Holdom v R

1. [1]

   N ADAMS CJ at CL: I agree with the orders proposed by Hamill J for the reasons provided. Even after taking into account the applicant’s pleas of guilty and his subjective case, it was open to his Honour to impose the sentences he did having regard to the extreme level of culpability in the commission of the offences.

2. [2]

   HAMILL J: In late 2008, Daniel James Holdom murdered Karlie Jade Pearce-Stevenson and her daughter Khandalyce Kiara Pearce in horrific circumstances. There were sexual overtones to each murder. Mr Holdom was arrested on 28 October 2015 and 15 December 2015, and pleaded guilty to both crimes on 31 July 2018. On 30 November 2018, after an unsuccessful attempt to traverse one of the pleas of guilty, he was sentenced by R A Hulme J. He was sentenced to imprisonment for the term of his natural life pursuant to the provision in s 19A of the Crimes Act 1900 (NSW) in respect of both offences. By notice of appeal dated 10 November 2025, Mr Holdom seeks leave to appeal against those sentences and by a notice of the same date he seeks leave to make that application out of time. The prohibition on the publication of the names of the victims, one of whom was a child, does not apply because there was a “waiver” of that prohibition at the time of the sentencing hearing. [1]

3. [3]

   Due to the extraordinary nature of the penalty imposed and to ensure finality of these proceedings, which came before the Court almost 20 years after the two victims were killed, I would allow the applicant to appeal out of time and grant leave to appeal. However, I would dismiss the appeal. These are my reasons.

4. [4]

   The facts of the case and its history up until the time of sentence are set out in the published sentencing judgment of R A Hulme J: R v Holdom [2018] NSWSC 1677 (“the sentencing judgment”). For more details of the grotesque facts of the case, the reader might refer to the sentencing judgment. I propose to summarise the facts quite briefly and to focus on the grounds of appeal. However, because the major contention raised on the applicant’s behalf is that the sentence is manifestly excessive, plainly unjust and wrong, it is necessary to recount some of the details.

5. [5]

   Ms Kluss appeared for the applicant on the hearing of the appeal and provided written submissions on appeal. Four grounds of appeal were advanced on the applicant’s behalf:

6. [6]

   On the hearing of the appeal, Ms Kluss acknowledged that grounds 1 and 2 were more correctly categorised as the underlying bases for the assertion that the imposition of the maximum penalty was not a disposition that was reasonably open in the circumstances of the case. There was no patent misapplication of principle, and as counsel put it:

The circumstances and discovery of the murders

1. [7]

   At [10]-[59] of the sentencing judgment, R A Hulme J set out the events leading up to the murders in December 2008, the discovery of the remains in 2010 and 2015, the applicant’s attempts to make it appear that the victims were still alive, and the circumstances of the murders to the extent that they were known. There was no challenge to his Honour’s factual findings.

2. [8]

   In 2008, when he was aged 34 years, the applicant was in a relationship with Hazel Passmore with whom he was living in Alice Springs. Ms Passmore had three children. The couple met the two victims – who, like the sentencing Judge, I will refer to by their first names – while they were living in Alice Springs. On 15 September 2008, the applicant and Ms Passmore were involved in a fatal car accident in the north of South Australia. Two of the children were killed and Ms Passmore sustained devastating injuries requiring amputation of one of her legs. She was in hospital in South Australia until early November 2008 and, while she was there, the applicant visited her accompanied by Karlie and Khandalyce. The funeral of the two children was held on 14 November 2008. The applicant drove to Canberra with Karlie and Khandalyce the following day where they stayed in Charnwood with Christine Lancaster and her partner.

3. [9]

   At about 2:30am on 15 December 2008, the applicant and Karlie left Charnwood in Karlie’s car. They arrived in the vicinity of Sutton Forest and the Belanglo State Forest a little before 5:00am. In the hours that followed, the applicant sexually assaulted and murdered Karlie. Photographs taken at around 11:20am to 11:30am, which were discovered years afterwards, depicted Karlie lying in the forest with a whiskey bottle, and the applicant’s hand up to his forearm, inserted in her anus and vagina. Another photograph showed Karlie’s upper body with the applicant’s foot on her neck. These photographs were found on an SD memory card along with other pictures associated with the applicant (including a picture of a skull fragment from one of Ms Passmore’s deceased children taken at the scene of the car accident on 15 September 2008). They were “deleted” files and were established to have been taken with a camera, rather than a smartphone.

