Supreme Court New South Wales Medium Neutral Citation: R v Stenberg [2013] NSWSC 1858 Hearing dates: 29 November 2013 Decision date: 13 December 2013 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Sentenced to a term of imprisonment with a non-parole period of 19 years, commencing on 1 July 2012 and expiring on 30 June 2031. The balance of term of 6 years, 4 months, is to commence on 1 July 2031 and to expire on 31 October 2037. The earliest date that the offender will be eligible for release on parole is 30 June 2031. The sentence will expire on 31 October 2037. Catchwords: CRIMINAL LAW - sentence - murder - guilty plea - mutilation - nature and seriousness of offence - accounts given to psychiatrists - alcohol use - aggravating factors - mitigating factors - record, character, re-offending and rehabilitation - planning - remorse - remorse not taken into account by way of mitigation - mental illness - offender's personal circumstances - comparable cases - discount - no special circumstances - victim impact statements - sentence imposed Legislation Cited: Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Cases Cited: Apps v R [2006] NSWCCA 290 Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297 Butters v R [2010] NSWCCA 1 Cameron v R [2002] HCA 6; (2002) 209 CLR 339 Cole v R [2010] NSWCCA 227 Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 GAS v R; SJK v R [2004] HCA 22; (2004) 217 CLR 198 Iskander v R [2103] NSWCCA 235 Knight v R [2006] NSWCCA 292 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Munro v R [2006] NSWCCA 350 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R R v Dodd (1991) 57 A Crim R 349 R v Engert (1996) 84 A Crim R 67 R v Harrison [2001] NSWCCA 79 ; (2001) 121 A Crim R 380 HYPERLINK "http://jirs/nswcca/judgments/1999/1999_NSWCCA_111.html" \t "_top" R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Hooper [2004] NSWCCA 10 HYPERLINK "http://jirs/nswcca/judgments/2002/2002_NSWCCA_255.html" \t "_top" R v Israil [2002] NSWCCA 255 R v GWM [2012] NSWCCA 240 R v Kearnes (No 2) [2013] NSWSC 1652 R v Lewis [2001] NSWCCA 448 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Scott [2005] NSWCCA 152 R v Sutton [2004] NSWCCA 225; (2004) 41 MVR 40 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Wright (1997) 93 A Crim R 48 R v Yeo [2003] NSWSC 314 Richardson v R [2013] NSWCCA 218 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Woodgate v R (2009) 195 A Crim R 219 Category: Sentence Parties: Regina Jonathan Stenberg Representation: Counsel: Ms J Baly SC (Crown) Mr C Bruce SC (Offender) Solicitors: Solicitor for Public Prosecutions Legal Aid Commission of New South Wales (Offender) File Number(s): 2012/199935 Publication restriction: Nil Judgment 1Jonathon Stenberg today stands for sentence for the murder of Edward James Kelly, (born James Harold Engelsman and known as Ned Kelly), on 17 or 18 June 2012 at Broadwater in the Northern Rivers of New South Wales. After a police investigation he was arrested in the Northern Territory on 1 July 2012 and later pleaded guilty on arraignment in this Court, on 6 September 2013. This Court's task 2I will begin by explaining how the sentence imposed on the offender has been arrived at, by reference to what legislation enacted by the Parliament and binding case law requires in a sentencing exercise such as this. 3The sentence which is imposed on the offender must reflect the gravity of his offence, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354). It must be determined in light of the maximum penalty imposed for the crime in question. In the case of the offence of murder, under s 19A of the Crimes Act 1900 that penalty is life imprisonment. 4Also to be considered is that s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requires that a sentence of life imprisonment be imposed on an offender, only 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 a life sentence. 5The maximum sentence of life imprisonment is thus reserved for extreme offences of murder. This was explained in R v Lewis [2001] NSWCCA 448, where it was said at [60]: "Because the life sentence provided by s.61 of that Act does not contemplate any prospect of relief in the future, no matter how distant, it should be reserved for crimes of the utmost heinousness: Chung [1999] NSWCCA 330, Ibbs v. R. (1987) 163 CLR 447 at 451-2, Twala NSWCCA 4/11/94, Fernando (1997) 95 A Crim R 553 at pars.344-4, Harris at 423." 6It is a matter for the Crown to establish that an offence falls within s 61(1). In this case while the Crown submitted that a significant sentence was called for, it did not seek the imposition of life imprisonment on this offender. 7By s 54A of the Crimes (Sentencing Procedure) Act, the Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder falling in the middle of the range of objective seriousness of such offences, taking into account only the objective factors affecting the relative seriousness of the offence. A non-parole period is the minimum period that an offender will serve in prison, before being eligible to be released on parole for the balance of the sentence imposed for the offence. 8Both the maximum penalty and the standard non-parole period are amongst the factors which must take into account on sentencing, as discussed by the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 and now provided in s 54B of the Crimes (Sentencing Procedure) Act. 9In arriving at a sentence the Court must also bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act. Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 10Under s 22 of the Crimes (Sentencing Procedure) Act, a plea of guilty must be taken into account in determining sentence. Under s 21A of that Act the Court is also required to give consideration to identified aggravating and mitigating factors revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of the offence. Consideration must also be given to questions of general and specific deterrence. 11The sentence imposed must finally ensure that there is a reasonable proportionality between the sentence and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]). 12On sentencing regard must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on an offender must not exceed one-third of the non-parole period imposed, unless the Court decides that there are special circumstances which warrant a departure from that ratio. 13If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve for the offence he has committed (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628). The Evidence 14In this case the parties agreed on the facts by way of a document entitled 'Crown Facts', which was added to by agreement at the hearing. The Crown also tendered various photographs, the offender's limited criminal history, as well as an autopsy report and a report of Professor David M Greenberg, a forensic psychiatrist, who examined the offender on 13 May 2013 and 1 June 2013. 15The offender did not give evidence. He tendered a report of Dr Olav Nielssen, also a forensic psychiatrist, who first examined him on 20 July 2012, about a month after the offence and again on 22 January 2013. It was the common view of Professor Greenberg and Dr Nielssen that the offender suffers from a mental condition, but they were not entirely agreed as to what it was, or what its impact was. The parties' cases 16By his plea the offender accepted that he is guilty of Mr Kelly's murder. 17The Crown's case was that this was a very serious example of the offence of murder, falling above the mid-range of seriousness of such offences. It submitted that the offence was unusual and brutal, being premeditated, the offender having taken a loaded gun to Mr Kelly's home at night, shooting Mr Kelly in the head, intending to kill him. The offender later decapitated Mr Kelly and attempted to set alight his home, in an effort to destroy evidence and then disposed of Mr Kelly's head, which has never been found. These acts were submitted to be significant aggravating factors necessary to be reflected in the sentence imposed. 18The Crown also submitted that the offender's use of alcohol prior to the murder did not mitigate the seriousness of his offence, particularly given that he clearly retained the ability not only to set about destroying evidence, but also the clarity of thought to open a birdcage and release a bird, so that it would not be burnt. 19The Crown relied on Professor Greenberg's opinion that the offender had a history of depression and anxiety and that at the time of his offence that he was under personal stress in relation to his finances and lack of employment, and was suffering from depression and anxiety. Those conditions were submitted to have been neither severe nor debilitating and thus while relevant as mitigating matters on sentencing, could not be given much weight in the sentencing exercise. This was in dispute. 