New South Wales Supreme Court CITATION : Regina v Kraaymaat [2002] NSWSC 199 FILE NUMBER(S) : SC 70035/01 HEARING DATE(S) : 13/03/02 JUDGMENT DATE : 14 March 2002 PARTIES : Regina v Andrew Paul Kraaymaat JUDGMENT OF : Howie J at 1 COUNSEL : Mr D. Arnott - Crown Mr A. Haesler - Accused SOLICITORS : S.E. O'Connor - Crown Pappas J , Attorney - Accused CATCHWORDS : Criminal Law - Sentence for conviction of murder LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 44(2) DECISION : The prisoner is sentenced to imprisonment for 18 years with a non-parole period of 15 years. The sentence is to commence on 25 February 2001 and the non-parole period will expire on 24 February 2016 the date upon which the prisoner is eligible to be released to parole. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HOWIE J THURSDAY 14 MARCH 2002 70035/01 R v Andrew Paul KRAAYMAAT SENTENCE 1 HIS HONOUR: On 12 March last a jury convicted the prisoner of the murder of Lee Michael Petrie on 23 August 2000. The trial before me was a re-trial, the jury at an earlier trial being unable to agree upon a verdict. The prisoner is now to be sentenced for that offence consistent with the jury's verdict and the facts upon which it was based. 2 The substantial issue before the jury was whether they were satisfied beyond reasonable doubt that it was the prisoner who caused the death of the deceased. There was also an issue raised as to whether at the time of the stabbing the prisoner had the intention for murder but it is unsurprising that, once the jury were satisfied that the prisoner was the person responsible for the death, they would find him guilty of murder. The nature of the stab wound and the circumstances in which it was inflicted were eloquent of the fact that whoever stabbed the deceased did so with at least an intention to inflict grievous bodily harm and the only basis upon which the jury might have found that the accused was guilty of manslaughter rather than murder was if, by reason of his intoxicated state, they were left in doubt as to whether he had formed that intent. 3 The facts, therefore, upon which the prisoner is to be sentenced are really no longer in dispute. The prisoner, who has suffered from a long history of alcohol abuse, was staying for a short time on a property near Candelo in the State's southeast. On that property, at the relevant time, were living Brian Peebles and John Tait. The prisoner had met Peebles through a mutual friend and had been staying at the property for a week before the stabbing. He was intending to return shortly to his home in Tenterfield. Much of the time of the persons living on the property, and those who visited them, was spent drinking alcohol throughout the day and well into the evening. 4 The deceased, who was aged 41 years, lived in Tathra. He was between jobs at the time and often went to Bega shopping and, when he did so, spent some time at the Commercial Hotel. He there became acquainted with Peebles who also use to drink at the hotel whenever he was in town. They had known each other for about 3 months before the killing. At some stage they discussed whether the deceased was interested in buying a motor vehicle that Peebles had repaired and was on the property. The deceased travelled to the property once to inspect the vehicle but decided not to purchase it. However Peebles and the deceased remained friends, Peebles offering to do minor repairs to the vehicle bought by the deceased. 5 On 23 August 2000 Peebles, Tait and the prisoner travelled together into Bega with the wife of a neighbour. They went to the Commercial Hotel where they met the deceased and arranged for him to drive them back to the property for a barbeque and a few drinks. They purchased some food and beer and all returned to the property in the deceased's motor vehicle. They spent the afternoon drinking together. 6 At about 9.30 in the evening Tait decided that he had consumed enough alcohol and retired to the caravan in which he lived on the property. Peebles, the accused and the deceased remained in the lounge room of the residence drinking beer. By this time the three of them were well affected. Peebles described the deceased as being very drunk and sleepy. At some stage in the evening the prisoner got up and went to the kitchen ostensibly to get another can of beer from the fridge. However, he picked up a filleting knife from the butcher's block in the kitchen and returned to where the deceased was sitting. He then stabbed the deceased three times in the chest. The prisoner then returned to the kitchen and obtained a plastic shopping bag, which he placed over the head of the deceased. 7 There were two superficial wounds inflicted upon the deceased and a third penetrated the deceased's sternum and entered his heart. During one of the strikes the blade of the knife broke and remained caught in the deceased's clothing. The deceased had some cuts to his hands that were consistent with defence wounds. 8 The body of the deceased was placed in the back of the deceased's vehicle, which was driven a distance of about 15 kilometres to a picnic area on what is known as Myrtle Mountain. The body was dumped out of the vehicle and left on the side of the road. No attempt had been made to hide or cover the body. The deceased's vehicle was driven back to the property and parked outside the residence. There was some issue in the trial as to who had taken the body to Myrtle Mountain but I have no doubt that it was both the accused and Peebles. It does not matter for the purpose of sentencing the prisoner who did the driving or whose decision it was to take the body there and leave it, although the prisoner later told police that he wanted the body left where it would be found. 