4. [10]

   The applicant returned to Canberra, told Ms Lancaster that he had left Karlie at a bus stop after they had a fight and, when asked how Karlie could just leave the child behind, said that Karlie sometimes did that. He told Ms Lancaster he would take the child to her grandmother in South Australia. On 17 December 2008, he traded in Karlie’s car and bought an old Holden Statesman and two days later, on 19 December, he and Khandalyce drove off. The child was never seen alive again.

5. [11]

   There was evidence that the applicant stopped at a supermarket in Wagga Wagga and purchased items including body wash gel, multi-purpose wipes, garbage bags and duct tape. At about 11:00am he checked into a motel in Narrandera. He was in that small town for about 2½ hours and R A Hulme J found “[i]t was probably here that he killed Khandalyce”.

6. [12]

   Khandalyce’s skeletal remains were located in a suitcase by the Karoonda Highway between Adelaide and the Victorian border on 14 July 2015. There was no apparent injury to the skeleton and, on post-mortem examination, the forensic pathologist found balls of dishcloth in the child’s mouth which was taped closed with grey adhesive tape. These items were consistent with the wipes and tape that the applicant purchased in Wagga Wagga. The pathologist was of the opinion that the remains were not in a skeletal state when put into this suitcase and that the “death could have been caused by asphyxiation.” The sentencing Judge found at [24] that “[t]he means of causing her death was suffocation”.

7. [13]

   The statement of facts included that:

8. [14]

   As R A Hulme J observed at [26], “Khandalyce was only 2½ years old.”

9. [15]

   The applicant arrived alone at the home of one of Ms Passmore’s relatives in the early hours of 20 December 2008. He resumed a relationship with Ms Passmore who told investigators that he provided various accounts of the victims’ whereabouts. These included some quite horrific admissions including that he raped Karlie with a bottle and crushed her windpipe by stomping on her throat. He told Ms Passmore that he suffocated Khandalyce, “sexually abused the body before he dumped her” and “had sexual intercourse with the body”. The sentencing Judge treated the evidence of these admissions with caution because part of Ms Passmore’s narrative included that the two victims were killed at the same location which was clearly not correct.

10. [16]

    The applicant took various steps, described by the sentencing Judge as “cruel”, to make it seem that the victims were still alive. These steps commenced when Karlie’s mother (Ms Colleen Povey) contacted police in the Northern Territory on 4 September 2009 expressing concerns about her daughter and granddaughter because she had not seen them for almost a year but Karlie had kept in contact. Telephone records showed the last contact was 13 December 2008 and calls and messages thereafter went unanswered. Police contacted the applicant on 7 September 2009 and he said Karlie had moved to Queensland and that he had not heard from her since February 2009. He offered to provide an alternative contact number for Karlie but further attempts to contact him failed. Police established that Karlie’s credit union account was still being used, including on 7 September 2009 and police took this as a sign of life. On 10 September 2009, Ms Povey contacted police to say that she had received a message from her daughter saying she was okay. It was not disputed that the applicant or someone on his behalf sent this message. As a result of this feigned contact, the missing persons file was closed. Ms Povey died in February 2012, and her last words were to ask whether “Karlie and Khandals [are] here yet”.

11. [17]

    Investigating police determined that the applicant used Karlie’s mobile telephone from the time he killed her until May 2011. He also used her bank account from 2009 to 2012. Centrelink and the Australian Taxation Office transferred funds into that account and the applicant’s wages were also deposited there. Both he and Ms Passmore charged expenses to that account. There was fraudulent conduct associated with the use of the account. For example, an associate of the applicant attended a Centrelink office pretending to be Karlie and produced a copy of Khandalyce’s birth certificate to facilitate a payment of $7,806.70 for a Family Tax Benefit and Rent Assistance. The total amount fraudulently debited from Karlie’s bank account was about $72,000. When a search warrant was executed in 2015, police found Karlie’s mobile telephone, and her Medicare and library card.

12. [18]

    Police also located a notebook belonging to the applicant. R A Hulme J described the entries in that notebook and its relevance at [49]-[52] of the sentencing judgment:

13. [19]

    The matters referred to in the last paragraph of that passage were explained in a footnote. Ms Passmore told police that the applicant asked her to describe things that had happened to her as a child “to get him aroused for sex.”

