Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Willmott v R [2013] NSWCCA 244 Hearing dates: 16 August 2013 Decision date: 05 November 2013 Before: Basten JA at [1]; Adams J at [32]; Latham J at [33] Decision: (1) Grant leave to appeal against sentence. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW - appeal - sentencing - murder - applicant sentenced to minimum term of 21 years imprisonment with a balance of term of seven years - whether starting point prior to discount for plea of guilty was manifestly excessive - whether sufficient weight given to findings of remorse, no premeditation and significant degree of provocation - sentence not outside appropriate range CRIMINAL LAW - appeal - sentencing -limited use of statistics without circumstances of cases - similar cases used to establish sentence outside appropriate range - applicant distinguished by record of violent assault, extraordinary degree of violence in committing offence - sentence not manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 54D, 61 Cases Cited: Hili v The Queen [2010] HCA 45; 242 CLR 520 R v Merritt [2004] NSWCCA 19; 59 NSWLR 587 Regina v Cotterill [2012] NSWSC 89 Regina v Gabor Ziha [2008] NSWSC 145 Regina v Reid [2005] NSWSC 230 Regina v Robinson [2007] NSWSC 460 Category: Principal judgment Parties: Kelvin Robert Willmott (Applicant) Regina (Respondent) Representation: Counsel: Ms T Smith (Applicant) Mr J Stratton (Respondent) Solicitors: Legal Aid NSW (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2010/340090 Decision under appeal Jurisdiction: 9111 Citation: R v Willmott [2012] NSWSC 824 Date of Decision: 2012-07-20 00:00:00 Before: Price J File Number(s): SC 2010/340090 Judgment 1BASTEN JA: On 13 October 2010 the applicant, Kelvin Robert Willmott, murdered the deceased, Shane Curphey, at a caravan park on the Central Coast of New South Wales. The applicant entered a plea of guilty to murder on 6 December 2011 at Wyong Local Court. He was committed for sentence in the Supreme Court. 2On 20 July 2012 Price J sentenced the applicant to a term of imprisonment comprising a non-parole period of 21 years, to commence on 13 October 2010, with a balance of term of seven years: R v Willmott [2012] NSWSC 824. The period of the sentence was therefore 28 years. 3The applicant seeks leave to appeal on a single ground, namely that the sentence imposed was manifestly excessive. In oral argument, counsel for the applicant accepted that the sentence might well have been within range if imposed after a trial, but was not an appropriate sentence once account was taken of the 20% discount for the plea of guilty, which, as the sentencing judge acknowledged, indicated an undiscounted starting point for the sentence of 35 years: at [40]. In other words, the applicant submitted that the appropriate starting point should have been 28 years, rather than 35 years. 4Given the severity of the sentence, it is appropriate that there be a grant of leave to appeal. However, for the reasons set out below, the applicant has not established that the sentence was outside the available range. Accordingly the appeal must be dismissed. Legal principles applied at sentencing 5No issue arose as to the statement of principles by the sentencing judge. Thus, he correctly noted that whilst the maximum sentence for murder was imprisonment for life, the Court was authorised to pass a lesser sentence, pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 21. A standard non-parole of 20 years applied to the offence: Sentencing Procedure Act, s 54D. The judge also noted s 61(1) of the Sentencing Procedure Act, which provides: 61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. 6The operation of s 61 was discussed by the Court in R v Merritt [2004] NSWCCA 19; 59 NSWLR 587. It is not necessary to consider its operation in the present case, as the sentencing judge was satisfied that, although the applicant's level of culpability was "of a high order", the test provided in s 61 was not engaged: at [36]. A sentence of life imprisonment was not imposed. 7There was also no issue taken with the application of the aggravating and mitigating factors prescribed by s 21A of the Sentencing Procedure Act, or the judge's findings in respect of relevant factors. Whilst the sentencing judge treated the fact that the applicant was on parole at the time of the offence as a significant aggravating circumstance, he also ensured, by backdating the commencement of the sentence to the date on which the applicant was taken into custody, that there was no double punishment on that account. Circumstances of offending 8The sentencing judge dealt with the matter on the basis of a statement of agreed facts, which is set out in full in the judgment: at [3]. He accepted the facts as stated: at [4]. It is sufficient for present purposes to note the key elements of the circumstances as they affected the sentencing determination. 