20The offender accepted that his offence was objectively serious, submitting that it was not necessary to determine where in the range it fell, but accepting that it fell slightly above the mid-range of seriousness. Contrary to the Crown's submission, he argued that it would be accepted that his mental condition had contributed to his offence to a material degree, making it inappropriate for considerations of general or specific deterrence to feature in the sentence imposed upon him. He also submitted that various other mitigating matters would be taken into account, some of which were in dispute, particularly in relation to the questions of planning and premeditation. 21The offender relied on the opinions which both psychiatrists reached as to his mental state, but his case also rested on conclusions which Dr Nielssen had reached. The Crown's case was that the views which Professor Greenberg had formed of the offender and the conclusions he had reached, would be preferred. Neither psychiatrist was called for cross-examination. 22Given the issues lying between the parties, in this case it is necessary to have regard to what the law provides in relation to the onus of proof and the standard of proof which fall on the respective parties in a sentencing exercise such as this. In GAS v R; SJK v R [2004] HCA 22; (2004) 217 CLR 198 at [30], five members of the High Court said of fact finding following a plea of guilty: "In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case." 23In The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 the majority judges explained (at [24]) as to onus that: "References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say 'if necessary' because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)." 24The majority said as to standard of proof at [27]: "... we would adopt what was said by the majority in R v Storey ([1998] 1 VR 359 at 369 per Winneke P, Brooking and Hayne JJA and Southwell AJA) - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.' 25The rules of evidence do not ordinarily apply at a sentencing hearing (see s 4 of the Evidence Act 1995), but nevertheless, the weight of the evidence which the parties lead must be critically assessed. 26Hearsay evidence of statements made by offenders to doctors, psychologists or psychiatrists in reports are admissible on sentencing, but very considerable caution has to be exercised in relying on such statements, if they concern matters in dispute, when the offender does not give evidence and thus cannot be cross-examined on those statements (see for example R v Harrison [2001] NSWCCA 79 at [32]; (2001) 121 A Crim R 380; R v Hooper [2004] NSWCCA 10 at [49]; Munro v R [2006] NSWCCA 350 at [17] - [19]; Woodgate v R (2009) 195 A Crim R 219 at [19]; Butters v R [2010] NSWCCA 1 at [18].) 27If such material is sought to be relied on to minimise the objective seriousness of a crime otherwise apparent on the evidence, particular caution must be exercised. In R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, Smart AJ observed at [59] that "In many cases only very limited weight can be given to such statements". Spigelman CJ agreed, observing at [79]: "I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentencing hearings." 28The issues lying between the parties must be resolved in the light of these binding authorities. The nature and seriousness of this offence 29There was no significant issue between the parties as to the objective seriousness of this offence. It is plainly a very serious example of murder, involving as it did the execution of a victim, late at night in his own home, by a single gunshot to the head and the subsequent decapitation and attempted destruction of evidence, including the body, by burning. 30The absence of any defensive wounds and what was found on autopsy is, however, consistent with a quicker, rather than a painfully lingering death. That, no doubt, explains why it was that the Crown submitted that this was not a case warranting a sentence of life imprisonment, which the Parliament has reserved for the very worst of offences of murder. On the evidence, I am satisfied that this submission must be accepted. 31The agreed facts reveal that the offender and Mr Kelly had owned adjoining properties since 2008 and that there had been a history of conflict between them. In September 2009 the offender was charged with assaulting Mr Kelly, both he and Mr Kelly alleging that the other had assaulted him. The charge was withdrawn in October 2009 in the Ballina Local Court. 32At about 10.30am on Sunday, 17 June 2012 the offender was cutting down a tree on his property with a chainsaw, with the help of another neighbour, Gregory Ellis. A heated argument broke out near the fence between the properties between the offender and Mr Kelly, during which Mr Ellis heard the offender say to Mr Kelly words to the effect 'I am going to fuck you up your arsehole'. 33Mr Kelly eventually returned to his home and the offender and Mr Ellis later consumed about five or six beers together. The offender was worked up about Mr Kelly. Mr Ellis asked the offender 'What was all that about', to which the offender replied 'He's been a fuck wit, telling me that I can't cut down a tree on my own property'. He also told Mr Ellis that he was going to kill Mr Kelly and then went to his shed and returned with a silver coloured pistol and a magazine, which he showed Mr Ellis. 34When the offender formed the intention to kill Mr Kelly was in issue between the parties. The Crown relies on this evidence to submit that it was at this time that the intention which the offender later acted on was formed. On the offender's case he formed an intention to kill Mr Kelly only just before he shot him later that night. 35Mr Ellis left the property at about 3pm. At about 4pm the offender went to the Broadwater Hotel where he began drinking. He also bought a carton of beer. He there spoke to William Degotardi, who he told, amongst other things, that he used to be in the military. The offender went to his car and returned with a silver handgun and a magazine. He then told Mr Degotardi that he was with the Australian Federal Police, that he was looking for Ned Kelly, who was involved in growing marijuana and paedophilia at Evans Head. Mr Degotardi told the offender that he knew Mr Kelly and thought that he had made a mistake. The offender warned Mr Degotardi to stay away. Mr Degotardi left the hotel a short while later, but reported his concerns to friends over following days. 36It was submitted for the offender that what he told Mr Degotardi was somewhat bizarre. On Professor Greenberg's report, however, the offender is no stranger to telling such untruths. He had served in the military for only two years, but in the past had told others, treating doctors, for example, that he had served for up to six years, including overseas; that he had been shot at; and that he suffered from post traumatic stress disorder, even though he had never been diagnosed with such an illness. To Professor Greenberg he denied having symptoms of such a disorder. 37The offender told Professor Greenberg that he told such untruths because he was "sick" and "hasn't been well for a long time". He then claimed to be having an anxiety attack, saying that his life was "in a mess". This evidence underscores the caution with which the various accounts which the offender has given must be approached. 38There is no issue that the offender shot Mr Kelly during the night of 17 to 18 June. The agreed facts give no account of what he then did. 39At about 3am on 18 June the offender's wife was woken by the offender at their home at Greenslopes in Queensland. She asked him why he was home so late. He told her that 'I got pissed off and shot our neighbour'. She asked 'Who?', he replied 'Ned'. She told him not to tell her any more as he was scaring her. He told her that he needed to go away and get some money from the bank. He then went to sleep and she went to work at 4.30am. On her return home that afternoon she found a note indicating that the offender had gone away. Later he contacted her with a new mobile number. He told her not to tell anyone about anything. 40That day the offender withdrew $10,000 cash from his bank account and made plans to flee Queensland. He returned to his property at Broadwater with a friend, in order to collect some belongings. He later left a pistol at her premises at Tingalpa in Queensland, where he replaced the number plates of his vehicle. He then travelled to the Northern Territory. 