Supreme Court New South Wales Medium Neutral Citation: R v Gregory John Thompson [2017] NSWSC 628 Hearing dates: 18 May 2017 Date of orders: 18 May 2017 Decision date: 18 May 2017 Jurisdiction: Common Law Before: Hamill J Decision: Sentenced to a total effective sentence of 23 years and four months with a total effective non-parole period of 17 years and seven months (see paragraphs [63] – [64]) Catchwords: CRIMINAL LAW – sentence – murder – stalk and intimidate – breach of apprehended violence order – murder of ex-wife's new boyfriend – offence motivated by jealousy – obsessive behaviour connected with major depressive illness – relevance of psychiatric condition – where offender attempted suicide after killing – impact on victim's family – death of a son – Dwight Eisenhower – general deterrence – relevance to offences committed in setting of domestic violence – victim defenceless – killed in own home – breach of bail – planning – intent to kill – multiple stab wounds – defence of substantial impairment rejected by jury – standard non-parole period – instinctive synthesis – balancing contradictory factors Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: DA v R [2014] NSWCCA 306 Ghamraoui v R [2009] NSWCCA 111 Kearsley v R [2017] NSWCCA 28 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Archer [2015] NSWSC 1487 R v Do (No 4) [2015] NSWSC 512 R v Halloun [2014] NSWSC 1705 R v Hines (No 3) [2014] NSWSC 1273 R v Israil [2002] NSWCCA 255 R v Johnson [2015] NSWSC 31 R v Lauritsen (2000) 114 A Crim R 333 R v Sumpton (No. 4) [2015] NSWSC 684 R v Tsiaras [1996] 1 VR 398 at 400; Sumpton v R [2016] NSWCCA 162 Category: Sentence Parties: Regina Gregory John Thompson Representation: Counsel: Mr B Campbell (Crown) Mr J Fitzgerald (Accused) Solicitors: Director of Public Prosecutions John Anthony Solicitors File Number(s): 2015/115257; 2015/62569; 2015/61130; 2015/64543 EX TEMPORE Judgment (REVISED) 1. The remarks I am about to make and the judgment I am about to publish have been prepared quickly. There will no doubt have to be some corrections to it in due course and I will, where possible, avoid making reference to any relevant case law or other authorities and those references will be inserted in the final judgment. 2. On Tuesday of this week, that is 16 May 2017, Gregory John Thompson was found guilty by jury in Newcastle of the murder of Michael Anthony Moad on 1 March 2015. The offender now stands for sentence for that crime. The proceedings on sentence commenced immediately upon the finding of guilt and concluded this morning. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years. [1] 3. The maximum penalty must be kept firmly in mind throughout the sentencing process. Murder is the most serious offence known to the law and the maximum penalty of life imprisonment reflects the abhorrence with which the legislature and the community view the felonious taking of human life. 4. The standard non-parole period applies to an offence falling in the middle range of objective seriousness and the correct approach to the standard non parole period has been explained in a number of cases, most importantly by the High Court in Muldrock v The Queen. [2] While it is an important legislative yardstick to the appropriate sentence, the standard non-parole period does not replace the judicial task of synthesising all of the many factors that are relevant to sentencing and instinctively determining the weight that should be given to those factors in deciding on a proper and appropriate sentence. This case is not unique in that many of the factors relevant to an assessment of a fair and just sentence pull in different directions. 5. I must always keep in mind the purposes of sentencing and punishment. The common law principles that underpin those purposes now find, in New South Wales, statutory voice in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are: 1. To ensure that the offender is adequately punished for the offence; 2. To prevent crime by deterring the offender and other persons from committing similar offences; 3. To protect the community from the offender; 4. To promote the rehabilitation of the offender; 5. To make the offender accountable for his actions; 6. To denounce the conduct of the offender; and 7. To recognise the harm done to the victim of the crime and to the community. 