New South Wales Supreme Court CITATION : Regina v Joiner [2001] NSWSC 1163 FILE NUMBER(S) : SC 70063/01 HEARING DATE(S) : 10/10/01, 12/10/01, 15/10/01, 16/10/01, 17/10/01, 18/10/01, 19/10/01, 22/10/01, 24/10/01, 25/10/01, 29/10/01, 30/10/01, 31/10/01, 1/11/01, 11/12/01 JUDGMENT DATE : 14 December 2001 PARTIES : Regina v Patrick JOINER JUDGMENT OF : Whealy J at 1 COUNSEL : Mr P. Conlon SC - Crown Mr P. Cattini - Prisoner SOLICITORS : Office of the Solicitor for DDP Mr Greg Adler - Legal Aid LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Isaacs (1997) 41 NSWLR 374 at 378 R v Olbrich (1998) 45 NSWLR 538 at 543 CASES CITED : R v Previtera (1997) 94 A Crim R 76 Bollen v R (1998) 99 A Crim R 510 Ashfield (Gunn-Brit) (NSWCCA unreported 17 February 1998) Regina v Lowe (NSWCCA 14 November 1995) DECISION : Patrick Joiner, I sentence you to 18 years imprisonment. The sentence is to commence from 26 October 2000. I set a non-parole period of 13 years and six months commencing 26 October 2000 and expiring on 25 April 2014. The prisoner will be eligible to be released on parole on that day, 25 April 2014. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION WHEALY J FRIDAY 14 December 2001 REGINA v Patrick JOINER SENTENCE 1 HIS HONOUR: The prisoner Patrick Joiner was tried before me on an indictment that charged that, on or about 8 October 2000 at Sydney, he did murder Mary Seretis Joiner. On Thursday, 1 November 2001 the prisoner was found guilty of murder as charged. Submissions on sentence were made on 11 December 2001. The prisoner was on that day remanded in custody until today for the passing of sentence. 2 The maximum penalty for the crime of murder is life imprisonment. 3 I am required to find the facts relevant to sentencing. It is necessary that the facts I find be consistent with the jury's verdict. The facts find relevant to sentencing must be, so far as they relate to findings of fact against the prisoner, be findings arrived at beyond reasonable doubt (R v Isaacs (1997) 41 NSWLR 374 at 378). The onus of proof going to matters of mitigation is on the prisoner who must establish such matters on the balance of probabilities (R v Olbrich (1998) 45 NSWLR 538 at 543). 4 On or about 26 October 2000, police officers found the deceased's body in a state of advanced decomposition in the boot of her vehicle, a VW Golf Registration No MSJ.31. The vehicle had been seen there, according to one resident, during the previous week or so. 5 Dr Lawrence, a Forensic Pathologist, made observations of the condition of the body, the injuries to it and details relating to the deceased's clothing and other related matters. The principal injuries he observed were these: - 1. The deceased had a 10 millimetre laceration to her left upper lip. 2. There was extensive bruising around the left side of the jaw and extending onto the left upper neck area. 3. There was a 10 millimetre laceration lateral to the right eye. 4. There was a 14 millimetre long curved full thickness laceration of the right parietal scalp above and behind the ear. There was associated bruising in the deep scalp. 5. On the posterior right parietal scalp behind and just above the right ear was a curved 45 millimetre long full thickness laceration. 6 In relation to the two scalp injuries, Dr Lawrence had said that these had torn through the entire scalp. In his opinion these injuries could have been caused, inter alia, by a blow from an object. He said that they could have been caused by a rock or by striking with the foot by way of a kick. 7 There was what appeared to be subarachnoid haemorrhage around the base of the brain and the cerebellum. Dr Lawrence considered that this had been caused by trauma. 8 There was blood in the upper airways and there was evidence of haemo aspiration consistent with the inhalation of blood. This was in turn consistent with injuries to the head. 9 Both Dr Lawrence and Dr Collins thought that the most likely cause of death was head injuries. I am satisfied beyond reasonable doubt that this was so. 10 The Crown case was that the prisoner inflicted serious blows to the head and face of the deceased and that in so doing he intended to either kill her or at the very least to cause her serious bodily harm. It was the Crown case that the two major wounds to the deceased's scalp were caused by either the prisoner kicking her following the striking to her face and head; or by striking her forcefully with a rock or some other blunt object. 11 The circumstances surrounding the death of Mary Seretis Joiner arose in the following context. The prisoner and the deceased had married in 1998. Their relationship became characterised by a number of domestic disputes some of which involved violence, especially violence by the prisoner towards the deceased. As had been demonstrated by his relationship to his first wife and two other women the prisoner was prone to outbursts of anger in domestic situations. He vented this anger in a number ways towards the deceased changing her from a happy vivacious young woman to a person whose life was characterised by a degree of depression and unhappiness. The pair attended for marriage counselling sessions with an accredited marriage counsellor and part of this treatment was the provision of anger management to help the prisoner control his angry outbursts. It appears quite clear that little was achieved in this direction. 