THE STATE OF WESTERN AUSTRALIA -v- SMART [2025] WASCSR 11

[2025] WASCSR 11
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION : THE STATE OF WESTERN AUSTRALIA -v- SMART [2025] WASCSR 11
CORAM : FORRESTER J
DATE OF
SENTENCE : 3 APRIL 2025
FILE NO/S : INS 45 of 2023
BETWEEN : THE STATE OF WESTERN AUSTRALIA
AGAINST
SAMUEL DUDLEY SMART
Offence:
Murder
Legislation:
Sentencing Act 1995 (WA)
Criminal Code (WA)
Sentence Imposed:
Life Imprisonment
Minimum period of 16 years before eligible for release on parole
Sentence backdated to 15 January 2023
Category: B
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Representation:
Counsel:
Prosecution
:
M Cvetkoski
Accused
:
J Jackson
Solicitors:
Prosecution
:
Director of Public Prosecutions for Western Australia
Accused
:
James Jackson Criminal Defence
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FORRESTER J:
Introduction:
1
Samuel Dudley Smart, I am now to sentence you after you were convicted after trial by unanimous verdict of the jury on the charge that on 14 January 2023 at Yokine you murdered Peter Protoulis.
Facts
2
At the time of the offence, you were 27 years old. You were living with your sister, Selene, at Unit 1, 76 Alexander Drive, Yokine and had been for a couple of years.
3
At the time of his death, Peter Protoulis had been staying with you and Selene for a week or so. One of your sisters was in a relationship with Mr Protoulis’ brother, and an arrangement was made that Mr Protoulis stay with you while he found somewhere else to live.
4
It appears that those living arrangements were not altogether amicable, and there was some conflict between you all. The unit only had two bedrooms, and Mr Protoulis was, from the evidence adduced at trial, not necessarily a very easy person to live with.
5
On 14 January 2023, you all got up and went about your day. It appears you watched at least part of a television show, and at some stage Mr Protoulis went out, as did you. Mr Protoulis visited his mother at about 11.00 am, and left her after about an hour. According to the evidence, both you and Mr Protoulis were at Dianella Plaza later that day, although there is no evidence you were together.
6
You were associating with people from 8 Lynmouth Road through the afternoon. You were seen by some of the people there in possession of a large knife, which was variously described, but I am satisfied was a kitchen knife which was later shown on CCTV footage. At some time you came into possession of a black bike. You were seen riding it on CCTV and being in the vicinity of your unit at about 3.30 pm before leaving at around 4.00 pm. You came back at about 4.25 pm, again on the bicycle, and went into the unit.
7
Mr Protoulis was seen by a witness heading in the direction of your unit at about 5.00 pm, and CCTV footage suggests that he arrived home at about 6.00 pm.
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8
You were seen near the unit again at about 6.25 pm. Then, at 7.00 pm, you left the car park on the bike, wearing a black hoodie and a different cap to the one you had been wearing earlier in the day.
9
At 7.05 pm you returned to the unit, parking the bike on Shakespeare Avenue. You went into the unit through the Shakespeare Avenue door, and out the other door into the car park. While you were out there, the door to the car park was slammed, which appears to have agitated you. You walked around in the car park for a while before returning into the unit.
10
At about 7.22 pm, your mother drove past, and saw you outside, on the Shakespeare Avenue side of the unit. She called out to you to eat your dinner, but you did not respond to her in any meaningful way. You got on the bike and rode around on it briefly, but came back to the unit, again leaving the bike on the road.
11
At about 7.30 pm, you went into the car park, and walked around for a little over 10 minutes. You appeared agitated. I do not accept you were ‘rehearsing’ a stabbing, but I do accept that you were agitated and upset. Then, you pulled the large knife from your clothing and, wielding it in your right hand, went back inside your unit. Twelve seconds later, you ran out of the Shakespeare Avenue door of your unit, to your bike, and rode off.
