New South Wales Supreme Court CITATION : Regina v M.S. [2004] NSWSC 730 HEARING DATE(S) : 09/02/04 - 27/02/04 JUDGMENT DATE : 13 August 2004 JUDGMENT OF : Dunford J DECISION : Sentenced to imprisonment for 17 years with a non-parole period of 11 years. Direct that the sentence be served in a detention centre until aged 21 years CATCHWORDS : Criminal Law - Sentencing - murder - boyfriend/girlfriend - both young - both aboriginal LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 R v Fernando (1992) 76 A Crim R 58 CASES CITED : R v Henry [1999] NSWCCA 111, 46 NSWLR 346 R v MA [2004] NSWCCA 92 R v Previtera (1997) 94 A Crim R 76 PARTIES : Regina v M.S. FILE NUMBER(S) : SC 70052/03 COUNSEL : P J Barnett - Crown J S Stratton SC - Accused SOLICITORS : S Kavanagh - Crown Nikola Velcic & Associates - Accused - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J FRIDAY, 13 AUGUST 2004 70052/03 REGINA v M.S. SENTENCE (Note: The Children (Criminal Proceedings) Act 1987 s 11 prohibits the publication of the name of the prisoner and any other person mentioned in the proceedings who was under 18 at the time of the events referred to, including the deceased). 1 HIS HONOUR: On 27 February last at Dubbo, the prisoner was found guilty by a jury of murdering his 15 year old girlfriend at Bourke on 26 December 2002. The prisoner was then aged 17 years and he and the deceased had been in a boyfriend/girlfriend relationship for approximately four years. 2 The relationship was marked by violence on the part of the prisoner towards the deceased, and there were a number of incidents in the days leading up to her death when she suffered injuries of varying severity at his hands. He has not been charged or convicted of these other assaults, and is not to be punished for them, so I refer to them only to explain the background against which the deceased met her death. The prisoner also appears to have been very possessive of the deceased and jealous of her associating with other persons, particularly members of the opposite sex. 3 About a week before Christmas, on 19 December, the prisoner hit the deceased across the top of her head with an iron bar necessitating her going to the hospital where her wounds were sutured. About this time the deceased claimed to some of her friends that she had caught the prisoner being intimate with another girl, C.E. 4 Late on the evening of 24 December or very early on the morning of 25 December, the deceased and the prisoner had a confrontation in relation to this matter and the prisoner accused the deceased of "talking to" another man (his words – T 902). The upshot of all this was that he hit her with his fists or a backhand resulting in an injury to her lip and re-opening of the sutured wound at the back of her head from the previous week. 5 She returned to her parents' home at 9 Oxley Street crying where she begged her mother "not to let him hit her again". Shortly afterwards, the prisoner appeared and abused the deceased calling her "a slut and a dog" and threatening to kill her. Following this, about 2:30am, the deceased and others including her mother went to Bourke Police Station to report the assault. The deceased was taken to Bourke Hospital for treatment of her injuries and after treatment, she was taken to a women's refuge to sleep. 6 On the evening of 25 December, the deceased was at a party at 21 Anson Street, Bourke when the prisoner approached her, dragged her by her hair off the veranda where she was dancing, and punched and kicked her, tearing the singlet top she was wearing. At this stage, the deceased was upset and crying. Atholone Edwards, an aunt of the deceased, told her to go out and go with her bloke (the prisoner) but the deceased replied, "No Atholone, he's going to kill me", and made reference to the prisoner being with another woman. Atholone Edwards brushed it off. Other persons intervened and the prisoner was told to leave which he did, but whilst there, he said he was going to kill the deceased. Earlier that evening he had said to Melinda Edwards "She's going to get it tonight" referring to the deceased. Whilst at 21 Anson Street, he was struck to the head by Brian Smith. 7 Later on Christmas night or in the early hours of Boxing Day, the deceased was at a bonfire in Adelaide Street in the company of Anthony Edwards (known as "Gundy"). The deceased and Edwards started to walk away from the bonfire together, and at this time the prisoner approached the deceased and assaulted her by attempting to drag her away by the hair and arm. Edwards intervened and punched the prisoner to the face. After leaving the area, the prisoner met up with Jamie Snelson, who noted that he had a cut under his left eye and was visibly upset. He said words to the effect of "Gundy can have her". 8 After his altercation with the prisoner, Anthony Edwards and the deceased walked to the Alice Edwards Village, an Aboriginal reserve approximately 2kms from the main township and at about 3am, they attended a party at Lillian Booth's flat in that village. The deceased told Lillian Booth that the prisoner had been with C.E. and she did not want him anymore. Whilst they were there, the prisoner appeared and approached the deceased, pulled her by the hair off the chair on which she was sitting, and whilst she was on the ground, kicked her to the head and body. The deceased broke free from the prisoner at some point and ran to Lillian Booth, to whom she clung and pleaded with her not to let the prisoner take her away. Anthony Edwards and Lillian Booth walked with the deceased and the prisoner away from the others at the party in an attempt to calm the situation. Lillian Booth asked the deceased what was going on and whom she wanted, to which she replied that she did not want the prisoner and was going with Gundy that night. After some time, Anthony Edwards returned to the party alone and was later followed by Lillian Booth, who left the deceased and the prisoner to talk. At one stage during the confrontation, Lillian Booth said to the prisoner, "You'll end up killing her". 