9The deceased and the applicant were drinking with two residents of the caravan park, Daniel Curds and Jodie Murray at Mr Curds cabin. Two events occurred in the course of the afternoon. The first involved the applicant handing Mr Curds a pre-mixed vodka drink and urging him to "skull it". When he did so, the applicant laughed and said "I just drugged you". It appears that Mr Curds took that comment as a joke, but sometime later passed out on his bed. (He had been drinking since 8.00 that morning.) The statement of facts continued: "10. At some stage the Deceased went to use the toilet in the cabin and noticed CURDS passed out on his bed. The Deceased then asked the Offender if he had slipped anything in CURDS' drink and the Offender replied 'I don't have any drugs'. Shortly after this, the Offender made a comment toward MURRAY involving calling her a 'slut'. The Deceased said 'You don't have to go talking to women like that' and told the Offender 'Get out'. The Offender apologised and said 'I'm sorry, I was out of line'. The Deceased said 'Just make sure it doesn't happen again'. The Deceased then started getting argumentative and asking the Offender again to get out. 11. After some arguing, the Deceased said to the Offender 'we don't hang out with people like you' and told the Offender to get his stuff and get out of CURDS' cabin. The Offender apologised again and said 'I was out of line'. The Deceased said 'I don't care I just want you to leave because you're starting to piss me off and if you don't leave I will make you leave'. The Deceased offered to take it outside' and the Offender and (sic) said 'I don't want to fight, I don't know how to fight'. 12. The Deceased told the Offender if you come back here again you will know about it. Don't come back here again'. The Offender picked up his bag and bottle of vodka and went to leave. The Deceased followed the Offender outside. The Offender walked away. The Offender had not behave (sic) aggressively while in the company of the Deceased, CURDS and MURRAY. 13. MURRAY and the Deceased went back inside the cabin. The Deceased became more agitated and decided he wanted to go looking for the Offender to confront him physically. After around 20 minutes, he got up and walked out and said 'we'll go for a walk and see where he is'. 14. The Deceased walked through the caravan park looking for the Offender, and approached a male in the park and asked him where the Offender lived. 10This material was significant for two reasons. First, it involved the first stage of the altercation between the applicant and the deceased and demonstrated that, although the applicant was not entirely without fault, it was the deceased who was, at that stage, aggressive. Secondly, it demonstrated that the deceased wished at that point to confront the applicant further. 11The next stage of the altercation involved the applicant returning to his mother's caravan, at which time he was "angry and very agitated": agreed facts, par 15. He demanded a sharp knife and said "they're coming for me in a couple of seconds": agreed facts, par 16. 12While it was true that the deceased had been looking for the applicant, it is not entirely clear why the applicant thought he was at risk. The agreed facts (par 13) did not suggest that the deceased had demonstrated any intention to pursue the applicant at the time the applicant walked away from Mr Curds' caravan. 13Having armed himself with two small steak knives from his mother's cutlery draw, the applicant then went to the caravan of another resident and asked for a "big knife": agreed facts, par 19. He helped himself to a "serrated kitchen type knife", later described as a "paring knife": agreed facts, par 44. In response to a question from the resident as to what was wrong, he stated, "I'm going to go and bash someone" and "I'm going to go and fix this bloke up": agreed facts, par 20. 14At about 5.30pm the applicant approached the deceased and Ms Murray at which stage a further confrontation occurred, described as follows in the agreed facts: "23. The Offender approached the Deceased and MURRAY and said to the Deceased 'What's your problem?' The Deceased said 'you drugged my mate' and the Offender replied 'No I was joking about that. Daniel's my mate too I just came over to have a few drinks with him'. 24. The Offender and the deceased began yelling and swearing at each other. Several witnesses state that they heard the Deceased say to the offender 'Don't be so gutless' and 'Come on do it, do it', as he pointed to his stomach area. While this was being said, the offender stood still with his arms crossed behind his back, holding a knife. The Deceased yelled aggressively at the offender, with his face close to the Offender's. At one stage the Deceased was pulled 2 to 3 metres away by Jodie MURRAY, but moved back to the Offender and continued yelling at him. MURRAY then got the Deceased to move away from the Offender and speak to her. 25. The Deceased then approached the Offender again and pushed him with both hands to the front of his chest. The Offender stumbled back and fell over. He then got up and produced a knife from behind his back." 15The applicant then commenced a frenzied attack with two knives upon the deceased. The sentencing judge found in these circumstances that when he obtained the large serrated kitchen knife, he had formed an intention to inflict serious injuries on the deceased and that when the attack commenced, he had an intention to kill the deceased: at [7]. He stated at [9]: "I am satisfied on the balance of probabilities that the deceased's aggression towards the offender provided some provocation, but the attack that followed was far out of any reasonable proportion to the deceased's behaviour. Furthermore, the offender had caught up with the deceased with the intent to seriously injure him. I give very modest weight to the deceased's provocation in mitigation of the offence." 