the part of the offender. The events following the deceased's death 48The offender left the building at 10.31 pm. In contrast to his appearance at the time at which he entered, he was seen on CCTV footage to have pulled his hood over his head, and was also seen pulling the sleeves of his top over his hands. He admitted in the course of cross-examination by the Crown that he did this for the purposes of ensuring (inter alia) that no finger prints or DNA would be left on the inside of the doorway. 49Having left the premises, the offender met up with D. Both of them returned to the apartment building at 10.34 pm and unsuccessfully attempted to enter. They then left the premises. 50At 10.38 pm, D called emergency services from a public telephone and requested an ambulance. However, he gave the wrong address and no ambulance ever arrived at the deceased's premises. The offender gave evidence that he recalled asking D to make the call, and said he was present when D did so. He denied that the call was made from a public telephone so as to ensure that it could not be traced to him and said that his own telephone was again out of battery. Despite the urgings of the Crown, I am not satisfied beyond reasonable doubt that the call was made from a public telephone because the offender wanted to distance himself from the fact that it was being made. 51The offender and D were then shown on CCTV images walking around various parts of the city in search of the offender's car. When the car was found, the offender drove back to Campbelltown with D. He gave evidence that over the ensuing days, he made several attempts to contact the deceased, a fact supported by the relevant call charge records. 52The offender was arrested several days later. THE OFFENDER'S INTENTION 53The Crown submitted that the evidence overwhelmingly supported the conclusion that the offender intended to kill the deceased. In advancing that submission the Crown relied upon a number of matters. 54Firstly, the Crown relied upon the offender's statements (referred to at [24] - [27]) prior to his arrival at her apartment. The Crown submitted, in effect, that these were not to be regarded as simply empty threats. 55Secondly, the Crown relied upon the nature of the attack which was perpetrated upon the deceased. The Crown pointed, in particular, to the extreme force applied in inflicting the fatal injuries, the fact that a number of other objects were used in the attack, and the overall appearance of the murder scene including the deposits of blood in the bathroom, in the hallway and on the wall. The Crown also relied upon this evidence in support of the proposition that the offender's murder of the deceased was not impulsive, and was the result of at least some degree of planning. 56Thirdly, the Crown pointed to the evidence of the offender's actions leading up to the deceased's death which, it was submitted, demonstrated a high degree of cognitive function and ordered thinking. In this regard the Crown cited (inter alia) the offender's ability to drive, his ability to communicate both in person and by text message, and the ability to converse and make himself understood. 57Mr Stratton SC submitted that I should not find that the offender intended to kill the deceased, nor should I find that the offence was premeditated. He submitted that the offender was "well affected" by drugs. He also pointed to (inter alia) the fact that the offender took no weapon to the apartment and the fact that he took D with him for what was said to be no conceivable purpose. Mr Stratton also submitted that the offender's acts after the event of asking D to make the call to emergency services and trying to contact the deceased were inconsistent with the proposition that he intended to kill her. Consideration and conclusion 58The offender's statements to the deceased prior to his arrival at Ultimo provide, in my view, a direct insight into his intention at the time. Whilst I accept that expressions to the general effect of "I am going to kill you" can sometimes be said without any accompanying intention, the fact is that in the present case the offender's threats were repeated and were actually carried out. In these circumstances I do not accept the offender's evidence before the jury that he did not mean what he said. 59I accept that the offender had been smoking ice and consuming alcohol in the period leading up to the deceased's murder. However, for the reasons I have already expressed, it is not possible to determine the precise quantity of ice and alcohol which the offender consumed, and thus the precise level of his intoxication. However, the expert evidence given at the trial did establish that one of the effects of the use of ice is increased aggression. I am satisfied that the offender was affected in that way at the time he killed the deceased. 60I am also satisfied that despite his intoxication, the offender was not confused at the time he killed the deceased and that he remained capable of ordered thinking. Dr Stephen Allnutt, Forensic Psychiatrist, expressed the opinion that on the material which had been provided to him, the effects of the offender's use of ice and consumption of alcohol did not extend to his being confused at the relevant time. Dr Allnutt was well qualified to express that opinion, perhaps more so than any other expert who was called in the trial to give evidence. I accept his opinion in that regard. I also accept the opinion of Dr John Raftos, an accident and emergency specialist who was called in the offender's case, who said that particular aspects of the offender's behaviour, including his ability to decide to make a call to emergency services, required "use of a number of cognitive functions and a number of parts of the higher section of the brain" (at T651 L30). I further accept the opinion of Dr Raftos that the offender's acts of disguising his appearance and pulling his sleeves down as he left the apartment were consistent with "a fairly high order of thinking" (at T652 L12). 61The attack upon the deceased was extensive and sustained, as evidenced by her injuries. I am mindful of the need to be cautious in drawing inferences of intention from the nature of the injuries sustained by the deceased, in circumstances where the offender was intoxicated (see Bellchambers v R [2008] NSWCA 235 at [36] per Allsop P). However the extent of the injuries sustained by the deceased is a matter which, in combination with a number of others, supports the conclusion that the offender intended to kill her. 62I accept that the offender did not take any weapon to the apartment with him. In light of the nature of the fatal injuries occasioned to the deceased, no weapon was required (see AM v R [2012] NSWCCA 203 at [79]). Why it was that the offender took D with him to the city is not known but in any event, D was not present when the deceased was killed. The making of the call to emergency services and the attempts made by the offender to call the deceased in the ensuing days, are at least consistent with the accused having realised the enormity of what he had done. They are not, in my view, factors which tend positively against a conclusion that at the relevant time, the offender had intended to kill the deceased. 63For all of these reasons I am satisfied that the offender intended to kill the deceased. I am also satisfied that he held that intention at least from the time that he told the deceased that this is what he was coming to do. To that extent, there was some premeditation. STATUTORY AGGRAVATING FACTORS 64The only statutory aggravating factor relied upon by the Crown is that contained in s. 21A(2)(j) of the Sentencing Act, namely the fact that the offence was committed whilst the offender was on conditional liberty. There is no doubt that this is the case and it is a circumstance which comes about in the following way. 65On 22 April 2010 the offender was arrested and charged with the following: (i)supplying a prohibited drug, namely 143.3 grams of benzylpiperazine; (ii)possessing an unregistered firearm; and (iii)possessing a quantity of ammunition without a licence or permit. 