9 About 4am that morning (i.e. 26 December), the deceased and the prisoner walked through the yard of cottage no. 8 at the village where they were seen by witnesses resident there. They appeared to be involved in a verbal argument, and the deceased was heard to say, "Are you going to bash me". This was the last time the deceased was seen alive by witnesses. They were then heading towards the banks of the Darling River. 10 In fairness to the prisoner, I should add that both the prisoner and C.E. denied in their evidence that there had been any sexual activity between them. 11 The body of the deceased was found about 2pm on 26 December when its location was pointed out by the prisoner to Adam and Shaun Rice, who were in the area with their families for a day's fishing. He had previously told them he was looking for his girlfriend and then he later came back and said he had found her and directed them to where the body was. In the meantime, commencing at about 8:50am, he had attended the home of the deceased's parents on four separate occasions claiming to be looking for her, and at about 12:45pm had made a 000 call on a mobile phone for the Ambulance Service claiming that a young girl had drowned in the river and he gave directions. The ambulance personnel and police who attended the area described, did not find the deceased on that occasion and it was not until the prisoner indicated where he claimed he had "found her", that anyone else was aware of her location. 12 The deceased's body was lying on its right side close to and generally at right angles to the water with her legs bent at the knees. Her tracksuit pants were pulled down below her knees and her panties were just below her hip line whilst her top was pulled up to just below her breasts. She was not wearing the red bikini top bra which she had been wearing earlier in the evening and it was found three days later stuffed in a log some distance away on the riverbank. Her body was near a large fallen tree, the roots of which were located on the water's edge with the trunk and branches extending out into to the water. Her shoes were found about 6 metres upstream of the body without their laces, with no mud on their soles, and there was no evidence of any dragging or sliding marks or shoe print impressions in the mud near the water's edge. Around her neck was an extremely tight ligature which had caught some of her hair and it was so tight that some of the skin on the neck had folded back over it. 13 Later examination of the ligature established that the shoelaces from which the ligature had been made had come from the deceased's shoes, and the following day, a piece of cord made of part of one of the same shoelaces was found wrapped around a branch of the tree which was lying horizontally into the water near where the deceased's body had been found. The cause of death was ligature strangulation by the shoelaces. 14 At the time they left Lillian Booth's premises at about 4am on Boxing Day, both the deceased and the prisoner were substantially affected by liquor. I am unable to say whether they had a further argument after that or whether, consumed with jealousy and fearful that she was going to terminate their relationship and go with Gundy, the prisoner resolved to kill her, or whether it was simply a combination of factors including his possessive attitude to the relationship and a desire to control her life, his increasing violence towards her, her accusation that he had been intimate with another girl and her decision to terminate their relationship, combined with the effects of alcohol and cannabis. 15 Apparently at some stage, he caught her unawares (possibly whilst she was sleeping near the riverbank) removed her shoelaces, made the ligature, and strangled her. To this extent the killing showed some deliberation and planning at least at its proximate stage and, having regard to the cause of death, I can only infer that at the time he intended to kill her. He apparently thought better of it shortly afterwards and this explains his attempts to raise the alarm during 26 December until the body was found, but in a way which would not direct suspicion at him. Notwithstanding the threats he made earlier in the night and the previous night that he was going to kill her, I am not satisfied beyond reasonable doubt that at the time he meant them or genuinely intended to carry them out. 16 The prisoner was born on 11 April 1985, was nearly 18 at the time of the offence and now 19. He is Aboriginal and one of a large extended family but when giving birth to his younger brother, when he was about one year old, his mother suffered severe haemorrhaging and became very ill and unable to look after him. He was then placed in the care of an aunt at Engonnia where he remained until he was about 11 years of age. He has had virtually no contact with his natural father. When he was three years old, he accidentally ingested a number of "heart tablets" and became ill with childhood rheumatoid arthritis. 17 It appears that whilst living with his aunt, he witnessed severe physical abuse of her from her partner. He lived with his aunt until approximately 11 years of age at which stage he moved to his grandmother's at Newcastle. Subsequently he seems to have moved around for some time but in the last 3 or 4 years he had lived mainly in Bourke but also at times in Dubbo. 18 According to the Juvenile Justice report, he described Bourke as "not a normal town…a lot of bad things happen there" and as examples, he explained daily life as full of violence, domestic violence, jealousy, theft, pain, hunger, drug and alcohol abuse. He was educated to Year 9 level but particularly in his latter years, he was in trouble at school mainly for smoking and truancy. Since his arrest, he has completed Year 10 in custody and is currently enrolled in Year 11. He claims to have suffered a number of head injuries caused by fighting and physical violence and he still suffers from the childhood rheumatoid arthritis, which causes severe joint pain. 19 He apparently began drinking alcohol at age 13 and prior to his arrest was binge drinking at least once a week and was also being a daily cannabis user, smoking up to six cones a day. He also started to use amphetamines at about age 13 on an average of once a week. He has an extensive criminal record dating back to 2000 including break enter and steal, goods in custody, assault police officer, malicious damage, steal motor vehicle, larceny, receiving, common assault, robbery in company, malicious wound and escape police custody. Of particular significance in the current context are the convictions for common assault and malicious wound. His life has been marked by personal tragedy including the death of his mother and since he went into custody for this matter the accidental drowning of his brother. 