9 At about 11.30pm on the night of the stabbing the prisoner telephoned his mother, Ms Peters. He had been trying to contact a friend of his, Mr Valentine, who was his spiritual advisor and alcohol counsellor, but had been unable to have Mr Valentine answer his calls. The prisoner told his mother that he had committed the "cardinal sin" and, when she asked what he meant by this, he told her that he had killed a man by stabbing him three times. Ms Peters could hear another man in the background who was repeating what the prisoner was saying including that he had killed the man. This was Peebles. The prisoner at one stage told him to shut up and assured his mother that Peebles had not killed the man but he had. Ms Peters asked the prisoner why he killed him and the prisoner said, "He was a mongrel and deserved to die". The prisoner also said, "he had money and was ruining everybody's lives and he deserved to die". Peebles was still repeating the prisoner's words and again the prisoner told him to shut up and said to his mother, "Don't take any notice of him that's Brian, he's only trying to save my bacon." Shortly after this the prisoner terminated the call. 10 The prisoner spoke to his mother again the next morning and once more confirmed that it was he who had killed the deceased and not Peebles. He also told her that he intended to do nothing as they had got rid of the body and were going to wait to see what happened. After this call Ms Peters spoke to a friend who had been a police officer and he contacted Detective Winterflood in Bega. 11 Later that day Thursday, 24 August, a Telstra employee found the body on Myrtle Mountain and the police were notified. 12 Back at the property the prisoner and Peebles were cleaning up in the lounge room and getting rid of any evidence of the killing. A fire was lit near the premises and the prisoner threw on it the settee upon which the deceased had been sitting when he was stabbed. The prisoner also threw the deceased's wallet on the fire after he had gone through it. Mr Tait gave evidence that the prisoner was in possession of the deceased's watch and asked him whether he wanted his old watch. Tait declined the offer. Peebles told Tait that the deceased had been stabbed after an argument and his body had been dumped. The prisoner threatened Tait that he should not say anything or attempt to leave the property. Tait then withdrew to his caravan. 13 That evening the prisoner rang Mr Valentine. He told him that he and another person had killed a man. He said that he had spoken to his mother and told her what he had done. He also said "the only thing that has upset me is the grief that I've caused mum and the guy's relatives". He indicated that, although others with him wished to bury the body, he wanted it to be found. 14 The next day the prisoner was arrested. He thereafter on three occasions admitted to police that he was responsible for the stabbing of the deceased, two of those occasions being during video-recorded interviews. At the scene of the killing the prisoner demonstrated to police how he had stabbed the deceased. However, the prisoner was never able to give an account of the events preceding the stabbing or surrounding the disposal of the body. In particular he never claimed to be acting in self-defence or to rely upon any conduct by the deceased that might have explained or in some way justified an attack upon him. 15 Three days after his arrest the prisoner requested to speak to police and on that occasion he first raised what was to be his defence in the trial; that is he had no memory of the stabbing and his admissions were based upon what he had been told by Peebles. The prisoner later indicated to police that in effect they should be looking at Peebles as the killer and not him. Notwithstanding these claims Peebles was eventually charged with being an accessory after the fact to the murder and made a statement in which he gave an eyewitness account of the stabbing by the prisoner. As a result of giving an undertaking to testify against the prisoner, Peebles received a suspended sentence. 16 The prisoner has never claimed that he did not stab the deceased. Rather the trial was fought on the basis that he had no memory of the night's events and that the admissions made by him were not reliable because they were a result of what he had been told by Peebles. The jury by its verdict were clearly satisfied that the confessions were based upon an actual memory of the stabbing by the prisoner however faulty and deficient his recollection of all the facts and circumstances surrounding the killing might be. 17 An important part of the trial concerned the level of intoxication of the prisoner at the time of the stabbing. Professor Starmer estimated that the prisoner had a blood alcohol reading of between .25 and .3. I doubt the accuracy of that estimate. But it is undisputed that the prisoner was well intoxicated and that it was the effects of alcohol upon him that at least partly explained the commission of the offence. That explanation, however, does nothing to mitigate the seriousness of his criminal conduct because the prisoner has a long history of violence associated with his abuse of alcohol. 18 The prisoner is aged 40 years. He has a record that commences as a juvenile in 1977 for stealing. Since that time he has continually breached the criminal law by the commission of offences of violence, dishonesty and traffic matters. He has spent a very considerable part of his adult life since he was first imprisoned in 1980 in gaol either serving sentences or on remand. But he has also been given the opportunity to address his problems with alcohol and in 1985 he was placed upon a good behaviour bond with supervision and counselling. However, the prisoner has continually re-offended and I am told, and accept, that these offences were always related to his misuse of alcohol. There is no doubt that while under the influence of alcohol the prisoner can be aggressive and violent to others. 