41On the afternoon of 21 June at about 4.30pm Mr Kelly's body was found at his home by a friend, who had not seen him since 17 June and had become worried as to his whereabouts. He forced entry through the back door and found Mr Kelly, lying on his back on the kitchen floor in a pool of blood. On police examination it was discovered that Mr Kelly had been decapitated and that an Akubra hat had been positioned on top of his torso, covering his neck wound. Two blood stained knives were nearby, one stabbed into the floor in an upright position. Mr Kelly had no apparent defensive wounds and blood stains indicated that he had been decapitated where he lay. 42There had also been an unsuccessful attempt made to set fire to the premises. There was a crude fuse placed on top of the hat. It was constructed of a lit cigarette and a number of long matches bound together with a copper coil. There was an amount of ignitable fluid on the floor around Mr Kelly. The electric stovetop element was on and there were remnants of a burnt glove on the element. There was also a cigarette lighter on the floor. There were also a number of shoe impressions located as well as a spent cartridge. The offender's DNA profile was later matched to the matches and cigarette found at the scene, as well as with samples taken from Mr Kelly's clothing. 43On 25 June police established that the offender was in the Northern Territory and a police operation began there. That day, during a police search at the Greenslopes property, a large amount of ammunition and a press for manufacturing ammunition were seized. A search of the Broadwater property located long matches similar to those used to make the crude fuse in the shed. Boot impressions similar to those located inside the victim's home were found outside the shed. A search of the Tingalpa property located the silver pistol 44That day the offender sent an email to his wife, which said: "The idiot said he was gonna rape u next time he saw u that just set me off sorry love you so much be strong and tell the coppers nothing as thats the lawers(sic) job not yours." 45On 1 July 2012 the offender was arrested in a 'hide' located in thick shrub about 50km south of Darwin. He was then in possession of long arms and a 9mm Glock pistol. He was then extradited and charged. 46Mr Kelly's head has never been found. The cause of his death could not be determined on autopsy. Features then identified indicated that his head had been removed some hours after his death. There was a smell of accelerant on his body, as well as chemical burns caused by accelerant. The offender later told Dr Nielssen that he had thrown Mr Kelly's head into a river. 47On 17 April 2013, after examination by Dr Nielssen, the offender offered to enter a plea to manslaughter on the basis of substantial impairment and agreed to a psychiatric assessment. Professor Greenberg's report was dated 23 June. The offender entered a plea to the charge of murder on arraignment in September 2013. The accounts which the offender later gave 48While the experts agreed that the offender suffered from a depressive illness, they disagreed as to its nature and the degree to which it contributed to his offence. They both had access to largely the same material and Professor Greenberg also had Dr Nielssen's report. Their opinions also rested on the histories which the offender gave each of them. A comparison of their reports shows that those histories were inconsistent in a number of relevant respects both from each other and from the later agreed facts. 49Apart from what he told his wife the night that he shot Mr Kelly, on the evidence, the offender has only given a coherent account of what he did to Dr Nielssen, who first examined him in July 2012 and again in January 2013. He told Dr Nielssen that he was a completely different person since receiving treatment; that he acknowledged that he had caused Mr Kelly's death, for which he said he was remorseful; and that he intended to plead not guilty on the grounds of mental illness. 50The offender did not appear to have such clarity of thought when later examined by Professor Greenberg, who he told that he did not have a good memory of what had happened and to whom he gave quite a different account of various relevant matters. Professor Greenberg had real reservations as to the offender's accounts, for good reason, it appears. 51Amongst other things, the offender told Dr Nielssen that he met Mr Kelly after he purchased the property at Broadwater, where he initially lived in a tent, before erecting a shed, where he began to stay more often. He then began to see Mr Kelly, who jumped over the fence and became a bit of a nuisance, inviting himself over, never bringing a beer and impeding his enjoyment of the place. 52Their conflict in 2009 began when Mr Kelly turned up while he was having a beer with Mr Ellis and became annoyed when he wasn't given another. Mr Kelly made a provocative reference to homosexuality and put his arm around the offender and said 'don't knock it until you tried it'. The offender pushed him away and Mr Kelly picked up a stick and swung it at him, leaving him with an abrasion and bruising. The offender rang the police who later charged him with assault, although the charges were later dropped. Since then there had been open hostility between he and Mr Kelly. 53He said that on the morning he killed Mr Kelly he had been woken by a bang on the shed, which he assumed was caused by Mr Kelly. Later, when he was cutting down the tree with Mr Ellis, Mr Kelly popped up out of the blue and told him that he needed council approval and goaded him with abuse, including a remark that he found his wife attractive, which the offender said was 'the last straw'. 54The offender told Dr Nielssen that he later had several beers with Mr Ellis and after Mr Ellis left, he kept drinking, consuming about a carton of beer and between a quarter and half a bottle of rum over a period of several hours. 55The offender said that he had been in a depressed state of mind for about six years, the major cause of which was the loss of $250,000 on a property development venture. He and his wife were some $660,000 in debt and were facing bankruptcy. He was irritable, easily frustrated and depressed before seeking treatment. He was then being treated with antidepressants and had gone to the shed to get away. 56The offender also said that about a year before, he had begun experiencing hallucinations of a voice, which he thought was his father's. It got bad that night and got him into a pretty worked up state, which he described as like being in a movie, like watching himself. 57He said that he heard a voice say 'go and sort him out'. He had never been to Mr Kelly's home before, but went to his kitchen door, where Mr Kelly 'popped up with a knife' and then he shot him. They had no conversation. He had not wanted to shoot Mr Kelly, but had his finger on the trigger and shot him once in the head. The voice said 'take it off' and he used a knife to cut off his head, he said 'don't ask me why'. 58He got rid of the head in the river. When asked why he had not got rid of the body as well, the offender said that: "I put a hat over the wound ... I just felt appalled at what I did ... I couldn't make much sense of it ...I have great remorse and regret for Ned even though we didn't get on ... I was on automatic ... I felt I couldn't stop myself even if I wanted to." 59When asked about his memory of the events he said: "I was balancing different emotions...freedom and the reality would hit in succession." 60A number of things need to be observed about this account. The first, that it does not accord with what the autopsy report established, namely, that Mr Kelly's head was decapitated hours after he was shot. The second, that it does not accord with aspects of the agreed facts, particularly as to the other calculated steps which the offender took in an attempt to conceal his crime. Thirdly, that it does not accord with what the offender told his wife not long afterwards, namely, that he had killed Mr Kelly because he was 'pissed off' with him. Fourthly, it does not accord in relevant respects with what he later told Professor Greenberg. 