Regina v Stone [2004] NSWSC 224

Reported Decision : 144 A Crim R 568

New South Wales Supreme Court

CITATION : Regina v Stone [2004] NSWSC 224 HEARING DATE(S) : 09/02/04; 05/03/04; 09/03/04 JUDGMENT DATE : 30 March 2004 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : See par 59

CATCHWORDS : SENTENCE - MURDER - PLEA OF GUILTY - OFFENCE COMMITTED THIRTEEN YEARS PRIOR TO ARREST - INGREDIENTS OF SENTENCE ASSESSMENT IN CIRCUMSTANCES CASES CITED : R v McNamara [2004] NSWCCA 42 PARTIES : Regina v Peter John Stone FILE NUMBER(S) : SC 70045/03 COUNSEL : P. Barrett (Crown) L. Flannery (Prisoner) SOLICITORS : DPP (Crown) North & Badgery (Prisoner)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 30 March 2004

70045/03 - REGINA v PETER JOHN STONE

SENTENCE

1 HIS HONOUR: Peter John Stone has been convicted following a plea of guilty to the murder of Natalie Maree Henderson on 10 July 1990. The plea was offered upon arraignment before me on 9 February 2004, a date fixed for the commencement of trial. His intention so to plead had been communicated six days previously. 2 At about 6.10 pm on Tuesday 10 July 1990 the body of the victim was discovered by her partner in their residence. She was twenty one years of age and the mother of a small daughter. 3 The deceased was naked apart from some clothing tangled about her right upper arm. She lay supine just inside a bedroom. It was established that she had died by strangulation. A football sock had been used and was tied around her throat. Other socks and stockings were found by investigators to be attached to the corner points of the bed. A detached part of stocking was tied around her left ankle. 4 A number of clothing items were near her feet. Underclothing was observed to have been cut as opposed to having been torn. Blood was detected on a pillow lying on the bed. Another pillow was on the floor near the victim's head. 5 The post mortem examination revealed, among other things, a number of bruises about the head and elsewhere. There was no positive evidence demonstrating that there had been genital or anal sexual interference. 6 Ms Henderson's car was missing. It was later located, abandoned, in a shopping centre at Auburn. Keys were with it including a matching portion of a partial key which had been found in the stairwell of the unit where she lived. 7 Investigations found nothing to connect the prisoner with the murder. A statement was obtained from the owner of a service station located nearby to the unit, who encountered a man at about 11 am on 10 July. This man claimed to have been in a fight and was seen in the vicinity of the toilet facility at the service station. His face was substantially bloodstained. 8 This person was the prisoner. 9 The movements of Ms Henderson prior to her death were traced. Her daughter had been left with a babysitter. She called by her mother's home and telephoned her partner who was then at work. She attended a doctor's surgery and obtained a certificate for work absence that day. She attended to some banking and kept an appointment for an interview in relation to new employment. She purchased some pre-cooked food, presumably intending that it be her lunch, and this was later found uneaten in her unit. 10 Police investigation provided no pointer to the identification of the killer. Despite that failure, the blood stained pillowcase and also a shirt which had been retrieved from the scene were stored in a laboratory freezer. 11 In 1995 the prisoner commenced a relationship with a woman whom I will refer to as Maria M, to protect the identity of her daughter in respect of whose identity there are statutory inhibitions upon publication. On 21 March 1998 the prisoner was in the apartment which he shared with Maria M, who was absent at the time. The daughter, then aged twenty six, had bathed and, dressed only in a robe, was in the bathroom attending to putting on some makeup. She was attacked by the prisoner who was holding a knife. She was forced into a bedroom and onto a bed. He commenced to use a stocking to secure her arm to a bedpost. During her struggles he said, "I have killed before you know, I will kill again". The victim was able to turn the knife towards the prisoner and escaped to the home of a neighbour. 12 Apart from the assertion of past homicide, the significance of this event to the current crime is in the discovery at the scene of the attack on Maria M's daughter of pantyhose attached to the corners of the bedposts and a knotted pair of socks. These ingredients presented a striking similarity to the bedroom scene in which Ms Henderson had been found nearly eight years beforehand. 13 For the offence of threatening to inflict actual bodily harm upon Maria M's daughter with an offensive weapon and with intent to have sexual intercourse the prisoner was sentenced to penal servitude for a minimum term of three years dating from 22 March 1998 until 21 March 2001 with an additional term of two years. 14 While serving this sentence the prisoner was required to provide a sample of his DNA, details of which were to be entered in a data bank. This was done. 15 In May 2002 police, pursuing investigations into the unsolved murder of Ms Henderson, arranged for the blood on the pillowcase and shirt which had been stored in the laboratory freezer to be tested against the data bank. A matching profile with the sample obtained from the prisoner was established. 