R v Saalfeld [2007] NSWSC 376

New South Wales Supreme Court

CITATION : R v Saalfeld [2007] NSWSC 376 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 14/03/2007, 13/04/2007

JUDGMENT DATE : 20 April 2007

JUDGMENT OF : Howie J at 1

DECISION : The offender is convicted. She is sentenced to a non-parole period of 16 years 6 months with a balance of term of 5 years 6 months. The sentence is to commence from 19 June 2005 and the non-parole period expires on 18 December 2021 the date upon which the offender is eligible to be released to parole. The balance of term commences on 19 December 2021 and expires on 18 June 2027.

CATCHWORDS : Criminal Law - Sentence - Conviction of murder after trial - standard non-parole period provisions applicable - whether standard non-parole period appropriate.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 44

PARTIES : Regina v Lisa Jane Saalfeld

FILE NUMBER(S) : SC 2006/653

COUNSEL : S. De Silva - Crown B. Hancock - Offender

SOLICITORS : S. Kavanagh - Crown S. O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

FRIDAY 20 APRIL 2007

2006/653 REGINA v LISA JANE SAALFELD

REMARKS ON SENTENCE 1 HIS HONOUR: On 13 March 2007 the offender, Lisa Jane Saalfeld, was convicted by a jury of a charge of murdering the deceased, Tina Maree Gestro, at Hamilton on 19 June 2005. She is now to be sentenced for that offence for which the maximum penalty prescribed is life imprisonment. There is an applicable standard non-parole period of 20 years. 2 The single issue before the jury was whether the offender intended to stab the deceased when they met in a confrontation on the streets of Hamilton. There were a number of witnesses who gave evidence at the trial describing the incident that occurred between the offender and the deceased. However the offender gave a version in the witness box that was to a very significant degree inconsistent with that evidence. Her account was to the effect that she had accidentally struck the deceased with a knife that she was carrying when trying to defend herself from the deceased's attack upon her. It is clear from the jury's verdict that they rejected this version. 3 The truth was that the offender intentionally stabbed the deceased with the knife after confronting her in an angry and aggressive mood. The only issue for me to determine in relation to the facts is whether the fatal stab wound to the deceased was inflicted with an intention to kill or with an intention to do grievous bodily harm. I will return to this issue later in the course of these remarks. 4 The facts upon which I am to sentence the offender are in a very short compass. The summary I am about to give is in accordance with the Crown case. This is chiefly because I totally reject the evidence given by the offender at the trial. It was contradicted by objective and reliable Crown witnesses and was largely implausible. 5 The deceased and the offender had known one another for some years. They had been close personal friends and together were involved in the drug culture in the Newcastle area. The offender was on occasions the deceased's supplier of drugs. At the date of her death the deceased was residing with her mother and daughter and was aged 33 years. At that time the offender, who was aged 44, was residing with her boyfriend, George Regan, who had a short time before been released from prison. 6 At Christmas in 2004 the deceased and the offender were good friends and celebrated Christmas lunch together at the home of the deceased's mother. That Christmas the deceased's daughter gave a silver chain to the deceased as a present. 7 At the beginning of 2005 the offender and the deceased had a falling out and their relationship gradually deteriorated until the incident resulting in the death of the deceased. The dispute arose in relation to drugs. The deceased in effect asked the offender to obtain $40 worth of drugs for her but did not have the money. Notwithstanding that they were friends, the deceased was required to give the offender the silver chain she had received from her daughter as security. The offender obtained the drugs but for some reason or other never delivered them to the deceased. The deceased then demanded the return of the silver chain but the offender failed to do so. 8 By April 2005 the dispute between the two women had escalated to the point where the deceased was accusing the offender of stealing money from her purse. The offender, for her part, believed that the deceased was telling lies about her, in particular to the deceased's mother, and thereby damaging her reputation. The situation developed to the point where the offender was making public threats against the deceased. The deceased complained to her mother that the offender had called out to her that she was "a dead woman walking". There was an incident at a shopping mall when the offender made threats against the deceased including that she would stab her. 9 The offender and the deceased met in a public park in order to air their differences. This resulted in the offender threatening the deceased that, when her boyfriend George was out of prison, she would stab her. The deceased's brother came to hear of this threat and, after George was released from gaol, went to visit him and the offender. The purpose of the visit was in effect to warn off the offender by praising the fighting skills of the deceased. 10 At approximately 10 pm on the night of the stabbing the deceased was walking south along Beaumont Street, Hamilton when at the same time the offender and her boyfriend were walking on the same side of Beaumont Street but further south from the deceased. The offender and George were arguing with each other. They crossed to the other side of Beaumont Street and, when outside the Sydney Junction Hotel opposite the railway station car park, they stopped and became engaged in a very heated argument. This was so loud and aggressive that it drew the attention of persons in the vicinity, even to the extent of bringing one witness out of the hotel where he was playing pool to see what was happening. 11 The deceased had continued walking along Beaumont Street but at some point stopped diagonally opposite where the offender and George were arguing, this no doubt having attracted her attention. The offender noticed her and began yelling abuse in her direction. She then walked across the road towards the deceased still yelling at her. The deceased commenced to yell abuse back at the offender. 