1. Some of these purposes are more significant than others in the present case. For example, this is not a case where the protection of the community looms large. This is because the offender is a man in his early fifties with no prior convictions and the particular circumstances that led him to commit this dreadful crime are unlikely to repeat themselves. Similarly, for reasons I will articulate, the offender is not a particularly appropriate vehicle for a sentence involving a large component of general deterrence. On the other hand, it is critical that the offender is adequately punished and made accountable for committing this grave offence. His conduct must be denounced clearly and unambiguously. The harm done to the primary victim is absolute, and the pain and distress caused to the victim's family and loved ones has been truly devastating. The sentence must reflect that. The harm done to the victim's family must be recognised. Again, on the other hand, the requirement that the sentence should aim to rehabilitate the offender means that the sternness of the punishment must be tempered to some degree. 2. The offender was in a relationship and married for around 30 years with his ex-wife, Karen Thompson. They had four children together. Mrs Thompson gave evidence in the trial and I accept her evidence that the last years of the marriage were unpleasant and that she wanted to end the marriage for some time before she finally obtained a divorce. This occurred on 27 January 2015, just weeks before the killing of Mr Moad. Mr Thompson conducted himself badly in those final weeks and months. The evidence shows that he was extremely jealous and resentful of Mrs Thompson's attempt to establish a new life. He was manipulative, at times bullying and threatening, and he did all he could to disrupt his ex-wife's freedom to move on with her life. He could not accept that the marriage was over. I have no doubt the offender's jealously and bitterness was the primary motive for the killing of Mr Moad. Mr Moad had, shortly before his death, entered into a relationship with Karen Thompson. 3. In the days leading up to the killing the offender's conduct became increasingly troubling and extreme. I accept that he was essentially stalking his ex-wife. At this point I use that term in the vernacular rather than the legal sense. 4. On 27 February 2015, the offender was made subject to an apprehended violence order. This resulted from threatening text messages sent at around 10.30pm on 26 February 2015. Amongst other things the offender wrote to his ex-wife, "You will regret it, I promise. Don't fuck with me". Mrs Thompson wrote back, "Is that a threat on my life[?]", to which the offender replied, "I have nothing to lose". 5. The apprehended violence order forbade, amongst other things, the offender from approaching his ex-wife. The following day, that is on 27 February 2015, there was an allegation (now admitted) that Mr Thompson breached the apprehended violence order by following Mrs Thompson in his car. He was arrested in the early hours of 28 February 2015 and interviewed by police. He denied that he had breached the order at that time in a short, recorded interview that was tendered in the trial. He was granted bail and the terms of the apprehended violence order were once again explained to him. The conditions of bail included that he abide by the conditions of the apprehended violence order. 6. In the early hours of 28 February 2015, the offender was provided with statements and documents that included the name of the victim. Leading up to that date, or day, the evidence of Mrs Thompson and the text messages sent by the offender suggest he suspected that Mrs Thompson had a new boyfriend. He was correct in his suspicion. The documentation provided to him by police on 28 February allowed him to put a name to the new boyfriend. I accept that sometime in the next twenty-four hours the offender used the local phone book to ascertain the address of Mr Moad. 7. During that day the offender made preparations for the events that would unfold late that night and early the following morning, 1 March 2015. In addition to finding out Mr Moad's address, at 9:36am he went to a hardware shop and purchased torches, hose clamps and a length of plastic pipe. This was to attach the plastic pipe to the exhaust pipe of his car and feed it into the cabin for the purpose of killing himself through the ingestion of carbon monoxide. At around 7:30pm he purchased some Sellotape and a quantity of alcohol, a bottle of bourbon and some bottles of mixed bourbon and cola. 8. At around midnight the offender parked somewhere near the rear lane of Mr Moad's home in Cessnock. I accept he spent some time ruminating on what he was going to do. He armed himself with two kitchen knives and shortly after midnight approached the rear door of Mr Moad's premises. He removed his thongs before he traversed the backyard. I accept that this was for the purpose of avoiding detection as he approached the home. 9. It is not completely clear what happened when the offender got to the back door but very soon thereafter he came into physical confrontation with Mr Moad. Karen Thompson was in the bathroom, or in the toilet, at that time. She heard shouting between the men that she described as "a roar". When she emerged she saw the offender with a knife attacking Mr Moad. She ran to try to get help. I reject the offender's version (provided to the