16 Necessary warrants were later obtained and the prisoner was arrested on 23 January 2003 in Lucaston, a rural area of Tasmania where he was residing with Maria M. On being informed of the content of the warrant for his arrest he replied, "Is this a joke? I don't know nothing about that." 17 On the following day he voluntarily provided a buccal swab with which further DNA comparison was made. This again suggested that it was his blood on the pillowcase and shirt which had been kept over the years in the freezer. 18 The prisoner thereafter exercised his right to decline to answer questions in relation to the crime. 19 It is now known that on 7 January 2004 he gave some detail of his culpable actions to Dr Allnutt, a psychiatrist retained by his legal advisers to examine him "as to any mental health defences that may be available." The prisoner testified that he had also confessed to a Dr Thompson, a psychiatrist whom he was seeing while he was in gaol awaiting trial. Dr Allnutt's opinion did not support the availability of any defence of the type postulated. However, this material did not become public until its tender in the sentencing proceedings on 5 March. On that day the prisoner was sworn and gave testimony in confirmation of his guilt including specific details of the circumstances in which he committed the murder. 20 It was abundantly plain that this unforewarned recitation by the killer was deeply disturbing to members of Ms Henderson's family who were present in the Court. I consider that a moment's thought would have revealed the predictability of that consequence. As recorded, I raised this matter of apparent insensitivity when the hearing was resumed on 9 March for the purpose of cross examination of Dr Allnutt by the Crown Prosecutor. From what I was informed, I gather that an intention to call the prisoner was discussed by counsel and a decision made that it would be preferable, perhaps as a demonstration of remorse, for the prisoner to make a confession in his evidence in chief rather than have it extracted (even if willingly) in cross examination. 21 I confirm that this matter will not be reflected adversely to the prisoner in sentence assessment as, indeed, it may not be a matter capable of being so used in any event. However, if I did not then make it clear that in my opinion attention should be given, at least by lawyers, to avoiding where possible, insensitive procedures of this kind, I do so now. 22 I note and acknowledge the content of the victim impact statement by Ms Henderson's father whose anguish, together with that of his late wife, merits sympathy and understanding. 23 Much of the prisoner's confessional evidence is so obviously inculpating, and consistent with investigation, that it should be accepted. I shall indicate anything which is not so accepted. 24 The prisoner was released to parole from 15 May 1990 after serving a sentence for attempting to steal a motor vehicle. He went to reside with his then partner Melinda at Glenfield. The household included his one year old son. The prisoner was upset by the unclean state of the house and a perceived neglect of the infant (and other children in the household of whom the prisoner was not the father) by Melinda. He gave no evidence of any action of his own to ameliorate this situation. 25 At the time he had an intense craving for drugs. He obtained from Melinda's brother in law a drug which he described as liquid speed or Oxblood. Professor Starmer identified this as oxblood methylamphetamine and described its common effects including its interaction with alcohol. The prisoner consumed some of this drug the day before the murder and "used the capsules one by one", the last at 8 am on the day he killed Ms Henderson. After consuming the drug he had repaired to a hotel where he drank bourbon whiskey. Professor Starmer reported: "Methylamphetamine is capable of antagonizing some of the effects of alcohol so that an individual who has taken both a stimulant and alcohol may appear to be less intoxicated than if he had consumed the same amount of alcohol alone. Not infrequently, individuals take amphetamines before drinking in order to be able to consume large quantities of alcohol without getting drunk." 26 The prisoner described being attacked by a stranger in the hotel. No doubt he was involved in some sort of altercation as witness his state when seen by Mrs Mosca, the owner of the service station. After encountering her, the prisoner continued his flight from some unknown chaser or chasers. That he thought he was being pursued is corroborated to an extent by Mrs Mosca's statement that, as he left her running towards Castlereagh Street, he was "looking back along Memorial Avenue". 27 The Crown Prosecutor conceded that there was no inference available that the prisoner followed Ms Henderson from a public place, such as shops, to her home. I am satisfied that he forced his way into her unit and I accept the probability that this was done to avoid whoever the prisoner believed was in pursuit of him. 28 What he did in the unit was not a consequence of flight. The prisoner is recorded by Dr Allnutt to deny adamantly any sexual intent in the attack on Ms Henderson in distinction from the attack of Maria M's daughter. In cross examination the prisoner conceded that "maybe for a second" he considered sexual assault of Ms Henderson but that he "didn't do it". Save what was involved in removing all of her clothing, the evidence does not demonstrate sexual interference. 