R v Baleinapuka [2022] NSWSC 485

Supreme Court New South Wales

Medium Neutral Citation: R v Baleinapuka [2022] NSWSC 485 Hearing dates: 22 April 2022 Date of orders: 22 April 2022 Decision date: 22 April 2022 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: Sentenced to imprisonment for a term of 26 years and 8 months comprising a non-parole period of 20 years commencing on 1 January 2020 and expiring on 31 December 2039 and a balance of term of 6 years and 8 months expiring on 31 August 2046. Catchwords: CRIME – Sentence - murder of female partner – 14 stab wounds inflicted in prolonged attack – intent to kill – ongoing denial of guilt Legislation Cited: Crimes (High Risk) Offenders Act 2006 Category: Sentence Parties: Regina Petero Baleinapuka Representation: Counsel: D Scully (Crown) P Young SC (Offender)

Solicitors: Director of Public Prosecutions (Crown) De Jonge Legal (Offender) File Number(s): 2020/000515 Publication restriction: No

Judgment 1. Petero Baleinapuka was arraigned before me at Wollongong on 18 January 2022 on a charge that on 31 December 2019 at Woonona he did murder Angela O'Donnell. He pleaded not guilty and was tried by a jury. Their verdict of guilty was returned on 27 January 2022 after an hour and ten minutes of deliberation. The maximum penalty for murder is imprisonment for life and the Court is required to take into account that Parliament has nominated a standard non‑parole period of 20 years. The level of the offender's culpability in the murder of Ms O'Donnell is not so extreme as to require that the maximum sentence of imprisonment for life be imposed. The Court's task is to fix a term of years appropriate to the gravity of this crime, with its aggravating and mitigating features, taking into account the personal circumstances of the offender. 2. I am satisfied that the findings I now record and which will be taken into consideration in the sentence have been proved beyond reasonable doubt in all respects where the findings count towards greater penalty. Where factual findings would mitigate the sentence, I have adopted them insofar as I find the matters proved on the balance of probabilities. 3. Ms O'Donnell met the offender at Parramatta in 2017. At that time she was aged about 49 years and the offender was 53. Ms O'Donnell had been married but had separated several years before. She was living at Glenhaven in the northeast part of the Sydney Metropolitan area. The offender was then living at Campsie. He is a Fijian national from a rural village where he was raised and where he worked on his father's farm all of his adult life until he came to Australia on a work visa in 2015. 4. Soon after their meeting Ms O'Donnell and the offender commenced a personal relationship. He stayed at her house at Glenhaven on most weekends. By 2019 Ms O'Donnell had moved to a three bedroom, two storey townhouse in Campbell Street, Woonona, a northern suburb of Wollongong. She lived there alone until some date between about June and October 2019 when the offender moved in. 5. On 31 December 2019, between 11.00am and 1.30pm, Ms O'Donnell drove the offender in her car to various locations in their neighbourhood where they made several purchases. These included a case of beer bought by the offender and some bottles of wine bought by Ms O'Donnell. After returning to the townhouse at about 1.30pm they ate lunch, then slept until late afternoon. Upon waking, they both consumed some alcohol. They left the townhouse together on foot at about 8.00pm and walked to a club at Sandon Point. They had hoped to celebrate New Year's Eve there but they found it too crowded. 6. After one drink each, the offender and Ms O'Donnell were driven by Uber to Beaches Hotel at Thirroul. Unexpectedly, they were unable to gain admission there without a pre‑purchased ticket. They summoned another Uber driver and were driven from the hotel back to the townhouse, arriving at about 9.40pm. Ms O'Donnell sent a cheerful message to her brother Daniel at 10.14pm, from which it appears that no physical conflict had occurred up to that time. 7. A security camera on another townhouse nearby in the same complex had audio recording capacity. Between 10.33pm and 10.38pm that device picked up screams from Ms O'Donnell. It recorded words spoken by her in a fearful and anguished voice, including that she spoke the offender's first name, Petero. As was revealed by subsequent crime scene examination of the kitchen, living room and hallway on the ground floor of the townhouse, what took place at this time was a ferocious and fatal knife attack upon Ms O'Donnell. 8. The attack was made with two knives that were on hand in the kitchen. Fourteen separate stab wounds were inflicted, as well as incised or slashing wounds, and blunt force injuries. Blunt force injuries were particularly to the face and head. The stab wounds were mostly frontal, to the face, neck, chest and abdomen. Three of the wounds caused massive and rapid blood loss, particularly a stabbing wound that penetrated the aorta. Ms O'Donnell sustained incised wounds on one hand and on the opposite forearm, indicating that she had endeavoured to defend herself and to deflect knife thrusts. 9. The distribution of the deceased's blood in the townhouse showed that she had tried to move away from her assailant and that she had been pursued and stabbed at more than one location on the ground floor. She had tried to escape through the front door. A knife thrust into Ms O'Donnell's chest towards her heart was delivered with such force as to pass through a rib before terminating in the aorta. Another thrust through Ms O'Donnell's right cheek severed a tooth and penetrated into her neck. 10. The jury's verdict establishes that this prolonged and fatal attack was perpetrated by the accused. It was savage, relentless and evidently carried out with intent to kill rather than merely to cause grievous bodily harm. The manner of killing Ms O'Donnell subjected her to drawn-out terror and realisation of helplessness and impending death. She would have suffered physical agony from the many wounds in her final moments. 