psychiatrists) that he then immediately ran out of the house from the rear of the premises. I accept that he attempted to follow his ex-wife who left via a side door. He stopped when he realised there were other men outside the front of the premises. Mrs Thompson sought their help and they began to call out the offender's name. Those findings are based on the physical evidence, including the finding of blood consistent on DNA analysis with the blood of Mr Moad on the floor of the lounge room, kitchen and towards the front of the house. The stabbing occurred at the rear of the house and the only explanation for the blood found on the floor is that the accused followed or chased his ex wife. 10. These findings also accord with the evidence of Keith Megson and Jason McCarthy who saw a man who could only have been the offender standing at the front screen door. By that time the fatal wounds and injuries had been inflicted on Mr Moad. The forensic pathologist who conducted an autopsy described those wounds. There was some blunt force trauma and multiple stab wounds, including numerous wounds to the upper arms and head and what I accept, based on Dr Vuletic's opinion, to be defensive wounds on Mr Moad. One of the wounds to the head sliced off a piece of bone in the skull. This suggested at least a moderate, and probably a severe, degree of force. The fatal wound was a stab wound to the right armpit which penetrated the axillary artery causing death by fatal haemorrhaging or blood loss. 11. In addition to the finding of Dr Vuletic on post-mortem examination, the forensic evidence showed one of the knives used in the attack was broken at the handle and the second was bent out of shape. Such was the severity and degree of force employed by the offender in his attack on an unarmed and defenceless victim in the latter's own home. 12. On the basis of this evidence I am satisfied beyond reasonable doubt that the offender intended to kill Mr Moad at least at the moment when he inflicted these wounds. A submission made in writing that it would be open to find that the accused only had an intention to inflict grievous bodily harm was withdrawn under the force of argument. 13. Contrary to the prosecution's submission, I am not satisfied beyond reasonable doubt that the offender went to the house intending to kill Mr Moad or his ex-wife. While some of the text messages included such threats, either directly or by implication, it is more likely that the offender did not know exactly what he would do when he got to the house. However I am certain that he was prepared to kill Mr Moad, and very much prepared for a violent confrontation, in order to satisfy his selfish and obsessive desire to see his ex-wife. 14. After remaining in the house for a period of time, probably hoping his ex-wife would return and see the devastation he had inflicted, the offender fled the premises by the back door. His demeanour, as described by the witness Michael Soper, suggested he was in a disassociated state. The evidence does not allow a finding as to precisely what Mr Thompson did after he left Mr Moad for dead in the laundry of his own home. At around 2:20 am his car rolled slowly into the vicinity of the front of Mr Moad's house. The offender was in the driver's seat and the plastic part purchased earlier that day was attached to the exhaust and fed into the cabin of the car. Mr Thompson was conscious and asked for help. Apart from the description given by those who saw him, there was also audio and video footage taken police spoke to him at the scene. It is indisputable that he was affected by the inhalation of carbon monoxide. 15. I accept that the accused made a genuine attempt to take his own life and that this was his intention when he purchased the pipes and clamps on the morning of 28 February 2015. 16. Very little of what I have just described was in dispute at the trial. On arraignment the offender pleaded guilty to manslaughter but the Crown did not accept his plea. Although the issue of intention and the possibility of a verdict of guilty of manslaughter based on an unlawful and dangerous act were issues left to the jury, there was no submission made by the defence that the Crown had not established the specific intention required to establish murder. I am unable to accept the submission initially made on sentence that the offender should be sentenced on the basis of an intention to inflict grievous bodily harm. As I have said I am satisfied beyond a reasonable doubt that at the time of the attack the offender intended to kill. 17. The issue at trial was whether the offender had established the defence of substantial impairment by an abnormality of mind. The verdict of guilty necessarily means that the jury rejected that defence. There were three bases upon which the jury may have rejected the partial defence. 