14. [20]

    Copies of the notebook along with the photographs of Karlie taken at the time of her murder were before the Court in an envelope marked as “sensitive” and endorsed “not to be opened except by order” of an appropriate Court. Counsel for the respondent encouraged us to look at and read this material for ourselves. The applicant did not object to this course, although his counsel said the material was adequately described in the statement of facts and his Honour’s judgment. While those descriptions provide a sufficient summary of the material, it is only by looking at the photographs and perusing the written material that the Court could understand the distressing and depraved nature of the evidence. Personal viewing or reading of the material is important to understanding the sentencing Judge’s finding as to the applicant’s lack of empathy and his Honour’s consideration of the issue of future dangerousness.

15. [21]

    The applicant was not to be sentenced for his possession of the child abuse material or his abhorrent sexual fantasies and he was not charged separately for the sexual outrages to which he subjected Karlie’s corpse shortly after he killed her. Even so, it has been held that mistreatment of a murder victim’s body is relevant to an assessment of objective seriousness, and this was a case where the issue of his potential dangerousness was a live and important one.

Personal circumstances, criminal history, mental health and mitigating factors

1. [22]

   The applicant’s pleas of guilty were a significant mitigating factor in the case. I will deal with that separately in considering grounds 1 and 4.

2. [23]

   The applicant presented a sad and powerful personal case which established a dreadful background of family violence, abuse and neglect. The sentencing Judge made relevant findings, and provided an extensive summary of the evidence at [60]-[116] of the sentencing judgment. As with my summary of the objective facts, I assume the reader’s familiarity with his Honour’s remarks. While his Honour’s rejection of part of Dr Nielssen’s opinion is subject to a ground of appeal, his Honour’s factual findings are not challenged more generally and are based soundly in the evidence.

3. [24]

   The sentencing Judge was sceptical of the applicant’s accounts to others and the history he provided, noting some marked inconsistencies in his reports of his childhood and the self-serving nature of some of the things he said. His Honour took into account the applicant’s history of dishonesty offences and his ongoing deceptions designed to cover up the murders in concluding at [66] that the applicant was “clearly a man capable of deceiving others when it serves his purpose”. Despite his “potential unreliability”, R A Hulme J appeared at [68] to accept the applicant’s submission, which was not disputed by the Prosecutor, that “the [applicant] suffered an abusive and neglectful upbringing resulting in significant maladjustment and disadvantage during his formative years.” However, R A Hulme J did not accept Dr Nielssen’s opinion concerning the causal connexion between the childhood abuse, its psychological impact and the commission of the offences.

4. [25]

   The applicant was born in 1974. He was 34 years of age at the time of the murders and 44 when he stood to be sentenced. He had a criminal history across four states and territories including offences of violence, child sexual assault, fraud and dishonesty offences, and burglary. His personal, family and psychiatric history was presented in reports by Dr Olav Nielssen, forensic psychiatrist, and Ms Miriam Wyzenbeek, clinical and forensic psychologist. The sentencing Judge detailed several inconsistencies in the respective histories provided to the two expert witnesses. Reports and records from the 1980s were also tendered along with a statement and affidavit of the applicant’s sister. There were also some “writings” of the applicant from 2015 when he was in gaol before being charged with the murders. This included “a letter apparently written by the [applicant’s] mother” which confirmed aspects of the abuse perpetrated by the applicant’s stepfather.

5. [26]

   The applicant’s parents separated when he was an infant, and he lived with his mother, stepfather and sister in Orange until he was about 8 or 9 years of age. The sentencing Judge described this part of his childhood at [69]-[72]:

6. [27]

   The applicant told Ms Wyzenbeek that he missed school frequently because he was ashamed of his visible injuries and was generally “delinquent”, and that he had difficulties obeying rules at home, in school and in the community. There was some conflict as to whether the applicant’s mother was aware of the abuse – she denied that she was – but by the time the applicant was 9 or 10 years old the Department of Youth and Community Services intervened. The applicant was taken into foster care, and for a short period placed into the care of his natural father who lived in Taree. That arrangement did not last long, and he was then in the care of his paternal grandparents. Again, this was short-lived due to “behavioural problems”.