11. It is apparent from physical evidence found at the scene that, having stabbed Ms O'Donnell to death, the offender went to the two bathrooms upstairs and, in each of them, applied dressings to finger wounds that had been caused by his hands slipping from the handle of one of the knives onto the blade. It is not surprising that the offender's fingers should have been cut in that manner given the very considerable force with which some of the knife blows must have been struck, as explained by the forensic pathologist who carried out the autopsy. 12. During some part of a period of one and a half hours after the stabbing, the offender repaired to the rear external deck of the townhouse and consumed some cans of beer. At about 11.58pm, approximately one and a half hours after the knife attack, the offender opened the garage of the townhouse and drove away in Ms O'Donnell's car. His erratic driving was noted by police in a patrol car when he had travelled only about 200 metres from the townhouse. The offender was pulled over but when an officer approached his driver's side window on foot, the offender sped away. After a pursuit of some 3 kilometres, he crashed the vehicle. A number of police attended the crash scene. The offender said to more than one of them, "I've just killed my girlfriend". Police ascertained that the vehicle was registered to Ms O'Donnell and detectives were dispatched to her address, where her body was found. 13. The offender was arrested and interviewed under caution, commencing after 5.00pm on 1 January 2020. The delay appears to have been for the purpose of allowing him to sober up as he had a significant blood/alcohol content, as ascertained at the hospital soon after his arrest. The offender admitted in his interview that he was responsible for Ms O'Donnell's death. He said that she had been angry with him when they returned from Beaches Hotel and that he had briefly left the townhouse. He said that upon his return he had seen another man come down the stairs from Ms O'Donnell's bedroom and leave by the front door. He also said that Ms O'Donnell then came downstairs and that they argued. 14. The offender claimed in this interview that Ms O'Donnell threw something at him during this argument and that he was thereby provoked to attack her with the knives. The offender sought to convey to the interviewing police that witnessing the presence of another man in the townhouse had aroused in him a jealous rage and had caused him to make his attack upon Ms O'Donnell. He appears to have thought that this account of his conduct would excuse him from criminal liability. 15. Objective evidence tendered in the trial, including the absence of any recording from proximate security cameras of any relevant movements to or from the townhouse, refutes the offender's narrative of having left the premises shortly before the attack and of another man having entered and then departed. The jury clearly accepted, as I do, that the offender's admissions in the interview of having stabbed Ms O'Donnell to death were truthful. 16. The offender gave evidence before the jury. He recanted on his confession to police. He also said that what he had told police in the interview about another man having been in the townhouse with Ms O'Donnell and about an argument and her throwing an object at him was all untrue. No doubt it was. In place of that narrative, the offender testified before the jury to a very unconvincing version of having been at the rear of the townhouse drinking and having come back into the living area to find Ms O'Donnell on the floor, dead at the hand of some unseen assailant who had fled. The jury's verdict shows that they found this not to be a reasonably possible account of what occurred. 17. The offender did not give any further evidence in the sentence proceedings after verdict. He has maintained his innocence to Mr Bradley Jones, a forensic psychologist, who interviewed him at Parklea Correctional Centre on 31 March 2022 and who provided a report dated 20 April 2022. Mr Jones states that the offender, "was resolute in indicating he was not responsible for her death and did not accept responsibility. […] Mr Baleinapuka stated, 'I think the evil spirit may have possessed me. I do not remember stabbing her and I cannot explain why I ran away. I was just shocked.'" 18. There is no evidence of conflict, either verbal or physical, between the offender and the deceased at any time prior to New Year's Eve 2019. There is no acceptable evidence of any conflict on that night prior to the stabbing. I discount the offender's description to police of an argument that preceded the attack because he disavowed that in evidence and he is, in any event, extremely unreliable in any account that he has given, at any time, of these events, except to the extent that he has admitted being the killer. The evidence provides no basis for inferring what, if any, cause there may have been for the offender's sudden eruption into lethal rage. 19. At about 1.30am on 1 January 2020, the offender's blood/alcohol content was measured a 0.143 grams per 100 millilitres of alcohol. He had drunk at least several cans of beer after killing Ms O'Donnell and his level of intoxication is likely to have been lower at the time of the attack. However, it is clear that he was, even at that time, to some degree intoxicated and one may speculate that the effect of alcohol rendered him volatile. But what sparked his violence is not revealed. I am satisfied that there was no premeditation or planning on the offender's part. There was no cold deliberation, no apparent motive that might constitute an aggravating circumstance of the crime. 