18. First, the jury (or some members of the jury) may have rejected the evidence that the offender was suffering from a major depressive disorder at the time of the killing. Even though psychiatrists called on both sides provided opinions that the offender was so afflicted, their opinions were based on the history the offender gave them. That history was subject to a substantial attack by the Crown. 19. The second basis upon which the defence may have been rejected was that the jury (or some of its number) was not satisfied the depressive disorder substantially impaired the offender's capacity to understand events, judge whether his actions were right or wrong or to control himself. Both psychiatrists called at the trial agreed his capacity to control himself may have been impaired. Dr Allnutt did not accept the offender's condition impaired his ability to judge right from wrong or to understand events. Dr Adams was of the opinion the offender's capacity may have been impaired in all three ways. 20. The third basis upon which the jury may have rejected the defence was that it concluded that the impairment was not so substantial as to warrant the reduction of the offence from murder to manslaughter. 21. In deciding the facts for the purpose of sentence I am bound by the verdict of the jury but it is not necessary to attempt to discern precisely the basis upon which it rejected the defence. Provided my findings are consistent with the findings inherent in the verdict, I must give effect to my own view of the evidence. 22. I am satisfied on balance that the offender suffered from a severe depressive illness at the time of the events. In reaching that finding I have taken into account the attack made by the Crown on the history provided to the psychiatrist. I accept that parts of that history cannot stand with other evidence adduced in the case. However on some important issues the history receives support. For example the offender's conduct on 28 February 2015 was consistent with preparations to make an attempt on his own life. Further, the psychiatric history provided, and the fact of an earlier diagnosis of depression in 2013, was confirmed by independent evidence. Also, the offender's account of an incident on 7 December 2014 when Mrs Thompson came to his home and they had a physical tussle which led to Mrs Thompson suffering an injury to the back of the head when she fell, was consistent with what he told the police at the time and also with Mrs Thompson's attitude when spoken to by the police. 23. There was nothing to gainsay the offender's description of a number of symptoms that were described as "hallmark symptoms of a major depression". These included sleeplessness, loss of appetite, lower energy levels, difficulties with concentration, a loss of interest and sense of humour. 24. Apart from the matters that supported the history the offender provided, Dr Adams referred to a community health care record dated 17 July 2013 which recorded that the offender was unable to sleep and that he "feels low, nil motivation, good insight, lack of appetite, no sleep, not suicidal". There was also evidence in a part of the history that I accept that Mr Thompson was prescribed antidepressant medication in the past. 25. Based on the whole of the evidence and in spite of reservations about parts of the history provided to the psychiatrists, I am satisfied that the offender suffered a major depressive illness at the time he murdered Mr Moad. 26. I am not satisfied this condition impaired his ability to judge right from wrong or to understand events. His actions suggest the opposite. I accept Dr Allnutt's opinion in this regard. The offender's conduct showed he knew he should not be approaching or attempting to speak with his ex-wife because of the apprehended violence order. He knew his actions were wrong. His actions immediately after the killing suggest that his capacity to understand events was not impaired by his depressive illness. 27. As to the offender's capacity to control himself I accept that this was somewhat impaired but I am not satisfied that it was substantially impaired. This conclusion is based on the history of his relationship with Mrs Thompson, the jealousy and bitterness that formed the primary motive for the offender's actions, the planning involved, the furtiveness of his approach to the rear of the premises (including the removal of his thongs to avoid being heard), and his actions immediately after the killing. Certainly, as the jury obviously found any impairment was far from sufficient to justify the reduction of this crime from murder to manslaughter. 28. The impact of the offender's crime is devastating. It took the life of an innocent victim whose family has been left devastated by their loss. I will speak directly to Michael Moad's family shortly. 