12
In accordance with the jury’s verdict, I am satisfied that in those 12 seconds, you stabbed Mr Protoulis in the neck. I am satisfied that you caught him by surprise, while he was lying or partially lying on the mattress that was in the loungeroom in front of the television. I am also satisfied that he had no chance to defend himself. You did not wait around, but immediately left on the bike.
13
The State alleges you planned the offence to the extent that that is the reason you left the bike where you did. I accept that is possible but I am not satisfied beyond reasonable doubt of this fact, because it is just as possible that you simply planned to go out again and left the bike there for that reason.
14
I am not satisfied beyond reasonable doubt on all of the evidence, that you intended to kill Mr Protoulis when you stabbed him. I do accept that stabbing a person in the neck with a large knife typically warrants a finding of intent to kill. However, there is very much that is unknown about your attack on Mr Protoulis, including whether you deliberately chose that exact location and were able to control your
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attack upon him to the extent that you stabbed him in the place you
chose. In light of the speed of the attack that must have occurred, the possible positions of Mr Protoulis, and the fact that you only stabbed him once, I am unable to exclude the possibility that, in stabbing him in the neck as you did, you did not intend to kill him, but instead intended to cause him a bodily injury of such a nature as to endanger, or be likely to endanger, life. Further, the speed with which you left the house means that you may not have been aware of exactly how badly you had injured Mr Protoulis when you ran away. However, in the circumstances, there is not much distinction between the intention that you had when you injured him and an intention to kill.
15
It appears that you then went to 8 Lynmouth Road, and exchanged the bike you were riding for a bike that you had acquired earlier in the day. I am not able to draw any meaningful conclusions from the exchange of the bikes; I do not consider the evidence is capable of establishing that that was evidence from which premeditation of concealment can be inferred. No one appears to have noticed anything in particular when you did that.
16
At some point, you disposed of the black hoodie and the cap you were wearing, as well as the knife. It is unclear whether there were significant blood deposits on those items and they have not been located.
17
Your movements after that are only able to be ascertained from CCTV: the next day you were seen at a petrol station in Malaga, at a Commonwealth Bank in Malaga, and catching a bus between Perth and Dianella. You were arrested in Ellenbrook at about 8.00 pm that evening.
18
On 16 January 2024, you participated in a record of interview with the police, in which you claimed you had been at Yagan Square on 14 January 2024, and not at Unit 1, 76 Alexander Drive on that day. While there was some confusion as to which date was which day, I am satisfied that you were lying as to your whereabouts during that time. Even if you were not, by your interview the following day, you were well and truly aware of the time you were being asked about, and you persisted in your lies as to your whereabouts. Further, in the face of overwhelming evidence to the contrary, you denied being the person shown in the CCTV footage, wearing the black hoodie and wielding a knife.
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19
I am satisfied that you knew that, if you admitted being that person, it would implicate you in Mr Protoulis’ death. Plainly, you knew what a compelling piece of evidence that was, and were determined not to acknowledge it was you. You maintained that position throughout the trial.
20
You now admit that the person in the CCTV was you. You claim that Mr Protoulis came home in a very agitated state and that it was Mr Protoulis who picked up the knife and threatened to kill himself. You say that at one point he put it down and you took it outside to have a cigarette, thinking Mr Protoulis would calm down. You say you decided to go stay elsewhere, so you put the knife back down in the kitchen, told Mr Protoulis not to do anything stupid, and left. You say you did not mention that to police when you were arrested because you only remembered it on your way to prison after you were interviewed.
21
Implicit in that account is a suggestion that Mr Protoulis killed himself. However, the knife was never located at the house, and, in my view, the evidence at the scene was utterly inconsistent with that scenario.
Victim Impact Statement
22
I have a victim impact statement from Harry Protoulis, one of Peter Protoulis’ brothers. Mr Protoulis says Peter was a kind hearted person who was loving and who would never hurt anyone. His death and the manner of his death has taken a significant toll on his entire family. Harry is traumatised and is having difficulties dealing with his loss and grief. He says that his mother has not slept properly since Peter died. She cries every night and her devastation has made her unwell and unable to socialise. Harry’s brother Nick feels guilty that he took Peter to stay with you, and his relationship with your sister makes things even more difficult.
