New South Wales Supreme Court CITATION : Regina v P Helman [2001] NSWSC 1127 CURRENT JURISDICTION: Criminal Division FILE NUMBER(S) : SC 70084/01 HEARING DATE(S) : 28/11/01 JUDGMENT DATE : 18 December 2001 PARTIES : Regina Paul Helman JUDGMENT OF : Kirby J COUNSEL : P Power (Crown) A Martin (Accused) SOLICITORS : L Coffey (DPP) Voros Lawyers CATCHWORDS : Judgment on sentence - Plea of guilty to murder - Whether premeditation involved - Long term drug and alcohol abuse - Special circumstances LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Savvas v The Queen (1995) 183 CLR 1 CASES CITED : R v Storey (1997) 89 A Crim R 519 R v Olbrich (1999) 199 CLR 270 R v Previtera (1997) 94 A Crim R 76 DECISION : Sentence para 40 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION KIRBY J TUESDAY 18 DECEMBER 2001 70084/01 - REGINA v Paul HELMAN JUDGMENT ON SENTENCE 1 KIRBY J: On Monday 3 December 2001, Mr Paul Helman pleaded guilty to the murder of Kevin John McLeod. It remains for me to pass sentence. Before I do so, I must determine the facts. The facts that must be determined are those relevant to the sentencing discretion (Savvas v The Queen (1995) 183 CLR 1). Where facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Helman, it is enough that they should be proved on the balance of probabilities (R v Storey (1997) 89 A Crim R 519; R v Olbrich (1999) 199 CLR 270). The Evidence on Sentence 2 The Crown brief was tendered (Exhibit B). It comprises witnesses' statements, photographs, and a lengthy interview with Mr Helman, recorded on video. The Crown also relied upon a report from Dr Nielssen (Exhibit D). Det Rodney Pistola gave brief evidence. 3 A report of Dr Westmore was tendered on Mr Helman's behalf (Exhibit 1). His sister, Ms Helen Helman, gave brief evidence. Mr Helman did not give evidence. The Crime 4 The circumstances in which Mr McLeod died are not in doubt. In the early hours of Wednesday 21 February 2001, Mr McLeod was attacked by Mr Helman with an iron bar whilst seated watching television. The attack occurred from behind. Mr McLeod was unarmed. He was repeatedly struck on the head and face. He suffered fractures to the skull, to various facial bones, and brain injury. He suffered other injuries besides. It was, on any view, a brutal crime. Premeditation 5 There is, however, controversy concerning the circumstances giving rise to the crime. The Crown asserts that there was premeditation and planning on the part of Mr Helman, which is a circumstance of aggravation. Indeed, it goes further. It asserts that Mr Helman enticed Mr McLeod into a situation in which he was vulnerable, intending to brutally assault him. 6 Determining the facts presents difficulties. Apart from Det Pistola and Ms Helman, I have not seen the witnesses whose statements have been provided. Mr Helman has provided various accounts, some contradictory. He spoke to a number of individuals shortly after the crime. He then spoke to the police at length. He also provided an account of what happened to doctors. It is perhaps not surprising that his accounts should vary. He was, as I will shortly describe, affected by drugs. More than that, when interviewed by the police, at first he denied any involvement. He gave a false account. It was only when confronted by statements he had made to others that Mr Helman acknowledged his responsibility. 7 Mr Helman was born on 27 February 1964. At the time of Mr McLeod's death he was almost 37 years old. He rented a flat at 5/37 Truman Avenue, Riverwood. It was owned by the Housing Commission. The rent was $50 a week. Mr Helman worked from time to time. When unemployed he received benefits. As part of the New Start Programme, he enrolled in a course as a barman in December 2000. However, he failed to complete that course. Under the terms of the programme, he was therefore penalised. Benefits were suspended until mid-March 2001. 8 That created a difficulty for Mr Helman. He could no longer pay his rent. He was in danger of being evicted. In these circumstances, he reached an agreement with Mr McLeod, the deceased. Mr McLeod was approximately the same age as Mr Helman. He suffered from schizophrenia. He was in receipt of a Disability Allowance. He agreed to move into Mr Helman's flat and pay the $50 per week. 9 Mr Helman and Mr McLeod shared a friend in common, Ms Cottier. Ms Cottier owned premises at 1 Nettleton Avenue, Riverwood. Mr McLeod had lived at those premises for a number of months during the year 2000. Mr Helman met Mr McLeod in that context two or three months before the murder. Mr McLeod later moved out of Ms Cottier's home, back to his mother's home. 10 There is an issue as to when Mr McLeod moved into Mr Helman's flat. The issue is important because of the Crown's suggestion that Mr Helman enticed Mr McLeod into the flat in order to harm him. The evidence is spare. However, I believe the broad picture is plain enough. Mr Helman moved to Nettleton Avenue a week or two before Mr McLeod's death. He provided the following answer in his interview with the police, referring to Mr McLeod: (Q.41) "He came when he was having problems with his mother. So it sorta worked out good for both of us. He needed a place of his own and I'm in the same, you know. And I did tell (him) it's only for a while, temporary." 