29. In terms of assessing the objective seriousness of the offence, for the purpose of determining the weight to be given to the standard non-parole period and otherwise, there are a number of aggravating features including, perhaps most importantly, the fact the offence took place within the victim's own home, a place where he was entitled to feel, and to be, safe. The offence involved a degree of planning and involved the use of weapons. However many murders involve the use of weapons and are more planned and premeditated than this. 30. Another aggravating feature is the offender was on an apprehended violence order, the terms of which were explained to him in the early hours of 28 February 2015 when he was released on bail from an alleged breach of that order. The offence constituted a breach of that bail. The commission of an offence while on conditional liberty is a well-established aggravating feature and a significant matter in the present case. 31. It is not my practice and I do not intend in this case to treat the sentencing exercise as a check list, whereby I address each and every factor referred to as aggravating and mitigating in s 21A of the Crime (Sentencing Procedure) Act. [3] 32. An assessment of whether the offence falls within the middle of the range of objective seriousness is to be undertaken "without reference to matters personal to the particular offender or class of offenders". [4] Taking into account all relevant features this offence fits within the middle range of objective seriousness for all cases of murder. Accordingly, the standard non-parole period of 20 years is an important statutory yardstick. However there are a number of reasons that lead me to the conclusion the standard non-parole period should not be imposed. While I take the standard non-parole period into account, I do not start from 20 years and oscillate up and down depending on relevant aggravating and mitigating features. That would be contrary to the judgment of the High Court of Muldrock. Rather I have identified the factors relevant to sentence and made a principled value judgment as to what the appropriate sentence should be. [5] 33. Nevertheless, it is appropriate I record that the most potent features of the case that persuade me the standard non-parole period ought not to be imposed are the offender's lack of criminal history, what I find to be his good prospects of rehabilitation, and the fact that the offence was committed while he was suffering from a significant psychiatric illness, that is a major depressive episode. 34. In addition to the offence of murder, six offences that would ordinarily be dealt with in the Local Court are placed before the Court pursuant to a transfer and certificate under s 166 of the Criminal Procedure Act 1986. One of those offences, an offence of common assault, is a back-up charge and the Crown asks that this charge be dismissed. The other five offences comprise two offences under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and three offences under s 14(1) of that Act. The offences involve stalking and intimidation and breaching an apprehended violence order. The maximum penalties according to the Crown's schedule are two years and two years respectively although the maximum penalty for the stalking offence, if dealt with on indictment, may in fact be five years. I gather it is accepted these are matters that would ordinarily have been dealt with summarily so that the jurisdictional limit of two years would apply. 35. Four of the five offences are part of the factual matrix leading to the murder of Michael Moad. I have taken the facts of those offences into account in assessing the seriousness of the murder offence and in accepting that general deterrence has an important role to play in spite of the offender's psychiatric or depressive illness. For that reason, while it is appropriate and necessary to impose individual sentences in relation to those four offences, the sentences should be made concurrent with the sentence to be imposed on the murder charge. 36. The first stalk and intimidate charge arose out of a series of threatening text messages sent by the offender to Mrs Thompson on 26 February 2015. Those text messages include threats of self-harm, threats to damage property and at least veiled threats of killing Mrs Thompson. It is a serious example of an offence under s 13(1). 37. In the aftermath of that offence the offender was placed on an apprehended violence order on 26 February 2015. He breached that order the next day when he followed Mrs Thompson's car in an intimidating manner. The offender was arrested, charged with the breach, and released on bail. While all breaches of court orders are serious this was not a particularly serious violation of the apprehended violence order. 