61Dr Nielssen's report as to the offender's mental state was: "At the initial interview Mr Stenberg presented as a short strongly built man who had an anxious manner and appeared quite depressed. He was suspicious and early in the interview asked to examine some proof of identity. He appeared quite distracted and had difficulty completing sentences and retrieving information in a way that appeared to be due to the disorganisation of thinking associated with mental illness. He described typical symptoms of schizophrenia and the persecutory belief that he had been in danger prior to his arrest in response to those symptoms. ... Mr Stenberg's mental state had improved by the time of the recent interview. He did not appear as anxious and depressed. He was polite and addressed me as "sir", in a way that perhaps reflected his background in the Army. His speech was normal in form. He reported experiencing hallucinations of voices in the past, but recognised them to be hallucinations and said that they had resolved with treatment. No delusional beliefs were elicited. He was correctly oriented, was able to provide a detailed history and his intelligence was estimated to be about average from his vocabulary, literacy and occupational and educational attainment." 62Dr Nielssen concluded amongst other things: "The diagnosis of probable psychotic illness is based on Mr Stenberg's account of typical symptoms of schizophrenia-like psychosis and aspects of his presentation during the initial interview, when he seemed quite suspicious and to have disorganised thinking in a way that was consistent with active mental illness. ... Based on the history from Mr Stenberg, and the information from the various medical records, his illness is probably a form of psychotic depression, as he reported hallucinations of voices that he recognised to be hallucinations, which appeared to be associated with the experience of depressed mood and were reported to be worse when he was in a distressed state. Mr Stenberg did not report holding any delusional belief regarding Mr Kelly, for example, that Mr Kelly posed an immediate threat to him, or any delusional belief regarding the source of hallucinated voices. He reported being intoxicated with a large quantity of alcohol consumed on the day of the offence, and that his behaviour was influenced by hallucinations of voices he experienced around the time of the offence, which may leave open a defence of mental illness to the charge of murder." 63Dr Nielssen's opinion was that the offender had a probable psychotic illness, which was in remission and that he suffered from a depressive illness, alcohol abuse disorder and a possible underlying learning disorder. 64Professor Greenberg received a somewhat different account from the offender. His opinion was that he was suffering depression; alcohol abuse/dependence; steroid abuse in remission and learning disorder in childhood. While the offender did not have a mental illness he thought there were possible mitigating matters relevant to sentencing namely that of substantial impairment by abnormality of the mind. 65The offender had told Professor Greenberg that Mr Kelly had approached when they were cutting down the tree and abused him, telling him he 'should not be cutting down his trees'. He said 'I got irate with him telling me what to do on my property'. Mr Kelly had threatened him, by saying 'you'd better not let your wife (come) down on her own.' Mr Ellis told him that Mr Kelly had assaulted a girl in the past and he then told Mr Ellis that he had a gun. 66The offender said that he was angry and his mental state was not good. He was verbally aggressive towards Mr Kelly and told him to mind his business. Mr Kelly abused him and then retreated into his property. 67As to his alcohol consumption the offender said that he and Mr Ellis then drank eight stubbies and he had also drunk three Vodkas. He was unhappy and fed up with Mr Kelly, for trying to tell him what to do. He could not clearly recall going to the pub, but he remembered buying a carton of beer and drank some before he went to sleep. He then felt life was kicking him around and he felt drained. 68He was woken by a bang on the side of the shed and heard voices outside. It was dark. He was sure it was Mr Kelly who had kicked the shed. He heard a voice say 'What are you going to do about him hitting my property?' He then got out of bed to chase Mr Kelly. 69He said that he had a pistol on him, because he always slept with a pistol under his pillow. He had been paranoid for 17 months before the shooting. He went outside, but claimed he had no recall of going to Mr Kelly's home. He reported only having 'bits of memory'. He recalled Mr Kelly being on the ground in his kitchen. He had never been there before and said that he had no recall of the shooting. He did recall hearing the discharge of a firearm. He thought that Mr Kelly was going to get his shotgun. 70The offender recalled no conversation, but remembered feeling 'anger, really angry' about Mr Kelly and other things. He felt like he was in a movie. His body was doing 'this stuff' and he was aware of what was going on and what he had done. He felt shock and sick inside his head, which was pounding. He went back to his shed and drove to Brisbane. 71The offender could not recall any further information. When asked why he had decapitated Mr Kelly, he said he was just 'angry upset and confused'. When asked where he had disposed of the head, he had no recall. He also had no recall of putting accelerant on Mr Kelly's body, leaving the stove on, or manufacturing the fuse left on the hat. When asked why he had left the hat on the body, he said 'I just wanted to get out of there as fast as I could. I was upset and the medication didn't help at that time'. 72When further questioned he said he had no recall of what had happened. When asked why he had shot Mr Kelly he said 'cause I didn't want to get shot by a shotgun. He was on my property first. I thought he would shoot me'. He also said that he was intoxicated and had taken antidepressant medication and one Xanax. 73The offender said that he told his wife on his return home that he had 'trouble on the block'. He arranged to go to the Northern Territory next day. At the time 'he kind of knew what I've done'. He said he was 'pretty fucked up' and the whole thing 'seems like a blur'. He claimed that he had not gone to the Northern Territory to flee, but to find work. He also said that he did not go to the police because it didn't seem like he had done anything wrong and that his mental state was not good. 74There is no explanation for this loss of memory apparent on the evidence, although it must be remembered that Dr Nielssen examined the offender when he was seeking to advance a mental illness defence and Professor Greenberg, when he was wanting to have a plea to manslaughter accepted. 75This first account given to Professor Greenberg does not accord with aspects of the account he had earlier given to Dr Nielssen; nor does it accord with what the offender told his wife when he returned home the night he killed Mr Kelly, it also does not accord with aspects of the later agreed facts; or with some of what he said in his second interview with Professor Greenberg. 76In his second examination the offender told Professor Greenberg that he felt strange at the time of the offence. He was drinking beer with his antidepressant medication, but he felt a lot more relaxed and friendly and not in a bad mood. He became angry and agitated when he argued with Mr Kelly over the tree. He did not know why Mr Kelly felt he could tell him about his job and that Mr Kelly made no effort to talk to him civilly. Normally he would get in his truck and drive away but he was bogged down because it had been raining and he did not want to get stuck in the mud. 77The offender told Professor Greenberg that he could not then remember the murder. He could recall a loud bang on his shed and hearing a single voice outside. It was all 'bits and pieces'. He was reluctant to discuss them any further. He then claimed that he had been hearing voices inside his head telling him he was no good and not to bother or try, continuously since aged 13 years. He did not, however, recall hearing any voices at the time of the offence. 78When asked about going to the Northern Territory he said he did not believe it had happened and was going there for work. When asked about changing his number plates, he said he had little breaks of reality and would then drift off again. He said that he got a new mobile because he needed a new one and his old one did not have good reception outside Brisbane. 79When asked why he had told his wife not to tell anyone about him, he said he was not sure what was going on and wanted to 'work it out first', before he spoke to anyone. He was trying to protect his wife. 80The offender did not reply to questions about why he had put a hat on Mr Kelly's torso. He said he did not know why he had tried to set fire to the property. He said that he has 'good days and bad days'. When asked again, he accepted that he had shot Mr Kelly and said: "I was really angry at the time. He was coming and abusing me over the fence. It was the last straw." 