Personal circumstances
23
You are 29 years old, having been born in Perth on Christmas Day 1995. Your mother has, in the past, reported an uncomplicated pregnancy and birth and said that you reached developmental milestones within age appropriate limits.
24
Your parents separated when you were very young, and your father was not around when you were a child, although you have met him as an adult.
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25
Your mother remarried when you were about 8 years old, and that union produced two sons. You have said that you had a strained relationship with your stepfather, who abused alcohol and was violent towards your mother, you and your half-brothers. He was also emotionally and verbally abusive towards you.
26
You have a good relationship with your mother and your family.
27
You do not recall your school years positively. You repeated year 3, and were suspended on occasion due to your behaviour. You also had trouble paying attention and learning, and said you were in special education classes. You left school in year 11. You said you do not need help to do written tests.
28
You have completed Certificates in Building and Construction and Warehousing Operations and have had some casual employment on occasion.
29
You started using alcohol and cannabis in years 8 and 9, and methylamphetamine at the age of 14 or 15. You have given inconsistent histories of your drug use, particularly in relation to methylamphetamine.
30
At one point in January 2023, you are said to have admitted using methylamphetamine on the date of the offence, but there is no independent evidence of that. You told Dr Cabeleira that you had been engaging in binge drinking in the lead up to this offence, as well as smoking cannabis and using methylamphetamine.
Mental health
31
As to your mental health, you told Dr van Hattem that you have previously been admitted to a psychiatric ward with what you thought was methylamphetamine related psychosis. You were prescribed olanzapine but stopped taking it after you were discharged, thinking you did not need it. Dr van Hattem noted that you had presented to Royal Perth Hospital Emergency Department with ‘drug induced psychosis’ which resolved over the course of three days without treatment.
32
You were also taken to Royal Perth Hospital in January 2022 claiming you had been poisoned. You refused antipsychotic medication and were therefore given injections of an antipsychotic and a sedative. You still had persistent paranoia the next day, and engaged
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reluctantly in a psychiatric assessment. You said your belief arose in
the context of methylamphetamine and cannabis use. You were told you were vulnerable to psychosis when using methylamphetamine, but you said you enjoyed using it and saw no reason to stop. You were discharged shortly afterwards.
33
You were also reportedly admitted to hospital for periods in July and August 2022, although it is not clear why.
34
It seems you have been registered with the National Disability Insurance Agency since April 2022. I am now informed that in February of this year a Guardianship Order was made in relation to you on the basis that you were incapable of managing your own affairs.
Criminal history
35
You have a relatively substantial criminal history. Your first contact with the criminal justice system was when you were 12 years old. As an adult, you have been convicted of drug offences relating to both cannabis and methylamphetamine, driving without a licence, making threats, possession of a controlled weapon and being armed in a way which may cause fear, stealing, obstructing public officers and trespass.
36
The offence of making threats was committed in 2019, towards your mother’s former partner, who had allowed you to live with him. You engaged in bizarre and paranoid behaviour and, while holding a metal pole in each hand, threatened the victim, who had to lock himself in the bathroom and call police. When arrested, you had a replica automatic firearm on your person.
37
A little over a year later, you were in the car park of BWS Dianella, in possession of a gel blaster imitation assault rifle, pointing it at parked cars and people driving past.
38
You have also been convicted of breaching a community based order, breaching a police order, failing to obey an order given by a police officer, breaching a violence restraining order, breaching a conditional release order and breach of bail, indicating that you have some difficulty complying with orders of the court.
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Reports
Neuropsychology report Dr Wolff 10 June 2024
39
I have been provided with a neuropsychology report of Dr Brittany Wolff dated 10 June 2024, which was obtained for the purposes of determining the admissibility of your records of interview.
