New South Wales Supreme Court CITATION : REGINA v. JOSEPH [2003] NSWSC 1080 HEARING DATE(S) : 8.5.03; 15.5.03; 23.5.03; 1.8.03; 21.11.03 JUDGMENT DATE : 21 November 2003 JURISDICTION: Criminal JUDGMENT OF : Greg James J at 1 DECISION : Imprisonment for 15 years to commence on 6 September 2001 and to expire on 5 September 2016. There will be a non-parole period of 11 years which, having commenced on 6 September 2001, will expire on 5 September 2012, which will be the earliest date upon which the ofender is eligible for release on parole CATCHWORDS : Criminal law - murder - sentence - killing of spouse - in presence of child - early plea - aggravating and mitigating features - necessity for sentence and non-parole period not to be disproportionately short. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Previtera (1997) 94 A. Crim. R. 76 CASES CITED : Elphick [2000] NSWSC 977 Cheung (CCA, unreported 11 December 1995) Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : REGINA v. JOSEPH, Stani Reginald FILE NUMBER(S) : SC No. 70081 of 2002 COUNSEL : Crown: J. Kiely, SC. Off: I. McClintock, SC. SOLICITORS : Crown: S.E. O'Connor Off: Legal Aid Commission IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION GREG JAMES, J. FRIDAY 21 NOVEMBER 2003 No. 70081 of 2002 REGINA v. STANI REGINALD JOSEPH SENTENCE NON PUBLICATION ORDER 1 HIS HONOUR: The offender, Stani Reginald Joseph, has pleaded guilty to the murder of his wife and partner, Santhanamary Stani Reginald, an offence he committed on 6 September 2001 in the bedroom of their home at Auburn. 2 The facts are agreed and can be stated in short compass. The offender and the deceased were married in 1987. There are two children of the marriage. The eldest, referred to in these proceedings as X, was born in 1987. The younger, referred to in these proceedings as Y, was born in 1991. 3 The deceased died in the early hours of the morning on 6 September 2001 as a result of numerous severe head injuries involving a fractured skull, both through the forehead and the front of the left side of the skull, accompanied by some eight to nine major lacerations of the head. The lacerations themselves were serious, as were the fractures and the damage to the underlying tissues. There were, in addition, puncture wounds and these were associated with the use of the weapon to which the offender had resort to kill his wife. That weapon was a club lock that he happened to have available in the premises that night. 4 He had had a long and apparently difficult relationship with the deceased. In his perception, at least, she had, of recent times, formed the view that she no longer wished to be with him and wished, instead, to return to the company of her former husband. He was of the view that she was undermining his domestic status and undermining his relationship with his children who did not treat him with sufficient respect. 5 It was in that context that in times recent to the killing he and she did not share a bedroom. He shared a bedroom with one son. The deceased and the other son slept in single beds in the same bedroom. 6 Sometime after midnight he was observed by his son striking the deceased on the head while she lay in her bed. The son observed a number of blows being struck. They were estimated as of about 10 in number. The offender then left off striking the deceased and the immediate area of her bed but resumed shortly afterwards hitting the deceased with the club lock. He, again, ceased from doing so but returned shortly afterwards to where she was still lying on the bed, apparently making some noises and struck her again. 7 He left the club lock still bearing her blood in their home. When observed by the police on the morning of 6 September, the body of the deceased was still lying in her blood on her bed. Not only had she suffered the severe head injuries to which I have referred, but she also suffered severe injuries to the chest. 8 The offender woke his sons and went to the Auburn Police Station at about 5.45 am. He was observed to do so by a neighbour. He told police he had had an argument with his wife, that they had argued over his wife's ex husband and that he got really jealous. When asked if his wife was all right he replied, "I don't know". When asked by police what happened, the accused replied, "We fought. I hit her". 9 Earlier, he had informed the children as to their reason for going to the police station that an intruder had broken in and harmed their mother. 10 He was arrested that morning and interviewed by police. He admitted to the police in that interview that he had an argument with his wife about her ex-husband and that he had become really jealous. He asserted, however, that after he had retired to bed he did not know what had happened to his wife and he did not see or hear anyone else in the unit that night. He asserted that he thought something was wrong when he was informed by his son that the son had heard a noise and that he immediately decided to go to the police station but did not check on his wife before leaving the unit because he was nervous. That latter account is obviously not to be accepted. 11 The offender was born on 21 March 1955. Both he and his wife were natives of Sri Lanka. She was born on 8 October 1952. They had married there. There had been a child of the wife's previous marriage. Her first husband had left her when she was six months pregnant. There was, however, continued contact of one sort or another, at least of intermittent kind, between the deceased and her former husband, even after she joined the accused in Australia to which he had migrated in 1991. The deceased and the two children migrated to Australia in 1996 whilst the child of the deceased's first marriage remained in Sri Lanka. 