Supreme Court New South Wales Medium Neutral Citation: R v Katsis [2015] NSWSC 1890 Hearing dates: 27 November 2015 Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Common Law Before: Fagan J Decision: 1. For the offence in count 1 of the indictment, sexual intercourse with Doris Fenbow without consent, the offender is sentenced to a fixed term of imprisonment of 6 years to commence on 12 September 2014 and to expire 11 September 2020. 2. For the offence in count 2 of the indictment, murder of Doris Fenbow, the offender is sentenced to a term of imprisonment of 20 years to commence on 12 September 2014 and to expire 11 September 2034 with a non-parole period of 15 years to commence on 12 September 2014 and to expire 11 September 2029. 3. Alexis Katsis will be eligible to be considered for release on parole at the expiry of the non-parole period in respect of count 2 on 11 September 2029. Catchwords: CRIMINAL LAW – sentencing – murder – intention to kill – sexual intercourse without consent – sentencing many years after commission of crimes – not guilty plea – young offender – vulnerable victim – offences in victim's home – fires ignited – no remorse or contrition – fabricated narrative – no subsequent offending of same nature – consideration of comparable cases for consistency Legislation Cited: Crimes Act 1900 (NSW) Crime Legislation Amendment (Sentencing) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Green v R; Quinn v R (2011) 244 CLR 462 Hoai Vinh Tran v R [2011] NSWCCA 116 KT v R [2008] NSWCCA 51 MPB v R [2013] NSWCCA 213; (2013) 234 A Crim R 576 R v Bossie (Supreme Court (NSW), Studdert J, 16 April 1992, unrep) R v Dargin [2000] NSWSC 710 R v Ellis (1986) 6 NSWLR 603 R v Fleming [2007] NSWSC 673 R v Hillsley [2006] NSWCCA 312 R v Matthews [2014] NSWSC 608 R v Sharpe (Supreme Court (NSW), Wood J, 9 September 1999, unrep) R v Wilson [2005] NSWCCA 112 RL v R [2015] NSWCCA 106 SHR v R [2014] NSWCCA 94 Wong v R (2001) CLR 584 Category: Sentence Parties: Regina (Crown) Alexis Katsis (Offender) Representation: Counsel: Trevor Bailey (Crown) Bill Neild (Offender) Solicitors: Kate Gauld (Crown) Kathy Hunter (Offender) File Number(s): 2014/157715 Publication restriction: Nil Judgment 1. Alexis Katsis is to be sentenced for the rape and murder of Doris Elizabeth Fenbow on 3 September 1988. He was found guilty of those crimes on 21 October 2015 at the conclusion of his trial by jury over 12 days commencing 6 October 2015. I refer to the first count on the indictment as a charge of rape by way of shorthand for the offence of having sexual intercourse without the victim's consent, knowing that she had not consented, contrary to s 61D(1) Crimes Act 1900 (NSW). 2. The maximum penalty for an offence against s 61D(1) in September 1988 was 8 years imprisonment. For murder the penalty was "penal servitude for life" pursuant to s 19 Crimes Act. But that section permitted the imposition of a lesser term in the case of a person who committed a murder when he was under the age of 18 years. By the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) all references in the Crimes Act to "penal servitude" were replaced with "imprisonment" from 1 January 2000. 3. For some years until her death Ms Fenbow, lived in a one bedroom unit at the rear ground floor of No 53 Mirrabooka Crescent, Little Bay. No 53 was one of eight blocks of Housing Commission units, side by side on Mirrabooka Crescent. These blocks were street numbers 45 to 59. 4. The offender lived in one of the units in the block at No 49 with his father, stepmother, older sister and younger half sister. He had lived there since 1980. He was born on 10 September 1970. At the date of the offences of which he has been found guilty Alexis Katsis was exactly one week short of his eighteenth birthday. 5. Ms Fenbow was 66 years old when she was murdered. She was the sole occupant of her unit and she lived alone in every sense. Neighbours who gave evidence in the trial reported that Ms Fenbow appeared to have no visitors. The neighbours were not aware of her having any relatives. When she stepped out she was never seen in company. A young man named Jeremy Nicholas lived in the unit above. He appears to have had the closest contact with Ms Fenbow of anyone and that was only because he stopped to talk with her from time to time, helped her carry in groceries and assisted her to regain entry to her unit when she locked herself out. 6. Ms Fenbow did not care for herself well. She had allowed her flat to become untidy and unclean, her clothes were infrequently washed and her personal hygiene was poor. The offender knew her by sight and was heard by one neighbour to refer to her as "smelly". Ms Fenbow was a slight woman. On post-mortem examination her body weighed only 54 kilograms and she was 172 centimetres in height. To those neighbours who described her in evidence she appeared noticeably thin. 7. Ms Fenbow was last seen alive by a neighbour at 6pm on Friday 2 September 1988. At about 7am on Saturday 3 September the occupants of nearby units noticed smoke coming from her unit. The Fire Brigade was called. Whilst the Brigade was on its way two of the neighbours forced entry to try to rescue Ms Fenbow but found her already deceased. 8. When the Fire Brigade arrived and quelled the fire Ms Fenbow's body was found face down on her lounge room floor with smouldering cushions beside her and under her. She was in a light slip, consistent with night clothing, and a cardigan and jacket. The slip was pulled up and she was uncovered from the waist down. 9. The burning cushions under and against Ms Fenbow's body were from her own furniture. One point of initiation of fire was in these cushions. A second was in a chair, also in the lounge room, against the wall which divided that room from her bedroom. A third seat of fire was in a fold up chair in the lounge room. A separate fire had also been lit in the mattress of Ms Fenbow's single bed. The mattress was thrown out through the bedroom window by a fireman in the course of bringing the fire under control. Close examination of it showed that it had burned slowly, without accelerant. The bed head had also caught alight. None of the three seats of fire in the lounge room nor any of the locations to which the fire had spread showed any evidence of accelerant. 