16Further, the sentencing judge was satisfied that the murder was not planned: at [10]. 17The ferocity of the attack was extraordinary: the deceased suffered 105 stab wounds. The applicant kicked the deceased a number of times whilst he was on the ground and was described by a witness as "laughing and dancing around the deceased and appeared to be enjoying himself": agreed facts, par 29. 18The applicant's mother approached at some stage during the attack, which caused the applicant to desist and speak to her before recommencing the attack. He was seen to "walk back and forth between his mother and the deceased, each time stabbing the deceased in the chest and torso, and sometimes kicking him in the head". He also tried to cut the deceased's head off, holding it by the hair and slicing at the neck and banging the deceased's head against the roadway. 19The extraordinary ferocity of the attack and the bizarre behaviour which accompanied it raised a question as to whether the applicant was mentally ill. A report by Dr Olav Nielssen, a consultant psychiatrist, found that he suffered from alcohol abuse disorder, dysthymic disorder (chronic low grade depressive illness) and "possible" bipolar mood disorder. Dr Nielssen's opinion stated: "The diagnosis of possible bipolar mood disorder is made on the basis of the history of mood swings and the history of treatment with mood stabilizing and antipsychotic medication usually reserved for bipolar disorder. However, I did not elicit a history consistent with a typical manic episode that would confirm the diagnosis, or find any corroborative descriptions of manic states amongst the medial records provided to support that diagnosis. It seems that the main reason for the offence was Mr Willmott's state of intoxication and his association with other highly intoxicated people, which added to the risk of an alcohol fuelled altercation. Mr Willmott reported a heightened perception of threat, which might have been due to the physical presence of the deceased. It seems he has a pattern of becoming aggressive whilst intoxicated, which would have been increased by the effect of a moderate does of methamphetamine taken several hours before the offence." 20The sentencing judge gave careful attention to Dr Nielssen's report: at [18]-[21]. He also noted the report of Professor Starmer, a pharmacologist, who estimated that the applicant's blood alcohol concentration at the time of the offending would have been approximately 0.434g/100ml which was described as "extraordinarily high": at [22]. However, the judge was not satisfied that the calculation was entirely accurate: at [27]. He noted that, although significantly intoxicated, the extent of his intoxication "did not prevent him from sustaining a prolonged attack upon the deceased". He concluded at [27]: "The offender's intoxication does not mitigate the seriousness of the murder but assists in providing an explanation for the crime and the horrific manner in which the deceased was killed. The offender's prior history of heavy drinking and of violent offending whilst affected by alcohol demonstrates that his intoxication was not out of character for him. He had previously used amphetamines as a young person. I conclude that his intoxication and consumption of methamphetamine neither mitigates nor aggravates the offence." 21Noting that counsel for the applicant had not submitted that the psychiatric disorders diagnosed by Dr Nielssen impacted upon the offender's culpability (at [28]), the sentencing judge then turned to the question of future dangerousness. He concluded at [30]: "Unless the offender can overcome his alcohol abuse, the risk of future dangerousness that he presents to the community is high. The risk will moderate naturally with advanced age. The offender's prior alcohol related offending and return to the heavy consumption of alcohol upon release to parole encourages a pessimistic view being taken of his prospects of rehabilitation and the risk of violent re-offending upon release. I consider that the offender's prospects of rehabilitation are poor." 22The sentencing judge accepted that the applicant was genuinely remorseful and took his remorse into account as a mitigating factor: at [32]. Range of sentence 23The applicant was 37 years of age at the time of sentencing. An undiscounted sentence of 35 years would have expired when he was 72. There were no reasons to find special circumstances and accordingly the sentencing judge imposed a sentence comprised of a non-parole period