40
Ms Wolff had access to a previous neuropsychological assessment from 2021. She noted that that assessment revealed your general intellectual functioning was in the extremely low range, and your attention span and working memory were generally in the very low range. Your comprehension was extremely low, and your executive functions were borderline to extremely low.
41
In interview, Ms Wolff observed that your expressive language was objectively impaired, and were only able to produce yes or no responses to most questions, except superficially. She formed the view that you present as having cognitive and language impairment. While you say you are able to independently perform daily living tasks, there are some doubts about this and you could not describe how you do them. You have deficits in processing speed, learning and memory and receptive and expressive language. Your response style was well below your chronological age. She considered you to be highly susceptible to confabulation, acquiescence and suggestibility, and that you are socially and emotionally vulnerable.
Neuropsychological report Dr Cindy Cabeleira dated 4 February 2025
42
Dr Cabeleira saw you on 3 January 2025. She found you to be a vague and unreliable historian, who provided information which contradicted information you have given on other occasions. She observed you to be distracted, and frequently mumbling under your breath, laughing suddenly at times, and apparently responding to unseen visual and/or auditory hallucinations. However, when she asked you about that, you denied it. You claimed to have been taking olanzapine for the previous three months.
43
Dr Cabeleira tried to conduct some cognitive testing with you, but had to discontinue it because you demonstrated poor effort and quickly became verbally and physically inappropriate. She relied in large part on a previous report which she prepared in relation to you in April 2021. However, it is to be noted that that report was also limited
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by your non
-attendance at one of the interview sessions and the fact that your mother could not be contacted for information.
44
In the 2021 report, Dr Cabeleira reported that you acknowledged longstanding issues with attention and concentration, which had worsened in recent years, and a slowing of thought processes and trouble with short-term memory. You said you had difficulties with reading, writing, planning and organisation.
45
On the Wechsler Adult Intelligence Scale – Fourth Edition, your overall level of general intellectual functioning fell in the Extremely Low range, as did your Verbal Comprehension Index and Working Memory Index. Your Perceptual Reasoning and Proceeding Speed indices were in the Borderline range. Your auditory attention span was poor and your performances in the subtests suggested impaired auditory working memory. Your language skills were impaired in a number of ways, as were your complex visual processing skills and nonverbal reasoning. To the extent that they could be tested, weakness was demonstrated across most executive functioning tasks.
46
In 2024, Dr Cabeleira noted that while you said you were able to perform daily tasks independently, you did have significant assistance from your mother and sister in performing many of those tasks.
47
Dr Cabeleira considered that the results of the testing during your previous assessment were indicative of an intellectual disability, and that you will continue to have severe and global cognitive impairment. Further, your level of cognitive functioning will likely be further impaired by probable symptoms of psychosis.
48
In Dr Cabeleira’s view, it would not be unexpected for your poor language skills and impaired abstract reasoning, problem-solving and consequential thinking to have contributed to your offending. Those factors may also be relevant to your risk of reoffending, as are your apparently escalating predatory and inappropriate sexual behaviour towards women, anti-social peer influences, your exposure to violence as a child and childhood trauma, a history of behavioural issues and poor emotional regulation and frustration tolerance, your history of polysubstance abuse, a degree of moral disengagement, a history of some violent offending, and lack of stability in your lifestyle.
49
Substance abuse counselling and psychological counselling were recommended, with further recommendations around disability support and employment support.
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Psychiatric report Dr van Hattem 27 January 2025
50
You were then assessed by video link by Dr van Hattem on 7 January 2025. He noted no obvious deficits in your self-care, and, to him, you did not demonstrate any behavioural abnormalities. You presented as cheerful, but described yourself as being ‘really depressed’.
51
Dr van Hattem had access to a 2015 psychological report, which reported that you had been found to score in the ‘low intelligence’ range, that is 3% of people your age would perform equally or less well than you on the testing measure used. A measure of personality factors found you had elevated scores in domains related to having ‘acted out in rebellious, impulsive and antisocial ways for self-gain and that you attempt to justify your behaviour as being the result of unjust or unfair treatment’ and to having a dependence on alcohol and drugs.