12 In April 2000 the deceased left the home with the two children and moved to Manly, obtaining an apprehended violence order. That order was uncontested. The parties reunited after several months and it was then they commenced living in the unit at Auburn in which the deceased met her death. It is clear that the conflict to which I have already made reference continued for whatever reason after they had gone to live in Auburn. 13 The eldest son remembered that his parents did not get along and often shouted at each other. He refers in his statement to trying to get up and put the light on and help his mother during the serial assaults on the night of her death but he was ordered back to bed by his father. He was told after at least one of the assaults to go into the other bedroom and go to sleep. He asserts he could hear from that bedroom sounds which suggested that his father was attempting to clean up. He also asserts that at some point, and he could not ascertain when, some screaming was heard and he was unable to ascertain who it was that was doing that. 14 A neuropathologist's report obtained post mortem speculated that the deceased may not have died until some time after the initial assault and indeed that she may have sustained injuries several hours prior to death. 15 I am not, however, persuaded by such evidence as there is of the eldest son hearing the screaming or by reason of the speculation of the neuropathologist, that I should find other than that there were at least two attacks upon the deceased when she was lying in bed, probably asleep and entirely vulnerable; that those attacks occurred within a short interval of each other; that at least one of them was carried out in the presence, sight and hearing of the older child and that the deceased died shortly after those attacks. It may be, and it is to be hoped, that she was asleep when she was first attacked, rendered unconscious by the first blow and thereafter did not again resume consciousness. 16 It is plain from such as the offender has said about the attack, the nature of the injuries, the position and condition of the body and the observations of the eldest son that a frenzied, vicious attack was carried out by the offender under great emotion at a time at which the deceased could not have been acting in a way which provoked such an attack at all. 17 One can be thankful that the younger child did not see or hear these events. The boys were also interviewed at the police station. It was contemplated that at least the older boy might have to give evidence. The materials before me include an interview with that boy and conference notes of a conference taken with him by the learned Crown Prosecutor. 18 In the conference notes, it appears that he cannot be certain as to how much time his father spent in the bedroom but was definite that his father had not left the room. Such a picture of the man in the room, with the weapon, striking the deceased in separate bouts of blows is important in revealing the offender's emotional state which caused him to kill his wife. 19 Psychiatric evidence has been provided to me concerning that emotional state. Dr. Ellard, who examined the offender on behalf of the Crown, concluded that at the time in question the offender was not suffering from any significant impairment of his responsibility arising from any condition of depression with which he may have been afflicted. 20 Dr. Allnutt and Dr. Stevenson, who had supplied detailed psychiatric reports, each concluded that the offender had at the time of the infliction of these injuries been suffering from organic or major depression but neither concluded that the offender had been suffering to such an extent that his responsibility for what he did was significantly impaired. 21 Dr. Allnutt, Dr. Stevenson and Dr. Ellard generally give the same history. It is a history which includes reference to obsessive behaviour and at least a belief on the part of the accused that he was being persecuted by his wife. None of the psychiatrists suggest that belief was psychotic. No-one suggests that that belief was not genuinely held, although the offender had in his younger days been subject to torture when working in Sri Lanka and it has been suggested that a posttraumatic stress disorder might have re-arisen in combination with some degree of depression. The psycho-dynamics of what occurred, notwithstanding the detailed psychiatric reports, are not at all clear. On his admission to a corrective services establishment following his arrest on the morning on 6 September, he was diagnosed by a medical practitioner to be suffering from major depression. Dr. Ellard, however, was of the view that such depression as he was suffering subsequent to going into custody arose in particular from his having committed this offence and his awareness of its consequences. 22 The submissions put by the Crown, particularly with reference to the criteria in s.21A of the Crimes (Sentencing Procedure) Act 1999 (the Act) include that the offence was accompanied by cruelty. The section refers to "gratuitous" cruelty. I have the gravest difficulty working out why the adjective has been included. The Crown refers to the issue of cruelty in the context that the deceased was struck a number of blows and submits there was a callous indifference to human life and suffering. 