R v Todd Andrew PEARCE [2008] NSWSC 1434

New South Wales Supreme Court

CITATION : R v Todd Andrew PEARCE [2008] NSWSC 1434 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 10, 11, 12, 17, 18, 19, 20 November 2008

JUDGMENT DATE : 17 December 2008

JUDGMENT OF : Latham J

DECISION : SENTENCED to a non parole period of 15 years, to date from 19 August 2007, expiring 18 August 2022, with a balance of term of five (5) years, to date from 19 August 2022, expiring 18 August 2027

CATCHWORDS : CRIMINAL LAW - sentence - murder - intention to kill - significant level of intoxication - standard non parole period not applicable.

CATEGORY : Sentence

PARTIES : Regina (Crown) Todd Andrew Pearce (Offender)

FILE NUMBER(S) : SC 2008/3228

COUNSEL : H Wilson (Crown) P Winch (Offender)

SOLICITORS : S Kavanagh Solicitor of Public Prosecutions (Crown) Nicolas Moir & Associates Pty Ltd (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION EAST MAITLAND

LATHAM J

17 DECEMBER 2008

2008/3228 R v TODD ANDREW PEARCE

SENTENCE 1 HER HONOUR : The offender pleaded guilty to Murder on 20 November 2008 at the end of a seven day trial. The offence carries a maximum penalty of life imprisonment with a standard non parole period of 20 years imprisonment. 2 The offender's defence at trial was self defence, including a partial defence of substantial impairment. In view of his plea of guilty, the factual basis underlying the offender's claim to self defence namely, a threat from the victim that he would shoot the offender, falls away. Accordingly, I proceed to sentence on the basis of the Crown case at trial, unless otherwise indicated by these remarks. 3 The evidence at trial established that on the afternoon of 18 August 2007 the offender went to a housing commission unit complex in Hamilton South to visit Michelle Clapham. Ms Clapham was previously known to the offender and was also known to the victim, Con Karafylis. The victim had been contacted earlier in the day by Ms Clapham in the hope that he could provide her with some methylamphetamine. When the offender arrived at the unit he had possession of a large, heavy metal knife, similar in appearance to a scimitar approximately 25 to 30 cm in length, with a wide slightly curved blade. The knife had a distinctive silver metal sheath. Another friend of Ms Clapham's, Mr Stuart Weeks, was also at the unit. 4 Whilst the offender was at Ms Clapham's unit, the victim arrived. The offender had an argument with Mr Karafylis wherein the offender accused him of robbing the offender's uncle's premises. This was denied by the victim who then left the unit and commenced to walk from the unit complex. The offender, carrying the knife, followed the victim outside the unit complex on to Fowler St where the offender and the victim continued to argue. Some witnesses in the trial described observing two men facing each other, gesticulating with their arms and pointing fingers. Raised voices and yelling could be heard. Mr Karafylis was unarmed. 5 One witness saw the offender with a silver blade in his hand. That witness then saw the offender plunge a knife into the victim's back between his shoulders, as the victim turned to go. Whether the offender stabbed the victim in this fashion or whether he stabbed the victim by swinging his arm around to the back of the victim, whilst they stood face to face, is of little significance in my view. The forensic evidence was equivocal in this regard. I would place more significance on the fact that the offender carried a weapon which was designed to inflict serious wounds and on the force with which the stab wound was inflicted. The post mortem established that the knife was buried in the victim's back up to its hilt and its passage had severed or partially severed two ribs. 6 The victim then ran towards Hassall Street yelling "I'm bleeding, I've been stabbed". Ultimately, the victim made his way to a bus shelter where a number of persons attended to him and an ambulance was called. He was taken to John Hunter Hospital where he died at 5 p.m. that day. 7 Meanwhile, the offender returned to Ms Clapham's unit where he told Ms Clapham that he had stabbed the victim and that "it turned him on". The offender at trial disputed that he had said any such thing to Ms Clapham. However, I accept that it was said, given that Ms Clapham bore no ill will towards the offender and her evidence in this regard was sufficiently striking to militate against fabrication. In addition, the offender's extremely drug-affected state, to which I shall return below, explains how such a remark could have been made. 8 Whilst at Ms Clapham's unit, the blade of the knife was wiped with a towel in order to remove the victim's blood and Mr Weeks was asked by the offender to dispose of the knife. Mr Weeks took the knife, went to a phone box in order to ring the police and then threw the knife in some bushes behind the phone box. The knife was subsequently retrieved by police during a search of the area. 9 The offender changed some of his clothing and arranged to be picked up by his stepmother. He was arrested on 19 August 2007 and declined to be interviewed. 