52
Dr van Hattem also had regard to a 2021 neuropsychological report, in which you were found to have a low level of intellectual functioning, with results strongly indicative of an intellectual disability. You had significant impairments in your auditory working memory, language skills and most of your executive function, as well as mild to moderate deficits in your attention capacity, non-verbal visuospatial skills and learning and memory functions. He also noted it was recommended that you take part in a substance abuse program.
53
Dr Van Hattem says you were seen by a mental health nurse in prison six days after you were arrested. Your mood was said to be stable and your demeanour congruent. You denied having perceptual disturbances or any symptoms of substance withdrawal. A few days later, you disclosed non-specific thoughts of self-harm. You were again assessed, with no level of psychosis observed.
54
Over 2024, your behaviour started to become increasingly erratic, and you were observed to behave in a sexually inappropriate manner towards mental health workers, to walk around masturbating, to have a fixed stare, and to become agitated when asked about your mental health. Officers described you as being ‘volatile and odd’ and talking to yourself, but there was no support for this in a supervision log. You denied having any psychotic symptoms and declined to take antipsychotics.
55
In July 2024, a psychiatrist found no clinical indication for antipsychotic medications, but on 13 September 2024, that same psychiatrist was of the view that there was a probable evolution of
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psychotic illness from drug use. She prescribed an antipsychotic but
you refused to take the depot injections. You did take tablets, although perhaps inconsistently.
56
You were further assessed by a different psychiatrist on 19 November 2024, who suggested that you might enjoy hearing voices, which you did not deny. That psychiatrist assessed you as having a chronic psychotic mental illness.
57
On four occasions since you have been in custody, you have presented with facial injuries, which you claim resulted from you falling down. I am now told that you have given instructions to your counsel that they relate to assaults in custody.
58
According to Dr van Hattem, you have been refusing to take antipsychotics and they have not been prescribed for you since Christmas of last year.
59
Dr van Hattem considers the most appropriate diagnostic label to be applied in your case is Disorder of Intellectual Development, and that you have suffered from several episodes of Stimulant Induced Psychotic Disorder. Your intellectual disability makes it difficult to interpret your mental state, and to attribute your behavioural abnormalities to either one of those disorders, but Dr van Hattem considers that a diagnosis of chronic psychotic condition is not well supported.
60
In Dr van Hattem’s view, you may also have a personality disorder, although again it is difficult to separate what features are attributable to your personality as opposed to your intellectual disability. Your personality traits fall into the dissocial category, the core feature of which is disregard for the rights and feelings of others.
61
Dr van Hattem conducted a risk assessment and considered you have a high baseline level of violence risk which will require a high level of service provision to manage. In his view, the imminence of potential violence is moderate, and there is a high potential for future violence to be severe.
62
Dr van Hattem said that your poor adaptive functioning and limited capacity to regulate your emotions could have increased your risk of an impulsive violent act during a disagreement. Likewise, if you were intoxicated with methylamphetamine, you would have had an increased risk of violence.
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63
You dispute some aspects of the reports I have referred to, in particular that you told anyone you injected methylamphetamine on the date of the murder, or as to allegations that you engaged in sexually inappropriate conduct towards others. I will deal with the issue of methylamphetamine use shortly. As for the alleged inappropriate conduct, you engaged in such conduct repeatedly during your trial, and I am satisfied that you have engaged in such conduct from time to time.
64
I do not accept that it is your intellectual disability that causes you to deny such matters. In my view, your personality type is more likely to be the explanation for your lies – that you simply do not want to be responsible for your conduct. However, your disability might explain why you think you can get away with those lies, in the face of such overwhelming evidence to the contrary.
Seriousness of the offence
65
The maximum penalty for the offence of murder is life imprisonment, indicating the very high value Parliament and the community places on human life.