81When asked about Mr Kelly's threat to rape his wife, he stated that Mr Kelly had told him this over the fence and had abused him; that he 'wouldn't hear half of it' and that he had said 'don't leave your wife on the property without you being there'. 82Professor Greenberg also reported: "I asked Mr Stenberg what had happened to the bird in the cage of the home of Mr Kelly and he stated that he had let out the bird. He stated that he didn't think it was fair that the bird was left in the cage. Mr Stenberg stated he identified with the animal. When asked why he had let the bird out the cage he stated that he didn't want the bird to get burnt. He stated that he didn't want to see anything happen to animals" 83Again, not only did this further account depart from the earlier accounts which the offender had given both Professor Greenberg and Dr Nielssen, it, too, departed from aspects of the later agreed facts. On this occasion, while the offender claimed to have even less memory of what he had done than before, what he said about the bird showed that he had a memory of trying to set Mr Kelly's home alight, which he was not prepared to discuss. He was also not prepared to discuss other things which he plainly did remember. 84Professor Greenberg reported as to the offender's mental state: "Mr Stenberg was difficult to interview. He claimed to have limited recall of the events at the time of the alleged offence or of events following the event. He was a poor historian and had difficulty expressing his feelings. He had a chin beard and was malodorous. He is a man of short stature who is mildly obese. He had monotone speech. At times during interview when asked direct questions about the alleged offence, he became distressed and claimed that he was anxious and could not answer the question. His affect was restricted and dysphoric. At times his history was disjointed. There was no evidence of and(sic) formal thought disorder. His thought was mildly retarded in flow. There were no true auditory hallucinations or any other hallucinations such as visual, tactile or olfactory amongst others. He reported vague paranoid ideation that people were talking about him or that people did not like him. There were no overt paranoid delusions or delusions of any other nature such as grandiose or referential delusions. He denied any symptoms of disorder of thought control such as thought insertion or thought broadcasting. He tended to have poor psychological insight into his psychological problems." 85Professor Greenberg concluded: "I am of the opinion that Mr Stenberg suffers from depression and anxiety. I am of the opinion that Mr Stenberg does not suffer from a major psychiatric illness such as a Schizophrenic Disorder or other psychotic disorder. I am of the opinion that his complaints of "voices" relate to his depression, anxiety, and feelings of poor self-worth, poor self-esteem and his current perceived bleak circumstances with him being in custody and facing serious criminal charges of murder." 86In my assessment it cannot be concluded from the evidence on which the offender relies that facts beyond those which have been agreed were established by the inconsistent and untested accounts which he earlier gave to Dr Nielssen and Professor Greenberg. 87The offender relied on those accounts to advance various of his submissions. I am satisfied that these untested, inconsistent accounts are unreliable and do not provide a basis upon which any conclusions favourable to the offender can readily be reached. 88There is no evidence that Mr Ellis, who was present during the altercation on 17 June between the offender and Mr Kelly, heard Mr Kelly make any threats. On the agreed facts when Mr Ellis asked the offender what the argument was all about later that day, he made no mention of any threat and when he woke his wife later that night, he reported no threat to her. He also made no mention of any threat to his wife when he spoke to Dr Nielssen. The account of a threat of rape which he later gave his wife in an email, was not repeated until Professor Greenberg asked the offender about it. That such a threat was made has not been established. 89The offender certainly used a knife to decapitate Mr Kelly. The evidence did not establish who the knives found near the body belonged to. The only suggestion that they belonged to Mr Kelly came from the offender, who told Dr Nielssen that Mr Kelly came to the door armed with a knife. He made no mention of this to Professor Greenberg, who he told instead that he feared that Mr Kelly had a shotgun and was going to shoot him. The absence of any defensive wounds is consistent with Mr Kelly being unarmed when he was shot. 90It follows that in assessing the nature and seriousness of this offence, these various accounts cannot be accepted as establishing that Mr Kelly threatened the offender's wife, that the offender was in any fear of Mr Kelly, or that Mr Kelly had either a knife or a shotgun when the offender came to the door and shot him in the head. 91It follows that it must be concluded that this was objectively a very serious example of murder, as the Crown submitted. Alcohol use 92As discussed in R v GWM [2012] NSWCCA 240 at [72] - [74] the concept that an offence was impulsive, unplanned and that an offender's capacity to exercise judgment was impaired by alcohol or other substance abuse is a narrow one. The evidence does not establish that it was relevant here. 93It was agreed that the offender consumed alcohol on 17 June. That such intoxication was out of character is not apparent. 94The accounts which the offender later gave as to his alcohol use was inconsistent. To Dr Nielssen the offender reported no treatment of any kind for substance abuse and that he was not usually a heavy drinker, but that his intake had increased before the murder because of his depression. He also said that drinking a carton of beer and some spirits over a period of six hours was atypical. 95The offender then reported having tried cannabis when younger, but that it made him 'really paranoid ... super hyper vigilant'. He also reported abuse of anabolic steroids in combination with human growth hormone, but had not used any steroids for about 18 months. He said that they made him feel confident and strong, not more aggressive or impulsive. He reported one uncharacteristic episode of road rage, which he thought might have been an uncharacteristic response caused by the psychological effect of steroids. He said that he had stopped their use because he realised they were bad for his health. 96The offender's report to Professor Greenberg was quite different. Then he said that he had abused alcohol from age 17 years, to about 18 months previously. He reported past alcoholic blackouts and morning drinking and use of sedative medication 12 years previously, to assist with alcohol withdrawals. He claimed to have participated in an eight week drug and alcohol treatment programme while in the army, as well as membership of alcoholics anonymous. He claimed abstinence for two years, but said that he had resumed his previous levels of alcohol consumption two months prior to the offence 97He also reported smoking cannabis three times a week from age 17, and varying consumption once a week subsequently, LSD use between 18 to 20, as well as periodic amphetamine use at age 20, the last reported use being in 2000. 98He also reported an interest in weightlifting and steroid and testosterone treatment. In his initial interview he claimed that he had injectable testosterone treatment the week before the offence, but in the second interview claimed that he had ceased such treatment two years previously. 99That the offender was much affected by the alcohol he had consumed is not established by this evidence. 100To the contrary, on the evidence he was so unaffected that he was able to go in the dark to Mr Kelly's home, where he had never been before and to execute him with a single shot to the head. He was then able to decapitate him cleanly; to take steps to set his home alight with a home made fuse; to free a bird so that it would not be burnt; to dispose of Mr Kelly's head and to drive back to his home in Queensland, where he reported to his wife that he had shot Mr Kelly because he was pissed off with him, as he plainly was. 101In the result the offender's alcohol consumption can provide neither any explanation for, or mitigation of, this offence. Aggravating factors 102The various aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act which it was agreed by the parties were relevant to this sentencing exercise are: "(c) the offence involved the actual or threatened use of a weapon, (eb) the offence was committed in the home of the victim" 103As the parties accepted, however, there must be no double counting of these factors, which have to be taken into account in reaching a conclusion as to the objective seriousness of this offence. 