New South Wales Supreme Court CITATION : Regina v Loeber [2004] NSWSC 293 HEARING DATE(S) : 2/2/04 - 10/2/04, 5/4/04 JUDGMENT DATE : 14 April 2004 JUDGMENT OF : Wood CJatCL at 1 DECISION : Sentence of imprisonment for 18 years to date from 22 January 2003. Non-parole period of 13 years also to date from 22 January 2003 and to expire on 21 January 2016 set. CATCHWORDS : CRIMINAL LAW - Sentence - murder - plea of guilty. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Regina v Doorey [2000] NSWCCA 456 CASES CITED : Regina v Rothapfel NSWCCA 4 August 1992 Regina v Simpson [2001] 53 NSWLR 704 PARTIES : Regina Peter John Loeber FILE NUMBER(S) : SC 70038/03 COUNSEL : W. Creasy (Crown) A. Haesler SOLICITORS : C. K. Smith (Crown) S. E. O'Connor - 15 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WOOD CJ at CL Wednesday 14 April 2004 70038/03 Regina v Peter John Loeber SENTENCE 1 HIS HONOUR: On Monday 2 February 2004, the defendant appeared for trial, in the Supreme Court at Wollongong, on a charge of murder, to which he had pleaded not guilty at arraignment. A voir dire examination was conducted on that day, and on the two succeeding days, in relation to the admissibility of certain electronically recorded interviews. They had been conducted by Detectives from Logan Central Police Station, in Queensland and later, by New South Wales detectives, at Port Kembla, and included a video recorded walk through of the murder scene. In these interviews, and during the walk through, the defendant had made substantial admissions in relation to the murder of Lynette Gaye Bugden, which had occurred during the early hours of 14 January 1999. 2 A voir dire examination was also undertaken in relation to the admissibility, as tendency evidence, of certain material concerning some events at Oberon, in which it was alleged that the defendant had been involved. On Thursday 5 February 2004 I ruled the tendency evidence to be inadmissible, but allowed the tender of the admissions contained in the recorded interviews which had followed the arrest of the defendant, in Queensland, on 22 January 2003. That arrest had been effected pursuant to a warrant which had been issued in New South Wales, and executed pursuant to the Service and Execution of Process Act. 3 In the meantime a jury had been empanelled on Wednesday 4 February 2004, and sent away until the following Monday, pending the completion of the voir dire inquiries, and the rulings on the disputed evidence. On that day, in the presence of the jury, the defendant had repeated his earlier plea of not guilty. 4 When the matter came back for hearing on Monday 9 February 2004, the defendant changed his plea to one of guilty. The jury was then discharged, and the matter thereafter came back before me on the following day, and on Friday 2 April, in relation to sentence. 5 Prior to the admissions, which were made in Queensland, and repeated in Port Kembla, the defendant had been interviewed by police in this State on a number of occasions, and had consistently maintained his innocence. He had adopted a similar position when he was first spoken to by Queensland police on the morning of 22 January 2003, but had then confessed to the killing during an interview which had been conducted by the same police on the afternoon of that day, that is, after the New South Wales detectives had arrived at the police station, in order to arrange for his extradition. 6 I record this brief history of the proceedings as it is relevant to the timeliness of the plea, and to the discount which should be allowed pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999. 7 The defendant has been in continuous custody since his arrest in Queensland, on 22 January 2003, and it is to that date that his sentence will be backdated. The Facts 8 Save for some matters of detail, the basic facts, as recorded in the statement of facts, which was tendered by the Crown, are agreed. In summary they disclose the following: (a) As at 14 January 1999, Lynette Bugden was living with her husband Kevin, and her two sons David and Dean at 14 Koona Street, Albion Park Rail; (b) The defendant was living, at that date, with his wife June, and their three children, at 135 Princes Highway Albion Park Rail, which premises were within reasonable walking distance from the Bugden home. (c) The Bugden and Loeber families had known each other for a number of years leading up to January 1999, the Loebers having lived in a flat at the rear of the Bugden home for several months during 1995, following their move from Queensland. (d) Until the killing the two families got along well, the Bugden home having been very much an open house at which parties were held, and attended by friends of the family, including the Loebers. (e) Lynette Bugden, who was a casual user of cannabis, had, shortly before 14 January 1999, acquired a small stash of