66The offender was refused bail when arrested. However, apparently as a consequence of the Crown's delay in providing a certificate of analysis of the substance which was the subject of the first charge, the offender was granted bail on 1 December 2010, having been in custody for a period of 7 months and 9 days. 67On 8 April 2011, the offender appeared for sentence on all three charges before the District Court at Campbelltown and was convicted. In respect of the first matter, the sentencing judge imposed a period of 15 months imprisonment, which he structured in such a way that the non-parole period amounted to that period which had already been served by the offender, with the balance representing the parole period. In respect of the charge of possessing a quantity of ammunition, a conviction was recorded without the imposition of further penalty. In respect of the charge of possessing an unregistered firearm, the offender was released on a bond pursuant to s. 9 of the Sentencing Act, the conditions of which included that the offender: (a)be of good behaviour; (b)accept the supervision of the Probation and Parole service; and (c)obey all reasonable directions of that service with respect to alcohol and other drug rehabilitation. 68It was just three months after the imposition of these sentences that the deceased was killed. It follows that at the time of the deceased's death the offender was subject, in effect, to two forms of conditional liberty. Firstly, because of the manner in which the sentence of imprisonment had been structured, he was on parole. Secondly, he was subject to the bond imposed pursuant to s. 9 of the Sentencing Act. I accept Mr Stratton's submission that there should not be "double counting" because of the fact that the offender's liberty was conditional in two respects. That said, and however one views it, the offender's conditional liberty at the time of the deceased's murder is an aggravating factor. THE OFFENDER'S INTOXICATION 69In have already concluded that the offender smoked ice and consumed alcohol on the day of the deceased's murder, but that other than increased aggression, it is not possible to determine the precise effect of those substances upon him at the time. The question arises as to how the offender's intoxication should be treated for the purposes of sentence. 70Despite the focus during the trial upon the offender's use of illicit drugs and their effect, there was no reference whatsoever to his use of steroids during the time leading up to the deceased's murder. However on sentence, the offender gave evidence (commencing at T15 L37) that from late 2010, and up to the time of the deceased's murder, he had been in the habit of taking steroids. When asked if he had stopped using them at any time, the offender said he had done so "on and off". 71The offender was cross-examined in relation to this issue as follows (commencing at T16 L13): "Q. Mr King, do you say you were on steroids at the time you killed Jazi? A. Yeah, I was using steroids, yes. Q. To what degree were you using them? A. Once, twice a week I was injecting one mil of Sustanon and one mil of Deca, and DecaBolin. One mil of each. At other times I was if I was using Trimbolin, I injected every second day, like Monday Wednesday Friday, I'd have the weekend off. That was Trimbolin. Q. Did those drugs increase your aggression? A. I suppose they could have. All I know when I went to the gym and trained, it helped me put on weight, and I could lift more weights and things like that, so". 72The Crown's cross-examination then turned to the offender's knowledge of the effect upon him of the use of drugs generally, and the effects of ice in particular (commencing at T16 L37): "Q. If you (sic) say what was the reason for your offending behaviour in 2005, do you think it was your drinking? A. Could have been drinking and drugs, yeah. Q. What sort of drugs? A. Cocaine, speed, ecstasy. Q. So by the time of 2005, you understood that if you took drugs and drank alcohol, your response in a situation that was, not a good one for you, would be to be acting in a violent way? A. Yeah, I'd say so. Q. Then by April 2010, when you attacked the two people in the street, Miss Lasaqa and Mr Lindsay, were you taking drugs at that time? A. Yes. Q. What drugs were you taking? A. I think on that day, it was me (sic) birthday, I had a number of drugs, it would have been cocaine, ice, ecstasy. I can't really remember about the others. I was taking a few different drugs, and I was drinking from (sic) the majority of the day at the races, and then left to go to the hotel. Q. Were you taking steroids then too? A. Yeah I could have been, yeah. Q. The mixture of those substances that you were taking, were they to blame for you attacking the two people in the street Mr King, or are you to blame? A. I am to blame. Q. You knew after that time, didn't you, that if you took drugs and alcohol like that, you could respond very violently; do you agree? A. After that time, yeah." 73The offender confirmed that at least from the time of commission of the 2010 offences he was aware of the fact that the drugs he was taking would cause him to be violent (commencing T18 L17): "Q. So from that time you knew that if you were on these types of drugs, you were a very dangerous and violent person; do you agree? A. Yeah, I agree, yes. Q. And yet over and over again you chose to take those drugs; do you agree with that? A. I agree. Q. With the full knowledge that if a situation came up that caused you to get angry, you would, and could, explode in a terribly violent fashion? A. I never thought about the consequences before I was taking drugs. I never thought about like Q. Well Mr King, did you not think about the consequences of what you had done to the two people in the street when you attacked them at the time? A. At the time, as I said, I wasn't thinking". 74Yet again in further cross-examination the offender said (commencing at T19 L11): "Q. You have had many years of drug and alcohol abuse, haven't you? A. Yes. Q. And it is true to say that you could predict that you would respond very aggressively and violently if you were abusing those types of substances, would you agree? A. Yes." 75Dr Olav Nielssen, Psychiatrist, gave evidence in the offender's case on sentence. Dr Nielssen had examined the offender on 14 March 2013, prior to the commencement of the trial, to determine whether the offender had any psychiatric disorder which might have been regarded as being relevant to his behaviour. Dr Nielssen said (commencing at T26 L6) that one effect of steroid use is increased aggression. He then gave the following evidence: "Q. In effect, would the use of steroids and the use of methylamphetamine have a cumulative effect in relation to increasing aggravation (sic)? A. Yes." 76The Crown submitted that in all of the circumstances, the fact that the offender committed the offence whilst affected by ice (and to a lesser extent alcohol) should be regarded as an aggravating factor. In support of this submission the Crown relied upon the offender's admitted awareness of the adverse effect which was likely to result from taking drugs, and upon his particular awareness that such use would cause an increase in his aggression, and an increase in his propensity to act violently. 