10 The conduct of the offender in the days and hours leading up to the murder deserves attention because of the light it throws upon the offender's state of mind immediately before, during and after the stabbing. This information is primarily gleaned from what the offender told a number of psychiatrists in the weeks leading up to the trial, and what the offender said in evidence during the trial. 11 Dr Olav Nielssen saw the offender on 16 October 2008. The offender told him that he had been awake for about a week following continuous amphetamine use leading up to the commission of the offence. The offender said he was very paranoid and that he couldn't remember exactly what drugs he had taken, although he thought it was a combination of amphetamines, Rivotrol and another medication which was prescribed for his heroin addiction. Dr Nielssen was of the view that the ingestion of amphetamines over a period of time would render the offender more aroused, more fearful and disinhibited. The offender would have been irritable, found sleeping difficult, have been hypervigilant and had an exaggerated startled response. 12 Dr Bruce Westmore saw the offender on 28 May 2008. The offender told Dr Westmore that he was paranoid and using "ice" at the time of the offence. The offender said he carried a knife at all times. The offender said he had taken heroin, "ice" and Rivotrol on the day of the offence. 13 Dr Quadrio interviewed the offender in August 2008 over a period of two hours. The offender said that he did not clearly remember the four days leading up to the offence. The offender said that he had taken large amounts of "ice", that he had not slept for six nights and six days prior to the offence, and that he had taken "a heap of heroin and some pills" in the days leading up to the offence. 14 The offender's account at trial was that he obtained heroin and some "ice" on the night preceding the offence and that he had taken those drugs and some Rivotrol earlier on the day of the offence. According to the offender, those drugs "made [him] feel normal" because he took them regularly. He said he had been taking those drugs for approximately 4 weeks, every day prior to the offence. He said that as at the 17th of August he had not slept for six nights. To each of the psychiatrists and to the Court, the offender said that he did not intend to kill Mr Karafylis. 15 Neither the offender's inability to remember the events leading up to and including the stabbing of the victim, nor the fact that he was in a heightened state of arousal necessarily precludes a finding beyond reasonable doubt that the offender intended to kill Mr Karafylis. The question is, did he form such an intention, not was he capable of forming one. 16 Having regard to the nature of the weapon, the force with which the fatal blow was struck and the location of the wound, I am satisfied beyond reasonable doubt that the offender did form an intention to kill, albeit that intention spontaneously arose from the unexpected confrontation with the victim only moments before. 17 The nature of the confrontation with the victim was also the subject of conflicting evidence at trial. Ms Clapham's account and the evidence of Mr Weeks did not support the account given by the offender at trial, namely that the victim was the aggressor in the argument and had accused the offender of sleeping with the victim's ex-girlfriend. I accept the evidence in the Crown case over that of the accused on this issue. However, it is not entirely irrelevant that the offender's accusation that the victim had committed a robbery on a family member may well have been a product of the offender's confused and paranoid state of mind. 18 The victim was at all times unarmed. No submission was made to the contrary. Having stabbed the victim, the offender took his mobile phone and focused his efforts on fleeing the scene and concealing incriminating evidence. It could not have escaped his attention that the victim was seriously injured, even if the offender thought that the injury was not fatal. The offender did nothing to seek medical attention for the victim, whatever remorse he may have displayed to others in the days following the offence. 19 Taking all of these matters into account, I have come to the view that the objective gravity of the offence falls slightly below the middle of the range of objective seriousness for the offence of murder. I turn to the offender's subjective circumstances. 