7. [28]

   In mid-1985, the applicant returned to Orange and was placed in a group children’s home under the care of the “United Protestant Association”. Reports from when the applicant was about 10 in 1985 until 1990 showed he was involved in some stealing incidents and fighting but R A Hulme J found at [77] that the contemporaneous records suggested he was “far more pro-social … and was better looked after” than his more recent reports to Dr Nielssen and Ms Wyzenbeek suggested. Some of the records suggested the applicant was “very happy”, that his behaviour had “improved remarkably” and that he was well-liked and very co-operative in the home. Against that, a counsellor who saw him during 1988, when the applicant was 13 or 14, described him as “a very damaged young boy”.

8. [29]

   After the separation of the applicant’s mother and stepfather, and the latter’s departure from Orange, there were attempts to reunite the applicant with his mother and step-brothers. However, the stepfather was often still around and this thwarted these attempts. There was no further physical abuse but instances of psychological abuse. Finally, in early 1990, when the applicant was about 15, he returned to live with his mother and step-siblings.

9. [30]

   The applicant reported that his education was disrupted by his erratic childhood and by his behavioural and social difficulties. He was often in trouble at school and truanted frequently. He self-identified as a bully, took drugs, was disruptive and did not obey the rules. He told Ms Wyzenbeek that he left school at the age of 14 to work in a factory. R A Hulme J said at [83] this history was inconsistent with “the historical records” which showed he remained at school until year 9 in 1990. The attendance records for years 7 and 8 “contradict [his] claim as to frequent and lengthy truancy”. His Honour referred to some positive comments in his school reports.

10. [31]

    The sentencing Judge also noted some inconsistencies in the evidence about the applicant’s employment history. While he told Ms Wyzenbeek that he was mostly unemployed due to his mental state and drug use, his own writings from 2015 said, “I held 2 jobs in 15 months both resulting in me overworking to the point of exhaustion or breakdown, it was a way of punishing myself.” Ms Passmore also provided an account which suggested a more successful and constant employment history.

11. [32]

    His Honour set out the applicant’s history of relationships with women at [86]-[89]. There were four significant relationships, the first of which lasted 6 years despite being marred by domestic violence perpetrated by the applicant. Two children were born of this relationship. The violence and the applicant’s drug abuse resulted in the end of that relationship.

12. [33]

    The second relationship was also impacted by the applicant’s drug use and he admitted that he was verbally abusive towards this partner. When she told the applicant the relationship was over, he assaulted her in a way described in the sentencing judgment at [98], and based on the court facts, as follows:

13. [34]

    The applicant then had the relationship with Ms Passmore who he met when he moved to Queensland. Self-evidently, from what has been written to this point, this was a complex and dependant relationship of some duration.

14. [35]

    The final relationship was one to which the applicant said he was not committed and lasted for just 8 months. During this relationship, the applicant sexually assaulted a 9-year-old child. This incident is described at [99]-[100] of the sentencing judgment:

15. [36]

    The applicant presented with a criminal history in New South Wales, the Northern Territory, Queensland and South Australia dating from 1994 to 2013, by which time he was in custody in relation to the child sexual assault offence summarised in the last paragraph. The sentencing Judge summarised the criminal history at [92]-[97].

16. [37]

    The applicant’s record included convictions for assault, breaching apprehended violence orders, fraud/deception offences, break, enter and steal as well as driving offences and the 2013 child sexual assault. He was first sentenced to imprisonment in 2005 when he was sentenced for passing valueless cheques, having goods in his custody suspected of being stolen and making a false representation which resulted in a police investigation. He was sentenced to 12 months imprisonment with a non-parole period of 8 months after a sentence (severity) appeal was upheld in the District Court. The applicant was also sentenced to terms of imprisonment in 2006 for breaching an intensive correction order and dishonestly obtaining property, and in 2013 for receiving stolen property, breaking and entering a building, and fraudulently misappropriating money.

17. [38]

    The applicant was arrested on 1 May 2013 for the offence of having sexual intercourse with a person under the age of 10 years and has remained in custody since that date. He was sentenced on 24 March 2014 to 4 years and 3 months imprisonment with a non-parole period of 2 years. However, parole was refused on 3 September 2015 and he was then charged with the murder of Karlie on 28 October 2015 and the murder of Khandalyce on 15 December 2015. Parole was again refused on 15 September 2016. The present sentence was ordered to commence on 15 September 2016, being the most recent occasion on which parole was refused.