11 There would, of course, be no point in Mr Helman moving to Nettleton Avenue unless he had someone who could pay the rent on the flat. Indeed, to do so would make his problems worse, since he would then be liable for rent at both locations. 12 Mr McLeod did not move into the flat straight away, although he spent time at the flat. A friend of the deceased recounted a conversation with Mr McLeod two days before his death, that is, on 19 February 2001. The conversation was in these terms: "Kevin told me that he had been cleaning the unit up for the past week and that he was ready to move in." 13 A friend gave Mr McLeod assistance in moving his possessions into the flat on 19 February. I am satisfied that Mr Helman did not entice Mr McLeod to his flat with a view to harming him. 14 There is, nonetheless, evidence that, within a short time of Mr McLeod taking over the flat, Mr Helman formed the belief that Mr McLeod may be a paedophile. That belief was especially disturbing to Mr Helman because of his background. Some years earlier his sister had mentioned that she had been sexually molested as a child by her stepfather. Her stepfather was Mr Helman's father. When the issue was first raised, Ms Helman did not go into detail. However, approximately one month before Mr McLeod's murder, Ms Helman described to her brother exactly what had happened. 15 Mr Helman had a friend, Mr Hakim, whose lawns he mowed from time to time. Approximately one week before the death of Mr McLeod, Mr Hakim sought out Mr Helman to ask him to mow his lawns. He went to the house at Nettleton Avenue where Mr Helman was then living. Mr Helman emerged from the house, stumbling. He was plainly affected by drugs. He appeared agitated and nervous. Mr Hakim asked Mr Helman what was wrong. Mr Hakim described Mr Helman's response in these words: "At this stage I saw Paul reach down and pull a knife out of his left sock. He said, 'I (am) scared I am going to kill him.' I said, 'Kill who, what are you talking about?' He said, 'The man staying in my flat.' I said, 'Tell me whats wrong?' He said, 'I will tell you the whole story when I come to mow your lawns.'" 16 There is no reason to doubt Mr Hakim's account. It was provided to the police soon after the incident. The terms of Mr Hakim's statement make it clear that he was well disposed towards Mr Helman. 17 At about the same time, that is a week before Mr McLeod's murder, Mr Helman also said to Ms Cottier that he was going to bash Mr McLeod. According to her statement, he made repeated references to Mr McLeod being a paedophile. Events Immediately Before 18 Mr Helman had, for some time, abused various drugs, especially cannabis and amphetamines. In the days immediately preceding the offence he had, in his own words, "been speeding for some time". He had ingested a significant quantity of amphetamines and cannabis. He had not slept, or hardly slept. 19 On the late evening of Tuesday 20 February 2001, Mr Helman went to the flat at Truman Street. He had a key and let himself in. Mr McLeod was there. It appears that something was said by Mr McLeod that Mr Helman saw as a reference to children and confirmation of his belief that Mr McLeod was sexually interested in children. Mr Helman reacted with hostility. However, at that point, he did not strike Mr McLeod. Instead, he got up and left the flat. 20 Having left the flat, Mr Helman went for a walk. Whilst on the walk he gave himself what he referred to as a "shot", which I take to mean an intravenous injection of amphetamines. Mr Allender, a forensic scientist, described the effects of injecting that drug. Amphetamines are, of course, a central nervous stimulant. They can impair perceptions and judgment. They can increase aggressive or risk taking behaviour during the acute phase of intoxication. Mr Hakim had observed the transformation of Mr Helman under the influence of drugs, especially amphetamines. He became angry and aggressive. 21 Whilst outside the flat Mr Helman came across a supermarket trolley. He partly dismantled the trolley, removing an iron bar. He then returned to the flat. He concealed the iron bar in the leg of his tracksuit pants. It was shortly after midnight on the morning of Wednesday 21 February 2001. 