38. The second offence of breaching the apprehended violence order occurred when the offender approached the premises of Mr Moad in an attempt to see his wife and then followed her through the house. In view of the background, the fact that he had been reminded of the terms of the apprehended violence order less than a day before, and the circumstances of the murder itself, this was a very serious offence of its kind. Similarly, the second stalk and intimidate charge is based more or less on the same factual circumstances and represents a very serious contravention of s 13(1). 39. The final offence of breaching the apprehended violence order occurred after the offender was taken into custody for the murder of Michael Moad. The provisional order made by police on 27 February 2015 was formally made in the Local Court on 18 March 2015 on an interim basis. Between 8 and 15 April 2015 the offender made a number of attempts, contrary to the terms of the apprehended violence order, to communicate with Mrs Thompson through family members. On some of those occasions he knew that Mrs Thompson was standing close by and asked the messages to be passed on to her. He asked his son to tell her she was "disgusting" on one occasion and the pattern of contravention of the order by making indirect attempts to communicate with her was sustained and persistent over many days. It occurred in the aftermath of the bloody killing of Mr Moad. I can only imagine the impact the behaviour must have had on Mrs Thompson who must have been extremely fragile at that time. This offence is separate and discrete offending and is a serious breach of the apprehended violence order. It should be subject to a separate punishment and met with a short custodial sentence that will commence on 1 March 2015 when the offender was taken into custody. 40. All other sentences to be imposed will commence at the expiration of that sentence. 41. I record that, in respect of each of the offences transferred to this Court under s 166, I concluded that the only appropriate disposition is by the imposition of a full-time custodial sentence. 42. I want to spend a few moments acknowledging the grief and dignity of Mr Moad's family and loved ones. A group of Michael's family has watched over the proceedings and has coped with dignity as the horrific evidence was elicited and their loved one was referred to as "the victim" and "the deceased". I only found out his middle name, which is Anthony, when they read their victim's impact statements. I acknowledge what his sister said in her statement to the court that Michael was a real person: he was not "the deceased", he was not "the victim". I am grateful to Michael's older sister Louise and his mother Colleen for composing their statements. I thank Louise and Mrs Moad's granddaughter Amy for their courage and dignity in reading those statements to the court. 43. Louise is correct, it is impossible for me or for anybody to understand the pain and suffering that has been caused to this family. Louise's children have lost their uncle who played an important and cherished part of their lives. Louise has obviously suffered extreme trauma as a result of the incident. She works as a nurse and has had to change jobs to avoid the possibility of contact with the offender. She also has to avoid trauma cases. Her grandson still asks what happened to his great uncle Michael. She has a fear of knives, a fear of home invasion and she dreads and is afraid of the day the offender inevitably will be released from prison. 44. Colleen was Michael's mother. She told the court she does not have words to describe her grief. Her son used to call her every Friday. She is reminded of his senseless death each week if the 'phone rings on a Friday. She believes Michael's death was too much for her husband to bear and he died last year after 60 years of marriage. Colleen is lonely and barely able to cope with her grief. She has to remind herself "to keep breathing, to keep moving, to keep going". As the United States President Dwight Eisenhower said "There's no tragedy in life like the death of a child. Things never get back to the way they were". 45. Louise Scott told me "I know nothing I say or do will ever bring Michael back. Nothing will ever take away the heartbreak or ease the pain our family feels". I have to say to Michael Moad's family that I feel a little bit the same way. I know there is nothing that I can say in these remarks and nothing I can do in imposing sentence on this offender that will take away the pain or provide any comfort to you or help you make sense of what has happened to you and what the offender Gregory Thompson has done to you and to your family. I know no sentence I impose under the law will seem long enough. How could it when you have to carry these burdens for the rest of your lives? But please know that your loss and your pain and your grief has been acknowledged and that everybody in court was moved by your situation. Again I thank you. 46. Section 28(4) of the Crimes (Sentencing Procedure) Act makes a provision I will set out in the final version of the