77Mr Stratton submitted that in the circumstances of the present case, the offender's use of drugs at the time of his offending was neither an aggravating factor nor a mitigating factor. He submitted that I should come to the conclusion that the degree of the offender's intoxication as a result of the use of drugs and alcohol had caused him to act in a way which was out of character. He also submitted that I should have regard to the offender's use of steroids and his lack of awareness of any connection between that use and the propensity for increased violence. 78Intoxication, whether it is brought about by alcohol or drugs, may explain an offence but will ordinarily not mitigate the penalty, except where the intoxication is the result of an addiction, and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because the offence was committed whilst intoxicated (see Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [26] citing R v Rosenberger (1994) 76 A Crim R 1 per McClellan CJ at CL with whom Price J and RA Hulme J agreed). 79In R v Coleman (1990) 47 A Crim R 306 Hunt J (as his Honour then was) observed at 327 (Finlay and Allen JJ agreeing): "Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of this offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances it may mitigate the crime because the offender has by reason of that intoxication acted out of character...Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate." 80More recently, in Mendes v R [2012] NSWCCA 103 Davies J (with whom Whealy JA and Schmidt J agreed) observed (at [73]): "(The Applicant's) background, demonstrating a link between his drug use and aggression which was understood by the Applicant, and the fact that he had abstained from using ice for eight months prior to the incident in question, suggests that any use of drugs and alcohol on the day in question was a choice he made, and cannot be regarded as being mitigated by the fact that he had been introduced to drugs as a teenager." 81Having made reference (at [74]) to the decision in Stanford v R [2007] NSWCCA 73 his Honour concluded (at [75]): "In the present case the intoxication came about from two self-administered drugs as well as alcohol. There was deliberation involved in both the drug-taking and the alcohol consumption, or at the very least recklessness. The statements made by the Applicant to Mr Glancey suggest that the ingestion of the drugs for the specific purpose of becoming aggressive was not out of character. In all of those circumstances far from the drug-taking being a mitigating factor, it was an aggravating one, although the Sentencing Judge did not specifically regard it as such". 82The evidence in the present case does not support the conclusion that the offender smoked ice for the specific purpose of becoming aggressive. However, on the offender's own evidence his use of drugs was not out of character. Moreover, the link between that use and the virtual inevitability of increased aggression and violence on his part was something which he clearly understood, and of which he had been aware for a long period of time prior to the deceased's murder. He conceded in cross-examination that despite his awareness of such matters, he continued to take drugs. 83It follows that at the time of the deceased's murder, and indeed for some considerable time prior to that, the offender knew that he had a drug addiction, and knew of the results which would inevitably flow from it (see R v Fletcher-Jones (1994) 75 A Crim R 381 at 387). 84There are a number of difficulties with the submission made by Mr Stratton concerning the offender's use of steroids, and what was said to be the offender's lack of awareness of a connection between the use of steroids and increased aggression. 85Firstly, as I have noted, the first reference in the evidence to the offender's steroid use was in the course of the sentence proceedings. Whilst he gave a history of that use to Dr Nielssen prior to the trial, it was not something which was disclosed to Dr Allnutt, nor to any of the other experts who gave evidence at the trial. 86Secondly, and in any event, the overwhelming weight of opinion evidence which was given in the trial was that the use of ice of itself increases aggression, and increases the general propensity for violent behaviour. 87Thirdly, whilst Dr Nielssen gave evidence that the use of steroids and ice would have a cumulative effect in terms of increased aggression, he did so in very general terms. The offender's evidence of the frequency with which he was taking steroids, and more importantly his evidence as to the amount he took, was also imprecise. Subjectively, the only effect of steroid use to which the offender pointed was an increase in weight, and a commensurate increase in physical strength. 88Even if it is accepted that the simultaneous use of steroids and ice can cause a cumulative effect in terms of a person's aggression, the degree of that cumulative effect in the present case is not something which I can determine. What can be said with some certainty, in light of the expert evidence given at the trial, is that the ingestion of ice by itself has that effect. It is also clear from the offender's evidence on sentence that he knew of that effect at the time of the deceased's murder, and had known of it for some considerable time prior to that. 89I am unable to accept Mr Stratton's submission that the offender's intoxication caused him to act in a way which was out of character. I accept that the level of violence exhibited by the offender and perpetrated upon the deceased was over and above that which he had previously displayed. However on the offender's own evidence, his use of drugs and his propensity towards violent behaviour as a result could not be regarded as being out of character. 90For all of these reasons, the offender's intoxication should be regarded as an aggravating factor. It is one which carries with it significant moral culpability for the predictable consequences of the choice that he made to continue taking drugs in the knowledge of their likely effect upon him (see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [173] - [207]). THE OBJECTIVE SERIOUSNESS OF THE OFFENDING 91The Crown submitted that the objective seriousness of the offending in respect of the charge of murder was such that it fell above the mid range. Mr Stratton submitted that it fell at a point lower than that urged by the Crown. There are differing views as to whether I am required to quantify the distance between the offending before the court, and the conduct involved in a putative offence in the middle of the range. It has been observed that a sentencing judge need not, and arguably should not, engage in such an exercise (see PK v R [2012] NSWCCA 263 per McCallum J at [25] with whom Macfarlan JA and Price J agreed). However, the assessment of objective seriousness of the offending nevertheless remains an important part of the sentencing process. 92The Crown drew my attention to the observations of Sully J in R v Rae [2001] NSWCCA 545 where his Honour said (at [21]): "The Courts, including this Court variously constituted, have tried to make it clear beyond any doubting that the breakdown of personal relationships, marital and extramarital alike, cannot be allowed to justify vengeful violence of any kind, let alone extreme violence of the kind here relevant. The facts of this present case require, sadly from the points of view of all concerned, that the principles be reaffirmed with all proper resolve." 93Given that the Crown disavowed the proposition that the deceased's murder was an act of revenge on the part of the offender as a consequence of the deceased terminating their relationship, the observations of Sully J may be of limited application in the present case. Further, for the purposes of sentencing, there is no specific category of "domestic murder" or "relationship murder" (see R v Knight [2006] NSWCCA 292; (2006) 164 A Crim R 216 at [26]; see also R v Gonzales [2007] NSWCCA 321; (2007) 178 A Crim R 232 at [175]). 