10. The unit had been ransacked. In the kitchen, drawers and the doors of cupboards were open and at least one purse was open on the counter top. Hot plates of her electric stove had been left on and were glowing with heat. In Ms Fenbow's bedroom, the drawers of her bedside table had been opened, her personal papers had been spread around and another purse had been opened. I have no doubt that Alexis Katsis initiated the fires. The ransacking of the premises may have been done by him to encourage the combustion and possibly with an initial purpose of searching for money or valuables. 11. The window of Ms Fenbow's bedroom faced to the rear of her unit block. The floor of the bedroom was at approximately the level of a grassed area outside. One large pane of glass was missing from this window. This had been broken some two weeks before her death. 12. A sliding door leading from Ms Fenbow's lounge room to a terrace outside was open about 100 millimetres. This opening together with the missing pane of glass from the bedroom window would have ventilated the fire. The Fire Brigade investigator who examined the scene gave evidence that it had burned for about one to two hours. This was admittedly a crude estimate. I infer that the fire commenced at some time around 6:00am. 13. In the bedroom there was evidence of a struggle. On the floor were Ms Fenbow's dentures, a watch with a broken strap and a small amount of blood. The autopsy report showed that the victim had been severely assaulted. Her left eye and left ear were bruised. The fingernails of Ms Fenbow's right hand were broken. She had scratch marks on her neck and under her chin. There was a rounded red bruise under her left breast, three of her ribs on the left side had sustained fresh fractures, consistent with her having been punched or kicked or a knee being forced against her chest wall. 14. The autopsy examination showed that the cause of death was asphyxiation, partly mechanical and partly chemical. Heavy bruising of Ms Fenbow's neck muscles and damage to her voice box revealed a "pattern of… injuries… typical of manual compression to the neck, as occurs in manual strangulation". 1. In the opinion of Dr Lyons, who gave evidence based upon the autopsy findings, the physical indications were of "severe force and it is sustained in that it hasn't been something that occurred over a few seconds, it suggests to me it might be many seconds or a few minutes." 1. Dr Lyons considered that the strangulation could have rendered Ms Fenbow unconscious but still breathing. That was the mechanical aspect of the asphyxiation. A "heavy amount of soot" in the deceased's windpipe and lungs indicated that she had inhaled smoke. A blood sample showed 30% carbon monoxide saturation confirming that such inhalation had occurred and constituting the chemical component of the asphyxiation. 2. The post-mortem examination showed that sexual intercourse had taken place. There was blood in the vicinity of Ms Fenbow's vagina. The internal vaginal wall was bruised in a manner consistent with penetration. Vaginal swabs were obtained and revealed the presence of semen. 3. DNA analysis of human tissue and comparison with the DNA profiles of suspects had not been developed as at late 1988. Collection of other types of forensic evidence from the unit was frustrated by the sparsity of traces and by the damage which had been done by the fire. The police interviewed many of the occupants of the units at 45 to 59 Mirrabooka Crescent but gained no leads. 4. Alexis Katsis was interviewed and told police that on the Friday evening preceding Ms Fenbow's death he had gone to the Maroubra Bay Hotel with friends. He said that he met with his sister and two other females at the hotel and remained there drinking until 2:30am. At that time, he said, he had returned to his home at 49 Mirrabooka Crescent with his sister and others, by cab. The offender said he "then went to bed shortly after arriving home and heard or saw nothing that can assist in the murder of Doris Fenbow". 5. The police investigation in late 1988 stalled in the absence of eye witnesses to the actions or movements of any possible suspect and the lack of any other useful evidence. However the case was not forgotten by the police or by forensic technical officers. By October 2003 the science of DNA analysis and profiling had advanced to the point where the retained vaginal swab samples from Ms Fenbow's body could be profiled by the New South Wales Forensic and Analytical Science Service. A DNA profile of the sperm fraction of one swab was uploaded to a database. Detectives maintained their investigation file open. 6. In March 2014 a buccal swab was taken from the offender when he commenced a term of imprisonment for offences of breaking and entering and possession of house breaking implements. A forensic biologist with the Analytical Science Service profiled the human tissue on this swab. Upon entering that profile in the database it was found to be a match with the DNA profile of the sperm fraction of the sample which had been obtained from the deceased's vagina. On 26 May 2014 Alexis Katsis was arrested and charged on the basis of this forensic evidence. He was offered a record of interview and declined to participate. 7. Evidence in the trial from a number of witnesses confirmed that the offender was at the Maroubra Bay Hotel on the evening of Friday 2 September 1988 and that he returned home by cab at about 2:30am. His sister and some other friends from the neighbourhood shared the cab. 8. Having regard to the verdicts and drawing inferences from the evidence briefly summarised above, I am satisfied beyond reasonable doubt that at some time between 3am and 6am on 3 September 1988 the offender entered the deceased's unit most likely through the broken window of her bedroom or possibly through the sliding door of her lounge room. There was no sign of entry having been otherwise forced, prior to the front door being broken down when Ms Fenbow's neighbours attempted to rescue her from the fire after 7:00am on the morning of Saturday 3 September 1988. 