New South Wales Supreme Court CITATION : R v Pello [2001] NSWSC 650 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70014/2000 HEARING DATE(S) : 21/05/2001; 28/05/2001 JUDGMENT DATE : 3 August 2001 PARTIES : Regina Michael Pello JUDGMENT OF : Hidden J at 1 COUNSEL : Mr Bruce Smith (Crown) Mr John Stratton (Pello) SOLICITORS : Solicitor for Public Prosecutions (Crown) Brenda Duchen (Pello) CATCHWORDS : CRIMINAL LAW - Sentence - provocation - manslaughter LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Engert (1995) 84 ACrim R 67 R v Alexander (1994) 78 ACrim R 141 at 144 DECISION : Sentenced to imprisonment for five and a half years with non-parole period of three years. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday 3rd August 2001 No: 70014/2000 Regina v Michael Pello Remarks on Sentence 1 HIS HONOUR: The offender, Michael Pello, was indicted for the murder of a woman named Loida Smith at Marrickville on 19 May 1999. His plea of guilty to manslaughter was accepted by the Crown in discharge of that indictment, on the basis of provocation. A question also arises whether, at the time of the killing, he was suffering from a psychiatric disorder bearing upon his culpability. To understand the circumstances of the offence, it is necessary to sketch his background. 2 The offender is now forty years of age. He was born and raised in the Indonesian province of West Timor, one of a family of nine children. His father was violent and his childhood was unhappy. His education did not progress beyond primary school. His father died when he was in his early teens, and he had to work as a sewing machinist to help provide for his younger siblings. His mother died in more recent years. 3 He came to Australia in 1988 on a visitor's visa and has remained here since that time. Two of his brothers have settled in this country, having married and had children. If he came here in search of a better life, he was to be disappointed. Most of his daily routine was menial work for long hours, he does not appear to have been close to his brothers and he did not develop a relationship of any warmth or affection with anyone else. 4 The deceased, Loida Smith, was thirty-five years old at the time of her death. A native of the Philippines, she married an Australian and they had two children, but they separated in 1996. Since 1990 she had been renting the house at Marrickville near which she met her death. In that same year she invited Elma Valdehueza, a friend of hers from the Philippines, to move into the house with her. 5 In about December 1995 the offender also moved into the house. The deceased introduced him to Ms Valdehueza and arranged for their marriage, which was solemnized in January 1996. In fact, the marriage was a pretence designed to enable the offender to remain in Australia, as Ms Valdehueza had been granted permanent residency here. Their relationship was never intimate and they slept in separate rooms. 6 At the time of her death in May 1999, the deceased was living at the house with her two children, as were the offender and Ms Valdehueza. Also living there were the deceased's mother, who had moved in in 1995, and Ms Valdehueza's sister, who had arrived to visit her in March 1999. 7 Following the marriage, the offender's life was little more than a bare existence, and a miserable one at that. In the period leading up to the killing he was working around twelve hours a day in two jobs, as a chicken filleter and a sewing machinist. From his weekly wage he would pay a certain amount to the deceased towards the rent and would give most of what was left to his wife, retaining a very small amount to live on himself. The two women often squandered the money on liquor or gambling, and the rent would remain unpaid. They would demand money from the offender, threatening otherwise to report him to the immigration authorities and have him sent back to Indonesia. Although the two women were friends, they constantly argued about money and frequently came to blows. The offender had difficulty sleeping, experienced a loss of appetite and was losing weight. 8 On the day in question the offender arrived home from work some time after 5pm, having been up since before 5am. It is unnecessary to recite in detail what then occurred. It is sufficient to say that the deceased had been drinking and she began to argue with the Valdehueza sisters. With one or two short breaks, the argument continued over several hours. The deceased assaulted both of the sisters. The offender remonstrated with the deceased, complaining that he was tired, but she abused him and on one occasion struck him. Again, she threatened to have him sent back to Indonesia. On another occasion she threw a fruit bowl onto the floor in front of him, breaking it. He was particularly afraid that she was going to strike him on the head with it because there is an area of his head where bone had been surgically removed following an incident in his early teens, when he fell out of a tree and fractured his skull. 9 Eventually, the Valdehueza sisters left the house and the deceased pursued them. The offender followed them outside and again remonstrated with the deceased about her fighting. It is at this point that he appears to have lost his self control. In his electronically recorded interview with police he spoke of experiencing "too much pressure". He went back to the house, seized a knife, returned to where the women were and stabbed the deceased a number of times, causing her death. He remained at the scene, where he surrendered to police. 10 Clearly, the killing was the result of the deceased's provocative behaviour that night, the gravity of which must be assessed against the background of the stressful and exploitative environment in which the offender had been living. I accept that violence of that kind is uncharacteristic of him. He has no criminal record in Indonesia and his only criminal history in this country is an entry for what appears to have been a minor offence of shoplifting, which is of no present significance. In the material before me are statements by his wife and the mother of the deceased suggesting that he had inflicted or threatened violence upon members of the household before this incident. Those statements are questionable for reasons which were exposed in the sentence proceedings, and I would not rely upon them. The offender's sworn denial of any such behaviour was not pursued in cross-examination. 11 There is no doubt that he is contrite, and always has been. He expressed his remorse in evidence before me, as he had to psychiatrists who examined him and, from the very outset, to the police. Indeed, there is a poignant moment in his electronically recorded interview (observable on the video tape but not recorded in the transcript) from which it appears that he had not until then been aware that his victim had died. It is obvious from his demeanour that the realisation shattered him. 12 Let me turn, then, to the psychiatric evidence. The offender has been in custody since his arrest on 19 May 1999, and he has been seen on a number of occasions by health professionals in the prison system. Within a few days of his reception into prison he was seen by Dr Lynch, psychiatrist, who diagnosed major depression, with a differential diagnosis of an organic mood disorder (arising, apparently, from the head injury) or an adjustment disorder with depressed mood. The doctor prescribed anti-depressants and reviewed him on a few occasions over the next month or so. 13 In July 1999 he was referred to Dr Read, a psychiatric registrar, to whom he described symptoms of a hallucinatory and delusional nature. Dr Read diagnosed schizophrenia, with a differential diagnosis of psychotic depression. Dr Read saw him a few more times until the end of August 1999, whereupon he does not appear to have been examined by mental health staff until May 2000. He then came to the attention of Dr Ellis, another psychiatric registrar, who also diagnosed schizophrenia. 