94Equally however, the objective gravity of the offending must be assessed in the context of the relationship which existed between the offender and the deceased (see ZZ v R [2013] NSWCCA 83 at [99]). As I have observed, that relationship was volatile and violent. The offender was a powerful man who had violent tendencies, as opposed to the deceased who had no such tendencies. These are matters which are relevant to the assessment of the objective gravity of the offence (see R v Williams [2005] NSWCCA 99) although they do not further aggravate it (see R v Robinson [2007] NSWSC 460 at [77] citing Williams (supra)). 95Despite the offender's asserted inability to recall any detail of what occurred in the 26 minute period in which he was in the apartment building, the photographs of the murder scene which were tendered at the trial depict, with disturbing clarity, what occurred. The offender's attack involved multiple acts of stomping and the use of a number of different objects to inflict injury. It was an attack, the consequences of which were evident in various areas of the premises, such that the level of violence which was exhibited by the offender can be gauged not only from the deceased's injuries, but from the entirely shambolic state in which the premises were left. 96In the course of evidence called in the case for the offender at trial Dr Raftos told the jury that sometimes in the process of a person dying, there may be involuntary loss of bowel function. When cross-examined by the Crown in relation to this issue (at T 653 line 33) Dr Raftos said: "You can lose function if you're terrified". 97The faecal material deposited in the shower recess is a telling indication of the unimaginable terror which must have overcome the deceased in the final moments of her life. In an obviously petrified state, and taking such steps to defend herself as were open to her, she was subjected to a vicious, inhuman and unprovoked attack. That attack was perpetrated by an offender who had been given the benefit of conditional release only three months before. At that time, as I have outlined below, the offender had expressed some commitment to address his drug habit and the behavioural issues which accompanied it. In a complete abandonment of that commitment, the offender chose to continue taking drugs when he was well aware of their likely effect upon his behaviour. He proceeded to murder the deceased, with whom he had been in a relationship and towards whom he had previously been violent. In murdering the deceased, he intended to kill her. 98It follows that this is a serious case of murder, in which principles of both general and personal deterrence are important. Those who perpetrate attacks of the kind which caused the death of the deceased in this case, particularly those who do so having consumed drugs in full awareness of the connection between their drug use and violent behaviour, must expect the imposition of condign punishment. 99If I were required to do so, I would place the offending above the mid range of objective seriousness. THE OFFENDER'S SUBJECTIVE CASE 100The offender, who is part indigenous, is now 27 years of age. It would be fair to say that he has had an unfortunate upbringing in many respects. His parents separated when he was approximately 3 years old. The principal memory that the offender has of his father is of an occasion on which his father attempted to drown him. Following that incident, the offender, his mother and his brother moved away from his father, although there followed various attempts by his father to obtain custody of him. 101The offender left high school in year 9 at the age of 15, without obtaining his School Certificate. He had various labouring jobs up until the time of his arrest. 102The offender started using drugs as a teenager. He was 14 when he started using cannabis, 16 when he started using amphetamines and 18 when he first experimented with ice. By the age of 24, approximately 12 months before the deceased's murder, he was using ice on a regular basis. The present case serves as a stark reminder of the perils of drug use. 103At the age of 18, the offender formed a relationship from which his son, who is now 5 years of age, was born. The offender had maintained contact with his son up until the time of his arrest. He has had little or no contact with him since being arrested but expressed a wish to, in effect, "be a father" when he is released from custody. 104I have taken all of the offender's personal circumstances into account. They give rise to a necessity to consider two particular statutory mitigating factors, namely: (i)his remorse; and (ii)``his prospects of rehabilitation. The offender's remorse 105In the course of his sworn evidence before me on sentence, the offender expressed, in quite specific terms, his remorse for his actions (commencing at T13 L34). Significantly, when cross-examined by the Crown, the offender did not attempt to retreat behind his use of drugs as an excuse for his conduct. In a stark acceptance of responsibility for his actions in murdering the deceased, the offender said (at T23 L30): "I'm responsible for her death at the end of the day." 106Although the Crown did not suggest that I should conclude that the offender's expressions of remorse were not genuine, it was submitted that those expressions were neither fulsome, nor insightful. In addition, the Crown submitted that such expressions were not timely. In support of these propositions the Crown sought to tender 8 minutes of the footage of the offender's arrest. Mr Stratton objected to that tender and I rejected it. In my view, that material was largely irrelevant to the issue of remorse and provided no support for the position advanced by the Crown. 107Contrary to the Crown's submission, I take the view that the offender's expressed remorse was fulsome. One only has to have regard to the terms of what he said directly to the deceased's family when giving evidence in order to reach that conclusion. 108Further, I do not accept the Crown's submission that the offender's expressions of remorse were not insightful. His evidence, both in answer to questions from his own counsel and in cross-examination by the Crown, contained statements which reflected an acceptance of responsibility for the deceased's murder, as well as an acknowledgement and understanding (albeit belated) of the circumstances which had brought about his conduct. 109Finally, in terms of the timeliness or otherwise of the offender's expressed remorse, it must be borne in mind that the offender's case at trial was conducted on the basis that his actions caused the deceased's death. In that context, he had expressed some remorse in his evidence before the jury (at T508). 