104The offender also accepted that his offence was aggravated by the removal of Mr Kelly's head and the attempt to set fire to Mr Kelly's home. In Richardson v R [2013] NSWCCA 218 it was explained by reference to observations made in R v Yeo [2003] NSWSC 314 and Knight v R [2006] NSWCCA 292 that dismemberment of a victim's body and the disposal of parts of the body, although not ingredients of the crime of murder, are relevant to the overall assessment of its seriousness. 105In this case the offender's acts in dismembering Mr Kelly's head, the precision with which that was done, as described in the autopsy report, the attempt to set his body and Mr Kelly's home alight, in order to conceal his crime and then callously disposing of his head, plainly sheds considerable light on the seriousness of his offence. 106These were brutal and unnecessary acts, entirely consistent, not only with the anger the offender has repeatedly said he felt towards Mr Kelly, but with real contempt and hatred. Those feelings were starkly contrasted by the care he told Professor Greenberg he gave the bird which he released from Mr Kelly's home, in order that it should not be burnt. 107These matters shed considerable light on the seriousness of this awful offence and must be taken into account by way of aggravation. The offender's personal circumstances 108Consideration must also be given to the evidence of the offender's personal circumstances. 109The offender told Dr Nielssen that he was the middle of three children. His parents separated when he was aged 8 years and he then lived with his mother, who remarried, but her new partner was very detached and did not get involved with him. His father had been physically abusive to his mother. He also remarried and had two more children. 110The offender left school without matriculating. He had been bullied at school, where his literacy was good, but his memory poor. He had no criminal record, but had been involved in violence associated with driving when he was young, as well as when he worked as a security guard. 111He had served in the army and had worked in the construction industry, including as a project supervisor. He had a certificate 4 in risk management and in occupational, health and safety, as well as diplomas in sports science and building and construction. He was a registered builder in Queensland. He had also worked in the security industry, including 4 weeks in Iraq on a security contract. 112The offender said he had then started an earth moving business and later a wholesale nursery with his wife, which he had sold in order to invest with his brother-in-law in an 87 acre property in order to develop a resort. The plan failed and the purchaser could not raise finance because of the global financial crisis and the deposit was taken up with holding and interest fees. He found himself working a 12 hour day to keep his share of the property. 113He said that he had bought the Broadwater property on the assumption that he could finance building a house there, with what the sale of his share of the resort would raise. He had been married for 12 years, but had no children. His wife left him after his arrest and they were now bankrupt. He did not have many friends, played no sport, but was interested in weight lifting. 114The offender reported a similar background to Professor Greenberg, but then claimed that he had had more than 100 different jobs during adulthood. He had worked as a carpenter and builder after completing a 4 year apprenticeship. He had worked in concreting, home renovations and as a labourer. He claimed his longest job had lasted for 12 months. The nursery business had lasted two years, while he managed two other businesses, which proved to be too much. He had also worked as a personal trainer for a year. He also reported serving in the military for two years and being discharged for alcohol abuse. He claimed to have worked in Iraq and elsewhere overseas for a security contractor where he had come under fire. 115He said that prior to the offence he was trying to keep his financial head above water. Ten years previously he had an investment property from which he was counting on making a sizeable profit. That project collapsed during the GFC, when he lost about $250,000. He had bought the Broadwater property beforehand, as well as another investment property. Mitigating factors 116The offender submitted that the mitigating matters specified in s 21A(3) of the Crimes (Sentencing Procedure) Act relevant to take into account on sentencing were his plea and s 21A(3): "(b) the offence was not part of a planned or organised criminal activity (e) the offender does not have any record (or any significant record) of previous convictions (f) the offender was a person of good character (g) the offender is unlikely to re-offend (h) The offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)" Record, character, re-offending and rehabilitation - s 21A(e),(f), (g) and (h) 117There was no issue as to the offender's lack of prior record, that he was a person of prior good character and that he is unlikely to re-offend. 118The offender is presently aged 47 years and will be in his 60's when first eligible for release on parole. He has no relevant criminal record, having only committed one driving offence some years ago. The Crown also accepted on the evidence that he had good prospects for rehabilitation. 119These are all mitigating factors which I have taken into account in this sentencing exercise. Planning - s 21A(3)(b) 120I am satisfied, however, that the offender's submission that this was not a planned killing must be rejected. 121The offender's concession that his offence was not spontaneous does not, it must be accepted, establish that it was planned. Such a finding must rest on the evidence. 122The relevant evidence is that the first time that the offender spoke of killing Mr Kelly, after their confrontation over the tree, was while he was with Mr Ellis, at a time when on his own repeated accounts, he was extremely angry with Mr Kelly. While it must certainly be accepted that in some circumstances such a statement may not reveal intent, in this case the offender not only made that threat, he then went and got both a pistol and ammunition, which he showed Mr Ellis. 123Consistent with the formation of an intention to kill Mr Kelly, the offender took a pistol with him, when he later went to the hotel. There he told Mr Degotardi untrue things about himself and Mr Kelly. That behaviour was consistent with other untrue claims which the offender has made about himself in the past, which are dealt with in the psychiatrists' reports, as I have explained, but what those facts reveal is the continuing state of his feelings towards Mr Kelly on 17 June 2012. 124As he later told Professor Greenberg, that day he was very angry with Mr Kelly. He considered that what had happened earlier that day to be 'the last straw'. He did not act immediately on these feelings but plainly planned what he later did. 125Later that night he went in the dark to Mr Kelly's home, where he had never been before, not only armed with a loaded pistol, but on his own account to Dr Nielssen, with his finger on the trigger when he knocked on the door, shooting Mr Kelly without any prior warning when the door was opened. That is entirely consistent with that shooting being the result of planning. 126That the evidence does not establish whether the offender loaded the firearm before he left his own home, or only when he reached Mr Kelly's home, as was submitted for the offender to be relevant, in the circumstances does not establish absence of planning. When he knocked on the door the offender was not only armed with that loaded gun, he had his finger on the trigger, ready to shoot. He killed Mr Kelly with a single shot to the head, without saying anything and before Mr Kelly had a chance to take any defensive steps. These were not spontaneous acts. They were planned. 