judgment. [6] The Crown has indicated no application is made for the provision – which is difficult in its application – to apply in this case. All human life is sacred and all people are equal. Every homicide case harms the community and devastates the family and loved ones of the deceased, and I will insert some references to some cases. [7] 47. The fact an offender committed this crime while suffering from a mental disorder or illness may be relevant to sentence in a variety of ways. This has been considered in many cases and I will insert references to a few of them. [8] A helpful analysis can be found in the judgment of Spigelman CJ (Simpson and Blanch JJ) agreeing in R v Israil. [9] 48. I am unable to accept the Crown's submissions, based on the approach of a single judge of this court in R v Archer, [10] that the offender's depressive illness does little by way of mitigation in the present case. The circumstances here are very different. Archer committed his crime while intoxicated in the knowledge of the danger that this would create in the light of his depression. I am unable to accept the observation [11] that "depression is a relatively common illness" and that this can properly inform the proper application of the relevant principles in the light of the evidence in the present case that Mr Thompson suffered a major depressive episode at and around the time of committing this offence. 49. I have concluded the offender's depressive illness was at least indirectly causally connected to his obsessive conduct surrounding his separation from his ex-wife. It contributed to his obsessiveness and jealousy. Because this conduct was caused, at least in part, by his depressive illness I find that his moral culpability is reduced albeit to a limited degree. 50. The depressive illness does not impact on the need for the sentence to deter the offender personally but the length of the sentence that must be imposed to reflect the gravity of the offending and to ensure that he, the offender, is adequately punished is such that it will, without more, have a salutary impact on Mr Thompson. 51. The question of the impact of the mental condition on the principle of general deterrence is more complicated. I accept the major depressive illness means the accused is a less appropriate vehicle for a sentence containing a large component of general deterrence. However, the nature of this offence and the fact it occurred in the context of the breakdown of a domestic relationship, is a matter that heightens the need to deter others from conducting themselves in this way. [12] One of the relevant purposes of this sentencing exercise must be to deter others from disregarding the terms of apprehended violence orders and bail conditions forbidding them from approaching their former partners or from doing violence to their new partners. It must also be to "vindicate the human dignity" of Mr Moad whose life was taken as a result of being caught in the cross-fire of destructive and dysfunctional domestic turmoil. 52. The principles to which I have just made reference pull, obviously enough, in different directions in terms of the appropriateness of using Mr Thompson as a vehicle for a sentence aimed at deterring others. I have moderated to a degree the component of general deterrence as a result of his depressive illness but am confident the sentence I will impose will serve the purpose of deterring others from conducting themselves as he did. Those who respond to their grief and loss in the aftermath of a long marriage or romantic relationship by visiting violence, especially fatal violence, on their ex-spouse's new partner must know their offending will be met with condign punishment. 53. The evidence supports the conclusion that incarceration will deleteriously impact on Mr Thompson's mental health (see Ex S-1). I take this into account and recommend copies of the reports of Dr Adams that comprise that exhibit be provided to the Department of Corrective Services and recommend he receive timely and frequent psychiatric or psychological counselling. 54. Mr Thompson is a 52 year man with no previous convictions. This is a mitigating factor on sentence. It is also important in assessing his prospects of rehabilitation. I accept he has good prospects of rehabilitation. In view of the history of manipulation and threats disclosed in the background evidence of his relationship with Mrs Thompson, it is difficult to conclude he is a person of prior good character. However it seems he had a strong employment record for most of his adult life having obtained a trade certificate in fitting and turning after leaving school. It also seems he lost his job in the months prior to the offending and this no doubt contributed to his depression. 