110An assessment of the genuineness of remorse is generally better informed if such expression is made, as it was in this case, face to face. That is because remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction (see Alvares v R [2011] NSWCCA 33 at [44] per Buddin J.) 111I observed the offender carefully as he gave evidence and expressed his remorse for murdering the deceased. I am not bound to accept what he said (see Windle v R [2011] NSWCCA 272 at [40]) but at face value, his expressions appeared to be genuine. That is a matter which is relevant to an assessment of his prospects of rehabilitation (Pham v R [2010] NSWCCA 208 at [29] and [33] per Simpson J), an issue to which I now turn. The offender's prospects of rehabilitation 112The Crown did not submit that the offender's criminal history was an aggravating factor but it is necessarily something which is relevant to an assessment of his prospects of rehabilitation. The significance of the offender's criminal history lies not in its length, but in the nature of the offences which are contained within it. I have already made reference to the matters in respect of which the offender was sentenced before the District Court at Campbelltown on 8 April 2011. Leaving aside some other matters in the Children's Court, the offender appeared before the Camden Local Court in December 2006 in respect of a number of offences which had been committed in 2005 including: (i)assaulting a police officer in the execution of his duty (2); (ii)resisting police; (iii)carrying a cutting weapon; (iv)having a custody of an offensive implement in a public place; (v)common assault; and (vi)assault occasioning actual bodily harm. 113On sentence, the Crown tendered the statements of facts in relation to these matters. The charge of common assault arose from an altercation between the offender (and a number of his associates) and other persons at a service station in the early hours of the morning. The offender punched the victim a number of times to the face and CCTV footage established that it was the offender who started the altercation, which then erupted into a brawl involving a number of persons. 114The charges of assault occasioning actual bodily harm and common assault arose from a separate incident at a liquor store after 10:00 pm one evening. Although it is not clear from the facts how the altercation arose, the offender assaulted the victim firstly by punching him in the face and, after the victim had fallen to the ground, by kicking and punching the victim in and around the head area. 115The remaining charges all arose from yet another incident outside a club late one Saturday evening. Police had been called to the club upon receiving a report of an altercation between patrons and security officers. Upon arrival of the police, the offender was armed with a tree branch approximately one metre long and two and half inches in diameter. He was seen to have the branch raised over his right shoulder with both hands and was yelling out to the security officers and other members of the crowd, challenging them to fight him. The offender fled the scene but was pursued. An altercation with the police followed, in the course of which the offender lost possession of the tree branch. When arrested, he resisted police by thrashing his body from side to side and kicking out with his legs. 116In the course of the struggle, the offender made a number of attempts to move his right hand towards his waistline. At this point, police noticed a pouch which was attached to the right hand side of the offender's belt. Within the pouch was a pocket knife, some 16cm in length which the police successfully confiscated. The altercation continued, in the course of which the offender kicked a police officer on two occasions to the knee. The police were forced to use capsicum spray in order to subdue him. 117The offender was cross-examined about these matters. He admitted (commencing at T16 L27) that he was abusing alcohol and drugs at that time, which he thought "could" have been linked to his offending. As previously noted, he agreed that by 2005 he was aware that if he took drugs and drank alcohol he would be prone to acting in a violent way. 118On sentence, the Crown tendered a report of Dr Allnutt who, as I have noted, had given evidence at the trial. Under the heading "Opinion" he stated the following: "In approaching a risk assessment: I have chosen to adopt (sic) clinical approach; it is important to be aware that the quality of expert opinion in regard to risk is limited because the scientific foundation has limitation; an opinion on risk of recidivism is more professional than scientific, of moderate accuracy, places the person into a particular population and does identify who in any risk groups will or will not be violent; an opinion of risk is time limited and changes over time." 119Dr Allnutt's reference to the limited utility of scientific opinion in determining a person's prospects of rehabilitation is, in my view, a point well made. 120Ultimately, Dr Allnutt concluded: "In my view the main factors that mediate his aggression are his temperamental impulsivity and substance abuse and dependence disorder. In my view the offender presents with a number of rehabilitative needs that need to be addressed in order to reduce risks that he may pose and unless these are address (sic) he falls into a group of individuals with a relatively high vulnerability (or risk) to recurrent impulsive aggressive behavior." 121Dr Allnutt recommended that the offender engage in a violent offender treatment program, that he undertake vocational training to assist in pursuing stable employment, that he undergo drug and alcohol rehabilitation, and that he consult with a psychologist. 122In the course of his oral evidence in the sentence proceedings Dr Nielssen (commencing at T25 L34) agreed with Dr Allnutt as to the limitations placed upon the capacity of any behavioral scientist to predict a person's future behavior. It comes as no surprise that Dr Nielssen expressed the view that a critical factor in the offender's rehabilitation is whether or not he ceases his abuse of drugs and alcohol. Equally unsurprisingly, he also said that the completion of a violent offender's program, and appropriate substance abuse programs, together with ongoing psychiatric review, were important components of any rehabilitation process. Importantly, he confirmed that there was no intellectual barrier which prevented the offender from undertaking such courses. 123In short, Dr Nielssen (at T27 L25 and following) agreed that the prospects of the offender's rehabilitation were necessarily dependent, either wholly or partly, upon the offender undertaking treatment to address his anger issues and his drug abuse, adhering to such treatment, and adhering to any conditions of his release. 124In the course of his evidence, the offender expressed a desire to undergo rehabilitative courses in respect of drug use and anger management. In this regard, the offender gave the following evidence (commencing at T14 L22): "Q. Well what is your attitude to drugs and alcohol now? A. Yeah I wouldn't I don't want to recommend them to anyone. Ice is alcohol has ruined my life. It's taken someone else's. All these people in the courtroom, it's ruined their lives as well. Q. Well if his Honour sees fit to give you a determinant (sic) sentence, that is a nonparole period, what do you say is going to be your practice in relation to drugs and alcohol? A. Never again. I just want if any positive can come from this, you know, while I'm in prison, you know, I want help. I want to address my drug, anger, psychological, whatever problems I have." 125There can often be difficulties in determining an offender's prospects of rehabilitation. The present is an example of such a case. On the one hand, the offender's expressed desire to undertake rehabilitation is laudable. On the other hand, the harsh reality is that this is not the first occasion on which he has expressed that sentiment. It is evident from the remarks of the sentencing judge before whom the offender appeared in April 2011 that the offender made not dissimilar statements on that occasion. 126The offender agreed in evidence before me that he had told the sentencing judge on that occasion that he was committed to dealing with his problems. This was obviously not the case. Moreover, although the offender generally accepted that the onus had been upon him to address his problems, he gave some impression of wanting to ascribe blame to the relevant authorities for what he saw as their failure to provide him with appropriate forms of rehabilitative treatment. 