R v Jeffrey GILHAM [2009] NSWSC 138 (11 March 2009)

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R v Jeffrey GILHAM [2009] NSWSC 138 (11 March 2009)

Last Updated: 12 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Jeffrey GILHAM [2009] NSWSC 138


JURISDICTION:


FILE NUMBER(S):
2006/2766

HEARING DATE(S):
13/02/2009

JUDGMENT DATE:
11 March 2009

PARTIES:
Regina v Jeffrey Gilham

JUDGMENT OF:
Howie J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Crown: M Cunneen SC/K Shead
Offender: P Boulten SC/P Bodisco

SOLICITORS:
Crown: S Kavanagh
Offender: Murphy's Lawyers Inc


CATCHWORDS:
Criminal Law - sentence - murder of parents 15 years ago.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 - s 61

CATEGORY:
Principal judgment

CASES CITED:
Knight v R [2006] NSWCCA 292
Gonzales vR [2007] NSWCCA 321
R v Twala (NSWCCA, unreported 3 November 1994)

TEXTS CITED:


DECISION:
The offender is sentenced to life imprisonment on each of the charges of murder.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

HOWIE J

WEDNESDAY 11 MARCH 2009

2006/2766 REGINA v JEFFREY GILHAM

REMARKS ON SENTENCE

1 HIS HONOUR: The offender is to be sentenced for the murder of his parents in their home on 28 August 1993 after a jury convicted him of these offences on 28 November 2008. The facts surrounding these killings, the death of the offender’s brother on the same evening and the history of the prosecution of these offences are truly extraordinary. In April 1995 Mr Justice Abadee described the events surrounding the killings as “a remarkable human drama”. That drama has continued to the present day.

2 At the outset it is important to bear in mind that the offender is being sentenced for the murder of his parents. It is obvious now that both the investigating police and the prosecutor were duped at the time that the offender was dealt with for the manslaughter of his brother. But that event has passed into history and has only limited relevance, as I shall explain later. Of course it is impossible to consider the penalty for the killing of his parents without considerable reference to the death of his brother, but I am not punishing the offender for that killing. Nor am I in any way vindicating his brother who for 15 years was falsely accused of murdering his parents. I do not accept the prosecutor’s submission that the objective seriousness of the killing of his parents was aggravated by the fact that the offender falsely blamed the killings on his brother.

3 At the time of the killings the offender lived with his parents, who were in their 50’s, and his elder brother in the family home in Woronora. The brother, Christopher, was aged 25 years and the offender 23. The family was highly respected in the community. Both sons, and in particular the offender, were seen as role models to those who knew the family as friends or neighbours because of their scholastic achievements, their general exemplary behaviour and character, and their loving relationship with their parents.

4 The offender in particular was admired. He was a good looking, strongly built young man who had marked success as a yachtsman. He was gregarious and popular not only within his own large circle of friends but with acquaintances of his parents and neighbours. He was apparently the favoured son, at least of his father. Christopher, however, was more withdrawn and sensitive, yet was not without his own friends arising mainly from his interest in fencing. He did not have the striking appearance of his brother and was troubled with difficulties in his eyesight. He spent much of his time in the family home using the computer.

5 In the early hours of the morning of 28 August, the offender’s parents and brother were savagely stabbed to death and the house set on fire. At about 4.30am the offender came to a neighbour’s home raising the alarm. He was dressed only in a pair of shorts and appeared to be in a highly distressed and emotional state. He said that his brother had killed his parents and set them on fire. He admitted to having stabbed his brother to death. The neighbour called emergency services. The offender in a halting and distracted manner told the operator what had happened. So apparently deranged was the offender’s state of mind and so frantic was he to assist his parents at the time, that at one stage he took hold of a small kitchen fire extinguisher and had to be restrained from running outside to fight the fire. He then lay on the floor in a foetal position hugging a jumper that had been brought to him.

6 Eventually he went out to where the fire brigade were in attendance but had to be taken away from the house in order to stop him trying to enter the building. He even tried to prevent a fireman going toward the house because he claimed there was a murderer inside. He appeared to be in a highly distressed and confused state and was comforted by neighbours until the police arrived.