23 It is common ground that by reason of the offender's emotional state it is not possible to conclude that the offender had an actual intent to kill or actually adverted to the probability that by his actions he would cause death. The plea has been put forward and the Crown has accepted the plea, however, on the basis that the offender at least intended to cause really serious bodily harm, that is grievous bodily harm to the deceased. 24 Mitigating against the conclusion that the offender intended to kill or adverted to the likelihood of causing death is a reference that is included in the material to his belief that his wife would normally sleep with her head at the other end of the bed and an inferred intention on his part, at least initially, to injure her by striking her legs. However one looks at it, it is plain that at least an intention to cause grievous bodily harm existed. It may be that following the infliction of the initial injuries and when the deceased, who by that stage may, for all one can tell having regard to these injuries and not being able to ascertain the sequence in which they were inflicted, be dying, the offender came back and struck her again while she was making noises. Whether to silence her or simply in the heightened emotional state I am unable to say. 25 In that context, the Crown does not urge upon me that it is open to me to conclude beyond reasonable doubt other than that the act or acts causing death, being the blows, were inflicted with any more serious intent than the intent to inflict grievous bodily harm. The Crown submits that the actions of the deceased were "needlessly" cruel and that the offender displayed a callous indifference to the deceased's human life and suffering. 26 Except that I can conclude that he attacked her in a frenzied rage, I am unable to conclude that he had any deliberate intent to inflict additional cruelty or to adopt some callous indifferent attitude. I conclude he struck her in a paroxysm of rage in which he could think of nothing other than the instantaneous moment of striking. The injury to her and the appalling injury to the children, who are not only deprived of their mother but their father and who have now had to have a government department place them in foster care, is obvious. Reference was made to s.21A(2)(1) of the Act referring to the vulnerability of the deceased. I have referred to the fact that she was asleep in her own bed, in her own home and entitled, one would consider in those circumstances, to be able to trust that she would not be attacked at all, much less in that condition, much less by her partner. 27 Section 21A(2)(1) refers to examples concerning the sort of vulnerability which might aggravate a crime by reference to persons who are very young, very old or have a disability, all because of the victim's particular occupation. I would apprehend that that aggravating feature provided for by the section is applicable here because of the circumstances to which I have referred. In addition, the offence did involve a series of criminal acts, although one could not conclude from the prior relationship that there had been any prior criminal acts to that evening. It was one episode of relatively short duration but of appalling intensity of vicious assaults. 28 The offender has no prior record as is made clear in the history. In all the psychiatric reports he is referred to as a person of prior good character. There is no suggestion he is a threat to the community or that he is likely to offend in this way again and in that sense at least he has prospects of rehabilitation. 29 Although he has not completed university courses and tertiary education courses in which he has enrolled, it is plain that he has progressed well with each of those courses and if he wished would be able to complete some such course as would afford him an occupational professional qualification for the future. Whilst in gaol he has been the law librarian and has performed, apparently, as evidenced by his remaining in that position, well in the gaol environment. 30 The Crown expressed the view that I should find that he has shown contrition for the offence. His counsel submitted to me that I should find contrition for this offence. The only material that would suggest in any way that he feels contrite for having killed his wife as he had, is to be found in the report, provided by way of reference to the court, of the gaol chaplain. That report says this, "As his priest, his profound pain and regret at the tragic event is well known to me". 31 During the submissions that were made to me, I expressed the view that that did not amount, particularly in circumstances where the offender had not given evidence before me, to such evidence as I might have accepted of actual contrition on his part for what he had done to cause her death. 32 I have re-thought the view that I then expressed. In the context of the Crown's written submission suggesting I should find contrition, in the context of that statement which to some extent points to some present cognisance of what he has done and regret for it and in the context of the further most important matter I will turn to in a moment, I am prepared to accept that there is some degree of contrition, albeit that contrition has to be evaluated in the context that this was a man who felt that his wife was likely to leave him, who was not prepared to leave her and who drove himself frantic with what he believed, about her and his own position of power within the relationship, to the point where he had to emphasise his control by beating his wife to death in the presence of one of his children. 