127The first step towards rehabilitation is an acceptance by the person concerned that there are issues which must be addressed. The second is the commitment to address those issues. The third is adherence to that commitment. On the offender's evidence before me, he has taken the first of those steps. Whether he takes the second and the third remains to be seen. I cannot disregard the fact that he expressed some commitment to rehabilitation to the sentencing judge in April 2011, only to abandon it within a short period of time. 128I do accept that the offender appears to have a supportive family which will assist him in his rehabilitative efforts. I also take into account that he does not have any mental illness, nor any other issue which might impinge upon his ability to undertake the rehabilitative courses which have been identified. The essence of the opinions of Drs Allnutt and Nielssen is that, subject to a number of matters, the offender is at least capable of being rehabilitated over time, such that upon the expiration of any non-parole period it is possible that he may not represent any ongoing danger to the community. 129In my view, the offender has some prospects of rehabilitation. However, whether those prospects are ever realised is necessarily dependent upon a number of circumstances, particularly those identified by Drs. Allnutt and Nielssen. The offender's conduct of the trial 130As I have previously observed, the offender's trial was conducted on the basis that the sole issue was that of intention. That resulted in the anticipated length of the trial being shortened and exhibited a willingness on the part of the offender to facilitate the course of justice. The Crown conceded that this was a relevant matter to be taken into account and I do so (see R (Commonwealth) v Elomar and ors [2010] NSWSC 10 at [92] per Whealy J (as his Honour then was); see also R v White [2012] NSWSC 1573). THE 2010 OFFENCES The circumstances of the offending 131A statement of agreed facts was tendered by the Crown in relation to these matters. 132At approximately 10:30 pm on 17 April 2010 the two victims, David Lindsay and Kimberley Lasaqa, were at licensed premises in Darlinghurst with a friend. They had both been drinking since approximately 7:00 pm that evening. The friend with whom Mr Lindsay and Ms Lasaqa were present was refused entry to the premises. 133Whilst all three persons were speaking with security guards at the front of the premises, two other friends of Mr Lindsay and Ms Lasaqa exited the club and waved at them before walking over to another person who was standing nearby. That other person was the deceased who was standing near the gutter with the offender. The offender was not known to either of the victims. 134For reasons for which are not clear on the facts, Mr Lindsay walked over towards his friends. The deceased then walked towards him and began arguing with him, following which Ms Lasaqa also became involved. Whilst this was occurring, the offender and a group of unknown males were standing behind the deceased. 135An argument broke out between the deceased on the one hand, and Mr Lindsay and Ms Lasaqa on the other. Although the facts do not set out the precise circumstances in which this occurred, they do record that at some point Mr Lindsay grabbed Ms Lasaqa's arm and said to her: "Come on, let's go, leave it, leave it." 136As Mr Lindsay pulled Ms Lasaqa away he was looking directly at her and did not notice what anybody else was doing. When he had taken approximately four steps, the offender used his closed fist to punch Mr Lindsay on the left side of his face. On the facts, this occurred when Mr Lindsay was walking away, the incident having apparently ended as far as he was concerned. 137Mr Lindsay's body twisted slightly as the blow turned him around. The offender then immediately punched him again to the other side of his face. This caused Mr Lindsay to bend over slightly, whereupon the offender swung his leg so that it connected with Mr Lindsay's upper body. As Mr Lindsay bent over holding his face, Ms Lasaqa saw blood dripping to the ground. Mr Lindsay then lost consciousness and fell to the ground. 138Ms Lasaqa then turned to the offender and said: "Yeah, you're a big man." 139The offender replied by saying: "What? What?" 140The offender then began yelling at Ms Lasaqa and they moved until they were on the road at a point where Ms Lasaqa had parked cars immediately to her right, and moving traffic to her left. The offender then lifted his right leg and Ms Lasaqa took a step back as the offender's foot brushed her face. Ms Lasaqa was immediately scared. She raised her fists in front of her in order to defend herself. The offender continued to yell at her and swung his left closed fist at her face, missing her. To defend herself Ms Lasaqa struck at the offender twice with her fist, connecting with his mouth. 141As soon as she hit the offender, Ms Lasaqa moved backwards as the offender walked quickly towards her, swinging his arms with closed fists and appearing, in the words of Ms Lasaqa, to be "really mad". Ms Lasaqa then felt two blows to the left side of her face which she described as being "really hard". She then described feeling "kind of blacked out" before feeling pressure on her left arm. She thought at that time that the offender was trying to drag her into the traffic and so she threw herself onto the road beside a parked car. As she lay on the road she felt two or three kicks to her stomach and the inside of her right leg. This caused her to feel pain and winded. After being kicked in the stomach she could recall very little else. 142Two nearby security guards heard someone cry: "Oh my God, she's getting bashed. Someone help!" 143One security guard observed the first blow in which the offender punched Ms Lasaqa to the face. He described hearing Ms Lasaqa's head "crack" as the blow connected. 144The other security guard observed a second blow where the offender lifted his leg in what was described as a "karate" style kick which struck Ms Lasaqa and she immediately fell to the ground. He then watched the offender circle Ms Lasaqa and inflict what he described as a "football style" kick to her head, although he was not sure whether the kick had connected as his view was obscured at that point. He began to move towards the offender and Ms Lasaqa and as he did so he saw the offender lift his knee so that it was at waist height before stomping his foot down onto Ms Lasaqa's face. I interpolate that the action described by the security guard in this way was identical to the stomping action described by Dr Brouwer as being that which inflicted the fatal injury to the deceased. 145The first security guard, by this time, had also started to run towards Ms Lasaqa and the offender. He was able to see that Ms Lasaqa was unconscious. He saw the offender pick up Ms Lasaqa by the back of her head before dragging her and forcing her head into the side of a parked car. At that point, there was a loud thump and Ms Lasaqa slumped to the ground. 146As Ms Lasaqa lay motionless on her side the offender began to stomp on her head and face area. He did this, according to the first security guard, "a few times". Each time he did this, he raised his knee in a bent position before thrusting his foot down into her face. 147CCTV footage captured the offender, followed by two unknown males and the deceased, walking along William Street before breaking into a run on Yurong Street where he separated from his companions. 