18. [39]

    Ms Wyzenbeek’s report was dated 10 March 2014 and prepared for the sentencing proceedings relating to the 2013 child sex offence. Ms Wyzenbeek was of the opinion that the applicant presented as a severely disordered man who exhibited (or “endorsed”) symptoms of depression, anxiety, post-traumatic stress disorder, stress, and stimulant use disorder. Ms Wyzenbeek said this was likely to be the result of an impoverished childhood and exposure to significant maladjustment, abuse and instability during his formative years. This was compounded by interpersonal experiences as an adult and exacerbated by trauma stemming from the car accident in September 2008 and his sense of responsibility for the children’s deaths. Ms Wyzenbeek had no doubt that the applicant’s experiences of abuse and neglect impacted upon his development and shaped his beliefs and behaviour during adulthood.

19. [40]

    Dr Nielssen’s psychiatric report was dated 18 September 2018 and prepared for the purpose of these sentencing proceedings. Dr Nielssen diagnosed the applicant with depressive illness, substance use disorder in remission and probable personality disorder.

20. [41]

    Dr Nielssen expressed the opinion that the physical and sexual abuse to which the applicant was subjected as a child by his stepfather and his stepfather’s brothers contributed to the offending. He was of the view that the murders occurred amidst a regression in the applicant’s psychological state and behaviour, which resulted from the advent of his substance abuse following the car accident in September 2008. He referred to the applicant’s life having “stabilised” in early adulthood owing to consistent employment and a stable relationship, and concluded that the deterioration in his social performance was directly related to the “very heavy” use of stimulant drugs after the car accident.

Imposing a sentence of imprisonment for the term of an offender’s natural life

1. [42]

   At the hearing of the present appeal, I had the following exchange with counsel:

2. [43]

   Accordingly, it is not necessary to recount in detail the history of “life” sentences in New South Wales or to delve into the controversies surrounding the correct approach to s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW): see, for example, CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453 at [50], [73], [81]-[83], [93] and [96] and Rogerson v R; McNamara v R [2021] NSWCCA 160; (2021) 290 A Crim R 239 (“Rogerson & McNamara”) at [615]-[637].

3. [44]

   For many years, a sentence of life imprisonment was the automatic penalty for offences of murder. However, a life sentence rarely resulted in incarceration for the term of an offender’s natural life. There was a scheme pursuant to which the executive might authorise the offender’s release “on licence” for the remainder of the life sentence: cf, for example, Regina v McDonnell [1999] NSWSC 792; (1999) 107 A Crim R 151 at [3]-[5]. However, in 1989, s 19A was introduced into the Crimes Act which provides in sub-s (2) that “a person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life”.

4. [45]

   The imposition of such a sentence is reserved for extreme cases because it extinguishes all hope in an offender that they may one day be released despite good behaviour in custody and efforts towards and achievement of rehabilitation. This Court has emphasised this in many cases commencing with R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep), the case which led to the introduction of s 61(1). The Court in R v Garforth (Gleeson CJ, McInerney and Mathews JJ) said at [11]:

5. [46]

   This passage was cited with approval in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 (Wood CJ at CL at [124], Giles JA and James J agreeing at [1] and [139]), where the Chief Judge observed that “[s]uch a sentence can be crushing” and in Rogerson & McNamara at [645] (Bell P, R A Hulme and Beech-Jones JJ), where the Court added the understated comment that “[a] conclusion that a life sentence should be imposed is a severe one”.

6. [47]

   Many remarks of a similar nature have been made in this Court and by judges at first instance: see, for example, R v Crump (Court of Criminal Appeal (NSW), 30 May 1993, unrep), R v Chung [1999] NSWCCA 330 at [25]-[26], R v Petroff (Supreme Court (NSW), Roden J, 12 November 1991, unrep) and R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 at [182].

7. [48]

   Section 61(1) of the Crimes (Sentencing Procedure) Act reflects the “terrible” nature of the penalty by providing:

8. [49]

   There is no suggestion that R A Hulme J misapplied, or failed to apply, this statutory requirement and his Honour’s judgment at [148]-[153] demonstrates that he approached the case in accordance with both the terms of the section and the authority of this Court prevailing at the time and confirmed since in Rogerson & McNamara. Having surveyed the evidence and submissions at length and explaining his factual conclusions, the sentencing Judge said at [153]:

9. [50]

   This explains the concession made by Ms Kluss to which I referred earlier at [42].