22 Mr McLeod was still awake. He himself was smoking marijuana. Mr Helman joined him and, again to use his words, "started having a few cones with him", in other words, further marijuana. Mr McLeod, according to Mr Helman, then started talking "sex, sex, sex". Mr Helman found his words offensive. At the same time, on Mr Helman's account, Mr McLeod was cutting up an advertising brochure containing pictures of children. He was seated in front of the television with his back to Mr Helman. Mr Helman removed the iron bar from his trousers. He said that he demanded that Mr McLeod leave the premises. Mr McLeod refused to do so, saying that he had paid the rent. Mr Helman then repeatedly struck Mr McLeod on the head whilst he remained seated. Mr McLeod fell to the floor. He struggled to his feet, supporting himself on the chair. Mr Helman again struck him a number of times with the iron bar. Mr McLeod was screaming and protesting. Mr Helman, to use his own words, then "put him out of his misery". He struck again and again until he was silenced. 23 There can be no question that Mr Helman knew what he was doing, despite having taken drugs. After the police had interviewed Mr Helman, he was taken back to the flat, where a further interview was conducted. A video of that interview was made. Mr Helman described in detail each phase of the attack. 24 On any view there was a degree of premeditation. Mr Helman was disturbed by the possibility, as he saw it, that Mr McLeod may be a paedophile. He armed himself with a weapon, which he then concealed. He says that he did so in order to frighten Mr McLeod into leaving. Although one suspects that when Mr Helman sat down with Mr McLeod and smoked marijuana, that he was biding his time, waiting for an appropriate moment to strike, and that he had already determined Mr McLeod's fate, I cannot be certain beyond reasonable doubt that Mr Helman formed an intention to kill Mr McLeod before he re-entered the flat. It is possible that he may, at that point, have simply intended to frighten the deceased. However, having struck Mr McLeod a number of times, and when he was clearly in pain and screaming out, Mr Helman plainly intended, in a cold blooded way, to finish the job. 25 I should add that there was no evidence whatever that the deceased was a paedophile. He was not known to the police as a paedophile. A search was made of the flat after his death. Nothing was found which suggested paedophilia. No brochures or pictures of children, such as described by Mr Helman, were found. Indeed, Mr Helman, when interviewed by the police, said this: (Q.272) "Q. Did he show any signs to you in relation to paedophilia or anything like that? A. No." 26 However, I accept that something was said by Mr McLeod which Mr Helman misconstrued as some form of confirmation that Mr McLeod had an interest in children sexually. That misconstruction was the product of Mr Helman's sensitivity concerning the issue of child sexual abuse, and the effect of drugs. Mr Helman's conduct throughout was affected by drugs. His drug taking furnishes an explanation, in part, for what occurred, but certainly not an excuse. It is in no sense a matter of mitigation. 27 Having silenced Mr McLeod, Mr Helman covered the body with a blanket. He then left the flat. He walked to Nettleton Avenue, arriving at about 3.00 am. He made a noise as he arrived, disturbing Ms Cottier, who noted the time. Mr Helman then went to sleep. He slept for some hours, waking at about 1.30 pm. 28 At about 5.00 pm, Mr Helman said to Ms Cottier and another resident of Nettleton Avenue, Mr Kelashone, that he was returning to the flat in Truman Avenue to retrieve certain belongings. He came back about twenty minutes later. He was shaking. He told Ms Cottier and Mr Kelashone that he had seen blood stains all over the wall and on the television. He thought that Kevin was dead. The three then set out for the flat. It was a short distance away. In the course of the journey, Mr Helman suggested that the crime had been perpetrated by someone else. However, he soon dropped that pretence. He acknowledged that he was responsible. According to Ms Cottier, he said this: "I did it alright, he was a disgusting paedophile ...." 29 The three entered the flat. Mr Helman, at this point, was defiant. He spat on Mr McLeod's body, which was still covered with a blanket. Ms Cottier urged Mr Helman to telephone the police. He said that he would do so. 30 Later that evening, at about 9.30 pm, Mr Helman returned to the flat. On this occasion he was alone. He passed two young men in the street. He stopped and asked for a cigarette. He then told them that he had just killed a paedophile. He also said that he had an alibi because he had been staying somewhere else for several weeks. After he left their company, one of the young men telephoned the police. He reported the conversation. 