33 But that said, he has done everything he could, I accept, as was submitted on his behalf and as I understand it, a submission that was supported by the Crown, to protect his children from the consequences of his behaviour as far as he can, including giving the false story as to why they were going to the police station and pleading guilty to this offence in circumstances which would ensure that his children would not have to come to court to give evidence. 34 Victims impact statements have been provided. I treat them as I am required to under the provisions of the Act and in accordance with the decision of the Court of Criminal Appeal in Regina v. Previtera (1997) 94 A. Crim. R. 76, I say, by way of comment, that it is always a matter of immense tragedy for those whose loved ones are taken from them in criminal circumstances, but that tragedy is far more appalling when children are deprived of their mother by the very person to whom they and their mother were entitled to look to be their protector, the father. These children have been deprived of the society of both mother and father and have had that deprivation inflicted on them in a way which is entirely abominable, although I accept that no doubt in that heightened emotional and frenzied state, to which I have referred, the offender gave no attention to that whatsoever. Nonetheless, the two children victims are entitled to know that the court is cognisant of the tragedy that has overtaken them. 35 The plea of guilty, it is accepted, was entered at the earliest possible occasion once the offender's psychiatric state had been properly examined. The matter came forward eventually after that plea after a considerable period of adjournment but nonetheless an appropriate period since inquiries had to be made in Sri Lanka and elsewhere. 36 From what I have said, it is clear that the crime, in this case, calls for a significant measure of retribution. In Regina v. Elphick [2000] NSWSC 97, I was required to sentence a man who in vicious circumstances murdered his partner in order to display his power over her since he could not deter her otherwise, he thought, from a course of conduct of which he disapproved. 37 I referred to his having committed the crime in a paroxysm of frustration and rage at a time in which his reasoning was disordered and confused. I referred, in particular, to a decision of the Court of Criminal Appeal in Regina v. Cheung (CCA, unreported of 11 December 1995) where Allen, J. added to the remarks made by the other judges some remarks which I regard as here apposite. Those remarks were made in the context of an offender claiming a grand passion for the deceased which passion was asserted to be a basis for the offender having thereafter, seeking to control the object of the passion, to control that object in the ultimate way by killing. Then Allen, J. pointed out that such a contention no way diminishes the importance of the element of general deterrence. He did indicate that it might diminish the importance of the element of personal deterrence. 38 Insofar as it does, on the basis that there was no great pre-mediation and no planning, nonetheless it seems to me that it is important, by way of counterbalance, that the conduct be denounced to the community so that it can be made aware that those who act in such a fashion will not have their sentences mitigated by the courts should they claim some sort of deduction from what might otherwise be an appropriate sentence, because claiming a right to control the life of another, they take that life. 39 It is necessary, in my view, to ensure that the offender is adequately punished for the offence and in respect of the various statutorily expressed matters which might lead to reductions of what would otherwise be an appropriate sentence to which I will specifically refer and which arise by dint of the application of certain provisions of the Act, I bear in mind, notwithstanding that the qualification is only expressed in s.23(3), that any such deduction as might arise from a sentence that might otherwise have been passed by reason of the application of ss.22, 22A and 23 must not be unreasonably disproportionate to the nature and circumstances of the offence. 40 As far as the application of s.22 is concerned, I accept that the offender has pleaded guilty in circumstances which entirely warrant a most substantial deduction from the sentence that might otherwise have been passed, particularly having regard to utilitarian considerations and most importantly amongst them, is the consideration that the children do not have to have been brought to court to give evidence. I am of the view that an appropriate deduction in those circumstances is the full deduction proposed in the guideline judgment of Regina v. Thomson & Houlton (2000) 49 NSWLR 383 , a deduction of 25%. 41 There is, as I have said, a measure of contrition here but there needs to be offset against that, the strength of the Crown case and the considerations to which I have earlier referred, particularly having regard to the fact that I have afforded that full reduction of 25% for utilitarian considerations, particularly having regard to the children not having to be brought to court. But referring to that matter of contrition I note that there was also an element of pre-trial disclosure, although the offender, when first speaking to the police, did not disclose all at the earliest possible opportunity. 