12 On 8 October 2000 the deceased and the prisoner attended the wedding of her cousin, Mr Frank Vaxevanis at the Greek Orthodox Church in Redfern. This was to be followed afterwards by a reception at the Botany Bay restaurant at Brighton. 13 There was some ill-feeling between the deceased and her cousin arising out of a difference between them that went back to the time when the deceased and the prisoner were married. It appears this may have re-surfaced at the wedding. 14 Prior to attending the reception, the pair went together to have a drink at the Brighton RSL not far from the proposed reception venue. They had an argument there and the deceased stormed out of the club to be followed shortly after by the prisoner. Neither of them attended the wedding reception and some time later on that evening Mary Seretis Joiner died at the hands of her husband. 15 The version the prisoner gave at his trial may be stated briefly. He says that he caught up with the deceased in the car park near the RSL Club and the two of them then drove south. He maintained that the deceased suggested that they go down to Bundeena and that he followed her instructions driving to Bundeena by way of the National Park, as he did not know the area. When they arrived at Bundeena, according to the prisoner, they decided to retrace their steps and go back to Gymea to have dinner. He said that he became lost and inadvertently he took the wrong road, resulting in the couple finding themselves at Maianbar which is the next settlement to the west of Bundeena. 16 According to this version, the deceased suggested that they go to a lookout which was near where the car had stopped and they went along a bush track to this lookout. They were there for five minutes or so when, according to the prisoner, an argument broke out between them. It related to the events of the wedding and the family dispute. He says that as he turned to go back to the car the deceased struck him from behind. He spun around and accidentally struck her on the left side of her face with the back of his forearm and hand. The deceased screamed at him and he responded. She then punched him in the face with her right hand and he slapped her with the back of his right hand. He says that while he was stepping back, she came close to him hitting him again and he pushed her. He observed her "spasming" and she fell backwards with a large thud on to the ground. 17 According to the prisoner's version, the deceased had ceased moving. He tried to wake her and slapped her on the face but there was no response. He then dragged her body back to the car a distance of about 100 or 150 metres and tried to resuscitate her without success. He put her body in the boot of the car. He says that he then panicked and although he intended to go back to Sydney he drove the car to the intersection of Bundeena Road and Sir Bertram Stevens Drive and turned left towards Wollongong rather than in the direction of Sydney. On the Freeway to Wollongong he unexpectedly ran out of petrol. He was obliged to call for assistance and was taken by an NRMA truck to Bulli where he obtained petrol for the car and then returned in the direction of Sydney. The deceased's body lay in the boot throughout the whole of this time. 18 He said that he drove to the area of Abercrombie Street Redfern. This was a couple of minutes walk away from the Greek Orthodox Church where the wedding had taken place earlier that evening. It was his evidence that he felt unable to go to the police by himself and he wanted somebody else's assistance. He went to the church because he knew Father Grellis but the church was locked. In a state of panic, he hailed an approaching taxi and returned home. The motor vehicle was left in Abercrombie Street Redfern with the keys in the ignition, the doors unlocked, wedding presents on the back seat and the deceased's body and her belongings in the boot. 19 It was his evidence before the jury that at no time did he intend to kill or cause serious physical harm to the deceased. 20 Consistently with the jury's verdict, I reject this version almost in its entirety. I find that the prisoner did intend to cause serious physical harm to the deceased and that the argument that broke out between them in the National Park, if that is where it happened, occurred in circumstances where the prisoner angrily struck and beat Mary Seretis Joiner till she fell to the ground and while she lay there he either kicked her or struck her with a rock or hit her head against the rocks on the ground. By whatever means he chose, he inflicted the serious head injuries to her which resulted in her death. I have not the slightest hesitation in finding that it was his intention to cause her serious physical harm and that he did so in an angry sustained and violent way sufficient to cause her to lose her life. 21 I reject his evidence that he drove towards the direction of Wollongong in a state of panic. I also reject his evidence that he went to Redfern to see the priest and left both the VW vehicle and the deceased's body there in a state of panic. In my opinion it is clear that he very purposely set out towards Wollongong probably to dispose of the body but was thwarted in this endeavour by the unexpected fact that his wife's vehicle ran out of petrol on the Freeway. Similarly, I find that the decision to leave the car in Redfern with the keys in the ignition, the vehicle unlocked and the body and the deceased's belongings in the boot was part of a deliberate plan to remove suspicion from himself and to cast it in some other direction. 