7 When firemen were able to enter the premises they found the charred remains of the offender’s father facedown in the bedroom. An axe was near the bed. The body of the mother, also heavily burnt, was in the lounge room lying on her back. Downstairs near his bedroom was the body of Christopher unaffected by fire. He was lying on his back clothed in a short shave coat with a filleting knife propped against his body near his left hand. He had multiple stab wounds to his torso in the chest area.

8 The offender was taken to the police station and interviewed by investigators. There dressed only in shorts with a blanket around his shoulders the offender gave the following account almost in a whisper. He slept in a boathouse separate from the main residence. He was asleep when he heard screams from his mother over the intercom next to his bed that was connected to the lounge room of the main house. He got up put on a pair of shorts and ran up the path to the house entering through the open glass sliding door into the dining area. There he saw his brother standing over the body of his mother and about to set her on fire. His brother said that he had killed his parents and then he lit his mother’s body.

9 The offender walked to where his mother lay and stood there for some seconds watching the fire spread. He did not try to assist either of his parents nor did he attempt to put out the fire. Rather he walked over to where his brother had dropped the knife and picked it up. His brother, ignoring escape from the house through the open glass door some feet away from him, ran down the narrow spiral staircase that led to the lower storey of the house where he was effectively trapped. The offender caught him and stabbed him to death. He then came up the spiral stairs, notwithstanding that the fire was now raging above him and despite the fact that he could have left by a closed but unlocked door in the downstairs room. He left the house, closing the sliding door behind him, and went to the neighbour’s house.

10 The offender was charged with the murder of his brother, and later voluntarily went with police to the premises for the purpose of showing them what had occurred. This was video-recorded. The offender appears to be in complete control of his faculties and shows no signs of distress or agitation as he explained his version of what had taken place. During the course of the walk around the site, police pointed out to the offender that a piece had been cut from the middle of a garden hose that was connected at one end to the outside faucet with the other end under a boat on a trailer in the carport. They also indicated the cut portion of the hose near an open jerry can in which was a small amount of petrol. The offender explained that he and his father had used the hose the night before to get petrol for a boat but it was the wrong type of petrol.

11 The original police investigating the incident never charged the offender with the murder of his parents. He spent one month in custody in respect of the murder of his brother before being released to bail. It was a condition of his bail that he live with a neighbour who had supported him since his arrest and still supports him some 15 years later.

12 On 5 April 1995 the offender appeared before Mr Justice Abadee for the murder of his brother. The Crown accepted a plea of guilty to manslaughter in full discharge of the indictment. There was a statement of facts tendered that described the offender’s account of the killing as “feasible” and conceded that it could not be refuted by the investigation that had taken place. A large number of persons either gave evidence on the offender’s behalf or provided testimonials in his support. A number of those witnesses, including some of his maternal aunts, gave character evidence before the jury in his recent trials. At the time of his sentencing it was said that the whole family was behind him. The offender was placed on a good behaviour bond for a period of 5 years.

13 A coronial hearing later that year concluded that Christopher had killed his parents.

14 There the matter remained until members of the family on the father’s side had cause to withdraw their support for the offender. The reasons for that falling out are not before me in evidence and are in any event irrelevant. However, the offender’s paternal uncles came to the belief that he, and not Christopher, had killed his parents. As a result a further investigation took place and the Coroner once more reviewed the matter. In April 2000 the Coroner referred the papers to the Director of Public Prosecutions so that he could consider proceeding against the offender. The Director decided to take no further action.

15 In May 2001 one of the offender’s uncles commenced a private prosecution against him for two charges of murder. However, the Director took the over the prosecutions and terminated them. Despite agitation by the uncle, the Attorney General indicated he would not intervene in the matter.

16 In 2004 there was an inquiry into the earlier investigations and in October that year a re-investigation of the death of the parents commenced. As a result a brief of evidence was sent to the Director and on 21 February 2006 an ex-officio indictment was filed in this Court charging the offender with the murder of his parents.

17 The offender sought a stay of the indictment on the grounds that the trial would be oppressive, unfair or in breach of the rule against double jeopardy. On 21 March 2007 that application was refused. An appeal against that decision was dismissed on 26 November 2007 and special leave to appeal was refused by the High Court on 8 February 2008.

18 On 11 February 2008 a jury was empanelled to hear the trial but they were discharged on 10 April when unable to agree upon a verdict. The second trial of the offender commenced on 13 October 2008. The jury found the offender guilty of both counts of murder after deliberating for 8 days. The offender was thereafter remanded in custody where he has remained. He is on protection as a result of an assault upon him by another prisoner.