66
I am required to sentence you to a term of life imprisonment, unless it is unjust to do so.
Circumstances of the offence
67
The offence is a very serious example of murder, even in the absence of a finding of an intention to kill. You stabbed a defenceless man, with some degree of planning. He had no warning of your attack. There is no apparent motive, and even if you did have a reason for the attack, your response was a completely disproportionate reaction to anything which could have happened.
Aggravating factors
68
The offence is aggravated by:
(a) your use of a large knife as a weapon;
(b) the degree of planning, albeit relatively short in duration;
(c) the fact that Mr Protoulis was unarmed and vulnerable due to his position;
(d) you attacked without warning to Mr Protoulis, giving him no opportunity to defend himself; and
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(e) having committed the murder, you ran away, leaving Mr Protoulis to die alone, without any regard for his life.
Mitigating factors
Cooperation with authorities
69
You had a trial in this matter, and you continue to deny the offending. That is not aggravating, but you are not able to avail yourself of the mitigation that a plea of guilty would bring.
70
You did, however, make a number of admissions, and did not take issue with a number of other matters, which contributed to the smooth and efficient running of the trial. In doing do, the community was not required to use as many resources at your trial as they otherwise would have, and you are to be credited for that.
Mental health
71
I have summarised the various reports which have been produced to me already. I am satisfied from their combination that you have a significant intellectual disability, which impacts on your executive and cognitive functioning, and you have deficits in reasoning, problem solving, language and consequential thinking. You also have poor emotional regulation, and poor adaptive functioning.
72
However, you also have significant substance use problems which adversely impact on your mental health. You are aware, from a number of prior episodes, that you are vulnerable to drug induced psychosis. You have been told as much by medical professionals, but you have resisted getting treatment. There is evidence, although based on inconsistent histories provided by you, that you were taking drugs in the lead up to, and even on the day of, the offence.
73
Ultimately, while there is insufficient evidence to establish that you were under the acute influence of methylamphetamine at the time of the offence, I am not satisfied that your mental health was not being impacted by drug use at that time. In short, I do not accept that the issues you were having with your mental well-being at the time of the offence were entirely attributable to your intellectual impairment.
74
I am satisfied that, having regard to that intellectual impairment, you were ill equipped to deal with matters which frustrated you in your daily life, and that this increased the risk of you lashing out in a violent manner. The same is true of the impact of substance use.
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75
On the evidence available to me, I am unable to find that your intellectual impairment has a causal relationship with your offending, having regard to the involvement of drug use and your susceptibility to drug induced psychosis. The impairment does, however, provide a partial explanation for what I have found must have at least been a gross over-reaction to some perceived slight.
76
I have a reference from the Hakea Prison chaplain, who has come to know you over a period of time. He describes you as demonstrating a good memory and engagement with him, but notes that more recently you have shown a decline in focus and have seemed disconnected from the conversation, talking to yourself at times. He also notes that at times you have seemed distressed or withdrawn and expresses concern for your mental health and hopes that you will continue to be assessed in custody.
77
I am also satisfied that, as a result of your intellectual impairment, you are more vulnerable in custody than a person without your impairment would be. In those circumstances, I will impose a lower non-parole period than I would have otherwise.
References
78
I have received references from your mother, sister, aunt and godfather. They all speak highly of you, and refer to your quiet, considerate nature, your kindness and your love of family. Your mother and aunt say that your intellectual disability makes it easy for people to have a poor influence on you and believe that you have been misled and taken advantage of by others. Your family all believe that you were mentally unwell at the time of the trial, and are very concerned for your mental well-being in custody. Only your mother mentions your substance use, and even then only obliquely. They all continue to strongly support you.
Remorse
79
You continue to deny any involvement in your offending. The fact that your family, or at least some of them, also do not accept your guilt no doubt assists you to maintain that denial. You are not to be punished for having a trial, or for maintaining your denial now. However, it means that I am unable to find any remorse.