29 I do not accept the prisoner's testimony that he tied the victim in a spread- eagle fashion on the bed for reasons other than contemplated sexual assault. His own evidence affirms that in fact, he could not in a particular way carry out any such intention. When it was put to him that he was going to sexually assault the victim his reply included the volunteering of this explanation: "in the state I was in, I couldn't have done that. There's no way in the world." 30 In his evidence in chief he claimed that as he performed the strangulation "I got so fucking angry and it was like I had Melinda by the throat and I was strangling my own wife, I wanted to kill Melinda". 31 Whilst I acknowledge that the thought processes of a drug and/or alcohol affected killer may not be rational it is difficult, even making that allowance, to connect the preceding securing of the victim in a star fashion to a bed with an angry wish to kill his wife. Nor do I accept the prisoner's explanation that he stripped her naked in order to remove stains from his own bleeding face which he thought might be used to identify him. Although he took and disposed of some clothing and left other items behind, I do not accept that he paused to make some discrimination between the items of clothing. 32 An explanation for the killing may be a frustration, by reason of an incapacity of the type which he claimed, to carry into effect any intention to perform particular kinds of sexual acts. The evidence does not persuade me to find positively that such frustration was a reason for the offence and I do not draw that inference, however, I do not accept the prisoner's assertion that he killed Ms Henderson because he wanted to kill his wife. There is a telling inconsistency between that proposition and the activity surrounding securing Ms Henderson to the bed. 33 I am satisfied to the requisite standard that after he forcibly entered Ms Henderson's unit he harboured at some point an intention to assault her sexually. 34 Thus the prisoner is to be sentenced for the intentional strangulation of a young mother, randomly selected as he sought refuge from believed pursuit, and in respect of which he formed at some time an intention to sexually assault which was carried into effect to the extent of exposing her body to the nakedness in which it was found. 35 After the killing, the prisoner stole money from Ms Henderson's purse, took her car keys and fled the scene abandoning the car as earlier mentioned. 36 Although I expect that much of what I am about to say is obvious, I should, as both counsel referred to them, record a number of matters pertaining to a statutory litany of aggravating factors which are to be taken into account in determining an appropriate sentence. Violence was visited upon the victim not only in the fatal attack but additionally as evidenced by the bruising found at post mortem both to her face and from the ties upon her wrists and ankles as well as the stripping of her clothing. It is something of an understatement to say that murdering a young woman in those circumstances involves gratuitous cruelty. She was self evidently vulnerable and, at the time, going about the ordinary aspects of her daily affairs. 37 I have already noted two prior convictions recorded against the prisoner. There are others scheduled and his record is taken into account, as is the fact that he was on parole at the time of commission of this offence. Some offences on the prisoner's record post-date the murder and such may be considered germane to withholding leniency but not otherwise. The facts of the crime involving attack on Maria M's daughter are however relevant as a resource for the assessment of the risk of future dangerousness presented by the prisoner. 38 The Crown Prosecutor has pointed to what is submitted to be a series of criminal acts, some of which can be seen to have a direct connection with the commission of the murder, for example, the forcible entry to the dwelling, the detention of the victim and the assault in tying her to the bedpost and others which might be seen as incidental such as the theft of the money and the motor vehicle. I take those matters into account as relevant circumstances to the commission of the crime and regard them as "aggravating factors" to murder only in that sense. 39 The prisoner was born on 19 April 1959 and was therefore aged thirty one when he committed the murder and is now aged forty four. His early life was markedly disadvantaged. At about the age of three he was made a ward of the State and thereafter resided in homes and a foster home. He never again saw his natural parents. He had some contact with a brother. At various times when he was housed in what appear to have been institutions of sorts he suffered beatings, punishment by being deprived of food and was subjected himself to sexual abuse. 40 From his mid teens he embarked upon criminal behaviour eventually accumulating what he accepted in his own testimony was "a lengthy criminal record". He developed a drug habit and appears to have been an undiscriminating user of a wide range of substances. The effect of the oxblood to which I have referred was magnified by his practice of injecting it intravenously. 