cannabis for her own use. (f) Several days prior to 14 January 1999 Mrs Bugden's cannabis was stolen from her bedroom, as was a small quantity of that drug which belonged to one of her friends. They spoke about the matter and formed a suspicion that one of the defendant's sons may have stolen their cannabis since he had been to both of their homes. (g) The Oaks Hotel at Albion Park Rail, which was regularly attended by the Bugdens and Loebers, held "badge draws" on Wednesday nights. (h) Wednesday 13 January 1999 was one such night and the hotel was attended by the Bugdens and by the defendant, but not by his partner, as she was away at Lightning Ridge. Her sister, Pauline Westhead was however present. (i) During the course of the evening Mrs Bugden approached the defendant in the poker machine area of the Hotel and the following conversation took place, within the hearing of Pauline Westhead: "LGB: I want to speak to you about something PJL: No worries LGB: Do you know anything about Ricky smoking marijuana? PJL: Why do you ask? LGB: When the kids, Robert, Ricky and Dean were at Terry and Sharon's on Monday during the day, Terry's stash went missing. When the three boys had gone to my place on Tuesday, my stash had gone. Do you know anything about it? PJL: I have my suspicions with Ricky, but I haven't had a chance to speak with him. I will speak to him as soon as I possibly can and I'll try to get it sorted out. But if one of them did take it, you can't just blame the one, you've gotta blame all three. LJB: Thanks darl, I appreciate that." (j) There is no suggestion that this was a heated conversation, however it is obvious that the defendant took exception to it since after the deceased left his company, there was some discussion with Pauline Westhead as to whether it had been appropriate for the topic to be raised in such a public area, and that the deceased, and her husband Kevin, needed a "kick up the arse", or a "smack in the mouth". (k) The defendant, it would appear from the statement of Pauline Westhead, had also been harbouring some resentment towards the Bugdens over the preceding 6 months due to the fact that he believed they had sometimes offered unwanted advice regarding the upbringing of his children. (l) After leaving the Hotel, Mr Bugden went to the steelworks where his shift was due to start at 11:00 PM. Upon her return home, the deceased changed into her night attire and went to bed where she watched television and read. (m) Mervyn Burch, who lived in a flat at the rear of the Bugden home, his nephew Steven Cox, Dean Bugden and one of Dean's friends Robert Carey, also left the home to go fishing in a creek a short distance away. Mr Burch ensured that the house was locked as he left. There were several lights on at the home. Although there was an alarm system, it was not activated. (n) After leaving the Hotel, the defendant went home with his son Ricky and one of Ricky's friends, Stephen Plummer. They arrived there at about midnight. The two boys went to Ricky's room where they went to bed. The defendant sat in front of the television for a short while but then left the premises and walked to the Bugden home. (o) On arriving at the deceased's premises some time after midnight, the defendant knocked at the front door. There was no response. He saw a light on within the bedroom of the deceased. He walked around the side of the house and gained entry through the window to the bedroom of David Bugden, leaving fingerprints on the internal and external surfaces of the window frame. The window had been partially open. One fingerprint, on the internal surface of the window frame, was found to be identical with that of the defendant's right little finger. (p) It is the Crown case that upon entering the premises the defendant obtained a red pillowcase from the bedroom of Dean Bugden, cut two slits in it and pulled it over his head as a form of disguise. The defendant claims to have no recollection of doing so, but accepts that the pillowcase, which was bloodstained, was used in some fashion during the attack which followed. This pillowcase was later found on the floor in the bedroom of David. (q) It is also the Crown case that the defendant took with him to the Bugden home, a black handled kitchen knife. That knife was found underneath the window to David's bedroom. It had a small spot of blood on the blade but DNA analysis of that blood was unsuccessful. A plastic iceblock wrapper, which was located on the ground a short distance from the knife, also had a small blood spot on it. DNA analysis of this blood spot was consistent with the deceased's DNA. (r) The defendant then entered the bedroom of Mrs Bugden where he attacked her with a knife, inflicting in excess of 40 wounds. Many of those wounds were to her arms, and were indicative of "defence" injuries. The fatal wounds to her back and chest penetrated