19 Mr Boulten SC, who has tirelessly appeared for the offender throughout the proceedings in this Court, conceded at the outset of the sentencing hearing that the real question to be determined was whether the offender should be sentenced to life imprisonment. That is the sentence that the Crown submits is the appropriate one in accordance with what is now s 61 of the Crimes (Sentencing Procedure) Act 1999. That section is relevantly as follows:

61 Mandatory life sentences for certain offences

(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

20 It was accepted by the parties that this section applies notwithstanding that the murders for which the offender is being sentenced occurred before the enactment of that provision. In any event that section generally reproduces the approach at common law. As the hearing proceeded, it became apparent that the real issue is whether the offender’s conduct in killing his parents was so heinous that the section should apply notwithstanding that the Court could not conclude that the offender was presently, or in the future, a danger to society such that community protection was a relevant consideration.

21 Although the Crown submitted that the Court should find that the offender was a potential danger, that argument was based upon an inference to be drawn from what the Crown said was the planned and horrific nature of the killings. In effect the argument was that, if the offender could decide to kill his parents in the way that he did and for whatever reason that he did, there must be a concern that he would act in the same way again if he saw the need to do so.

22 Yet the effect of the psychiatric evidence is that the offender does not manifest the traits of a person who has a psychopathic personality or any other personality disorder. In brief it is the opinion of the psychiatrists that a person with a severe personality disorder could not have formed and maintained the social relationships that the offender achieved both before and after the killing of his family. The offender has lived for the years since the killings as a happily married father of three children, until recently a well-respected, trusted and valued employee of the Roads and Traffic Authority and a socially engaging man with a large number of friends many of whom have remained loyal to him since his parents were killed. Dr Roberts commented upon the large number of persons who attended bail and other proceedings in respect of the killing of his brother in order to support the offender.

23 Dr Roberts had seen the offender in 1995 as a result of a condition imposed under the bond that the offender entered into under the sentence imposed upon him for the manslaughter of his brother. There was at that time no psychiatric or psychological condition apparent that needed to be addressed by any treatment that could be offered by Dr Roberts. The attendance by the offender on him under the terms of the bond became an empty formality. Neither Dr Roberts nor Dr Westmore could find that the offender presently suffered any mental disorder or psychiatric condition that needed treatment. Both psychiatrists are of the view that the risk of further offending of a violent nature is minimal. They both point to the fact that this was one occasion of violence, although of an extreme nature, that occurred in the offender’s life and, whatever be its cause, was specific to the circumstances that existed in 1993.

24 On no standard of proof could I find that the offender presents as a danger to the community or will do so in the foreseeable future. In any event, even if he were not sentenced to life imprisonment, the sentence must be of such a length that he will be well into the later part of his middle age before he is eligible for release to parole. I am unable to see how a set of circumstances might arise after his release that could result in such terrible and calculated violence as he showed on the night when he killed his parents.

25 But a finding that the offender is not a future danger to the community does not deny the operation of s 61 nor prohibit the imposition of a life imprisonment: Knight v R [2006] NSWCCA 292. The facts of the matter might still present an offence of such extreme culpability that the community’s need for retribution and punishment can only be met by a life sentence. Therefore, it is necessary for the Court to make findings as to the circumstances surrounding the murder particularly as the offender’s account to police and his evidence at the trial was contrary to the jury’s verdicts.

26 A matter that loomed large during the course of the hearing and is crucial to a determination of the culpability of the killings is the question of whether they were planned to any significant extent. It was the Crown’s case during the trial that the offender had been intending for some weeks prior to the killings to murder his parents. On the other hand the defence argued that the killings were frenzied attacks by a person deranged as a result of some spur of the moment emotional or psychiatric disturbance. It was put to the jury that this was more likely to be the work of Christopher than the offender.

27 I accept that, before I could use as an aggravating factor that these killings were planned to any significant degree, I must be satisfied of that fact beyond reasonable doubt. But I could only come to that finding on the basis of the surrounding circumstances and it is not necessary that I find each of those circumstances proved beyond reasonable doubt. For the following reasons I am satisfied to the criminal standard that the offender planned to kill his parents well before the evening of 28 August 1993 and that a significant part of that plan was that he would also kill his brother and blame him for the death of the parents.