9. Contrary to the offender's evidence at trial and consistently with the jury's verdicts, I am satisfied beyond reasonable doubt that the offender well knew where Ms Fenbow lived. He admitted that he commonly used the path which ran behind the eight Housing Commission blocks. That path passed close to the deceased's unit. Over several years of both Alexis Katsis and Ms Fenbow living in this neighbourhood, the offender must have observed which unit she occupied. On 3 September 1988 he targeted her, in her home. 10. Having gained entry the offender took the deceased by force from her bed into the lounge room and there had sexual intercourse with her against her resistance. Either in the course of the intercourse or immediately thereafter he manually strangled Ms Fenbow. The breaking of her ribs occurred either whilst he was forcibly subduing his victim during the intercourse or in the process of him strangling her, if that occurred separately. The severe and sustained compression of Ms Fenbow's neck, as evidenced by the muscular bruising and the damage to her voice box described by Dr Lyons, may have commenced with a purpose of preventing her from uttering any sound which would attract attention. Ultimately it was intended to cause her death. 11. Having raped Ms Fenbow and manually strangled her to the point of unconsciousness, the offender ignited fires at the four locations in the unit previously described. The manner of cushions being placed under and adjacent to Ms Fenbow and of fires being started in multiple locations proves beyond reasonable doubt his intention to ensure her death and to eliminate her as a witness of his unlawful entry and of the rape. Having ignited the fires Alexis Katsis went home to bed, where his sister saw him at 8am when she went to his room to wake him. 12. The offender's attack on Ms Fenbow was savage, inhuman and despicable. A vulnerable, inoffensive, lonely old lady was taken from her bed in the small hours of the morning and violently subdued. When her frail body had been used to satisfy the offender's short lived impulse it was discarded to the fire. Her clothing was left pulled above her waist in the state in which Alexis Katsis had finished with her. Ms Fenbow died in pain, in terror and in degradation. 13. On the offender's own account, which I have no reason to doubt, he had consumed six to eight beers and four scotches at the Maroubra Bay Hotel on the Friday night. He was affected by alcohol when he arrived home in the cab. He may still have been to some extent affected when he perpetrated these crimes but I cannot say in what degree. On the evidence of his sister he smoked a quantity of cannabis during the first 30 to 40 minutes after returning from the hotel to the family unit at No 49. Again I cannot make any finding as to the degree, if any, of his cannabis intoxication at the time when he committed his crimes. I cannot say what if any contribution intoxication, of either kind, may have made to his state of mind or to his behaviour in the early hours of Saturday morning when Ms Fenbow was raped and murdered. Motive 1. The question of whether or not the evidence proved beyond reasonable doubt that Alexis Katsis raped and murdered Ms Fenbow was solely for the jury. They answered it by their verdicts of guilty. The verdicts do not however fully determine the surrounding circumstances in which the crimes were committed, so far as those circumstances may be relevant to fixing appropriate sentences. It is my responsibility to make findings about those circumstances, applying the standard of proof beyond reasonable doubt to any fact which might go towards increasing the severity of punishment and applying the lesser standard of the balance of probabilities to any fact which might ameliorate penalty. 2. On the basis of only the evidence given in the trial I would have inferred beyond reasonable doubt that Alexis Katsis went to Ms Fenbow's unit in the small hours of 3 September 1988 for the premeditated purpose of raping and murdering her. The purpose of murder would have followed from that of rape, for an intending rapist in a setting such as this could not have hoped to escape detection unless he killed his victim. 3. At the sentence hearing the Crown has tendered the criminal record of the offender showing that in May 1988 he was convicted in the Children's Court of an offence of stealing, committed on 22 October 1987. Also in that sentence hearing the offender gave evidence that during 1987 and 1988 he and his sister had had "to provide for ourselves" because their father denied them food at home. The sister's evidence at the trial corroborated this and I have no reason to doubt this aspect of their testimony. The offender said that he worked "odd jobs up the golf course in the golf range" during 1987 and 1988 to help pay for food. 4. When this additional evidence is taken together with that of the ransacking of Ms Fenbow's unit referred to at [10], there appears a reasonable possibility that the offender may have intruded for the initial purpose of stealing any money or valuable items that he might have imagined Ms Fenbow possessed. The offender has not disputed the DNA evidence which links him directly to the sexual assault on Ms Fenbow. However he has offered an extraordinary explanation of how the sexual assault came about, which involves him having been brought into the unit against his will and with no intention either to steal from or to rape Ms Fenbow or even to be there. I will return to this purported explanation in more detail shortly. The immediate significance of it is that it has precluded him from offering any evidence of a purpose of his own for having gone there. It is therefore left to the Court to infer from the objectively proved facts whether he came with the intent of rape and murder from the outset or only with an initial objective of theft – with the violation of Ms Fenbow occurring opportunistically and the murder following upon that. 5. I accept the Crown's fair submission that the latter is a reasonable possibility. I am not satisfied beyond reasonable doubt that Alexis Katsis went to and entered the unit with a purpose of rape and murder from the outset. I am not able to find to any standard of proof what his original purpose may have been. Character and antecedents of the offender 1. The offender's father and biological mother are of Greek birth. They came to Australia before he was born. The family returned to Greece in 1972 and remained there until 1977 or 1978. They then came back to Australia. Alexis Katsis was aged 7 years when they returned. His father remarried. It is not clear whether this occurred before or after the return to Australia. 