20 The offender has had the most appalling life. He is now 25 years of age. As a young child, he endured serious and repetitive violence meted out to his mother in his presence, and to himself by various adult males. Both of his natural parents were heroin addicts. His mother was periodically incarcerated, as was his father, resulting in numerous foster care placements. By the time the offender reached 14 years of age, he had at least once resuscitated his mother from an overdose while awaiting the arrival of an ambulance and was required to care for four younger step siblings while his parents supported their habits. 21 His education was almost nonexistent. The offender attended as many as six primary schools (that he could remember), and 4 high schools before completing year seven and ceasing his educational pursuits entirely. The offender came to the notice of Juvenile Justice in early 1998 and subsequent attempts to keep him under the supervision of the Department failed dismally. In December 1999, when the offender was 16 years of age, he was already living in a de facto relationship with an eight-month-old daughter. 22 In May 2000, a Juvenile Justice report noted that the offender was abusing substances, including alcohol and amphetamines, on a regular basis. However, despite attempts by the Department to provide the offender with alcohol and drug counselling, the offender persistently refused to participate. 23 A probation and parole report of 11 October 2001 noted that the offender had been addicted to heroin for some years. He had been assessed for entry to the William Booth program but acknowledged to the officer that he had no real intention of meeting that obligation. The offender reported that he was not motivated to enter such a program and did not wish to have any restrictions placed upon him after his release from jail. These are themes which have been repeated in every report since that time, up to the present day. 24 Having regard to the entrenched disadvantage in the offender's upbringing and his spiralling drug abuse, it is not surprising that he was virtually incapable of rational reflection on the day of the offence. There is no excuse for what he did, but there is ample material from which to conclude that self restraint was completely beyond him. 25 The offender's criminal history commences in early 1998 and continues, unabated, over the following 10 years. The convictions recorded against the offender are primarily for motor vehicle offences, and property offences. There is no significant record for offences of violence. The most serious offence of that type is recorded in March 2008 for assault occasioning actual bodily harm, for which the offender received three months imprisonment. 26 It was not submitted that any allowance ought be made for the offender's plea of guilty, coming as it did at the very end of the trial and almost at the close of the offender's case. There has been no expression of remorse independently of the plea of guilty, other than what was said by the offender to his associates and to those professionals with whom he consulted prior to trial. I accept that the offender was distressed by the death of Mr Karafylis, but his distress and regret arose out of the offence's consequences to the offender's liberty, rather than any true remorse for the unlawful taking of a life. 27 The offender's counsel submitted that there is evidence that the offender is on protection within the prison system and that therefore some amelioration of the penalty ought to follow from that fact. However, it appears that the offender placed himself on protection. Moreover, there was no evidence before the court capable of establishing the prospect that this status would continue following sentence. Accordingly, there is nothing before the court which could justify any significant departure from the sentence otherwise appropriate to the commission of the offence on the basis that the offender will experience harsher conditions in custody than the balance of the prison population. 28 Contrary to the submissions made by the offender's counsel on sentence, I do not propose to make a finding of special circumstances. Not only will the length of the term during which the offender is under supervision be sufficiently lengthy to allow for the offender's reintegration into the community, but the offender's resistance to rehabilitation suggests that any more lengthy period would be of little utility. His prospects of rehabilitation remain bleak as long as he refuses to address his substance abuse. 29 Taking all of these matters into account, the offender is sentenced to a non parole period of 15 years, to date from 19 August 2007, expiring 18 August 2022, with a balance of term of five (5) years, to date from 19 August 2022, expiring 18 August 2027. *******