148Police and ambulance assistance was called. Ms Lasaqa who initially had given no response at all was bleeding from her mouth and her eyes were black and swollen. She regained consciousness after approximately five minutes and an ambulance took her from the scene a short time after. 149Mr Lindsay had also lost consciousness but regained it after a short time as he lay on the ground. He described feeling "immense pain" in his jaw, right eye, temple and ear. 150The officer in charge of the investigation subsequently spoke with witnesses at the scene and was informed of the offender's name as well as the name of the deceased. Police patrolled the area but were unsuccessful in locating the offender. The officer in charge of the investigation then spoke with each of the victims at St Vincent's Hospital. Photographs were taken of the injuries and those photographs are before me in evidence. 151Medical evidence confirmed that Mr Lindsay presented to the hospital in an intoxicated state with superficial lacerations to the right ear and eyebrow, right facial swelling and tenderness, and loose teeth. X-rays confirmed that he was suffering from a double fracture of the mandible, which required him to undergo an open reduction and internal fixation with plates and screws. 152Mr Lindsay's victim impact statement sets out his recollection of the incident, as well as the nature and extent of his injuries, and their ongoing effect. 153Ms Lasaqa was diagnosed as having suffered swelling and bruising to her left cheek and periorbital region, along with a minor laceration to her nose. She was experiencing headache and vomiting which, in the opinion of the medical practitioner, was consistent with a mild head injury. She was observed for a period of time and provided with painkillers and anti- nausea medication and was released after x-rays had been taken of her face. 154For approximately one week after her discharge from hospital Ms Lasaqa experienced pain in her left eye, nose, stomach and leg, as well as blurred vision and a numb lip. On 20 April 2010 a large bruise began to appear on the inside of her leg. On 28 April 2010 she attended her local GP where she was told that the hard lump in her cheek was as a result of clotted blood from the blow struck, but she was informed that it would dissipate over time. 155The offender was arrested on 7 October 2010 with the two charges to which he pleaded guilty before the Local Court. 156As I remarked in the course of the sentencing proceedings, the statement of facts in relation to the 2010 offences is silent in relation to the actual catalyst for the offender's involvement. However, the offender himself shed some light on this issue in the course of his evidence (commencing at T12 L1): "Q. Did you know those people? A. No, not at all. Q. Did you intervene, as it were, to come to Jazi's aid? A. Yeah, when I seen she was arguing, she got spat on, I come to her aid, yeah. Q. Now you have pleaded guilty to recklessly inflicting grievous bodily harm, and that involved stomping on someone's head; correct? A. Yes. Q. And you realise that you broke someone's jaw? A. Yes. " 157In the course of cross-examination, the offender gave the following further evidence (commencing at T17 L26): "Q. Did you become very angry on that particular evening? A. I can't really remember. Q. Do you remember stomping on somebody's face? A. I don't remember the whole night, but yeah, I did stomp on someone, yeah. Q. But do you remember that now? A. Not really. Q. Do you remember ramming Miss Lasaqa's head into a car whilst she appeared to other people to be unconscious? A. I don't remember that. Q. Do you remember punching Mr Lindsay twice to the jaw and rendering him unconscious? A. I remember punching Mr Lindsay, yeah. Q. You were angry at that time? A. Yeah. HIS HONOUR Q. About what? A. The male spat in Jazi's face, so she yelled out for me that she was I could see she was having an argument, then I seen him spat on her, and when he spat on her, that's when I began assaulting him. Q. Did you think that it was an appropriate response? A. At the time, I wasn't thinking." 158On the offender's own evidence (at T17 L5 and following) he had consumed cocaine and/or ice and/or ecstasy in the hours leading up to the commission of the 2010 offences. He had also consumed alcohol. This was in circumstances where, as I have outlined, he was aware of the connection between his use of drugs and alcohol, and his violent behaviour. 159For the reasons previously given, his intoxication aggravates the commission of the 2010 offences. THE OBJECTIVE SERIOUSNESS OF THE 2010 OFFENCES 160Mr Stratton submitted that the nature of the 2010 offences covers an extremely wide range of offending, and a corresponding wide range of injuries. He submitted that although the offences were very serious, they would not find a place at the high end of the range of objective seriousness. 161In R v Mitchell; R v Gallagher [2007] NSWCCA 296, Howie J (at [27]) made a number of observations in relation to offending against ss. 33 and 35 of the Crimes Act. His Honour's observations remain relevant in assessing the objective seriousness of the 2010 offences. He observed (inter alia) that one very important aspect in sentencing for this type of offending is the result of the offender's conduct and that the nature of the injury caused to the victim will, to a very significant degree, determine the seriousness of the offence and the appropriate sentence. However, his Honour did not go so far as to say that the result of an offender's conduct was the only consideration to be taken into account, a fact he reiterated in a subsequent decision in R v McCullough [2009] NSWCCA 94; (2009) 194 A Crim R 39 where he said at [37]: "Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant." 162In AM v R [2012] NSWCCA 203, Johnson J commencing at [71] reviewed the authorities concerning relevant considerations in sentencing for an offence against s. 33 of the Crimes Act. Those considerations include the degree of violence, the ferocity of the attack, whether or not the attack was sustained and whether or not there were opportunities for an offender to desist which were not taken. His Honour also regarded, as a relevant consideration, whether the attack was perpetrated upon an innocent citizen going about his or her ordinary business. 163His Honour's observations were applied by the Court of Criminal Appeal in R v Mansour; R v Hughes [2013] NSWCCA 35 at [43]. In that case I observed (at [44]): " ..... conduct of the nature of that displayed by the present applicants, which involved kicking and stomping, has been described as being "a familiar method of inflicting serious injury in modern times" which is to be regarded by the courts as "abhorrent and worthy ... of condign punishment" (see R v Wright [1998] VSCA 84 at [2] cited by Johnson J in AM v R (supra at [81]). 