2. At school in Australia from 1978 the offender had to learn English whilst at the same time trying to acquire knowledge of his school subjects. He struggled with this. There is no objective record of how well he performed at his school work, ultimately. He left school at the end of 1986, aged 16 years. He did not complete the Higher School Certificate. He attained imperfect literacy. In evidence during the sentence hearing the offender said he had been learning reading and writing in prison during the last 18 months. 3. In his teens up to the date when these offences were committed the offender was athletic and active. He played cricket and rugby league in season and engaged in surfboard riding all year round. He spent half a day in the surf, on average, every weekend. 4. Both the offender and his sister gave evidence that their father was harsh and capricious. The offender's sister, three years older, described the father as "barbaric". He inflicted corporal punishment on the offender frequently and for little or no cause. He hit both the offender and his sister. The offender described "mental abuse" by his father, involving ridicule of him for one thing or another. The offender testified in the trial that his father kept the household fridge locked and denied his children free access to it. The father appears at times to have been uncaring. On one occasion when the offender injured his leg during play in the neighbourhood his father force-marched him to a doctor in a manner which ran the risk of aggravating the leg injury, possibly to the point of doing irremediable harm. The offender and his sister testified that on the other hand their stepmother was loving, warm and caring. I accept the evidence of family circumstances referred to in this paragraph. 5. The offender and his sister also gave evidence that at times they visited a paternal uncle who lived in Sydney. Whilst in the uncle's care he too inflicted corporal punishment. According to the offender the uncle on two occasions sexually abused him. I accept on the balance of probabilities that these events occurred in the family life of the offender, prior to September 1988. Alleged sexual abuse of offender by two neighbours 1. In his evidence before the jury the offender claimed that he was sexually abused by a man named Kevin Hayward who lived in one of the units within No 47 Mirrabooka Crescent. This was said to have occurred in about 1982 or 1983. I accept that there was a man named Kevin Hayward living there at that time. 2. The offender's description of his sexual abuse by Hayward was an introductory aspect of the false narrative which he gave to the jury to try to explain the presence of his semen in the vagina of Ms Fenbow. The balance of this narrative was that, in the early the evening of Friday 2 September 1988 as the offender walked past Ms Fenbow's unit on an innocent errand, Hayward was loitering outside her bedroom window. The path on which Alexis Katsis was walking ran past the rear of the unit blocks, parallel to Mirabooka Crescent. The offender said that Hayward pulled him into the unit where Ms Fenbow lay, already unconscious, on the lounge room floor. 3. The offender said that once he was inside the unit Hayward fondled his penis, aroused him, performed oral sex on him and then pulled him into a prone position on top of Ms Fenbow and physically manipulated him to carry out the sexual act, all without volition on the offender's part. He said Hayward dragged his body backwards, one handed, to align him to penetrate Ms Fenbow. Then, again one handed, Hayward pushed his body forward to effect the penetration whilst holding the offender's penis in the other hand to ensure that this occurred. 4. In order to explain to the jury how this could possibly have taken place the offender asserted that Hayward had "something like a control over" him which caused him to remain passive throughout, in the fear of harm that might otherwise be inflicted. This "control" was attributed to the alleged experience of sexual abuse at Hayward's hands six years earlier. The offender told the jury that he fled Ms Fenbow's unit after having penetrated her against his will. He said he knew nothing of how the fires were started. 5. It is inherent in the jury's verdict that they found this narrative, at least, not a reasonable possibility. I am not surprised. 6. As the offender's claim of having been sexually abused by Kevin Hayward in about 1982 or 1983 was an integral part of the exculpatory tale which the jury have rejected, I am left in great doubt as to whether he was ever abused by this man at all. I am not satisfied on the balance of probabilities that he was. His sister gave evidence in the trial to corroborate the abuse but she contradicted herself about it. On one account she said she did not see any physical act between Kevin Hayward and her brother but saw circumstances which suggested that it might have occurred. In another passage she claimed actually to have witnessed physical sexual misconduct by Hayward towards her brother. I cannot give any weight to the sister's evidence on this subject. 7. The offender gave evidence in the trial that over a period of three years, occurring between three and five years prior to September 1988, he had also been sexually abused by one Ronald Jolley. Jolley lived in the unit next to Kevin Hayward's. Jolley was said to have been in the same school year as one of the offender's friends, who was one year older than the offender himself. Ronald Jolley was another person whom the offender sought to weave into the rejected narrative of how he came to have intercourse with Ms Fenbow shortly before her murder. The offender told the jury that a third male was in the unit when he was forced in there by Kevin Hayward. He attempted to convey to the jury that he had thought this person might have been Jolley and that, as Jolley was another whom he feared from earlier experience, this might further explain his passivity at the hands of Hayward. 