12 The offender was carrying a bag swung over her shoulder. In that bag she was carrying a folding knife with a 10 cm blade. The knife could be opened to expose the blade by pressing a button. It could only be closed by using both hands. As the offender crossed Beaumont Street, a witness sitting in a car parked directly in front of her path, was watching her concerned that she might come to his vehicle. The deceased was further down the car park to the left-hand side of the witness. The witness gave evidence that, as the offender crossed Beaumont Street, she had her bag in front of her and was reaching inside it, apparently trying to take hold of something. Although the offender denied in her evidence touching the knife before she confronted the deceased, I have no doubt that she did. It is more than likely that she opened it at this time, or, if it was already opened, she placed it into her hand inside the bag. 13 The offender walked up to the deceased and the argument continued for a short time. There was a witness a short distance away watching what was happening. He had been following the activity of the deceased and the offender from the time the deceased entered into Beaumont Street. In my opinion he was a completely reliable witness and I accept his account of the stabbing beyond reasonable doubt. He described the deceased starting a physical attack upon the offender with "roundhouse type overhead punches" coming down upon the offender. The offender seemed at first to put her hands up to defend herself. However during the short confrontation between the two, there were a few punches thrown by the offender in an "uppercut style". When they both stopped throwing punches, the deceased seemed to be hunched over the offender, who removed herself from underneath the deceased and spun away from her. The deceased then stood up, took two or three steps backwards and fell flat on her back. 14 I have no doubt that the uppercut style punches described by the witness were the offender stabbing at the deceased with the knife. They are consistent with the evidence that damage to the deceased's coat indicated that there was more than one stab towards the deceased although only one made contact with her body. The description is also consistent with the stab wound inflicted to the side and under the deceased's breast. I have no doubt that the offender had the knife in her hand either as she approached the deceased or very shortly after she confronted her. In any event I am satisfied that, as she crossed the road, the offender was aware that she would probably use the knife during the confrontation with the deceased. 15 Having stabbed the deceased, and knowing that she had done so, the offender met up with George and they went their way eventually ending up in a hotel playing gaming machines. At some stage the offender closed the knife and replaced it in her bag where police found it later. The jury was played a video recording of the offender after her arrest when she was speaking with the custody officer at the police station. There is at that stage no suggestion in her manner of any contrition for having stabbed the deceased. It is only when she is informed of the death of the deceased that any sign of remorse occurs and there is a very significant change in the offender's demeanour thereafter. This is the principal matter that raises a doubt in my mind that the offender intended to kill the deceased. 16 However a finding in her favour that she only intended to inflict grievous bodily harm does not greatly diminish the seriousness of her conduct given the type of weapon used, her preparedness to use it and the nature of the wound inflicted upon the deceased. Even though there was only a single wound, it was in the place most likely to cause a very serious injury indeed. I have no doubt that generally the offender was the aggressor in her relationship with the deceased after it turned sour and was certainly so on this particular evening. There was not the slightest provocation by the deceased either immediately before the offender crossed the road or in the period leading up to the stabbing. The offender had the knife with her principally for her protection in carrying out her trade as a drug supplier. I am not persuaded that she went across to confront the deceased in order to stab her. But as I have already noted, she got the knife ready as she crossed the road in case she needed to use it, and not merely by way of self-defence. 17 The use of the knife is an aggravating factor but the only one. Although the offender had been threatening to stab the deceased, this was a chance meeting on this particular evening. She seems to have been egged on to cross the road by George who was seen to push her in that direction. It was also a contributing factor that she had been arguing with George and was in an aggressive mood before she saw the deceased. Although the offender gave evidence at the trial of using drugs during that day, there was no evidence from her as to the effect of those drugs upon her. There is no suggestion in the police video that any drugs she had taken earlier were affecting her. However, I think that there is some merit in the submission put to me on her behalf that her rather chaotic drug-affected lifestyle might have contributed to her excessive anger toward the deceased over this period of time. 18 The offender has a criminal record but not such that it is a matter of aggravation. However, she has an offence for violence in Queensland that resulted in her serving a sentence of imprisonment in that State. She breached parole in respect of that sentence by coming to New South Wales and using drugs. She was returned to custody in Queensland and served about two years gaol in total. She was released from custody in December 2002. Since that time she has only been convicted of a traffic offence. However, she was not of good character because she was involved in using and supplying drugs. None of this is particularly relevant to the sentence that I am to impose except that the conviction in Queensland deprives her of any leniency that she might have received had this been her first offence of violence. 19 There is little in mitigation of the objective seriousness of the offence except that it was not planned in any way and arose more or less instantaneously when the offender saw the deceased while she was in an aggressive state of mind because of her argument with her partner. 