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Antecedents
80
I also take into account that your childhood was marred by violence from your stepfather towards you and your mother and siblings. That has clearly left its mark on you and modelled violence for you, at least to some extent.
81
Your criminal history does you no credit. You are not of prior good character. Your offending in 2019, when you attacked your former stepfather has features which potentially were very similar to this offending, in the sense that you were behaving bizarrely and in a paranoid manner and armed yourself in such a way as to make him fear for his safety and call the police.
Prospects of rehabilitation
82
You have resisted treatment for your mental health issues and your substance abuse problem. You often refuse to be medicated for psychotic symptoms, and continue to abuse substances knowing that they make you vulnerable to further such episodes, or the continuation of them. The experts appear to have gained the impression that you enjoy some of the aspects of your psychosis.
83
You are also resistant to testing in relation to your intellectual impairment, and often fail to attend sessions or cooperate with assessments. While this may in some respects be a by-product of your intellectual impairment, it may also be a by-product of dissocial personality issues you appear to have. There is also some evidence that your family may be excusing your conduct on the basis of your intellectual impairment, instead of honestly confronting the fact that some of your issues may well arise from your substance use and personality issues.
84
You have been assessed as being a high risk of future violence, an assessment which I accept. In the circumstances, on the face of it, your prospects of rehabilitation at this stage must be considered to be very poor.
85
However, I have received a reference on your behalf from your Specialist Support Coordinator, Dr Madan, who has spoken well of you, describing you as respectful and cooperative, and willing to engage despite the many challenges you face. He says you show a genuine desire to improve your relationships and social connections, and that you are passionate about physical activity, music and keeping
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connected with your family, which is vital for your well
-being. In addition, he says you display resilience and a desire to develop skills which will help you be more independent.
86
Dr Madan says you have consistently demonstrated that, when supplied with appropriate support and understanding of your needs, you can make positive progress, and have started to do so. He is of the view that you will continue to make progress with appropriate support.
87
Dr Madan’s letter suggests that your prospects of rehabilitation may not be as poor as they otherwise appear. I am prepared to accept that appropriate support over an extended period, which you clearly require, has the potential for positive results in your future, and I will sentence you accordingly.
General and specific deterrence
88
The purposes of sentencing include to deter others from committing similar offences, and to deter you from doing so in the future. In my view, your intellectual impairment means it is less appropriate to use your case to deter others, so I will greatly moderate the weight I give to general deterrence.
89
In relation to specific deterrence, I do consider you are capable of understanding that you must not engage in violent conduct, and that if you do you will be punished. While you have impaired consequential thinking, you are not completely deprived of it. Accordingly, your sentence will include weight being given to personal deterrence.
Life imprisonment
90
Ultimately, I am not satisfied on the basis of the evidence before me that it would be clearly unjust to impose a sentence of life imprisonment. I am also not satisfied that you are unlikely to be a threat to the safety of the community when ultimately you are released from imprisonment.
91
In those circumstances, I am obliged to sentence you to a term of life imprisonment and I do so.
Comparable cases
92
I have reviewed appellate cases which have considered sentences for murder since 2014. Few are truly comparable to this case, and no two cases are exactly alike. Comparable cases do not establish a fixed
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range or tariff, but do provide guidance for sentencing and I have taken
them into account in that way.
Sentence
93
In my view, the appropriate sentence to be imposed in this case is one of life imprisonment.
94
I am then required to reconsider all of the matters that I have already dealt with in determining the appropriate non-parole period to be applied to your sentence.
95
I have again taken into account your personal circumstances, the aggravating and mitigating features that I have dealt with, and the aims of sentencing. I have taken into account your prospects of rehabilitation and all of the other matters to which I have referred, in particular, your intellectual impairment and the apparent mental health issues that you suffer and are likely to continue to suffer for some time.
96
In my view, the appropriate sentence to be imposed in this case is one of life imprisonment with a minimum term of 16 years.
97
Your sentence will be backdated to 15 January 2023 to account for the time you have spent in custody.