8. I am not satisfied on the balance of probabilities that Ronald Jolley ever sexually abused the offender. I am unable to give any credit to his evidence in this respect because it appears to be part of his endeavour to bolster the story of manipulated intercourse, which the jury have rejected and which I reject. 9. Neither Hayward nor Jolley could be called by either the Crown or the offender, in the trial or at the sentence hearing, because both had died well before the trial. Substance abuse up to the commission of the crimes 1. On his own evidence given in the sentence hearing before me, the offender was using marijuana once or twice a day in about 1987 and 1988. He was also using LSD less frequently and consuming alcohol. He said that his substance abuse in this period resulted from him feeling depressed and confused and wishing to forget about sexual abuse and "the mental and physical [abuse] at home". I accept that the offender was misusing alcohol and drugs to the extent he has described. Personal history since the commission of the crimes 1. About a year after Ms Fenbow was murdered the offender moved out of his father's unit at Mirrabooka Crescent. Thereafter he lived with his sister and her young son at Matraville for about a year. In that period he worked as a machine operator at WD & HO Wills at Pagewood. Part way through 1990 he went to Greece and lived with a second uncle for a year. When he returned to Australia in 1991 he found accommodation with a friend in Maroubra and commenced work in the construction industry. This lasted for about 4 years. 2. From 1994 or 1995 the offender lived in Sydney with a female partner who became his fiancée. From 1995 to 1997 the offender and his fiancée took care of the young son of the offender's sister. She was unable to cope with the boy herself. However in 1997 the offender's fiancée died accidentally, the offender was unable to maintain the care of his nephew alone and he was taken into care by the Department of Community Services. 3. The offender says that it was at this point that he became unable to manage the stresses of his life. He attempted suicide and became addicted to heroin. He says that these setbacks caused his commencement on a course of petty criminal activity from 1997 to 2000, referred to in greater detail at [58] to [60]. 4. In 2000 the offender undertook drug and alcohol rehabilitation with the assistance of the Salvation Army at its facility, William Booth House. By about 2001 he was able to resume work and commenced as a bartender. With various employers he moved up to supervisory and management positions. This continued through to November 2007. 5. During this period the offender commenced another relationship. His new partner gave birth to his first son in 2005. A second boy was born in late 2007. 6. In November 2007 whilst the offender was working as a bar manager in Annandale he was the victim of an armed robbery. He said that following this he suffered Post Traumatic Stress Disorder and depression. Those disorders led to abuse of alcohol and other substances and to separation from the mother of his two boys. Sentencing the offender many years after commission of the crimes 1. Being imprisoned for a substantial term, commencing 27 years after he committed these crimes, will no doubt fall hard upon the offender. His being brought to justice at this stage has abruptly ended the life he has been leading. He will now not be able to participate in the raising of his two sons. He gave evidence that his partner, who met him in 2005 and was unaware of his past, has ceased contact with him in prison since the verdicts were delivered. 2. The offender's counsel submitted that in some way the additional impact of a sentence now imposed, following a long time lapse between offending and punishment, should be taken into account towards reduction of the term. However I see no justification for discounting the offender's sentence upon such a consideration. The time lapse in this case has been from the commission of the offences until detection. It stems from the offender's concealment of his crime. It is not a delay which can be in any degree attributed to the police, the prosecution or the Court. 3. It was further submitted that there should be taken into account in mitigation of penalty the wearing effect upon the offender of a long period of uncertainty about being prosecuted and punished for these crimes. It was submitted that "where an offender has over the years between offending and apprehension experienced severe distress and anxiety as a consequence of the events that ultimately lead to [his] sentence, that may in a limited way be taken into account". Here, not only has the long period between offending and apprehension been of the offender's own making but I am not satisfied on the balance of probabilities that he has during that time suffered any "severe distress and anxiety as a consequence of the events" of 3 September 1988, at all. The only evidence he gave of any recurring thoughts about the rape and murder of Ms Fenbow was when he asserted that he had often wished that he had "spoken out" so that "the people that are responsible" might have been "dealt with". This evidence was not a genuine expression of any haunting thoughts upon Ms Fenbow's fate. It was just a reiteration of the offender's attribution of these crimes to others – the case that has been rejected by the jury. Criminal record 1. Since the subject crimes were committed the offender has been found guilty of numerous petty offences over the last 20 years, mostly involving dishonesty and with two common assaults. The first period of offending was from August 1997 (aged 26 years) to early 2000 (aged 29 years). During that period he was convicted of a few larcenies, possession of suspected stolen goods on a number of occasions and minor drug possessions. The penalties were fines, community service orders, and, in 2000, suspended prison sentences. 2. There were two shoplifting convictions in July and November 2004 which were dealt with by the imposition of supervised bonds. In July 2005 he was convicted on five counts of using a false instrument with intent to obtain more than $15,000. When these offences were dealt with on 30 March 2007 he received a suspended sentence of imprisonment of 12 months. 