31 Mr Helman ultimately reported the death of Mr McLeod to the police at about 10.45 pm. He said that he opened the door and saw blood all over the walls. He was arrested at 11.00 pm. He was taken to Hurstville Police Station and interviewed. At first, as mentioned, Mr Helman denied any involvement. He said that he had simply come across the body. Once confronted with the statements of the persons to whom he had confessed, he acknowledged responsibility. He thereafter co-operated with the police. 32 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. I have been furnished with a Victim Impact Statement by the mother of the deceased. She describes her anguish at the death of her son. She relives daily the brutality to which he was subjected. One can only imagine her agony. However, the sorrow of those who remain behind is not a matter which I should take into account, and I do not do so (R v Previtera (1997) 94 A Crim R 76 at 85). Plea of Guilty 33 When the matter was listed for arraignment in November 2001, Mr Helman pleaded guilty to manslaughter. The Crown, however, would not accept that plea. Mr Helman then pleaded guilty to murder before me. That plea was entered shortly before the date fixed for trial. The matter had come on for trial somewhat more quickly than is usual. After the committal, the psychiatric issues were investigated. No psychiatric defence was available. For the purposes of sentencing, I approach the matter upon the basis that Mr Helman acknowledged responsibility early and pleaded guilty after the psychiatrists had reported and once he had been given appropriate advice (s22(1) Crimes (Sentencing Procedure) Act, 1999). A significant discount, in my view, is appropriate. Subjective Circumstances of Mr Helman 34 Mr Helman, as mentioned, is a man aged 37 years. He is single. His early life had its difficulties. His father was alcoholic and largely absent. As mentioned, his father also sexually molested his sister, although Mr Helman did not become aware of that fact until recently. Mr Helman completed his School Certificate. He has been employed intermittently by reason of his drug abuse. 35 Mr Helman has little by way of criminal history. Ignoring traffic offences, on 19 August 1999 he was convicted of maliciously destroying property, and fined. The property destroyed was a broken window. The only other conviction was on 18 January 2001 for goods in custody reasonably suspected of having been stolen. Again Mr Helman was fined. By all accounts he is a person who behaves reasonably and responsibly when not affected by drugs. Dr Nielssen offered an optimistic prognosis for rehabilitation. He said this: "Mr Helman's presentation at interview, and the absence of a history of serious antisocial conduct suggests that he has some potential for rehabilitation." 36 I share Dr Nielssen's optimism. The period of Mr Helman's incarceration will, hopefully, offer him the opportunity to eradicate drugs from his life. I am confident that, without drugs, he is unlikely to offend again. He is a person, however, who is likely to benefit from extended supervision by the Probation and Parole Service. I therefore find special circumstances (s44(2) of the Act), although the adjustment required to his sentence is not substantial because, necessarily, the parole period must itself be significant. 37 I should deal with one further issue. It was said on Mr Helman's behalf that he has shown contrition. His counsel pointed to the following answers he provided the police when first interviewed: "Q531 Is there anything further you want to say in relation to what happened? A. No. I'm guilty as hell so. Feel sorry for him and I don't know. Q532 In what way do you feel guilty? A. Like, for doing it. I wish I never done it. Yeah. I just wish I never went, wish I never done it. Q533 Well, how do you feel now? A. Like it was someone in the family's died or something." 38 I accept that these answers are more likely to represent Mr Helman's true feelings than his show of defiance immediately after the murder. I therefore accept that he is truly sorry for the crime that he has committed. 39 Mr Helman has been in custody since his arrest on 21 February 2001. His sentence should commence from that date. 40 PAUL HELMAN, I sentence you to imprisonment for 15 years with a non-parole period of 11 years. Giving credit for time served, and calculating from the date you went into custody, you will be eligible for release on parole on 20 February 2012. Your sentence will expire on 20 February 2016. ********** Last Modified: 12/19/2001 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.