a lung. (s) The defendant left the premises via the point of entry, leaving bloodstains on the curtain, window glass and windowsill. It is not known whether the knife was dropped by him as he entered the house, or on leaving. The blood spot which was observed by police when finding the knife was however located on the surface of the blade that was facing upwards. (t) Mervyn Burch returned home with the boys at about 1:00 AM. When he was in the backyard, he heard moaning sounds coming from within the home. Using a key, he entered the premises through the back door, and found the deceased on the floor of the lounge room with the telephone close by. She had obviously made her way from the bedroom, to the lounge room and placed a triple-0 call for assistance. Mr Burch spoke with the triple-0 operator, asking urgently for an ambulance, which arrived minutes later, followed by police. (u) Mr Burch asked the deceased a number of times what had happened but she did not answer. An ambulance officer also asked her if she knew who had stabbed her, or if she had seen who had stabbed her. She replied "No" to each question. She was having difficulty breathing at this time, her speech was slurred and she was in obvious pain. (v) Attempts to revive the deceased failed and she was pronounced dead a short time after her arrival at Wollongong Hospital. 9 While the defendant has admitted being responsible for the killing of Mrs Bugden, he has said that he can only recall having stabbed her once, and, as I have observed, has said that he has no recollection of wearing or using the pillow case, which was found by police with slits cut in it, and in a blood stained condition. 10 He accepted that the knife found under the window came from his home, but said that he had no recollection of taking it to the Bugden home. He also claimed to have had no recollection of where it was that he found the knife which was used to stab the deceased, or what was done with it afterwards. 11 It was his account that, after entering the deceased's bedroom, he spoke to her about the concerns which he had regarding what he considered to have been unwarranted accusations concerning his children. The next thing he knew was that he stabbed her in the back. He acknowledged that he had been drinking this night. 12 During the walk-through at Port Kembla, the defendant said: "I didn't want to stab Lyn. I mean, I'm not a violent person, I never been, I've lived with it for the last 4 years and it's got, I'm gunna have to live with it for the rest of my life. I'm not, I'm not generally a violent person and I don't know what happened to me that night. I wish I did so that I could explain to people why, but I have no idea myself" (Q. 180) 13 As for the consumption of alcohol that night, the defendant said, during the walk-through, that he had four or five cans of bourbon and a couple of beers. Asked about the state of his sobriety he said "It's hard to say, wasn't, I don't think I was sober" (Q 129) and at Q.130 he said "I'd say I was a fair bit affected by alcohol". 14 In the earlier interview conducted by the Queensland Detectives he had said: "I know I wasn't drunk, I'd say I was over the limit to drive, put it that way. I walked home" (Q 78) and a little later, when asked in a general sense about getting drunk, he said: "Well, I can still walk and talk, I've never, ever once got that bad that l didn't know what I was doing, never, never woken up in the morning and said, Shit, what did I do last night? Never. I've never ever been that bad, I mean, I couldn't drive a car, put it that way, like I could still walk and I could still talk and I still know what I'm doing" (Q. 233). 15 He also indicated that he thought that the reason for going to her house was related to her questioning of him as to whether his sons had taken her cannabis, adding "I think it musta been playin' on my mind" (Q 478). He denied the existence of any sexual aspect to the attack (Q 484) and there was no independent evidence to suggest the occurrence of any sexual violation of the deceased. 16 In support of its contention that the defendant wore the pillowslip as a disguise, the Crown relied upon the finding of some strands of head hair, which were retrieved from it by Detective Senior Constable de Bruin. Microscopic comparison of those strands with a sample provided by the defendant was carried out by Professor Robertson, who reported that he was unable to exclude the prisoner as the source of one of the hairs. A technician from the FBI, who carried out Mitochondrial DNA analysis of the hair (Constance Fisher), also said that the defendant could not be excluded as a source. The pillowcase was submitted to the Division of Analytical Laboratories on two occasions. On the first occasion, of the four areas tested, no match was obtained with the DNA provided by the defendant. On the second occasion however, it was reported that the defendant had the same DNA profile as the major component of the DNA mixture which had been found on one of the areas which had then been examined, those being different areas from those tested on the first occasion. The method adopted to collect the samples also differed from that adopted for the first testing process. 