41 It would seem that after his release in 2001 from the term imposed for the attack on Maria M's daughter he has made efforts to cease illicit drug use. He testified that he had consumed none since being taken into custody for the present matter in early 2003. Maria M described herself as in a close relationship with the prisoner since about 1995. They were residing together in Tasmania when he was arrested. She had been present when he had the first of his epileptic seizures, which seem to have troubled him since a stroke in 1997. Obviously they lived apart while he was serving the sentence for the attack on her daughter but after his release they reunited and she had contact with his parole officer in Tasmania and also accompanied him frequently to medical appointments. Maria M has qualifications as a welfare worker and for a period of years worked as such in hospitals and under church agencies. She thought he wanted to reform and was impressed by his apparent achievement but she conceded she "knew nothing of the horrendous homicide in 1990 and it was all news to me on that day that he was arrested." Nevertheless, now so informed she testified that she would not "turn my back on him" and expressed optimism for his life in the future. 42 Counsel for the prisoner has pointed to four of the mitigating factors required to be taken into account in the table proclaimed in s21A(3) of the Crimes (Sentencing Procedure) Act 1999. In terms of these, I find that the murder was not part of a planned or organized criminal activity. The plea of guilty was made, the relevant timing of which I have already mentioned. 43 Counsel for the prisoner drew attention to an opinion expressed by a sentencing judge in another case: "it is an exceptional course to plead guilty to murder and, in my view, he should be afforded a significant measure of leniency for doing so." It is, of course, obligatory to take a plea of guilty into account as specified by s22 of the statute just mentioned. If the statement quoted means, as it appears to convey, that a plea of guilty to murder will attract some additional leniency because such pleas are "exceptional", I respectfully disagree. A plea of guilty may manifest remorse and/or contrition and may have a "utilitarian" value and such need to be assessed in any particular case. There is no principle that a plea of guilty to murder injects a unique or exceptional factor of leniency into the assessment of appropriate sentence. 44 It is contended that the prisoner was not fully aware of the consequences of his actions because of age or disability. His age could not be so significant. Dr Allnutt reported that he "maintained capacity to understand the circumstances that he found himself in, the potential consequences and to be aware of the wrongfulness of his actions." This opinion was directed to both the prisoner's intoxicated and a possibly concussed mental state. The intoxication followed consumption of both drugs and alcohol. I accept Dr Allnutt's opinion that the offender was capable of the understanding stated and I find that he did so understand. I reject the contention. 45 The fourth matter proposed by reference to the table was that the prisoner has shown remorse. It is argued that a finding that he is remorseful should be derived from the plea of guilty, the expression of such to Dr Allnutt, and the revelation to family and friends of the deceased of how it was that she died. Maria M said that the prisoner was often moody and depressed and she now thought that these were probably derived from "the guilt of homicide." That observation was perceptive and I consider that the plea of guilty had as much to do with removing a burden from himself as anything else. It is true, however, that he has volunteered the awful detail of his crime which could not otherwise be known and I confirm that I do not apply any adverse weight in assessment because of the insensitive way in which the revelation was made. Added to the plea of guilty the revelation conveys a demonstration of some desire to make amends although he recognized and accepted the impossibility of so doing. I interpolate that in the course of evidence the prisoner made dramatic protestations to the effect that a death penalty would do him a favour and that he desired severe punishment. I did not find these protests convincing. On 24 July 1990 the prisoner was admitted to Odyssey House, a drug rehabilitation centre. He testified that before discharge (on 4 August) he tried to kill himself because he had realised that he had killed an innocent person. A hospital nursing note records admission after self mutilation on 3 August 1990 which required major surgery. However on 5 August 1990 it is further recorded "denied suicide ideation at present." The intent, if an indication of some remorse, was not long lasting. He also said that he was praying for his victim and, although I understand that the family of the deceased might treat this with considerable reserve, on an overall assessment I am satisfied that the prisoner should be found to have shown a degree of remorse. 46 There are some other matters to which I should refer. 47 The prisoner's responsibility for the crime was not detected until many years after the event and he stands for sentence now for what he did in that past. That itself is a matter attractive of mitigation. Importantly I am bound by authority to apply a principle that where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, then the sentence now to be imposed should reflect, not the later, but the earlier regime. There exists statistical material which demonstrates that the principle is applicable to this case. 48 In September 1989, the Sentencing Act 1989 came into effect. Among other things it introduced discretionary sentencing for all offences including murder in substitution for the then existing mandatory (with some limited discretion) life term for that crime. That Act has been replaced and it is not necessary for me to trace the legislative history. 