19 The most serious matter on his criminal record was a sentence for being in possession of a firearm with intent to murder in 1981. He was sentenced to six years imprisonment for that offence. I am not aware of the full facts or circumstances surrounding it but the nature of the offence, which contains an allegation that he intended to kill another human being, is of some impact in determining the appropriate sentence for the present matter. This is not to suggest that the prisoner is again to be re-sentenced for that matter or that in the particular circumstances of this case his record will increase the seriousness of what he did or the length of the sentence he should serve. But the prisoner's conduct on the occasion of his killing of the deceased must be seen in the light of an extensive criminal history including the fact that once before under the influence of alcohol he has acted with an intention of killing another human being. 20 I am satisfied that in the present case he also acted with such an intent despite his level of intoxication. The most significant stab wound was one calculated to kill the deceased. Once the jury determined that he had the intention necessary for murder, it follows in my view from the nature of the wound and the circumstances of the killing that he intended to kill the deceased. What is not clear is why the prisoner formed that intention in relation to a person whom he did not know. Clearly something must have occurred between the deceased and the prisoner that so enraged him that he picked up a knife and stabbed the deceased in the chest. Mr Peebles, who generally cannot be regarded as a reliable witness, mentioned to Mr Tait the next day that there was an argument between the prisoner and the deceased. It seems from what the prisoner told his mother that the dispute involved money. However that may be, I find that the intention to kill was formed almost instantaneously when the prisoner saw the knife on the kitchen block and that intention was put into effect only seconds later when he stabbed the deceased. 21 I accept that shortly after the murder the prisoner realised the gravity of what he had done such that he sought to contact Mr Valentine to tell him and, being unable to reach him, then rang his mother. I also accept that at least the next day the prisoner was remorseful for what he had done. I do not believe that it went so far as remorse for taking the life of Mr Petrie. The prisoner took possession of the deceased's wallet and watch which is hardly consistent with a concern for the deceased. But certainly in his conversation with Mr Valentine the prisoner was remorseful as tor the effects of his acts upon the deceased's family. To the prisoner's benefit he never in any of his conversations with police tried to diminish what he had done by claiming self-defence or attributing misconduct to the deceased justifying his attack upon him. Rather the prisoner simply explained his conduct as the result of the effect of alcohol. He was clearly disturbed that he could not remember the circumstances surrounding the killing or comprehend why he had stabbed the deceased. 22 So far as any offence of murder can be said to lack the seriousness of some other case of murder, the present offence is not within the most serious category being as it was unpremeditated and occurring as a result of the prisoner losing his temper while under the influence of alcohol. I am prepared to accept the prisoner's version that he went to the kitchen initially to obtain another can of beer rather than to get a knife with which to attack the deceased. Still it was a senseless killing of a wholly innocent and defenceless man who at least would have died almost instantaneously without suffering. In realistic and frank submissions by the parties before me a sentence in the range of 16 to 20 years was discussed as being appropriate to meet the objective seriousness of the offence. 23 The prisoner pleaded not guilty and tested the prosecution's case as he was entitled to do. However, apart from the plea he has never denied the offence. I accept that over the days after his arrest the prisoner started to have doubts as to whether he did have a memory of the stabbing or whether his belief that he had killed the deceased came from what he had been told by Peebles and that it was he who was actually responsible. I can understand how this occurred because there is little doubt that the prisoner does suffer from memory problems due to his consumption of alcohol and there was material at least suggestive of Peebles guilt. Although the prisoner cannot be given the benefit of a discount which would follow from a plea of guilty, he is not to be sentenced on the basis that he refuses to accept responsibility for what he did or has no remorse or compunction for his conduct. The sentence, therefore, can be reduced somewhat on that account notwithstanding the sentence is imposed after trial. 24 The prisoner's long history of aggressive conduct while under the influence of alcohol is a matter of grave concern. Before the commission of this murder, he has not presented as a real danger to society but the fact that this is the second occasion where he has acted with the intention of killing another human being and has on this occasion put that intention into effect does raise questions of his potential dangerousness to members of the public while he is under the influence of alcohol. At the present time there is little real likelihood that he will be able to overcome his abuse of alcohol when he is eventually released from custody. It may well be the case that he is institutionalised as he says, in so far as he feels more comfortable in custody than when he is at liberty in the community. But that is not a matter of mitigation. Rather it indicates that there is little prospect of the prisoner being able to live in society without abusing alcohol and without indulging in more aggressive conduct which can threaten the safety and welfare of other persons. 