28 I accept that on its face it is an outrageous proposition that a young man could, for whatever reason, embark upon a plan to kill his family and as part of that scheme admit to killing his brother under the effects of provocation. Such a plan must have envisaged an almost immediate admission to stabbing his brother to death and preparedness to accept the consequences of that admission whatever they might be. It is difficult to believe that the offender could have thought that he would escape any significant punishment for that killing even though this is in fact what occurred. This was a very powerful argument advanced by the defence at the trial to raise a doubt about the offender’s guilt. But once it is accepted that the offender did murder his parents, there is no other possible alternative arising from the facts, most of which were undisputed, than that this was indeed his plan however improbable and audacious it might seem.

29 Fundamental to the defence case at trial was the drawing of a comparison between the offender and his brother to the detriment of the brother and, as a result of that comparison, to ask the jury to consider who was more likely to kill the parents. Therefore, the defence painted Christopher as a troubled young man, unlucky in love and employment, socially inept and the cause of storm clouds in the otherwise sunny existence of the members of this family. His enjoyment and hopes in life were said to be diminishing as much as those of his brother were blossoming. Much of that argument was in my opinion an exaggeration of the true position.

30 There is no doubt that for a time some weeks before the killings Christopher had been reluctant about continuing his training as a teacher and this had caused some tension in the family because his father believed that he should persist. His mother did not hide the fact that this was worrying her and sought to have people talk to Christopher and try to encourage him. But it was not I believe the crisis that it was depicted to be in the trial. In any event any friction that there was between Christopher and his father had evaporated well before the night of their deaths. According to what the mother told her brother about a month before her death, the situation had resolved itself and Christopher had determined to continue with his teaching. Certainly when his former girlfriend saw Christopher shortly before his death she understood he was looking forward to becoming a teacher and perhaps moving to the country.

31 More significantly I reject any suggestion that Christopher had been aggressive to his father and had been assaulting him in the weeks leading up to the killings. Such behaviour was in my opinion completely foreign to his character as described by those who knew him best and are still alive, particularly his former girlfriend who still spoke of him with a genuine affection. He was described as a gentle person without the slightest suggestion of hostility in his character to anyone or about anything. The only suggestion that Christopher was ever aggressive to anyone, let alone his father, came from the offender. I do not believe that either of his parents would have put up with such behaviour. Yet the offender, on his account stood by while this aggressive conduct towards his father took place without once intervening or even attempting to find out what the conflict was about. The offender told police he thought the arguments were about money. He also told Mr Nolan that he thought the trouble was about money and that Christopher wanted a motor vehicle. But this was nonsense as his brother had more money than the offender. He rarely drove the family vehicle even when he could have done so. Everyone knew that Christopher would not drive at night because both he and his mother believed that it was dangerous for him to do so as a result of impairment to his vision.

32 Further the offender on the very afternoon before the killings told his friend Mr Nolan that he had to get home because he was concerned about what might happen when his father returned from playing golf and was confronted by his brother. Later that evening, when seeing his girlfriend off the property, the offender said to her:

“What am I going to do about my brother? It’s pretty serious, Hayley. I’ve never seen him so psycho. He’s pushing my father around. I don’t know what to do.”

In my opinion this was not a case of the offender having some sort of premonition of the dreadful events of the next morning, but rather he was confirming the groundwork for the story that he had invented to explain the killing of his parents and his brother.

33 This invention had in fact commenced some weeks earlier when the offender first started expressing his concerns about Christopher’s behaviour to Mr Nolan and his girlfriend, the persons chosen by him to support the truly wicked deception that his brother was to become a homicidal maniac. I believe that the telephone conversation that his girlfriend related in which the offender is describing Christopher’s behaviour about three weeks before the killing was a complete fabrication by him. Anyone who hears the account of that conversation knowing that the offender was in fact the person who killed his parents and falsely blamed his brother could not have any doubt that it was part of a plan to give authenticity to his later account of the killings.