and a further term of one-third of the non-parole period, in accordance with s 44 of the Sentencing Procedure Act. Applying that proportion to the putative head sentence of 35 years, would have resulted in a non-parole period of 28.5 years, and thus mandatory incarceration until the applicant was 65.5 years of age. The sentence in fact imposed, allowing the 20% reduction for the plea of guilty, involved a non-parole period of 21 years which will expire on 12 October 2031, when the applicant will be 56 years of age. 24The challenge made to that sentence placed weight on three favourable findings noted by Price J, namely that the offence was not pre-meditated, that there was a significant degree of provocation and that there was evidence of genuine remorse. Those factors were said to take the case out of the worst class of killing. On the other hand, the degree of violence was extraordinary, the applicant was on parole following his conviction in Queensland for an assault involving the infliction of grievous bodily harm and he had a record of earlier offences involving weapons and assaults. 25The second limb to the applicant's case involved reference to the Judicial Commission statistics indicating the range of sentences imposed for murder. For the period from July 2005 until June 2012, 24% of offenders received a head sentence of 25 years or more although it should be noted that 57% received a sentence in excess of 20 years. Since the introduction of the standard non-parole period of 20 years, some 14% of 126 cases have received a non-parole period greater than 20 years. (Of these, 5% received a life sentence.) On the other hand, when the cases involving a plea of guilty are isolated, the figure drops to 4%, being two cases out of 54, one of whom received a life sentence. 26The applicant acknowledged that the bare statistics, without reference to the circumstances of particular cases, would provide limited assistance to the Court. That submission was correct: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [53]-[56]. Accordingly, the Court was taken to four cases which, it was submitted, bore similarity with the present case. Such an exercise was necessary in part because the bald statistics did not of themselves establish that the sentence was outside an appropriate range. 27Taken chronologically, the first was Regina v Reid [2005] NSWSC 230. The offender had entered a plea of guilty to murdering his former de facto partner in her own home. The sentencing judge, Hulme J, found an intention to kill and premeditation. He also found that the offender was not remorseful. He was 37 years of age and had a lengthy criminal record. The sentence imposed was 22 years and 6 months, with a non-parole period of 17 years. The calculation involved a discount of 10% for the plea. However, as counsel for the Director noted, despite his criminal record, the offender had no prior sentence of imprisonment and certainly no record for violence of the kind to which the applicant was subject. 28A second murder case involving a former de facto partner, stabbed in her own home, was Regina v Robinson [2007] NSWSC 460. The offender was sentenced to 21 years imprisonment with a non-parole period of 16 years. He had no prior convictions but was on conditional liberty at the time of the offence. Hall J found that the offender went to the home of the deceased intending to commit violence upon her and, when he attacked, intended to kill her. He received a 20% discount for an early plea and a finding of limited remorse. He was 32 years of age at the date of the offence and 34 years at the date of sentence: at [3]. 29The third matter involved the killing of the partner of his former wife: Regina v Gabor Ziha [2008] NSWSC 145. Again the offence occurred in the home, that of the ex-wife who was herself stabbed in the course of the attack. The offender had no prior criminal record and suffered from depression. He was 57 years old at the time of sentence by Barr J, who imposed imprisonment for 24 years with a non-parole period of 18 years. 30The final comparable case was Regina v Cotterill [2012] NSWSC 89. The murder occurred when the offender broke into the house of a 19 year old woman, intending to steal. The sentencing judge found that the killing was intentional, but not planned or pre-meditated. Nevertheless, it was a vicious attack. The offender was 18 years and 9 months of age at the time of the offence. McCallum J sentenced him to 22 years imprisonment with a non-parole period of 16 years. The sentence included a discount for the plea "in the order of 15%": at [19]. Conclusion 31While it is true that each of four cases involved a sentence of lower severity than that imposed on the applicant, none involved an offender with the applicant's record for violent assault, nor an attack of quite the ferocity of that undertaken by the applicant. They do not demonstrate that the sentence imposed by Price J was manifestly excessive. Accordingly, the appeal must be dismissed. 32ADAMS J: I agree with Basten JA. 33LATHAM J: I agree with Basten JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2013