17 The aspects of the Crown case that are not admitted, by reason of the defendant's claim to having no memory of them, relate to: (a) The number of times, beyond once, that he stabbed the deceased; (b) Whether or not he wore or used the pillow slip in the attack; (c) Whether, and why, he took from his home to the Bugden premises the knife, which was found under the bedroom window; (d) Which knife he used as the murder weapon, and what he did with it; and (e) Why he made the decision to go to Mrs Bugden's home and, once there, why did he elect to kill her? 18 An ancillary issue arises concerning whether or not his loss of memory, in relation to any of those matters, is genuine, or whether he still has a memory but is not prepared to disclose it. This has a relevance in relation to the extent of his contrition or remorse, and does depend upon the expert psychiatric evidence to which I will shortly turn. 19 As I have observed, the victim received multiple stab wounds, the most serious of which comprised wounds to her chest and back, and a number of which involved defensive wounds, indicating that she made a strenuous attempt to fight off her attacker. The sustained and violent nature of the attack upon a vulnerable female in her own bedroom, and the use of a knife were, in my view, seriously aggravating factors. The abhorrence which the community reserves for the use of knives is well recognised: Regina v Rothapfel NSWCCA 4 August 1992; and Regina v Doorey [2000] NSWCCA 456. Equally abhorrent was the fact that the offence involved the murder, in her own home, of someone who had been a close friend of the defendant, being a person who had provided material assistance to him in the past. 20 Although the defendant says that he has no memory of taking the small knife to the scene, or of why he did so, there can be no doubt that it was deliberately taken there by him, either for use in gaining forced entry to the premises, or for use in attacking Mrs Bugden. Which of those purposes I am unable to determine. However, given the time, and the method of entry, either would indicate a degree of premeditation and an intention which went well beyond a simple visit in order to convey, in words, a grievance concerning a perceived injustice in relation to the boys. 21 Equally, while it is the defendant's evidence that he cannot recall the use of the pillowslip, I am satisfied beyond reasonable doubt that it was either worn by the defendant as a disguise, or immediately placed by him over the victim's face in order to conceal his identity. That arises from the nature of the slits which were cut in it, from the presence of the mitochondrial DNA, from the fact that it was removed from one bedroom and left in a bloodstained state in the bedroom through which the defendant made his exit, and from the fact that the victim was unable to identify her attacker when spoken to by an ambulance officer, or by Mr Burch, even though she was attacked in a lighted bedroom, in circumstances where she would have recognised the applicant the moment that she saw his face. Again this establishes a degree of premeditation and planning on his part, which is inconsistent with his visit being one that was to be confined to an exchange of words. 22 I am unable to determine what happened to the murder weapon, or to the clothes which he had been wearing, and which must have been bloodstained, beyond finding that they were subsequently disposed of, a circumstance that is similarly consistent with the defendant having acted with a degree of deliberateness following the offence. 23 Precisely why the defendant acted in a way that was so violent, and apparently so out of character, is problematic. 24 The reports from the psychiatrist Dr Neilssen and the psychologist Anna Robilliard, which were tendered, do not throw much light on the reason for the offending, although they do record a consistent history of an absence of memory or understanding, on the defendant's part, of any reason for the murder. 25 No finding of any form of psychiatric illness or abnormality of mind, or personality disorder, emerged, in a man who was otherwise assessed to be of average intelligence, in regular employment and with a supportive family. 