25 Mr Haesler, who appears for the prisoner, accepts that there is every possibility that the prisoner will not be released at the end of his non-parole period. He concedes that there are no special circumstances justifying a reduction in the non-parole period. On behalf of his client he asks the Court to impose the least severe sentence that can be imposed which is commensurate with the seriousness of the offence yet has regard to the fact that the prisoner may have to serve the total sentence either because he is not released to parole or because he may breach any parole order such will be his difficulty of living within the community after another very lengthy period in custody. Whether the prisoner will be released at the end of his non-parole period will depend on what, if anything, he has been able to achieve while in custody which suggests some prospect for his rehabilitation. At the present there seems to be little, if any, hope of reform given his age and his history. 26 This is not simply to write off the prisoner as lost. He does have some insight into his problem and a willingness to address it. I am not unsympathetic to the severity of the prisoner's problems having been addicted to alcohol since his early teens and having spent the greater part of his adult life in gaol. I can well understand the feelings of inadequacy that confront him when he is released into the community. He has suffered depressive episodes and spent time in psychiatric institutions. He receives anti-depressant medication in custody. Clearly there are some very deep-seated problems at the root of his criminal behaviour. He has been receiving some psychological assistance in prison but so far to no avail so far as his being able to cope in society. The gaol sentence that he must now serve will simply make it more difficult for him. 27 It seems to me to be one of those comparatively rare cases where the non-parole period should be more than that which would flow from the application of s 44(2) of the Crimes (Sentencing Procedure) Act. Despite Mr Haesler's submissions to the contrary it seems to me that personal deterrence is an important factor in determining the sentence to be imposed and the appropriate non-parole period despite the prisoner's addiction to alcohol. Although his criminal responsibility may to some extent be reduced by reason of the effects of alcohol on him, his alcohol addiction and his resultant propensity for violent behaviour raise real concerns as to his conduct on release. His prospects of rehabilitation in gaol are poor and will be little better when he is in the community. I do not doubt the prisoner is willing to reform, as evidenced by his contact with Mr Valentine, but he has been quite unable to achieve that aim. He knew before the killing that his drinking was becoming out of control and in his own words to the police he was "going off the rails". 28 I have received in evidence a victim impact statement by way of the report of a psychologist as to the effects of the death of Mr Petrie upon his parents, and in particular his mother. That report was not admitted for the purpose of increasing the sentence of the prisoner and has not been used by me in any way to aggravate the severity of his crime. But the reception of such evidence permits the family of the deceased to participate in the proceedings by expressing their grief and loss as a result of his death. It reminds the Court, if it is necessary to do so, of the real human tragedy involved in matters that come before it. I understand that it is particularly difficult to come to grips with the death of a treasured family member when it occurs so pointlessly and unexpectedly. The Court expresses it sympathy and understanding to Mr Petrie's family. 29 The head sentence that I am about to impose is in my view at the lower end of the range, and in the light of the prisoner's criminal record it may be thought to be unduly lenient. But the prisoner's record does not completely disentitle him to leniency nor does the fact that he pleaded not guilty mean that I cannot reduce the sentence to give him some credit for his confessions and his statements of contrition and remorse. Without the confessions the prisoner would not have been convicted. As I have indicated there is a real likelihood that the prisoner will spend the whole sentence in custody and, therefore, actually serve longer in prison than many other persons who have committed similar offences. 30 However, this is not a case where he should be deprived of any opportunity to earn parole if he can. But the non-parole period is the least which in my view can reflect all the necessary elements of punishment and is appropriate to the seriousness of the offence he committed. It also reflects my view of his very limited prospects of rehabilitation either while in custody or if released to parole and so might be thought to have an element of preventative detention that is justified by the criminality of the offence he committed. The length of the parole period is in my view sufficient, if he can earn parole, to provide him with a structured program to re-enter society with support and guidance. He will either succeed in that period or not, and no longer period of parole supervision is in my view either required or justified. 31 A question arises as to when the prisoner's sentence should commence. He was serving a period of custody in relation to traffic offences totalling 12 months from 25 August 2000, that is from the date of his arrest for the murder. The most serious of those offences is high range PCA and the prisoner has a history for such matters well justifying the sentence imposed upon him. The offences are unrelated to the murder and the prisoner was on bail for them at the time of the killing. I think it is appropriate that the murder sentence commence six months after his arrest. 32 The prisoner is sentenced to imprisonment for 18 years with a non-parole period of 15 years. The sentence is to commence on 25 February 2001 and the non-parole period will expire on 24 February 2016 the date upon which the prisoner is eligible to be released to parole. ********** Last Modified: 03/21/2002 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.