164As is the case with the offender's murder of the deceased, his actions in committing the 2010 offences display a high degree of moral culpability. They were committed when the offender was intoxicated, and in circumstances where he knew of the predictable result of his intoxication in terms of his behaviour towards others. Whatever might have been the catalyst for his involvement, his response was grossly disproportionate to anything which had occurred. The offender's actions were entirely unprovoked and resulted in the occasioning of severe injuries to each of the victims. In the case of Mr Lindsay such matters are fully described in his Victim Impact Statement. In all of these circumstances, the offending was of a high order. Mitigating factors in relation to the 2010 offences 165The offender pleaded guilty to each of the 2010 offences in the Local Court and the parties agreed that this entitled him to a discount of 25 per cent. 166His remorse and prospects of rehabilitation are encompassed in the evidence to which I have previously referred and I have taken those matters into account. I have also taken into account his general background as I have outlined it. Remaining matters 167In the course of his submissions Mr Stratton referred me to the decisions in Robinson (supra), R v Toki [2003] NSWCCA 125; R v Vu [2005] NSWSC 271; and R v Shepherd [2006] NSWSC 799. I have read those decisions. They were all matters which concerned murder committed in the context of a domestic relationship and to that extent they had some commonality with the present case. However, there are factors in the present case which were not features in those other matters. That simply highlights the obvious: facts of cases necessarily differ. In attempting to draw comparisons between one case and another it is necessary to bear firmly in mind the importance of considering the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case. Care must necessarily be taken when undertaking any such comparative exercise. The facts and circumstances of the particular case under consideration will ultimately determine the sentence which should be imposed (see RLS v R [2012] NSWCCA 236 at [132] and the authorities cited therein). 168The Crown submitted that the 2010 offences, although committed at the one time, involved separate acts of criminality, such that there should be some partial accumulation of the sentences imposed. Mr Stratton argued that the sentences for those matters should be served concurrently, although he accepted that there should be some accumulation between those matters and the sentence imposed in respect of the deceased's murder. 169In my view, the accumulation should be as the Crown submitted. The 2010 offences, although committed at the one time, involved separate acts of criminality, perpetrated upon separate victims. 170 Mr Stratton submitted that I should find special circumstances on the basis that the offender was a young man with a limited criminal history. He submitted that in circumstances where the offender may face the temptation of drug abuse, it was in his interests, as well as those of the community in general, that the statutory relationship be varied so as to allow a longer period on parole. 171In my view, the matters upon which Mr Stratton relied do not constitute special circumstances. In any event, the balance of the term that I have imposed is necessarily lengthy. 172In structuring the sentences I have had regard to the principle of totality (see Pearce v R [1998] HCA 57; (1998) 194 CLR 610). The end result is that the balance of the term of imprisonment, as a proportion of the mandatory period, constitutes a slightly diminished proportion of the aggregate sentence. Where sentencing in respect of multiple offences has the effect of reducing, to below 75 per cent, the ratio that the non-parole period bears to the head sentence, it is sometimes the case that special circumstances are found in order to restore the statutory ratio to the overall result (see KW v R (No. 2) [2013] NSWCCA 84 at [3] per Simpson J, Harrison and Adamson JJ agreeing). However, for the reasons I have already expressed, I do not consider that a finding of special circumstances is warranted in the present case. 173It has been observed that the ratio which is imposed by s. 44 of the Sentencing Act is calculated by reference to an individual sentence, not to an accumulated term of imprisonment comprising several sentences (see Hillier v Director of Public Prosecutions [2009] NSWCCA 312 per Basten JA at [58] - [59]; Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236). There is accordingly no general requirement that the proportion between the effective non-parole period and the aggregate sentence should not exceed 75 per cent (see Barrett v R [2011] NSWCCA 213 at [29] per Hidden J, Whealy JA and Johnson J agreeing) although where it does so, a sentencing judge should explain why such a course has been taken (see Connelly v R [2012] NSWCCA 144 at [32] per Rothman J, McClellan CJ at CL and Hidden J agreeing; Baghdadi v R [2012] NSWCCA 212 at [32] per Davies J at [32], Macfarlan JA and Johnson J agreeing). 174For the reasons I have already given, I am not prepared to find special circumstances in the case of the offender. The aggregate sentence at which I have arrived takes into account all of the matters to which I have referred. Moreover, the proportion between the effective non-parole period and the aggregate sentence only marginally exceeds 75 per cent. 175That leaves the question of the date on which the sentence should commence. Following the offender's arrest on 15 July 2011, his parole was revoked and he served the balance of the term of imprisonment imposed in the District Court in April 2011. That term expired on 5 December 2011, it having been served, in effect, when the offender was refused bail for the murder offence. 176In written submissions, the Crown argued that the sentence to be imposed upon the offender should be backdated to commence on 5 December 2011. However the Crown later altered this position, and submitted that it would be within my discretion to backdate the sentence to commence at some point between 15 July 2011 and 5 December 2011. Mr Stratton submitted that I should backdate the sentence to 15 July 2011. 177In Callaghan v R (2006) 160 A Crim R 145 Simpson J (at [20] and [21]) observed that there is no absolute rule, where pre-sentence custody is referable partly to the crime for which an offender is being sentenced, and partly to some other circumstance, that the pre-sentence custody can never be taken into account. Her Honour observed that the matter is discretionary, and further observed (at [23]) that it would, in some cases, be unfair not to backdate a sentence to some point before the expiration of the earlier parole period. In doing so, her Honour pointed out that it is always open to an offender to seek, and be granted parole, even after an initial revocation. 178Taking into account all of these matters I have determined that the sentence should be backdated to commence on 1 October 2011. 179Finally, I am required to warn the offender, and I do so, of the existence of the Crimes (High Risk Offenders) Act 2006 and of the fact that the provisions of that Act apply to the offence of murder for which he has been convicted, and in respect of which he is to be sentenced. At some future time, application may be made that even though he has completed his sentence, he nevertheless should be detained in custody or be made the subject of an extended supervision order which impacts upon his liberty. ORDERS 180The offender is sentenced as follows: (i)In respect of the charge of assaulting Kimberly Lasaqa thereby occasioning actual bodily harm to her, the offender is sentenced to a fixed term of 9 months imprisonment, commencing on 1 October 2011 and ending on 30 June 2012. (ii)In respect of the charge of recklessly inflicting grievous bodily harm upon David Lindsay, the offender is sentenced to a fixed term of 2 years and 6 months imprisonment, commencing on 1 April 2012 and ending on 30 September 2014. (iii)In respect of the charge of murdering Jazmin-Jean Ajbschitz I fix a non-parole period of 24 years imprisonment, commencing on 1 April 2013 and ending on 31 March 2037, with a balance of term of 8 years imprisonment, commencing on 1 April 2037 and ending on 31 March 2045. (iv)The total term of imprisonment is one of 33 years and 6 months. (v)The total non-parole period is one of 25 years and 6 months. (vi)The offender will be eligible for release on parole on 1 April 2037. (vii)The sentence will expire on 31 March 2045. ********** 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: 21 June 2013