26 At most, Dr Nielssen offered a diagnosis of alcohol abuse disorder and said that his level of intoxication "may have contributed to amnesia of some aspects of the night of the offence, but not complete suppression of all detail of the offence. The amnesia reported at the recent interview would either be due to a degree of denial of the offence, or suppression of some part of the memory. The latter explanation seems less likely given what appears to be fairly clear recollection of the offence after four years and then no memory a year later. Amnesia for highly charged events such as multiple stabbings are not uncommon and Mr Loeber's account of not remembering stabbing Ms Bugden more than once is fairly typical. The offence appears to have been committed with little provocation or reason. I am unable to provide an explanation in terms of an abnormality of mind, apart from the obvious effect of intoxication." 27 He continued: "Mr Loeber's prospects of rehabilitation are fairly good, given his likely age at release, the absence of previous convictions, the history of continuous employment and the support of family. He should undertake to abstain from drinking alcohol. 28 Ms Robilliard said that although the defendant: "evidenced signs of reactive depression on the personality inventory, such as negative ruminations and feelings of low self esteem and inadequacy, there is a total absence of anxiety such as would be expected if he was in a state of inner turmoil. Dissociating from painful memories and emotions is self-protective behaviour and it is often thought to be functional in protecting others such as close family members. The possibility that Peter's current inability to recall committing the offence does not appear to be due to traumatic stress as he is not evidencing any signs of anxiety. There is a post traumatic stress disorder scale on the Millon test administered, and Peter's score was well below statistical significance. There was no suggestion in anything Peter said or did during either of our meetings of a psychiatric disorder. Nor did his personality test profile demonstrate any profound pathology, which is not unusual for people charged with murder." 29 I accept, in the defendant's favour, that the attack was not sexually motivated. I infer that it was carried out in circumstances in which he bore a grievance towards Mrs Bugden arising out of the remarks which had passed at the hotel, and in which he was significantly affected by alcohol. Clearly his reaction was out of all proportion to the offence which he had taken to her remarks and his objective criminality was, upon any view, very serious. It was an act which had the aggravating circumstances noted in s 21A(2)(b), (c) and (g), of the Crimes (Sentencing Procedure) Act 1999, although they were, for the most part, elements of the offence charged. Objectively none of the mitigating factors identified in s 21A(3)(a) to (d) of the Act apply. 30 Otherwise, as the authorities show, the taking of a human life remains the most serious offence in the criminal calendar, and the present offence is one that calls for a significant sentence of full time imprisonment that carries with it an obvious element of general and personal deterrence. 31 Before turning to the subjective circumstances, I observe that I have read, for the limited purpose permissible at law, the victim impact statement from Carole Medina, the mother of the deceased. The loss, which she and the remainder of the family have sustained as a result of the tragic and wholly unnecessary murder of a mother who was obviously an extremely popular person, and who enjoyed life to the full, is immense, and is graphically depicted in that statement. It is better permitted to speak for itself, since any summary would be inadequate. Subjective Circumstances 32 The defendant was born on 9 July 1965 and is now aged almost 39 years. He was 33 ½ years of age at the time of the murder. He has had no prior convictions, other than for some traffic matters involving one relatively old and largely irrelevant PCA conviction in 1991. He has been in continuous custody since 22 January 2003. 33 As I have observed the defendant has the support of his family, including that of his mother who gave evidence in the sentencing proceedings, and who confirmed the extent of that support, and of the defendant's concern for the shame, which he has brought upon them. 34 The defendant gave evidence which was indicative of a measure of remorse for the offence, but which was also suggestive of a failure to gain any real insight into his criminality, a matter which he will need to address while in custody. 35 His personal history is generally favourable. He was free of any conviction, beyond the traffic matters previously mentioned, he had a consistent record of employment, and he had no history of violence. 