22 One of the more bizarre and sad features of this case is that between 9 October and 26 October 2000, the prisoner embarked upon a series of statements and conversations which amounted to falsehoods on a major scale. These all related to his wife's apparent disappearance. Between the dates I have mentioned, the prisoner carried out a most convincing charade. He portrayed himself to the deceased's family and to her close friends as a grief stricken husband absolutely perplexed by the disappearance of his wife. He encouraged their aid in conducting searches throughout Sydney and the beach areas in an endeavour to locate his missing wife. He allowed himself to be interviewed at considerable length by the police on the basis that they were conducting a missing persons inquiry. Throughout this interview, which was the subject of an ERISP recording, he spun a web of the most fantastic lies and fabrications all designed to earn sympathy for himself, to distance himself from the disappearance of his wife and to evoke a wave of support towards himself which, when the inevitable discovery of his wife's body occurred, would make him the most unlikely suspect in the death. He agreed to go on national television and with the co-operation of the police made an impassioned emotional and moving plea to his wife to return or to let the authorities know where she was. 23 It was a most convincing performance but of course the whole charade was, as he was to concede in his trial, a pack of lies. What probably brought him undone was the fact that his violent behaviour towards his wife was now being brought to the attention of the authorities. This cast a completely different light on the relationship between them. Secondly, at some stage the police must have learnt that the VW Golf had ran out of petrol on the Freeway on the night of 8 October 2000 and that it was the prisoner who rang the NRMA to have the car taken to Bulli so that it could be refilled with petrol. This fact was sufficient to bring him undone because he had insisted to the police, his wife's family and friends that he never saw Mary Seretis Joiner or her car again once she had left the RSL Club and driven away by herself. His story had been that he had been left waiting at the reception for her return. Once this lie was exposed, it was inevitable that the prisoner would be found out. 24 On 26 October 2001 the solicitors for the prisoner faxed a statement to the police under the hand of the prisoner. This statement read: "I was involved in a physical altercation with my wife Mary on 8 October 2000. During the course of the altercation, I struck her and I believe she died as a result. I did not mean to harm her. No other person was present at the time or involved in any way. In my distress and panic after my wife's death, I left her body in her car, a 2000 Volkswagen sedan. When I last saw it, the car was parked in Abercrombie Street Redfern." 25 Despite the statements made in this fax, the prisoner at his trial presented a case that his wife may have died as a result of an epileptic seizure or blackout on 8 October. This further lie, told no doubt in an endeavour to shift the blame away from himself, did the prisoner little credit. 26 In all, this broad package of lies and post-offence conduct reflect no credit on the prisoner whatsoever. He admitted in his own evidence that the lies he told after his wife's death were "reprehensible". In my opinion, the whole sordid package of lies was cowardly, uncaring and unthinkably callous. By leaving the body to decompose in the boot of the car at Redfern and depriving her family and friends of the opportunity of farewelling her in a traditional way shortly after her death, the prisoner earned deservedly the condemnation and justified anger of those many family and friends who clearly loved and respected Mary Seretis. 27 Nevertheless, it is necessary to state clearly that, although I consider that the prisoner's actions in telling and acting out this charade of lies was disgraceful, these matters are not aggravating factors which warrant the imposition of a greater penalty. His actions following the death of his wife up to and including the trial mean however, that he is not entitled to sympathetic consideration on the basis of any demonstration of remorse or contrition. He had clearly shown none. 28 Before turning to the subjective features of the prisoner's case, I should say at this stage pursuant to s 28(2) of the Crime (Sentencing Procedure) Act 1999, I have received Victim Impact Statements from the deceased's mother, Mrs Elphis Seretis and from her brother, Mr Steve Seretis. These statements speak movingly and tragically of the devastating and continuing effect upon family members of the violent senseless and untimely loss of their beloved daughter and sister. The Court extends to Mrs Seretis and her son Steve Seretis its sympathy, realising the futility of mere words at such a tragic time. It is to be hoped that the opportunity to express grief and loss through these statements may, at least, go some way towards helping them cope with the terrible loss of Mary Seretis. I do not, however, consider it appropriate to have regard to those statements in determining what sentence should be passed: (see s 28(4)(b) of the Act and R v Previtera (1997) 94 A Crim R 76; Bollen v R (1998) 99 A Crim R 510). 