55. A letter from the offender's sister shows he enjoys some ongoing family support. This will help him to survive the lengthy gaol sentence that must follow. As to the suggestion in that letter that he has expressed remorse for his actions, I am unable to accept that hearsay assertion. There is no evidence upon which I could, in good conscience, accept that the offender is sorry for what he has done, let alone that this constitutes a mitigating feature in view of the terms of s 21A(3)(i). [13] 56. I accept the prosecutor's fair concession that the conduct of the trial was such that the offender is entitled to some recognition. I have made a very small adjustment pursuant to s 22A of the Crime (Sentencing Procedure) Act. 57. The offender has been in custody since 1 March 2015 and the first of the sentences will commence on that date. I am conscious the accumulation of the sentence will result in a non-parole period that is slightly longer than 75% but I am unable to find that this, or anything else, constitutes special circumstances requiring an adjustment of the non-parole period as against the total sentence. 58. The total effective sentence that I intend to impose is one of 23 years and four months with an effective non-parole period of 17 years and seven months. 59. Mr Thompson, if you could please stand: 1. For the offence of breaching an apprehended violence order between 30 March and 14 April 2015 (that is sequence H5772403/1), you are sentenced to a fixed term of four months imprisonment to commence on 1 March 2015 and expire on 30 June 2015. 2. For the offence of stalking and intimidation on 26 February 2015, (H57761342/2), you are sentenced to three months imprisonment to commence 1 July 2015 and expire on 30 September 2015. 3. For the offence of breaching the apprehended violence order on 27 February 2015 (H57909163/1) you are sentenced to two months imprisonment to commence on 1 July 2015 and expire on 31 August 2015. 4. For the offence of breaching the apprehended violence order on 1 March 2015 (H56086310/2), you are sentenced to 12 months' imprisonment to commence on 1 July 2015 and expire on 30 June 2016. 5. For the offence of stalking and intimidation on 1 March 2015, (H56086310/4), you are sentenced to 12 months' imprisonment to commence on 1 July 2015 and expire on 30 June 2016. 6. The backup offence of common assault (H56086310/3) is dismissed. 7. For the murder of Michael Anthony Moad you are sentenced to a non-parole period of 17 years and three months, commencing on 1 July 2015 and expiring on 30 September 2032, with a balance of term of five years and nine months, expiring 30 June 2038. 8. You will become eligible for release on parole at the expiration of the non-parole period. 1. Thank you, sir, if you could take a seat. I am required to warn you that the Crimes High Risk Offenders Act applies to the offence of murder, and that you may be subject to the provisions of that Act at the conclusion of the sentence. I expect your lawyers will explain the effect of that Act to you. 2. I recommend that copies of the reports of Dr John Adams contained in exhibit S1, and there are four such reports, be provided to the Department of Corrective Services and that the accused receive timely and frequent psychiatric treatment and medication in accordance with Dr Adams' recommendations. 3. HIS HONOUR: Has everyone had a chance to check the maths? CAMPBELL: Your Honour, I missed the completion date for the balance of the term. HIS HONOUR: The balance of term of five years and nine months would, on our calculations, expire on 30 June 2038. FITZGERALD: Yes, that appears correct, your Honour. CAMPBELL: Yes, thank you, your Honour. HIS HONOUR: Can I take the opportunity to thank counsel and their solicitors for their assistance throughout the trial and sentencing proceedings and particularly for being able to get the sentence ready to be concluded in these sittings. ********** Endnotes 1. Crimes Act 1900, s 18-19A; Crimes (Sentencing Procedure) Act 1999, s 54A, Table (item 1). 2. (2011) 244 CLR 120; [2011] HCA 39. 3. Cf Ghamraoui v R [2009] NSWCCA 111 at [23]. 4. Muldrock at [27]. 5. Markarian v The Queen (2005) 228 CLR 357 at 378 [51]; [2005] HCA 25; Muldrock at [26]. 6. The section provides "A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community." 7. R v Hines (No 3) [2014] NSWSC 1273 (Hamill J) at [77] - [85]; R v Do (No 4) [2015] NSWSC 512 (Davies J); R v Halloun [2014] NSWSC 1705 (McCallum J); R v Sumpton (No. 4) [2015] NSWSC 684 at [36] – [44]; Sumpton v R [2016] NSWCCA 162. 8. For example, R v Lauritsen (2000) 114 A Crim R 333 at [43]-[51]; R v Tsiaras [1996] 1 VR 398 at 400; DA v R [2014] NSWCCA 306 and, most recently, Kearsley v R [2017] NSWCCA 28. 9. [2002] NSWCCA 255 at [21] – [26]. 10. [2015] NSWSC 1487. 11. Archer at [139]. 12. Cf R v Johnson [2015] NSWSC 31 at [61] – [62] and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54] – [55]. 13. Crimes (Sentencing Procedure) Act. 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: 22 May 2017