42 Section 23 allows the court to impose a lesser penalty than it would otherwise impose, having regard to the degree to which the offender has assisted the law enforcement authorities in the proceedings relating to the offence. Subsection (2) provides that in deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty to be imposed the court must consider the effect of the offence on the family or families of the victim or victims. A number of other matters are there referred to, including any injuries suffered by the offender's family, resulting from the assistance or undertakings to assist. 43 There is some tension in attempting to accommodate s.23 to the circumstances of this case. There is some tension in attempting to have regard to the efforts made by the offender to protect the children from the consequences of the very crime that exposes them to the harm I have referred to. 44 I have referred, in particular, when considering the early plea to the avoidance of the necessity for the children to give evidence. That was, however, only one aspect of the offender's attempts to protect the children. 45 Not only in the chaplain's reference, not only in the psychiatric material, but also in the victim's impact statement is material which shows that the offender is entirely concerned and has been, since almost the moment of his wife's death, to do the best that he can for his children. And in particular, to do what he can in his circumstances to avoid as much as possible of the consequences as might be visited on them of his own behaviour. 46 I, therefore, conclude that I should not limit the mitigation to be afforded to him in respect of what he has done concerning the children to that component of the 25% discount for early plea to which I have already referred. Notwithstanding I find limited contrition and notwithstanding the matters that countervail against that contrition, I am of the view that there should be an approximate 10% further overall reduction in the sentence that would otherwise have been passed. The sentence should, of course, date from 6 September 2001 when the offender first went into custody. 47 I am, of course, in these circumstances of the view that the offence is of such seriousness that no penalty other than a sentence of imprisonment is appropriate. 48 The maximum penalty for the offence the offender has committed is provided by s.19A(1) of the Crimes Act 1900 which provides for imprisonment for life but that sentence is only to be imposed in the circumstances set out in s.61 of the Act which provides for the life sentence to be imposed where a person is convicted of murder and the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. I am of the view that the present offence does not meet those criteria. The Crown has so submitted and I accept that submission. 49 It is thus not necessary for me to resolve whether, on a proper construction of s.61, those matters that had been referred to under previous statutory sentencing regimes, dealing with the worst class of case, approximate or correspond with the offences to which s.61 applies. This is a crime, however, that will need to be the subject of a lengthy determinate sentence. 50 I would have concluded, absent a plea of guilty and the other discounts to which I have referred, that the appropriate head sentence for a crime of this kind, committed in the presence of the child, as it was, was a sentence of 21 years imprisonment. I have concluded that, because of those various deductions to which I have referred and, in particular, the deduction for early plea and for the offender's cooperation in order to avoid further harm to the children, I should impose a head sentence of 15 years and note that the effect of the deductions will flow through to the fixing of the non parole period. I find special circumstances since, in my view, a longer than normal parole period is appropriate, even in this case in which there will be such a long non-parole period. Those circumstances lie in the concern for his children, the length of the sentence, his prior good character and his strong prospects of rehabilitation. For those reasons, I fix a non-parole period of 11 years. 51 I appreciate that the percentage figures that I have given do not precisely translate into the sentence and non parole period I have fixed. However, I have concluded that no shorter sentence nor non parole period could be imposed, having regard to the objective culpability and the circumstances prevailing in the mind of the offender at the time at which the offence was committed and particularly having regard to the s.23(3) requirements that the sentence not be unreasonably disproportionate. Mr. Joseph would you stand please. 52 Stani Reginald Joseph, I sentence you to imprisonment for 15 years to commence on 6 September 2001, to expire on 5 September 2016. In respect of that sentence I impose upon you a non-parole period to commence on 6 September 2001 and to expire on 5 September 2012. That date, 5 September 2012 will be the earliest date upon which you may be released. ********** Last Modified: 12/01/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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