The grounds of appeal

1. [51]

   As noted earlier, Ms Kluss acknowledged that the complaints raised under grounds 1 and 2 were really matters of weight that fed into the ultimate submission that the sentence was manifestly excessive. Ground 3 was a stand-alone ground of appeal, and I will deal with that ground first before considering grounds 1, 2 and 4 together.

2. [52]

   The applicant submitted in writing that R A Hulme J “gave Dr Nielssen’s conclusions no effect in the sentencing exercise” and relied on the judgment of the majority (Hall and Davies JJ) in SW v R [2013] NSWCCA 103 where a life sentence imposed by “the same judge” was reduced on appeal at least partially because the majority took a different approach to the expert evidence of Dr Nielssen. [3] The submission was that the majority in SW v R held that “his Honour’s rejection of the opinion of Dr Nielssen based upon his observations and expertise was not so clearly disregarded” (emphasis in the original submission). The argument continued:

3. [53]

   It is correct that the sentencing Judge in the present case exercised caution in accepting the self-serving and at times inconsistent accounts provided by the applicant. However, despite his expressed misgivings, the sentencing Judge recounted in detail other evidence in the case that established the applicant’s dysfunctional background. His Honour accepted that the applicant’s childhood was marred by violence and abuse. This was not a case where the history provided by the applicant was disregarded or where an expert’s ability to take a history and evaluate its reliability was ignored: cf Devaney v R [2012] NSWCCA 285 at [88] and Luque v R [2017] NSWCCA 226 at [116].

4. [54]

   Rather, the sentencing Judge looked for evidence that supported the things the applicant told the psychiatrist and psychologist. He found such support in the evidence of the applicant’s sister and the reports of Family and Community Services. His Honour said at [151] that “[t]he most significant matter is, of course, that he was the victim of atrocious abuse from his stepfather when he was very young”. He went on at [152]:

5. [55]

   Similarly, the sentencing Judge did not disregard Dr Nielssen’s opinions based on the problems with the history provided by the applicant. Rather, his Honour found fault in aspects of Dr Nielssen’s reasoning and his reliance on things that were contrary to, or different from, the agreed facts. For example, after relating the history of the murders provided to Dr Nielssen, his Honour noted at [59]:

6. [56]

   It was not submitted, nor could it have been, that his Honour’s description of the account provided by the applicant to Dr Nielssen was unfair or wrong. That account was inaccurate, incomplete and deficient.

7. [57]

   The sentencing Judge provided detailed reasons for not accepting parts of Dr Nielssen’s evidence and, in particular, the opinion concerning the extent to which the childhood trauma impacted on the applicant’s conduct in committing the murders. Even so, his Honour acknowledged that the “establishment of a causal link … is not essential for his upbringing to be … taken [into] account.” Given the nature of the ground of appeal, it is appropriate to set out the full passage of the sentencing judgment from [105]-[116]:

8. [58]

   The applicant submitted (at [96]-[97] of the written submissions) that “the crown did not suggest that Dr Nielssen was in error in saying what he said he had observed during his assessment of the documentary material in ascribing diagnostic significance to the observations that he made” and that “the validity of his observations and conclusions were not the subject of direct challenge.” Those submissions cannot be accepted. The Prosecutors submitted in writing that the offender provided false information to Dr Nielssen “which has been accepted unequivocally for the purposes of his report”. They further submitted that “[t]he failure to have proper regard to the undisputed facts means that Dr Nielssen has not taken into account significant information regarding the [applicant’s] behaviour prior to, during and after the murders”. The Prosecutors went on to identify five reasons that the sentencing Judge would be “hesitant to place much weight on the opinions expressed” by Dr Nielssen.

9. [59]

   The circumstances of SW v R were very different and the coincidence between the identity of the primary Judge and the expert witness is of no significance.