29 I turn now to consider the prisoner's subjective features. He was born in Melbourne on 27 June 1964 and is now 37 years of age. He is the middle child of a family of four boys and three girls. All of his siblings live in Queensland. His mother died when he was 14 and his father passed away in June 1999. 30 Following his mother's death from cancer in 1978, his father remarried. The prisoner left home when he was about 16. He joined the Air Force at about the age of 20 and left after about eight years when his first marriage came to an end. There was one child from this failed marriage, a son Reece. 31 After leaving the Air Force, the prisoner returned to the Gold Coast and drove tourist buses for about two and a half years. At 28 years of age he opened his own earthmoving company in Queensland. He moved to New South Wales shortly after his marriage to the deceased in October 1998. He established another earthmoving business which he was still operating at the time of his arrest and imprisonment. 32 The prisoner has no prior convictions and no prior criminal history. 33 Mr Cattini on behalf of the prisoner tendered a report from Anna Robilliard dated 6 December 2001 (Exhibit 1). This gives some insight into the prisoner's personality and behavioural tendencies. First, the report shows that the prisoner tested out in the average range of intelligence. While he could have benefited from further formal education, he was considered by the psychologist to be soundly literate and numerate and was capable of running his own business. 34 Secondly, the personality test showed, as one would expect, that the prisoner is currently very anxious and worried. He evidenced significant feelings of guilt, apathy, low self-esteem and physiological symptoms consistent with reactive depression. At a more entrenched and enduring level, the prisoner's only significant score was on a dimension measuring histrionic behaviour. This type of personality demonstrates a pervasive pattern of excessive emotionality and attention seeking behaviour. Rapidly shifting emotions and a tendency to be easily excited, angered or bored are all consistent with this type of personality. 35 Ms Robilliard thought that the prisoner's dysfunctional relationship with the deceased might be traced back to the loss of his mother at a very early age. She said that he seen his first wife as dependent and demanding. Subsequent de-facto relationships were also unstable. The prisoner had related to her various damaging effects and bad memories of each of his girlfriends. 36 The prisoner's characteristically histrionic personality attributes, in her opinion, would have contributed towards his impulsive over reactive volatile and angry reactions to perceived rejection or abandonment by his second wife, Mary Seretis. 37 In the conclusion of the report, Ms Robilliard said that the prisoner was having great difficulty in coping with the deceased's death. He continued to maintain that he loved and missed her. He continued to rationalise his actions that had caused her death although he did acknowledge in the second of his meetings with the psychologist that "in one way or another I'm responsible". 38 In a prescient statement, Ms Robilliard noted that at the conclusion of the second meeting the prisoner asked her whether she considered him "a monster". Ms Robilliard told the prisoner that while he did not have the profile of a psychopath, he had done "a monstrous thing". 39 Mr Cattini made a number of very succinct submissions on the prisoner's behalf. First, he urged the Court to find that the intent displayed by the prisoner at the time he killed his wife was that of causing grievous bodily harm to her rather than an intention to kill. This is not really in dispute and I have made such a finding. The consequence of this is that the killing is not as objectively serious as where an intention to kill has been found (Ashfield (Gunn-Brit) (NSWCCA unreported 17 February 1998); Regina v Lowe (NSWCCA 14 November 1995)). This does not mean, however, that the level of culpability was not high, nor does it mean that the killing was not serious. 40 Secondly, Mr Cattini urged me to find that there were special circumstances. He placed reliance upon a number of matters which he suggested might require the prisoner to have a longer period on parole and under supervision than that allowed for in the usual statutory proportion. These were the attributes of his histrionic personality; the pattern of rationalisation of relationships as appears from the descriptions he gave Ms Robilliard of all his relationships with female partners. Finally there was the likelihood that he will be very depressed, perhaps suicidal, after he is sentenced. 