14 This case went to trial last year but the jury was unable to arrive at a verdict. In exploration of an issue of substantial impairment under s23A of the Crimes Act for the purpose of that trial, the offender's solicitor had him examined by Dr Bruce Westmore. He was later examined by Dr Rod Milton for the Crown. There is no need for me to determine the issue of substantial impairment, as the plea of guilty to manslaughter has been accepted by the Crown on another basis. However, as I have foreshadowed, the question remains whether there is evidence of psychiatric illness bearing upon sentence in accordance with the principles examined by the Court of Criminal Appeal in R v Engert (1995) 84 ACrim R 67. I received in evidence the reports of Dr Westmore and Dr Milton, both of whom had access to the prison medical material. I also had the benefit of their oral evidence in the sentence proceedings. Their competing views, and my conclusion, can be stated briefly. 15 Dr Westmore saw the offender in April 2000 and, in the light of that consultation and the material he then had, he could see no evidence of a psychiatric disorder at the time of the killing which might have contributed to it. However, he saw him again in October 2000 while the trial was in progress. He had then been supplied with further material from the prison medical authorities and, more importantly, the offender gave him for the first time a history of auditory hallucinations during a period prior to the killing while he was living at the house at Marrickville. In the light of all the material Dr Westmore concluded that at the time of the consultation the offender was suffering from a major depressive illness which had been characterised by psychotic features in the past, that he was suffering from that illness at the time of the killing and that it may have led to a disturbed mental state contributing to his aggressive behaviour on that occasion. 16 Dr Milton saw the offender in January of this year. He considered that the evidence of the offender's lifestyle around the time of the killing, particularly his ability to work long hours at two jobs, was inconsistent with his suffering a major psychiatric illness such as severe depression (or schizophrenia). He questioned the diagnoses of the prison medical staff, noting some inconsistencies in the offender's account to them of his symptoms and expressing the view that those diagnoses could not be accommodated with some of their clinical observations. Dr Milton saw some of the auditory hallucinations described by the offender as explicable by his cultural background. Other reported symptoms, however, he thought may have been fabricated by the offender, including those which he described to Dr Westmore in the consultation of October 2000. 17 I am indebted to those two experts, and counsel for the Crown and the offender, for their careful analysis of the evidence bearing on this issue and the conclusions which might fairly be drawn from it. The matter is finely balanced and it has troubled me. Nevertheless, I am persuaded that the view of Dr Westmore is to be preferred and that, while the killing is readily explicable by the provocative effect of the deceased's conduct on that occasion and in the past, the offender was suffering from a psychiatric illness which had some part to play in this terrible event. I do not see Dr Westmore's diagnosis as inconsistent with the other evidence in the case. Moreover, while I am mindful of the possibility of a person in remand custody being tendered all sorts of advice by "bush lawyers" in the prison system, I agree with Dr Westmore that it is most unlikely that a man of this offender's humble and unsophisticated background would be able to fabricate symptoms so as to deceive several health professionals within that system, and Dr Westmore himself. 18 I consider the risk of this offender re-offending in this way to be very low, and I certainly do not think that he is a continuing danger to society. As Dr Westmore observed, depression is a treatable illness. On the evidence, the offender has no history of serious violence, and I have no doubt that, notwithstanding the contributing factor of his mental illness, he would not have killed the deceased but for the provocative circumstances which I have outlined. Accordingly, his mental condition at the time serves to lessen the importance of the deterrent aspect of sentence, although by no means to eliminate it. 19 Of course, none of this is to deny the seriousness of this offence or to ignore its tragic consequences. The accused has killed a woman who was in the prime of her life and was the mother of two children. Nothing I have said about her behaviour is intended to pass judgment upon her. That material is relevant only in so far as it bears upon the offender's culpability. 20 For the purpose of assessing the leniency to which the offender is entitled as a result of the provocation, I have regard to the three matters set out by Hunt CJ at CL in the familiar decision of R v Alexander (1994) 78 ACrim R 141 at 144. In the circumstances, the degree of provocation was high and I do not consider that there was any significant lapse of time between the provocative conduct and the killing. Nor, in the light of the post-mortem findings, does it appear that the degree of violence displayed by the offender was excessive. A discrete reduction of sentence is warranted by his mental condition, for the reasons which I have outlined. I also take into account his sad background and the fact that imprisonment has been, and will continue to be, particularly burdensome for him because of his relative isolation. His command of English is anything but fluent, and his brothers have visited him on relatively few occasions over the period of roughly two years he has been in custody. 21 In the light of his background and psychiatric condition, there are clearly special circumstances warranting a departure from the usual proportion between sentence and non-parole period. It may well be that he will be deported at the end of the non-parole period but that is not a matter to which I can have regard for the purpose of sentence. 22 Michael Pello, you are sentenced to imprisonment for five and a half years, to date from 19 May 1999, with a non-parole period of three years. You will be eligible for release on parole on 19 May 2002. ********** Last Modified: 09/03/2001 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.