10. [60]

    The sentencing Judge was called upon to make findings of fact including findings in relation to the expert evidence. The applicant sought to establish a mitigating factor, namely a connection between his childhood trauma and mental health conditions and his commission of the murders. He relied on the evidence and opinions of Dr Nielssen. Contrary to the applicant’s submissions, the evidence was challenged and the submission put in contest. The Prosecutors disputed that the connection was established and contested the opinions provided by the psychiatrist. The applicant bore the onus of proof on the balance of probabilities. The sentencing Judge was not satisfied on balance that Dr Nielssen’s opinion should be accepted and provided adequate reasons for that conclusion. That finding was “reasonably open” on the evidence before the sentencing Court: Hancock v R [2025] NSWCCA 213.

11. [61]

    I would reject ground 3.

12. [62]

    The sentencing Judge said at [9] that “the [applicant’s] pleas of guilty will be taken into account on sentence” and at [151] that his “pleas of guilty are another matter that must be taken into account.” However, he also observed at [144] that a life sentence could be imposed despite those pleas.

13. [63]

    His Honour referred to Regina v Miles [2002] NSWCCA 276 at [213], Knight v Regina [2006] NSWCCA 292; (2006) 164 A Crim R 126 at [37] and the guideline judgment on pleas of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [157]-[158]. In the latter case, Spigelman CJ (with whom the remaining four justices agreed) said at [157]-[158]:

14. [64]

    In R v Harris, Wood CJ at CL (with Giles JA and James J agreeing) made similar remarks at [60]:

15. [65]

    While this approach provides no incentive to an offender in the position of the present applicant to enter a plea of guilty, there are several cases both in this Court and at first instance where life sentences have been confirmed or imposed despite the offender pleading guilty: see, for example, Regina v Leslie Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at [38]-[41], Regina v Miles [2002] NSWCCA 276 at [213], Knight v Regina at [35]-[37], Dean v R [2015] NSWCCA 307 at [146], R v John Walsh [2009] NSWSC 764 at [42]-[43], R v Naden [2013] NSWSC 759 at [105]-[106] and R v Walsh [2018] NSWSC 1299 at [37]-[39].

16. [66]

    The sentencing Judge’s remarks about the pleas of guilty were sparse and his Honour did not refer either to the utilitarian value of the plea or to more subjective aspects of a guilty plea such as, to adopt Ms Kluss’s submission, the “vicarious trauma” to witnesses and secondary victims that may have arisen from a contested trial. This kind of trauma can be a significant factor in a case with such awful facts and where there has been a substantial delay leaving the victims’ loved ones in a state of uncertainty and despair.

17. [67]

    Despite the brevity of the remarks on the subject, the sentencing Judge referred to the pleas of guilty three times and was clearly conscious that it was a factor to be considered in determining the appropriate disposition of the sentencing proceedings. I would not have upheld ground 1 had it stood to be determined as a discrete ground of appeal.

18. [68]

    Ground 2 had little merit as a stand-alone ground. The sentencing Judge provided an extensive summary of the evidence of the applicant’s background and expressed the view at [151] that the “most significant matter” militating against the imposition of life sentences was that the applicant “was the victim of atrocious abuse from his stepfather when he was very young”.

19. [69]

    The ultimate question for the Court is whether the decision to impose a life sentence for each offence was manifestly unreasonable, whether it was plainly unjust or wrong: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ) and [59] (Kirby J).

20. [70]

    The question is not whether this Court, or any of its individual members, may (or would) have imposed a different penalty, that is sentenced the applicant to a necessary very lengthy determinative sentence: see Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. As the High Court said in Lowndes v The Queen, “[t]his is basic.” If “upon the facts [the sentence] is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.

21. [71]

    At the forefront of the Court’s consideration of these issues is an evaluation of the applicant’s “level of culpability in the commission of the offence” and whether it was reasonably open to the sentencing Judge to conclude that his culpability was “so extreme that the community interest in retribution, punishment, community protection and deterrence” could “only be met through the imposition of [a life] sentence”: Crimes (Sentencing Procedure) Act, s 61(1).

22. [72]

    The circumstances and facts of each of these murders placed them at or towards the very highest end of the range of seriousness for offences of homicide. Considered together they represent a level of criminality that the Court rarely encounters.

23. [73]

    Karlie’s murder was an instance of domestic violence accompanied by sexual brutality of a degrading and grave kind. While the sentencing Judge’s description of this crime at [122]-[126] was emotive, it was not inapt:

24. [74]

    The first offence was, as R A Hulme J described it, “a murder of extreme gravity and appalling depravity” and one that fell “at the top of the range of objective seriousness”.