3. In December 2011 he committed offences of larceny, damaging property, possession of suspected stolen goods and possession of house breaking implements. Sentences of imprisonment were imposed by Burwood Local Court but on appeal the District Court at Parramatta quashed the terms of full-time custody and replaced them with suspended sentences of 12 months. On 13 March 2014 all of these suspended sentences were called up and the offender commenced full-time custody with an earliest date for release on parole fixed at 11 September 2014. It was when the offender was taken into custody on these call-ups that the first buccal swab was taken which resulted in a match to the profile of the swab sample from Ms Fenbow's body. 4. The offender's record, which commenced nearly 9 years after the crimes for which he is now before the Court, is not a material factor in determining an appropriate sentence. On the one hand, the record does not include any significant offences of violence nor any sexual offences at all. It could not be said against Alexis Katsis that his conduct subsequent to September 1988 has demonstrated any heightened requirement for specific deterrence with respect to crimes of this nature or that future protection of the community is a pressing consideration. 5. On the other hand, nor could it be said that the offender has since September 1988 lived an exemplary or blameless life which might be regarded as having redeemed in any degree his grave crimes of September 1988. The subsequent record does not attract lenience. It is essentially neutral. Absence of contrition or remorse 1. I do not consider that the offender has demonstrated any remorse for the crimes for which he is now to be sentenced. He has not even acknowledged them. On the contrary, upon the police brief having confronted him with irrefutable scientific evidence linking him to the scene he has awaited his trial and then put forward a story to explain how his semen could have been found in the vagina of the deceased at the time of her death and yet he not have intentionally had intercourse with her and been her killer. His purported explanation necessarily had to be extraordinary in order to work around the apparently incriminating forensic evidence which he could not deny. 2. In the hearing on sentence Alexis Katsis gave this evidence: "A. [Over the years following September 1988] …every night I used to think what if I'd done something different or spoke out but I didn't because I was afraid. I regret I haven't spoken out. … Q. What do you mean when you say you regret that you hadn't spoken out? A. That maybe Doris might still be alive or the people that are responsible could have been dealt with the same way I'm getting dealt with. … A. Well when the events took place and keeping it deep inside of me like I've just ‑ I dealt with it in a way with alcohol and drugs and hoping that the police would get the two people that were involved and save the headache from everybody. Q. Now you adhere to your evidence at trial and to your pleas of not guilty but what can you nevertheless tell the Court in terms of what you feel for the deceased? A. Well I feel sorry for what happened to Doris, yes. I regret not speaking out and the main person that's the victim is Doris before me or anyone and she's the one that paid the ultimate price here and I regret that I hadn't spoken out earlier to get the perpetrators did what they did here." 1. This is the evidence to which I referred earlier as being a post-verdict reiteration by the offender of his claim that he was not responsible for having had sexual intercourse with Ms Fenbow against her consent because he was physically manipulated to perform the act and did so without volition on his part. It is a restatement of his claim to know nothing of the circumstances in which she died. The offender's continuing denial of responsibility for the crimes which the jury has found he committed demonstrates his lack of remorse or contrition. General principles of sentencing for historical offences 1. The Crimes (Sentencing Procedure) Act 1999 (NSW) applies to the sentencing of the offender in this case notwithstanding that it came into force after the commission of the offences: MPB v R [2013] NSWCCA 213; (2013) 234 A Crim R 576 at [23] – [25]. That Act therefore governs the methodology by which I must arrive at a sentence of appropriate length for these crimes. An exception to the application of the Act is s 44: the form of that section as in force up to April 2002 applies to the sentences now to be imposed, requiring them to be structured as head sentences with a non-parole period rather than non-parole period plus balance of term. 2. I am required to determine the length of sentence having regard to general sentencing principles and patterns of sentencing for the offences in question, as they were applied at the time of commission: MPB v R at [12]; SHR v R [2014] NSWCCA 94 at [54]; RL v R [2015] NSWCCA 106 at [7], [8]. Youth and rehabilitation 1. On principles which were applicable in the late 1980s and are still applicable today, the fact that Alexis Katsis was a young person when he raped and murdered Ms Fenbow is to be taken into account in his favour on sentence, albeit with limited significance given that he was so close to the age of 18 and considering the adult nature of his offences: KT v R [2008] NSWCCA 51 at [26]; SHR v R at [45] – [48]. 