36 It is true that he had suffered some behavioural problems while at school, but these had faded away as he matured and took up employment as a boilermaker, and truck driver. While he did drink alcohol to excess, he had no record of any other form of substance abuse, or of physical illness; nor did he have a history of being depressed, angry or frustrated with life at the time of the offence. He had two children of his own. They had been brought up by him and he had accepted the additional responsibility of supporting the son of his former wife. He said that he had been faithful to that wife, whom he had married in 1984, but who had left him in 2000 to take up another relationship. Thereafter he had entered into a fresh relationship, becoming engaged to his new partner in 2002. That relationship was on foot, and was progressing well, at the time of the offence. The defendant has realistically accepted that it is unlikely to survive his imprisonment. 37 In these circumstances while the present offence was particularly serious, and not in any way minimised by the minor provocation, which led the defendant to its commission, I do accept that it was out of character. 38 The defendant is entitled to a reduction in the sentence for the plea of guilty, and for the assistance which was provided, in so far as he eventually made admissions as to his responsibility for the murder, when interviewed by Queensland police and then again when he was returned to New South Wales. 39 The plea was not an early plea, as it was not forthcoming until the admissibility of the police interviews was determined. The defendant was entitled to question the admissibility of those interviews, however the fact that he did so places some qualification on the extent to which he was prepared to assist the justice system, and also upon the degree of any remorse or contrition which would have been demonstrated by an immediate and unqualified acceptance of his guilt. 40 Notwithstanding those considerations, the eventual plea did have a utilitarian value in reducing the time required for the trial, and in sparing a number of witnesses the inconvenience of giving evidence. Additionally, the admissions contained in the interviews did serve to strengthen a Crown case, which would otherwise have depended on the discovery variously of his fingerprints on the window frame, of the knife beneath the window, and of the mitochondrial DNA on the pillowslip. That case would have supported a conviction, but with the addition of the admissions, it became unanswerable. 41 For the combined value of the plea, assistance and contrition, I propose to allow a discount in the order of 25%. 42 For the future, I accept that the defendant's record is not such as to suggest that he presents any appreciable danger of reoffending, particularly having regard to the age at which he might reasonably expect to be released on parole. The case is not one where there appears to be any particular need for any extended period of post release counselling or supervision. While the defendant will need to control his consumption of alcohol upon his release, there is no reason to suppose that he cannot receive adequate alcohol counselling while in custody. The pattern of excessive social drinking, which it seems was a feature of the social life of those with whom he associated while living at Albion Park, will also be broken by his incarceration. 43 The case is one which reflects the mitigating circumstances mentioned in s 21A(3)(e) to (h), (k) and (m) of the Crimes (Sentencing Procedure) Act 1999. 44 I have taken into account the age of the defendant at the time of sentencing, the fact that this will be his first custodial sentence, his prior record and good character, the favourable prospects of rehabilitation, the plea of guilty, the assistance provided, and the need for him to have a period of post release supervision in order to readjust to the outside world, when setting the sentence, in accordance with s 21A and with the former s 44(1)(a) of the Crimes (Sentencing Procedure) Act and also in accordance with the principles outlined in Regina v Simpson [2001] 53 NSWLR 704. I have also taken into account the fact that release on parole leaves an offender liable to revocation of parole in the event of any reoffending. 45 In appropriate cases, the factors which I have mentioned may constitute special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act, justifying a variation of the statutory ratio identified in s 44(2) of the Act, but I am not persuaded that they call for more than a minor adjustment in this case. Any significant adjustment would result in a period of incarceration that would fail to reflect the objective criminality of the offence. 46 Peter John Loeber, for the offence of murder, to which you have pleaded guilty, I sentence you to imprisonment for 18 years to date from 22 January 2003. I set a non-parole period of 13 years also to date from 22 January 2003 and to expire on 21 January 2016. That will be the earliest date upon which you will be eligible for release on parole. ********** Last Modified: 04/14/2004 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.