41 Thirdly, Mr Cattini urged the Court to find that the post death lies and conduct ought not to be regarded as circumstances aggravating the murder. I agree with that submission. As distressing as the lies and conduct were to the family and friends, these were not matters that aggravated the offence. 42 He also submitted that the prisoner's actions in striking and ultimately killing his wife were not premeditated and were not planned. That too seems to be common ground between the Crown and Mr Cattini, although the prisoner must have known of his own angry tendencies as he had displayed these quite frequently to the deceased prior to the 8 October 2000. He had also displayed the same tendencies in each of his previous relationships with Victoria Bowdler, Belinda Speedy and Elizabeth Jennings. Indeed, during his marriage with the deceased, he had undertaken anger management sessions with the marriage counsellor although these do not appear to have been particularly successful. 43 The final point urged by Mr Cattini on the prisoner's behalf is that he has demonstrated some degree of contrition at least in a number of his statements to Ms Robilliard. 44 I regret to say that I find very little remorse and contrition in the prisoner regarding the death of his wife. As I have said earlier, the elaborate charade he carried out between 8 and 26 October 2000 earned him no consideration for remorse or contrition whatsoever. His words and actions at that time were callous and uncaring in the extreme. The very act of leaving his wife's body to decompose in the back of the motor vehicle in Redfern demonstrates a complete absence of remorse and a total lack of concern for her. 45 Further, his adherence to the unlikely scenario in the evidence he gave during the trial, and in particular the highly improbable suggestion that his wife had died as a consequence of some type of seizure, plainly reflect the fact that the prisoner has singularly failed to face up and take responsibility for his own actions. In particular, he has shown virtually no consideration or regret for the terrible thing he did to the deceased. It was, as Ms Robilliard said, a truly monstrous thing for him to have done. 46 A close examination of all his statements to Ms Robilliard as reflected in the report indicates to me that he has still as recently as the 3 December 2001, failed to face up to and take responsibility for his actions. His description of his relationship with the deceased and of the events of 8 October 2000 continue to portray his position as the victim of aggression and to paint his wife as the aggressor. Nothing could be further from the truth. His attempts to paint himself in this favourable light to Ms Robilliard are nothing more than a continuation of the charade to which I have made reference at an earlier point in these reasons. For present purposes, I see very little contrition and very little remorse in anything the prisoner has said or done. 47 I have considered and given considerable attention to the prisoner's subjective circumstances. It remains the case however, that the sentence I pronounce must recognise that the callous, angry and aggressive actions by the prisoner on 8 October 2000 brought an end, quite unnecessarily to the life of a young woman who was by all accounts an exceptional person. 48 The death of Mary Seretis was quite needless. A valuable human life was snatched away in the most tragic of circumstances. The prisoner's need to manipulate and control, coupled with his uncontrollable anger in the most trivial of domestic situations, was the catalyst for this waste of a valuable human life. 49 There are of course no possible alternatives to fulltime custody in the present case, nor has it been suggested otherwise. The gravity of the offence and the degree of the prisoner's culpability are to be denounced and condemned by the length of the sentence that I must set. I do take into account in his favour however, those matters that I have set out earlier. 50 In my opinion, there are no special circumstances in the present case. I have given consideration to the various matters urged on the prisoner's behalf by Mr Cattini in this regard. I consider however, that, having regard to the length of the sentence I propose to impose, the period of parole that will result, if the usual proportion of the non-parole period to the total sentence is maintained, will be sufficient for the prisoner's rehabilitation, upon release without any further extension. Nor is there any reason to justify a lesser non-parole than one of three quarters of the total sentence. 51 I have concluded that I should impose a sentence of 18 years imprisonment. In setting a non-parole period I find, for the reasons that I have stated, there are no special circumstances for the non-parole period to be less than three quarters of the term of the sentence. The prisoner has been in custody since 26 October 2000. I propose to backdate the sentence to take into account this time spent in custody. 52 Patrick Joiner, I sentence you to 18 years imprisonment. The sentence is to commence from 26 October 2000. I set a non-parole period of 13 years and six months commencing on 26 October 2000 and expiring on 25 April 2014. The prisoner will be eligible to be released on parole on that day, 25 April 2014. ********** Last Modified: 12/20/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.