20 Turning to subjective matters I was asked to find that she is unlikely to commit further offences and that her prospects for rehabilitation are good. Those matters have little relevance to my task here. The offender must serve a very lengthy term in custody and, although she has shown signs of seeking to address her drug and other problems while in prison, it will be so long before she is released that it is speculation to try to determine what her prospects are. I have also been asked to take into account her remorse for the death of the deceased. There is undoubtedly evidence of that fact notwithstanding that she did not plead guilty to the offence and tried to minimise her criminal responsibility for the death of the deceased in the witness box. Her remorse is of only little significance, but it indicates that she is unlikely to act in the same way again and, therefore, personal deterrence is not a relevant factor. 21 There is little in her background that assists her. At one time she developed a heroin addiction and participated in a course of methadone to overcome it. But her primary drug of abuse has been amphetamine. This is principally the drug that she was using and supplying up until her arrest. It seems that she had a happy and uneventful life until her marriage of eight years broke up when she was aged 28. She has two daughters in their twenties from that relationship. She then entered into a relationship with a heroin addict who was violent toward her. It was during this relationship that she started using drugs. She has a child aged 13 from that relationship who lives in Queensland. The offender still maintains regular contact with her children. She was in a relationship with George Regan for about 12 months and he was a heroin user. She has not seen or heard from him since her arrest. She is close to her mother and has regular contact with her. 22 There are in evidence reports from a psychiatrist and a psychologist but they disclose little of relevance to the sentencing of the offender apart from setting out her background. She has no mental health problems and she was found to be in the Superior range of intelligence. Her major social problem has been her use of drugs and periods of depression. She has some medical problems but none that could impact upon the sentence to be imposed upon her. There is no suggestion that at the present time or in the foreseeable future these problems would cause prison to be more difficult for her. There is however a 30 per cent chance that she might ultimately have multiple sclerosis and she has been examined as a result of a period of loss of feeling in her right hand. Her symptoms, however, have substantially subsided over time. 23 Since her arrest she has become drug free. She has completed a "Getting SMART Program", a twelve-week programme on drug abuse and life skills. She has also attended Narcotics Anonymous meetings. She has spent the period of her remand in protective custody because of fears of retribution from friends or associates of the deceased. This causes her some restriction in the amenities she can enjoy and the activities and courses available to her. However, she works as a sweeper, a trusted position in the gaol. 24 In my view the offence is slightly less than mid range seriousness objectively. It was a single stab wound, although as I have noted one likely to cause very serious injury if not death. It was not a planned offence and arose as a result of a chance meeting with the deceased when the offender was in an aggressive mood. The weapon was one very likely by its nature to inflict a serious wound and, as I have indicated, the offender was prepared to use it when she approached the deceased. There was no provocation on the part of the deceased. There is nothing in s 21A that would move the offence from where it lies by reason of its objective seriousness. 25 Nor is there anything in the subjective circumstances of the offender that moves the non-parole period up or down except the fact that she will serve the sentence probably in protection. But this is of limited significance in this particular case bearing in mind the actual nature of her custody. There are no special circumstances because the sentence will be of such length that the statutory relationship between the overall term and the non-parole period provided by s 44 of the Crimes (Sentencing Procedure) Act 1999 will be adequate to address any need the offender might have for assistance on her release. There is no reason that I can see for reducing the non-parole period. 26 There has been placed before me a victim impact statement from the mother of the deceased. The Crown informed me that the writer was aware that the contents of the statement could not be used by me to increase the sentence upon the offender by reason of the pain and loss occasioned to the writer or the deceased's daughter by the killing. However, the document is important because it allows the deceased's mother to express her grief to this Court as representing the community. The offender's act is a crime against the community and not just those who mourn the passing of the deceased. The punishment meted out by the Court on the offender is for what she has done to the community and to express on its behalf its abhorrence of the taking of human life whoever the victim might be but also to express its sympathy and compassion for the deceased's mother and her daughter. 27 I have been referred to a schedule of sentences imposed upon offenders after trial where the standard non-parole period provisions apply. These represent a guide but of course they each depend upon their own particular facts and circumstances. However I have taken them into account and I believe the sentence that I am about to impose upon the offender is broadly consistent with those sentences. I believe I should indicate that the sentence I am about to impose is longer than the sentence I would have imposed had there been no standard non-parole period. 28 The offender is convicted. She is sentenced to a non-parole period of 16 years 6 months with a balance of term of 5 years 6 months. The sentence is to commence from 19 June 2005 and the non-parole period expires on 18 December 2021 the date upon which the offender is eligible to be released to parole. The balance of term commences on 19 December 2021 and expires on 18 June 2027. **********