34 There is no reasonable possibility that the killings were a spur of the moment reaction to some unknown emotional or psychiatric disturbance that came upon the offender in the early hours of the morning of 28 August. I have no doubt that the Crown’s scenario placed before the jury contains the true account of what occurred. Having decided to kill his parents that evening, the offender met with Mr Nolan and expressed his concerns about his brother’s behaviour. He used the surprise visit of his girlfriend to carry the story forward. I think it highly likely that that at some stage he removed Christopher’s glasses to put him at a disadvantage. Shortly before the killings the offender undressed to avoid getting blood on his clothes. He left his clothing and shoes where he took them off in the lounge room. He obtained an axe and the knife. He first killed his father, then his mother and then Christopher. He lit the fire and waited for it to take hold. He closed the sliding door as he left the house in the belief that it would either help the fire’s spread or hide it from the neighbours. He more than likely washed himself before he went to the neighbours to raise the alarm and perform his extraordinary charade.

35 At some time that morning he attempted to siphon petrol from one of the motor vehicles in order to accelerate the fire. Being unable to do so successfully, he looked for some other means and found the mineral turpentine. It does not matter whether this took place before or after the killings, as it is inconsistent with the offender having killed his parents in some maniacal episode.

36 He also at some time that evening placed the items found in the clothesbasket in the downstairs bathroom. These were a syringe filled with Panadol paste and the objects used to prepare that paste. I told the jury that they should ignore that evidence as it was inexplicable and could not indicate who might have been the killer of the parents. But once it is accepted that the offender was that person, there is no reasonable possibility that his brother prepared those objects. I believe that this was part of the scenario manufactured by the offender to paint Christopher as deranged. I also believe that this explains the frenzied nature of the killings of the parents.

37 The offender is a consummate liar and a brilliant actor. He even managed a few tears for his parents when giving evidence in the first trial. Yet one of his lies eventually helped to bring him undone. His explanation about the cut hose and siphoning petrol was patently untrue even without the evidence given by a fireman of the offender smelling of petrol at the time of the fire. The suggestion that his father would have been a party to siphoning petrol in the late hours of the evening before his death was absurd.

38 But the offender so believed in his powers of deception that there was a cocky arrogance in his manner especially during the second trial. This was particularly apparent when he was giving evidence and tried to joust with the prosecutor. It is borne out by the fact that, as he told Dr Westmore, he never contemplated being convicted. He apparently believes the jury acted on suspicion rather than the evidence. This is self-deception because on any view there was ample evidence to support the jury’s verdicts.

39 Therefore the offender is to be sentenced on the basis that he conceived a plan to kill his parents some weeks before the event and set about constructing evidence to hide his guilt. The plan involved the death of his brother in circumstances in which Christopher would be blamed for the killings and the offender would be pitied as a loving son who reacted in an extraordinary fashion to the scene of horror that confronted him on entering the house. And it was an awful killing that he planned. He inflicted 29 knife wounds upon his father in taking his life. It may well be that the sounds Ms Shaw heard were the guttural death throes of his father. That is what she was trying to explain by likening it to the sound made by the person she had witnessed struck by lightening. The axe was at hand in case the knife failed.

40 Then the offender turned to his mother. She no doubt witnessed the killing of her husband. She was heard trying to reason with her killer but to no avail. She was stabbed 17 times and had the most horrible defence wounds so that she must have suffered in excruciating agony as she hopelessly tried to defend herself from her son. And then Chris was knifed to death with 17 stab wounds but I should say no more about his horrific death.

41 The Crown submitted that I should find that the offender murdered his parents in order to obtain their estate. There is no evidence before me to support that inference. The Crown sought to prove a motive of that kind at the first trial but ultimately it failed to do so to any degree of proof. It did not attempt to lead any evidence at the retrial to support that allegation and there was nothing placed before me at the sentencing hearing. I do not know what caused the offender to decide to kill his family. But there is no mitigation simply because there is no evidence of a motive that might be considered as a matter of aggravation. However, as I have already indicated, whatever the motive, this was not a decision made on the spur of the moment.

42 There is nothing in the offender’s personal circumstances that would mitigate the offences except for one matter relied upon by Mr Boulten. It was submitted that the delay of 15 years from the killings to the convictions is a matter that should be taken into account. Reliance is placed upon the course adopted by Mr Justice Barr in sentencing Gordon Wood. In that case there was a delay of about 10 years. His Honour took into account a period of 9 years in which the investigation languished and during which Mr Wood had set up a new life in England. Barr J concluded that the delay was due to the police investigation and not the fact that Mr Wood had initially told police that the deceased had committed suicide.