25. [75]

    While the exact circumstances of the second offence cannot be determined, they involved the planned suffocation of a 2½ year-old child. What motivated the applicant cannot be discerned with certainty, but it was agreed that the killing was accompanied by “a sexual aspect”. Further, and consistent with what the applicant told Dr Nielssen years after the event, the child was killed to cover up the murder of her mother. While this was a homicide of a very different kind, it too falls to be considered at the top of the range of objective seriousness.

26. [76]

    Added to those matters, the applicant’s conduct afterwards, and for a considerable time, was callous and calculated. The remains of the two victims were undiscovered for some years, and the applicant continued to use Karlie’s ‘phone and bank account at least in part to cover up the offences. There was also the disturbing sensitive evidence of the applicant’s fantasies of child sexual assault and the degrading photographs of Karlie that the applicant kept after killing her. As the sentencing Judge said at [150]:

27. [77]

    It follows that the applicant’s level of culpability was extremely high and the community interest in retribution, punishment and deterrence was substantial. It is also difficult to gainsay R A Hulme J’s conclusion that “the [applicant], at least for the foreseeable future, represents a danger to society.”

28. [78]

    I have taken into account what was unquestionably a powerful subjective case concerning the terrible abuse and neglect the applicant suffered as a child. Despite the sentencing Judge’s rejection of Dr Nielssen’s evidence of a “causal link” to the offending, this childhood trauma and history of dysfunction and abuse does impact on the applicant’s moral culpability. Similarly, his pleas of guilty had a utilitarian value and spared the witnesses and secondary victims from having to relive the grotesque details of the case.

29. [79]

    However, even allowing considerable weight to those subjective and mitigating features, it was reasonably open to the sentencing Judge to conclude that the statutory language in s 61(1) was satisfied. While it was open to impose an extremely long determinative sentence which would have resulted in the applicant’s detention into his seventies or eighties, the decision to impose life sentences was not plainly wrong, manifestly unreasonable or unjust.

30. [80]

    It follows that I am unable to uphold grounds 1, 2 and 4.

Disposition and orders

1. [81]

   Before stating the orders I favour, I wish to acknowledge the suffering and harm done to the families of Karlie and Khandalyce.

2. [82]

   Statements of Mr and Mrs Pearce (Karlie’s father and grandmother) and Mr Scott Povey (Karlie’s deceased mother’s husband) were read and the sentencing Judge recognised that the harm to them was “substantial but otherwise unquantifiable”. That harm was exacerbated by the delay in the discovery of the bodies and in the court process. Like R A Hulme J, this Court should extend its sympathy to these secondary victims.

3. [83]

   The case has been fully argued and Ms Kluss presented powerful arguments based on the applicant’s shocking early childhood abuse as well as his pleas of guilty. Despite the delay in bringing the appeal, which was explained by reference to the applicant going into depression following the imposition of sentences which mean he will never be released to parole, I would extend the time in which to appeal and grant leave to appeal.

4. [84]

   However, for the reasons provided, I am unable to accept any of the grounds of appeal advanced and would dismiss the appeal.

5. [85]

   I would make the following orders:

   1. (1)

      Extend the time in which to file the notice of appeal to 11 November 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

6. [86]

   MUSTON J: I have had the considerable benefit of reading in draft the reasons of Hamill J. I agree with the orders proposed by his Honour for the reasons he has given.

7. [87]

   When viewed in the context of the subjective case advanced by the applicant before the sentencing Judge, the life sentences imposed were stern. However, as powerful as the applicant’s subjective case was, aspects of it were contested and not accepted by the sentencing Judge. His Honour did find that the applicant suffered atrocious abuse at the hands of his stepfather when he was young and that this may have led to an imbalance in the applicant’s moral compass and, in other ways, shaped the course of his life. Paragraphs [151] and [152] of the sentencing reasons make clear that these findings, and the applicant’s pleas of guilty, were taken into account by the sentencing Judge in the applicant’s favour. Having done so, his Honour was nevertheless satisfied beyond reasonable doubt that the applicant’s culpability was “extreme” and that the murders he committed were at the top range of objective seriousness; they were aptly described by his Honour as falling within the “worst case” and “of very great heinousness”. In these circumstances, it was open to the sentencing Judge to impose a life sentence.