49 There are published by the Judicial Commission studies of sentenced homicides in New South Wales in particular one study covering the years 1990 – 1993 and another 1994 – 2001. I do not propose to recite at length what can be read therein. It clearly emerges that in the years immediately following the 1989 statute, and relevant to when this prisoner would have been sentenced if his responsibility for the crime had then been detected, there was a markedly more lenient pattern of sentencing for murder than in later years. It suffices to observe that the median sentence derived from the statistics increased by something in the order of four to five years in the later study as compared to that in the earlier one. I add that the apparently lenient pattern of earlier sentencing is also compatible with observations that can be made of the many moderate sentences consequent upon redetermination of previous life sentences pursuant to the 1989 Act. 50 The prisoner is entitled to the benefit of the principle above described. 51 It is submitted that I should mitigate the sentence by reason of the exceptional hardship of the prisoner's custody. He has been the subject of a non association order which keeps him in restricted custody for all but one hour per day. His situation is also onerous by reason of residual physical weakness following the stroke and the risks of the epilepsy, for which however he is given medication. Those situations must have applied during the sentence which he served between 1998 and 2001. In regard to isolation, the prisoner himself testified "I am happier just to be left in a cell. I don't really care if I get out in the yard or not." Of course his attitude may change but the prisoner can avail himself of the usual facility for declining protection if he wishes. I do not regard his conditions of custody as a matter of any great significance in the assessment of sentence. 52 I now move to a matter which I record I have found troubling and that is the dangerousness of the prisoner. For reasons which I have given elsewhere (R v McNamara [2004] NSWCCA 42) I reject the contention by counsel for the prisoner, as was put in this case, "a risk or real likelihood that the prisoner will reoffend must be established beyond reasonable doubt". What is required is an assessment of any degree of risk. 53 Apart from the history of the prisoner's repeated offending in various ways, the most pertinent material is the assessment of Dr Allnutt. His evidence, which I accept, was as specific as it was unequivocal, namely that the prisoner represents a high risk of reoffending in a violent way and in a sexual way. He added that the passage of time could ameliorate the risk. He also noted the apparent improvement in substance abuse and a favourable report from a sexual offenders program which the prisoner undertook during his custody between 1998 and 2001. 54 It is no novel proposition that not all received doctrine in regard to sentencing principles points in the same direction. A term of imprisonment must reflect a need for public protection and the relevant statute proclaims it, but it is forbidden to extend a term as a form of preventive detention in the case of a person who is a source of continuing danger. Particularly careful assessment is therefore required when there is, as in this case, a predicted high risk of reoffending, especially of reoffending in a violent or sexual way, and it is a matter which I take into account with necessary caution against extension of term for the proscribed reason. 55 The seriousness of the offence, viewed objectively, but allowing for matters of mitigation abovementioned, would place it in an upper range requiring reflection in any pattern of sentencing. 56 The Crown Prosecutor expressly submitted that the level of culpability is so extreme that the prescription in s61(1) of the sentencing legislation was fulfilled and a maximum penalty was warranted. He acknowledged, however, that the prisoner has serious health problems which "may be" sufficient to militate against such a sentence. He did not address the existence of different sentencing patterns observable in 1990 and the present time. As I have said, I regard the culpability of the prisoner for this horrendous crime as high but I do not assess it as reaching the level of extreme. 57 Taking all the foregoing into account and, recognizing that current legislation requires that a non parole period first be set, I express a conclusion that the appropriate assessment in this case would be imprisonment for 24 years. That assessment is, I specify, made in the context of the sentencing pattern as it existed in 1990. 58 I have however also to take into account the so-called utilitarian value of the plea of guilty in that the State is saved the expense of trial, witnesses from giving evidence and associated practical considerations. I have made an allowance in favour of the prisoner of one-eighth for his relatively late plea. I do not decide that there are special circumstances for ordering that the balance of term will exceed one third of the non parole period. 59 Peter John Stone, for the murder of Natalie Maree Henderson on 10 July 1990, you are sentenced to imprisonment for twenty one years to date from 21 January 2003. I order a non parole period of fifteen years nine months to commence on that date and to expire on 20 October 2018. The first date of eligibility for parole will be 20 October 2018. **********