20 He has maintained his plea of not guilty, as he is entitled to, but since the jury's verdict, he has expressed contrition. A letter tendered at the sentencing hearing addressed to the deceased's family, although not sent to them included the following: "I also want you to know that I am sorry for the way I treated (her) – the abuse and violence. I understand that (she) would've been afraid of me and that I had upset her… I don't remember killing (her), but I take responsibility for her death and I blame myself for what happened. I'm very ashamed for what I've done." 21 In addition to the aggravating and mitigating factors set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, which I have taken into account, the sentencing of the prisoner poses particular problems because of his youth, his aboriginality, his lack of opportunity in life, the circumstances and atmosphere prevailing in Bourke at the time, particularly amongst parts of the aboriginal community, with its violence, drug and alcohol abuse and unemployment. On the other hand, a young woman's life has been taken away and any undue leniency to the prisoner would tend to degrade the value of her life, which must be avoided. The life of a 15 year old aboriginal girl in Bourke is as much entitled to the protection of the law as is the life of any other citizen. 22 The youth and emotional immaturity of the prisoner are circumstances which generally lead to the elements of denunciation and general deterrence playing less part in the sentencing process and greater emphasis being given to considerations of rehabilitation than would otherwise be the case, although it has been said that this approach is of less relevance in cases of those who commit adult type crimes, such as murder, as explained in R v MA [2004] NSWCCA 92 at [26] to [30] and cases there cited. In the present circumstances, I consider the youth of the prisoner should result in some not excessive reduction in the head sentence, and constitutes "special circumstances" justifying a departure from the usual ratio between head sentence and non-parole period set out in s 44. He will also require a lengthy period under supervision when released on parole and such supervision should be continued throughout his parole period. 23 Considerations of particular relevance to the sentencing of aboriginal offenders are set out in cases such as R v Fernando (1992) 76 A Crim R 58 at 62-3. It is not necessary to repeat those principles here but I have taken them into account. As pointed out in R v Henry [1999] NSWCCA 111, 46 NSWLR 346 the fact that a criminal offence was committed whilst affected by alcohol or drugs is not a mitigating factor, although it may tend to explain the offence. 24 Notwithstanding his previous offences, I believe the prisoner has good prospects of rehabilitation particularly if he uses his time in prison to learn to control his anger and further his education to learn a trade, which may equip him for employment on his release. The evidence on sentence shows that he is not unintelligent and has relevant skills particularly in the fields of music and aboriginal art. In particular, I have noted the contents of Ex 6 showing his application to his studies and his second prize in the Youth Award (17-24 years) associated with Reconciliation Week 2003. He has expressed a desire to obtain employment in the area of mechanics. 25 Psychological testing disclosed a mild level of depression, stress and anxiety, trouble controlling anger, and a need to address drug and alcohol abuse. Mark Milic, clinical psychologist found on formal testing that he had the reading ability of year 4 primary school child (bottom 4% of the population). His score on verbal intelligence subtests was in the low average range (21st percentile) but on non-verbal scales he was in the 86th percentile. Mr Milic suggested the discrepancy could be due to learning disability, lack of educational opportunity or depressive illness. Dr Nielssen considered him quite intelligent and capable of learning, but with a need to avoid returning to the "chaotic lifestyle" he previously led. Apart from one instance of an assault on another inmate shortly after the death of his brother which caused him to be transferred to an adult gaol for three months where he met his natural father, another prisoner, for the first time, his conduct whilst in custody has been acceptable. 26 I am satisfied that in the light of his youth, background and disrupted education, he would benefit from remaining in the juvenile system where he will be able to access the appropriate treatment programs, psychiatric education and vocation services offered. 27 I have read the Victim Impact Statement from the deceased's father and extend the Court's sympathy to the family of the deceased. Their grief and sense of loss, although great, cannot affect the sentence of the prisoner: R v Previtera (1997) 94 A Crim R 76. 28 As the offence was committed prior to 1 February 2003, s 44 applies as it stood before the 2002 amendments and the standard non-parole period provisions (ss 54A to 54D) do not apply. 29 M.S. for the murder of which you have been convicted, I sentence you to imprisonment for 17 years, such sentence to date from the day on which you were arrested namely 26 December 2002 and I fix a non-parole period of 11 years. The earliest date on which you will be eligible to be released on parole will be 25 December 2013. In accordance with s 19 Children (Criminal Proceedings) Act 1987, I direct that until you turn 21 years, the sentence be served in a detention centre. ********** Last Modified: 08/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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