43 In the present case the initial police investigation of the killing of his parents was less than satisfactory. Notwithstanding that the investigating police expressed their incredulity with the version of the facts given by the offender in their interview with him, they appear to have quickly accepted that they could not prove its falsity. It is noteworthy that they never charged the offender with the murder of his parents.

44 The decision of the prosecutor to accept the plea to manslaughter in 1995 seems difficult to understand in light of the evidence placed before the jury in 2007 even though almost all of it was available in 1993. But that decision has to be seen in context. The whole of the offender’s extended family were supportive of him and convinced of his innocence at that time. There was in effect nobody to contradict the offender’s version that his brother was the killer of his parents. Delay, thereafter, was completely understandable as the Director stood by the decision made in 1995.

45 Therefore, unlike the position before Barr J, the delay in the prosecution was not due to police or prosecutor incompetence. The offender was so convincing in his behaviour and so unlikely to have killed his doting parents that initially he fooled everybody by his conduct and his extraordinary account of the events of the night. It can be easily understood that the police and prosecutor found it impossible to believe that he could have come up with such a plan to kill his family as has now been uncovered, so audacious, cunning and evil was it. In effect the offender succeeded in what he had set out to do, that is admit to the killing of his brother to mask the fact that he himself had killed his parents.

46 True it is that the delay has resulted in the offender rehabilitating himself. It will be the case that, because he leaves behind his wife and children, prison will be harder for him than it might have been had he been convicted of these offences in 1995 and been imprisoned as a young single man. But by his lies he was able to buy himself 15 years living as a happily married family man whereas had he been sentenced in 1995 for killing his parents that opportunity would never have arisen. Notwithstanding the attempts to bring him to justice made by his uncle, the offender never believed that he would be prosecuted let alone convicted of these offences and, therefore, he never lived with that threat hanging over him. In these circumstances I do not believe that delay or its consequences is a mitigating factor.

47 Although there have been cases of the murder of family members where life sentences have or have not been imposed depending upon particular facts, these cases each represent an exercise of discretion of a particular judge. They may disclose a range of sentences but they are not precedents to what a particular judge is to do in a particular case. They do not provide a guide as to when a life sentence should or should not be given. As was pointed out in Gonzales v R [2007] NSWCCA 321, there is no category of family or domestic murders. The decisions in the Court of Criminal Appeal are generally significant for the principles they lay down rather than the decision in a particular case.

48 In R v Twala (NSWCCA unreported 3 November 1994) the following was stated:

... in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)

Some question has arisen as to whether this is an overstatement but it demonstrates the severity of an offence before it can justify the maximum penalty. It is clear that for the purposes of s 61 the offence must be “greatly reprehensible and extremely wicked”.

49 Clearly the number of murders is a relevant fact in determining whether any one murder falls within the worst category, especially where the murders occur in close proximity and arise as part of a single planned enterprise. That, of course, is the case here. These were vicious murders. I am satisfied that the manner of carrying them out was designed to simulate the actions of a demented person such as the offender was portraying his brother to be, regardless of the terror and agony such a killing would impose on the victim. The crimes were in fact coldly calculated and planned over some weeks. There was no provocation and on all accounts the parents were loving of, and committed to, the offender. The reason he killed them will never be known but it was not because of some mental aberration or extraordinary passion arising that morning. Part of his plan was setting fire to the house in order to destroy evidence of his involvement in the killings.

50 In my judgment the offences were in the worst category. It is not simply because he killed his parents that these offences fall into the class of heinousness that brings them within s 61. This is notwithstanding that the community is repulsed by the thought that a child could kill loving and caring parents for some reason whether explained or not. It is also the callous and brutal nature of the killings and the audacity of his plan to murder them and escape discovery. The offender cannot rely upon any mental state that might diminish the seriousness of the conduct. Nor are there any subjective matters that mitigate the offence. The fact that he is in protective custody is not of particular significance given the nature of the custody. These offences are truly heinous and justify the most serious penalty that can be imposed notwithstanding that the offender does not present as a danger to the community and is probably unlikely to reoffend in the future.

51 I am fully aware that were the offender not sentenced to life imprisonment, any determinate sentence would be less than might have been imposed had the offences been committed close to the present time. Sentences for murder have increased significantly since 1995. But I do not believe that there was a pattern in 1995 of not giving life sentences for domestic murders.

52 The offender is sentenced to life imprisonment on each of the charges of murder.

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LAST UPDATED:
11 March 2009