2. The relevance of an offender's youth is, in large part, that his offending may have been the product of immaturity and that prospects of rehabilitation with increasing years may appear favourable. In sentencing Alexis Katsis after the lapse of so many years the adoption of this approach is confirmed by subsequent events. I have mentioned that his conduct since 1988 has been entirely free of sexual offences and free of any significant violence. After the lapse of 27 years I see no risk of him reoffending in the manner of the crimes for which he is now to be dealt with. 3. His sentence must nevertheless show the Court's denunciation of his brutal crimes against Ms Fenbow and provide general deterrence to others. The Court's task of balancing these competing considerations was described by the Court of Criminal Appeal in RL v R in the following terms at [46]: "[46] … [T]here is a high level of tension in relation to sentencing offenders years after the events which constitute the criminal conduct, in providing adequate punishment, giving some effect to general deterrence, denouncing the conduct of the offender and recognising the harm done to the victim, in circumstances where there is no palpable risk of reoffending, no need to deter the offender, no need to protect the community from the offender nor to promote the rehabilitation of the offender." Aggravating circumstances 1. Of the aggravating factors listed in s 21A(2) Crimes (Sentencing Procedure) Act, those which are present in the facts and circumstances summarised earlier in these remarks are para (eb) (the offences were committed in the victim's home) and para (l) (the victim was vulnerable). Consistency with sentences in comparable cases of murder 1. The requirement that the sentence now to be passed should conform to patterns of sentencing applicable at the time of his offending (see [67] above) is a particular application of the Court's general endeavour to achieve consistency between sentences imposed for similar crimes committed by offenders with similar subjective attributes: Wong v R (2001) 207 CLR 584; Green v R; Quinn v R (2011) 244 CLR 462. 2. Both counsel have referred me to statistical studies which suggest trends in the severity of sentences imposed for murder in New South Wales over the decades from the 1980s to the present. I have not relied upon the statistical information because it does not provide any detail of the manner of commission of the murders for which individual sentences were imposed nor any description of the subjective attributes of the individual offenders. I have instead reviewed unreported sentencing remarks in a number of cases of murder and murder/rape committed in the 1980s and 1990s, with a view to gauging the measure of punishment imposed by other judges of this court in comparable circumstances. 3. In R v Bossie (Supreme Court (NSW), Studdert J, 16 April 1992, unrep) the offender was sentenced for the rape and murder of a 24 year old victim on 16 February 1991. The offender had been 21 years old at the date of the offence. He had followed the victim after she left a discotheque, pulled her off the road along which she was walking into scrub, where he clubbed, strangled and raped her. He pleaded guilty on the fourth day of trial but was found by the sentencing judge to have shown no contrition. The offender had a borderline intellectual disability and was extremely immature but had no background of violent crime. He was given credit for previous good character. The sentencing judge found it difficult to assess his prospects of rehabilitation. He received a fixed term of 6 years for the rape concurrent with the sentence for murder being 20 years with a non-parole period of 14 years. For the purposes of comparing that case with the present it is important that Bossie pleaded guilty, albeit belatedly, and thereby ultimately acknowledged responsibility. The sentence reflected a degree of leniency on account of the plea, in accordance with R v Ellis (1986) 6 NSWLR 603 at 604. 4. In R v Sharpe (unreported, 9 September 1992, Wood J) the offender was sentenced for a murder committed on 4 August 1990, when he was 19 years old. The victim was a 43 year old woman indirectly related to the offender, being his mother's sister in law. The offender had gone to the victim's home for the purpose of having sexual intercourse with her, in circumstances where he believed that this was appropriate retribution for what he falsely perceived as interference by the victim in the marriage of his own parents. The offender beat the victim about the head and strangled her. The cause of death was fracture of the skull with injury to the brain. The offender had attempted unsuccessfully to have sexual intercourse with the victim. 5. The offender made a strong impression upon the sentencing judge of genuine contrition and remorse. He had attempted to take his own life whilst in custody. He had abused alcohol and cannabis prior to the offence but had shown no prior propensity for violence. His plea of guilty was supported with favourable references from associates and an earlier employer. A total sentence of 18 years was imposed but with a very lenient minimum term (the then equivalent of a non-parole period) of 10 years, reflecting the sentencing judge's favourable findings with respect to contrition, remorse and other subjective features. Considerations of that kind do not apply to Alexis Katsis. No character evidence has been called on his behalf. 6. In R v Dargin [2000] NSWSC 710 Ireland AJ passed sentence for a murder committed on 30 September 1998, taking into account in the penalty an offence of aggravated sexual assault committed contemporaneously. The offender was an aboriginal man 22 years of age at the time of the murder. His victim was a 72 year old woman whom the offender had followed into her home apparently with a view to stealing from her. She died of blows to her face and head with the offender's fists. She suffered neck injuries consistent with manual strangulation but the sentencing judge was not satisfied that the offender had attempted to strangle her. Rather these injuries were accepted to have been incidental to his subduing of the victim in the course of the sexual assault. Accordingly he was sentenced on the basis that the element of intent for murder had been established by intent to cause grievous bodily harm rather than to kill. 7. The offender was on bail at the time of the offences being committed; he had a long criminal history including violence; he was intoxicated at the time of the offence, to a degree which the sentencing judge was unable to determine but which was considered not to be of any weight either in mitigation or aggravation of the offence. The offender pleaded guilty in the presence of the jury panel when the trial was about to commence, in the face of a strong Crown case upon which his Honour considered that the offender would have perceived that conviction was inevitable. The offender demonstrated no remorse and no contrition beyond the plea of guilty. A head sentence of 19 years was imposed with a non-parole period of 14 years. 