20. The essential gravity of the offence lies in the manner in which Ms O'Donnell was killed and in the circumstance that she was a diminutive woman of approximately 5 feet 2 inches height, whereas CCTV images of the offender show that he was significantly taller, strongly built and imposing. This murder is made the more objectively serious by its commission against a defenceless female, in her own home, by a large and physically powerful man who was her intimate partner, trusted to reside with her. 21. It is provided by statute that one of the purposes of sentencing is to recognise the harm done to the victim and to the community. It is further provided that the Court may take into account, as an aspect of harm done to the community in cases of murder, the impact of the victim's death upon family members. In this case, the impact has been profound as no doubt it is in many, if not all, cases of the murder of a woman by her domestic partner. The deceased, Ms O'Donnell, had two sons, who were aged 20 and 23 at the time of her death. The younger son provided a statement of the significant and continuing grief and sense of loss that he has suffered. Ms O'Donnell's mother, Ms Eileen Arrow, was 81 years in December 2019. She had a very close relationship with the deceased, her only daughter. Ms Arrow has suffered immense grief and consequent serious decline in her health following the murder. 22. Ms O'Donnell's two older brothers also read victim impact statements in which they recounted not only their own horror concerning the manner of their sister's death, but also the devastation felt by many more family members and a wide circle of friends. The harm caused is not only that of losing a much loved and highly valued person, but of losing her unnecessarily to horrific and inexplicable violence. 23. In his police interview, in his evidence to the jury and in his examination by Mr Bradley, the offender has repeatedly affirmed that he loved the deceased. One would expect that sentiment to translate into deep remorse for having taken her life, as he undoubtedly did. However, no remorse or acceptance of responsibility has been shown. To the exact opposite effect, the offender has maintained his denial in the face of overwhelming evidence. This is very much against him on penalty as the Court necessarily commences its assessment of an offender's prospect of rehabilitation and of future good conduct with consideration of whether the offender acknowledges the proven wrongdoing for which sentence is to be passed. 24. This offender's ongoing denial of guilt is in the nature of delusion. With considerable understatement, Mr Jones has described him as having "a poor level of insight and judgment". Taking that self-delusion and denial together with the absence of frank self-examination or explanation of why he turned upon his intimate partner so savagely, the Court necessarily holds a concern for what degree of unpredictable danger the offender may pose to the community, especially to those who may be close around him, upon his release. 25. That reservation is not strong enough to justify lengthening the offender's sentence for the specific purpose of ongoing protection of the community. Upon other considerations he must serve a period without parole of such duration that the Court cannot sensibly predict whether, by the date he will be eligible for release to parole, he may have undergone changes that would alleviate the concern to which I refer. The result is that the offender's lack of remorse and his failure to advance any credible explanation for this unheralded episode of violence simply means that his case on sentence is lacking elements that the Court looks for when considering mitigation of penalty. 26. With respect to his subjective circumstances, some of the offender's personal background has been referred to earlier in these remarks. His upbringing appears to have been stable and supportive. The offender may be regarded as of prior good character in that he is not recorded as having committed any previous offence either in Australia or in Fiji. The offender's level of education is not disclosed in the evidence but I infer that it has been rudimentary. I had the opportunity to observe him answering police officers' questions when the recording of his interview was replayed to the jury. I was able to observe his evidence given during two court sessions in the trial. Making due allowance for limitations of the offender's English vocabulary, it is apparent that his very simple and brief answers reflect equally simple and unsophisticated thought processes. 27. He informed Mr Jones that his family in Fiji are strong adherents of the Catholic faith. However, he also expressed apparently sincere concerns about witchcraft, evil spirits and curses upon his family and upon his father. These aspects of the offender's limited mental development and thinking lead to obscurity about what may have been the common ground between the offender and Ms O'Donnell. In contrast, she was tertiary educated and a capable businesswoman. It is not clear what may have been the foundation upon with their relationship of two years was sustained. In order to do justice, the Court endeavours to understand as fully as possible why the crime occurred. But whatever explanation there may be for the violent and fatal outburst, is all the more deeply obscured against the background of a relationship that cannot readily be interpreted. 28. The objective gravity of this murder is properly characterised at the middle of the range of objective seriousness of such crimes. I take into account the offender's personal circumstances. I treat as a mitigating factor the cooperation he has shown in the efficient conduct of the trial. He did not require his counsel to put the Crown to proof of peripheral matters or to cross‑examine at unnecessary length. The trial was properly concentrated upon the matters centrally in issue. 29. I must give considerable weight in fixing a sentence to the requirement that the term imposed should serve as a deterrent to others, given the frequency with which women in New South Wales are murdered by domestic and intimate male partners. The prevalence of this crime is the subject of constantly voiced concern of the entire community. I am required by statute to notify the offender, as I do now, that the provisions of the Crimes (High Risk) Offenders Act 2006 apply to him and to the offending for which sentence is now to be passed.