127Even if it could be accepted that Mr Kelly came to the door armed with a knife or that he had a shot gun, as the offender variously claimed, which I am satisfied it cannot, the evidence established that the offender went to Mr Kelly's home, plainly prepared to do what he had told Mr Ellis he would do many hours before, namely to kill Mr Kelly. That is what he did. On the evidence that was unquestionably the result of what he had planned to do. As a result of that planning, when Mr Kelly came to the door the offender was able to strike immediately. He then took steps to cover his crime, by burning Mr Kelly's body after mutilating it, by setting fire to his home. That, too, is also consistent with prior planning. 128I am satisfied that this evidence established planning beyond reasonable doubt. In the result this mitigating factor, that the offence was not planned, was not established. Remorse 129It is well settled that a plea of guilty may indicate acceptance of responsibility and a willingness to facilitate the course of justice (see Cameron v R [2002] HCA 6; (2002) 209 CLR 339), but that the strength of the Crown case is also relevant to the evaluation of the existence of remorse (see R v Sutton [2004] NSWCCA 225; (2004) 41 MVR 40 at [12]). 130A plea entered in the face of overwhelming evidence of the offence committed, may result in the discount which flows from the utilitarian savings which flow from plea, but without more, will not establish remorse of the kind with which s 21A(3)(i) is concerned. 131As explained in Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297 at [44] by Buddin J: "Remorse in [a sentencing] context means regret for the wrongdoing which the offender's actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. The manner in which the issue of remorse is approached is not unique to either the sentencing process or to the courtroom. Indeed, it is a common feature of everyday existence. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it." 132In this case the offender gave no evidence. His submission that there was evidence of remorse rested on the entry of his plea, the remorse which he expressed to Dr Nielssen and the fact that he had not pursued a mental illness defence. 133Given what was revealed by the forensic examination and the autopsy report, it is evident that the Crown case against the offender was a strong one. That was accepted by entry of the plea, which also accepted that the offender did not have a mental illness defence. 134It is in that context that the differing accounts which the offender gave beforehand to Dr Nielssen and Professor Greenberg must be considered. To Dr Nielssen the offender described the onset of hallucinations of voices and paranoia in his late twenties. He had experienced periods of depression for which he was treated, but had never received psychological treatment. He told Dr Nielssen that he had been experiencing hallucinations of a voice for about a year before the offence, which he thought was his dad, which was especially strong on the day of the offence. The voice then said take it off and he used a knife to cut off his head. He later overhead voices he took to be coming from the police while in the Northern Territory. 135The offender gave a somewhat different history to Professor Greenberg. Then he reported not only past treatment with antidepressant medication, but also treatment by a psychologist. He then said that he had been hearing voices since age 13, which had been precipated by his parents' divorce. That voice made him feel paranoid, that he was doing the wrong things and that people were talking about him in a negative fashion. He initially told Professor Greenberg that he did not know if he was hearing any voices at the time of the offence and then that he might have and finally that he had no recall of then hearing any voices. 136These inconsistent accounts do not establish that the offender in truth had been suffering from hallucinations prior to or at the time of the murder, or that he had a mental illness defence, which he gave up by his plea. That is rather, consistent with an abandonment of his other untruthful accounts as to other matters in his past about which he gave conflicting accounts. 137That the abandonment of these untruths and the entry of his plea, established the remorse which the offender told Dr Nielssen he had developed since being in custody is hard to credit, particularly given how little he has revealed as to where he disposed of Mr Kelly's head. If he truly had the feelings of remorse which he then claimed to have developed, it would be expected that since then, he would have given a full account of what he did to dispose of that part of Mr Kelly's mutilated body. 138In the result, I am not convinced that the evidence establishes that the offender has accepted necessary responsibility for his actions, which resulted in the brutal and unprovoked death of Mr Kelly, or that he has taken the step available to him to make reparation for what he has done. 139Accordingly, I have not been able to take remorse into account by way of mitigation of this offence. Mental illness 140The offender had some treatment for depression and anxiety in the past. It is common ground that the offender has a depressive condition, but its severity and consequences were in dispute. 141The offender submitted that it would be concluded that the contribution of his mental condition fell somewhere between the opinions reached by the two psychiatrists as to its severity, but that it would be concluded that this illness had contributed to a material degree to his offence, relying on Iskander v R [2103] NSWCCA 235 at [29] and Apps v R [2006] NSWCCA 290. 142It is settled that a mental illness can have the effect of reducing a person's moral culpability for an offence and that it may also have the result that matters such as general deterrence, retribution and denunciation must be given less weight in the sentencing exercise (see Muldrock v The Queen at [53]; R v Israil [2002] NSWCCA 255 at [23] and R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR at 354). 143That is especially so where the evidence shows that the offender's mental condition contributed to the commission of the offence in a material way (see Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177].) However, a causal relationship between the mental disorder or abnormality and the commission of the offence will not always result in a reduced sentence, because in some cases such an illness can increase the importance of particular deterrence, or of the need to protect the public (see R v Engert (1996) 84 A Crim R 67 Gleeson CJ said at 71). 144Much depends on the nature of the mental condition. As was explained in R v Wright (1997) 93 A Crim R 48, where Hunt CJ at CL (Gleeson CJ and Hidden J agreeing) said at p50 - 51: "It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. [Regina v Anderson [1981] VR 155 at 160-161; Regina v Scognamiglio (1991) 56 A Crim R 81 at 86.] In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. [Regina v Anderson (at 160); Regina v Martin John Letteri (CCA, 18 March 1992, unreported) at 12-13.] Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. [Regina v Owen Neil Currie (CCA, 25 February 1992, unreported) at 4; Regina v Martin John Letteri (at 13-14).] The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. [Regina v Anderson (at 160-161).] The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. [Regina v Champion (1992) 64 A Crim R 244 at 254-255.] The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. [Ibid (at 255).] But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. [Regina v Maria Elizabeth Anne Curtis (CCA, 13 November 1987, unreported,) at 3-4. See also Regina v Steven Edward Bus & Anor (CCA, 3 November 1995, unreported) at 6-7; Regina v Engert (1995) 84 A Crim R 67 at 68.]" 145In this case, notwithstanding what the offender later told Dr Nielssen and Professor Greenberg and what they concluded as to his depressive condition, the evidence of the steps which the offender took to conceal his offence, later to abscond and what he told his wife to do, are all entirely consistent with him having a full understanding at the time of what he had done to Mr Kelly and what the requirements of the law were. This murder was the result of the anger which the offender felt towards Mr Kelly, not of his depressive condition. 