8. In comparing R v Dargin with the present case, there were two factors significantly more favourable to Dargin than to the present offender. The first was his plea of guilty. The second was that his intent was to inflict grievous bodily harm whereas I have found beyond reasonable doubt in the present case that Alexis Katsis' intention was to kill Doris Fenbow by strangling and incinerating or suffocating her. In appropriate circumstances the fact that an offender intended to inflict grievous bodily harm rather than to kill may render the offence less culpable and attract a lower penalty: R v Hillsley [2006] NSWCCA 312 at [16]; R v Wilson [2005] NSWCCA 112 at [49] and [61]; Hoai Vinh Tran v R [2011] NSWCCA 116. In R v Dargin the sentencing judge considered that the lesser intent was material to the reduction of penalty. Balancing against those considerations, Dargin's criminal history prior to his offence was significant whereas Alexis Katsis had no material conviction prior to 3 September 1988. 9. R v Fleming [2007] NSWSC 673 concerned a rape and murder committed on 18 February 1984. Fleming was 30 years old when he murdered a young woman in a small park near Kurraba Point, Neutral Bay. The victim was strangled with a ligature. The offender had intercourse with her after death. As in the present case an arrest could only be made many years later, in 2005, when DNA profiles of samples taken from the victim's body could be matched to the offender. Fleming maintained a plea of not guilty and expressed no contrition. He had a prior conviction for rape in Queensland for which he had been convicted in 1976. He had been sentenced to 8 years imprisonment for that crime. There were no further convictions up to the date of the murder for which he came before the Court. 10. Fleming was 54 years old when sentenced by Studdert J. He had a personality disorder and suffered significant other medical problems. His Honour took into account the added hardship of custody for the offender because of his psychological and physical health conditions. After a review of a substantial sample of other sentences, his Honour imposed a term of 21 years and a non-parole period of 16 years. For the purpose of comparison with the case before me, bearing in mind the objective of achieving consistency, I have to make allowance for the fact that Fleming was sentenced as an offender with a serious prior conviction for a sexual offence and that he had been a mature adult when the murder was committed in 1984. 11. In R v Matthews [2014] NSWSC 608 Bellew J sentenced an offender for a murder which had been committed on 1 February 1992. The victim was a prostitute aged 39 years whom the offender with two others had taken to an isolated bush location where sexual intercourse had occurred multiple times and the victim had been killed by blows to the head with a rock. The offender was 21 years old at the time. He had left school at the end of year 10 and had used drugs from age 12, graduating to heroin at age 16. He pleaded guilty on the first day of the trial, for which a discount of 10% on sentence was allowed. Bellew J accepted that he was genuinely remorseful. His criminal history, both before and after this murder, did not involve violence and his Honour found in it nothing to disentitle him from leniency. His prospects of rehabilitation were found to be "generally encouraging". His Honour fixed a non-parole period of 16 years and 3 months with an additional term of 5 years and 3 months, resulting in a total sentence of 21 years and 6 months. Degree of seriousness of the rape offence 1. With respect to the offence of sexual intercourse without consent, contrary to s 61D(1), I consider the manner in which Alexis Katsis perpetrated this crime places it well into the upper range of seriousness for an offence of this type, although not in the worst category of case. It will be appropriate to impose a fixed term without specifying a non-parole period as the non-parole period for the murder count will in any event result in Alexis Katsis being in custody beyond the expiry of the fixed sentence that I intend to impose for the s 61D(1) count. In arriving at the sentence for this charge which I am about to pronounce I have taken into account all of the subjective circumstances of the offender mentioned earlier in these reasons and also the aggravating factors referred to at [71]. I have had regard to the separate sentence passed for an offence of this type by Studdert J in R v Bossie. Relationship between head sentence and non-parole period for murder 1. On the murder count I will fix a head sentence and non-parole period in accordance with the terms of s 44 Crimes (Sentencing Procedure) Act as it stood prior to the amendments effected in early 2002. For the purposes of s 44(2) I do not find any special circumstances which would justify the non-parole period being anything less than three-quarters of the term of the sentence. In particular, the remainder of the term after the non-parole period has expired will necessarily be quite long and will be ample for the rehabilitation of the offender under the supervision of the Community Corrections service. Sentences imposed 1. From 12 September 2014 the offender has been in custody, bail refused, in respect of the rape and murder charges on which he has been convicted. That time served is to count. The sentences now to be imposed upon him are therefore to be backdated to 12 September 2014. 2. Taking into account all the matters to which I have referred I have determined the following sentences. 3. Alexis Katsis, for the offence of sexual intercourse without consent with Doris Fenbow on 3 September 1988 I sentence you to a fixed term of imprisonment of 6 years to commence on 12 September 2014 and to expire on 11 September 2020. 4. For the murder of Doris Fenbow on 3 September 1988 you are sentenced to a term of imprisonment of 20 years to commence on 12 September 2014 and to expire on 11 September 2034. I set a non-parole period for that sentence of 15 years to commence on 12 September 2014 and to expire 11 September 2029. You will be eligible to be considered for release on parole at the expiry of the non-parole period on 11 September 2029. ********** 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: 11 December 2015