146That conclusion is reinforced when consideration is given to the evidence of the limited prior impact of his condition on his everyday life. Despite his condition, on his various accounts the offender was both high functioning and successful in his life. He was married and had prospered in his working life. It was the impact of the global financial crisis which had adversely affected his financial circumstances, not his mental condition, although that loss plainly affected his condition adversely. Those effects were not, however, of such an extent that he did not have a proper appreciation of what he was doing to Mr Kelly when he shot him, for conduct which he considered to be 'the last straw'. His subsequent behaviour is also consistent with him then having such an understanding. 147In the result, while I accept that deterrence, both general and specific, must have a somewhat lesser role to play in the sentence to be imposed upon the offender than would have been the case had he not suffered the condition which the experts diagnosed, I am satisfied that it must still feature to some extent in this sentencing exercise. Comparable cases 148The offender submitted that on sentencing there was only one other case which would shed light on an appropriate sentence, that being R v Kearnes (No 2) [2013] NSWSC 1652. There the offender was sentenced to 30 years imprisonment, with a non-parole period of 22 years, 6 months, in circumstances where the evidence did not establish whether it was the offender or his co-offender who shot their victim from close range with a shotgun, intending to kill him. The offender never accepted any responsibility for his offence, nor did he express any remorse, by way of plea or otherwise. 149That offender was diagnosed with a dependence on alcohol, a substance abuse disorder, in regard to amphetamines and prescription medication, and maladaptive personality traits, but was found not to be suffering any psychosis or emotional problems such as depression. He had a criminal record dating from age 14, of not significant seriousness apart from offences of armed robbery, one including sexual violence. That offender claimed to have suffered alcoholic blackouts. The truthfulness of those claims was not accepted. 150Care must always be exercised when use is sought to be made of such comparisons. I found this decision to be not of much assistance in this sentencing exercise, given the differences between the two offenders and their offences. Very pertinently, for example, in this case there is no question that it was the offender who shot Mr Kelly. 151The sentence here imposed must reflect this offender's moral culpability for the very serious offence which he has committed, in the light of the evidence which sheds light on his offending, assessed in the way that I have earlier described. Discount on sentence for the guilty plea 152It was common ground that it is within my discretion to grant the offender a discount for the utilitarian value of his plea of guilty, in accordance with the Court of Criminal Appeal's judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. 153The purpose of such a utilitarian discount was there explained by the Chief Justice as reflecting the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses and victims, who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. A trial judge must identify these benefits when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived (see R v Thomson; R v Houlton at [115] to [123]). 154The Crown's position was that the plea had not been entered at the earliest opportunity and so the maximum 25% discount was not available. The offender submitted that it was, relying on his April 2013 offer to plead guilty to manslaughter. 155The principles which govern the exercise of the discretion are those discussed in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. They include at [32] that the discount is to be determined largely by the timing of the entry of the plea, so that the earlier the plea is entered, the greater the discount available (see at 1) and (at 8) that 'the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced'. 156The offender did not enter his plea at the earliest opportunity and so the maximum discount of 25% is not available to him. An offer to enter a plea to a lesser offence cannot be equated with an offer to enter a plea to the more serious offence to which a plea is in fact later entered. The offender's plea was entered on arraignment, however, with the result that many of the benefits which the Chief Justice discussed in R v Thomson; R v Houlton have flown, albeit there were still some issues lying between the parties which had to be resolved on sentencing. 157In the result, I have concluded that the Crown's submission that the offender is not entitled to a discount greater than 18%, to reflect those benefits, must be accepted. Special circumstances 158In this case neither party submitted that there should be a finding of special circumstances which warrant a departure from the ordinary statutory ratio established by s 44 of the Crimes (Sentencing Procedure) Act. 159I am satisfied that the statutory ratio provides an appropriate period of supervision for this offender, prior to the expiration of his sentence and that his circumstances do not warrant any departure from the statutory ratio. Victim Impact Statement 160From what I have said about the awful circumstances of Mr Kelly's death, it will be apparent that what is said by the Court in these remarks, can give but very small comfort to his family and friends. 161Four victim impact statements were read at the sentencing hearing by Mr Kelly's sister, Ms Simmons. Those statements were made by her and Mr Kelly's other two sisters, Ms Davis and Ms Keating, and the fourth by his partner Ms Mikkelsen. 162Every person who heard Ms Simmons read out those statements can only have been moved by the sorrow, grief and anger which were variously expressed in those statements over Mr Kelly's awful death and by the difficult task which Ms Simmons so bravely undertook in reading them out in open Court in front of the offender and strangers present. 163Mr Kelly's family will understand that I may not take these unsworn, untested victim impact statements into account in sentencing the offender, for reasons which I am sure will have been explained to them, by reference to the decided cases which bind me. 164It is hoped, however, that they will gain some peace of mind by an understanding of what the evidence has revealed about how Mr Kelly came to be murdered and how our society and its criminal justice system, has dealt with that terrible crime. 165For my own part, I extend to all of Mr Kelly's family and friends, my deepest sympathy for his death, the loss which they have suffered and the very understandable grief and anguish it continues to cause them. The sentence 166I have considered all of the matters I have mentioned and have concluded that the sentence to be imposed for this offence must commence on 1 July 2012, the date from which the offender has been in continuous custody since his arrest. 167But for the discount, I would have imposed a sentence of 31 years on this offender. With the 18% discount, the total term of his imprisonment will be 25 years, 5 months. The application of the statutory ratio results in a non-parole period of 19 years and a balance of term of 6 years, 4 months. This means that the earliest date that the offender will be eligible for release is 30 June 2031. That will depend on him convincing the Parole Authority that he should be then released on parole. The sentence will expire on 31 October 2037. 168It is finally also necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006, which applies to "serious violence offences", which include the offence of murder (see s 5A). The effect of this Act is that the State can apply to the Supreme Court for an order that the offender continue to receive supervision or remain in detention (see s 5E). If the Court is then satisfied, to a high degree of probability, that the offender would be a "high risk offender", that is an offender who poses an unacceptable risk of committing a serious violence offence if not kept under supervision, it may make an order for extended supervision (see s 5F). An order for continuing detention may be made if the Court is then satisfied that adequate supervision will not be provided by an extended supervision order (see s 5G). Orders 169Jonathon Stenberg you are convicted of the murder of Edward James Kelly. 170You are sentenced to a term of imprisonment with a non-parole period of 19 years, commencing on 1 July 2012 and expiring on 30 June 2031. I set a balance of term of 6 years, 4 months, which is to commence on 1 July 2031 and to expire on 31 October 2037. The earliest date that you will be eligible for release on parole is 30 June 2031. Your sentence will expire on 31 October 2037. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2013