New South Wales Supreme Court CITATION : R v PJS [2009] NSWSC 153 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 13 February 2009, 20 February 2009 JUDGMENT DATE : 13 March 2009 JUDGMENT OF : Mathews AJ DECISION : Imprisonment to be served by way of non-parole period of 20 years, commencing on 11 November 2005 and expiring on 10 November 2025, with an additional term of six years commencing on 11 November 2005 and expiring on 10 November 2031. CATCHWORDS : CRIMINAL LAW - sentence after trial - murder - victim the offender's three year-old stepdaughter - no remorse - offender continues to assert innocence - protective custody CATEGORY : Sentence CASES CITED : R v Mostyn [2004] NSWCCA 97 PARTIES : Regina (Crown) PJS (Offender) FILE NUMBER(S) : SC 2006/5489 COUNSEL : B Hughes (Crown) SOLICITORS : Office of the Director of Public Prosecutions (Crown) PJS in person IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST Mathews AJ Friday 13 March 2009 2006/5489 R v PJS REASONS FOR SENTENCE 1 HER HONOUR: On 20 October 2008 PJS was arraigned on a charge that on 29 October 2005 he murdered CB. He pleaded not guilty and a jury trial ensued. On 4 November 2008 the jury found him guilty of murder. 2 The factual background is as follows. In 2004 the offender entered into a relationship with JK. She had two daughters, D and CB. In August of that year the four of them moved into a rented house in Gorokan, on the central coast. In June 2005 the offender and JK were married. They were still living in the Gorokan house at the time of the offence. D was nine years old and the victim, CB, was three. 3 29 October 2005 was a Sunday. After breakfast JK prepared lunch for her two daughters. She and the offender then went out, leaving the two girls alone at home. The offender was hoping to start a concreting business at that time. He and JK had been planning to do some work towards the new business, but instead went to a hotel in the Toukley area. According to JK, the offender drank a considerable amount of beer. She was not drinking as she was pregnant. An argument developed between them and the offender left in the car, taking with him JK's mobile phone. She was not prepared to return home, so she arranged to stay at a local refuge for the night. 4 It appears that the offender went straight home from the hotel, and that he remained there for the rest of the afternoon and evening, except for one trip back to the hotel a little before 5.00 pm, when he bought three bottles of VB long-necks. A neighbour gave evidence that on two occasions that evening, at about 6.00 to 6.30, and again at about 8.00 to 8.30, D came to her home and asked for beer and cigarettes for her father. On each occasion the neighbour gave her cigarettes and a bottle of home-brewed beer. 5 At 9.40 that evening a triple-0 call was made by the offender's next door neighbour, complaining that the man next door had been making a lot of noise for a long time. She said: "He's got a little girl in there about three, and she has been screaming for over half an hour". Later in the call she said: "I can't understand what he's doing to the little child, and he keeps screaming "Get up, get up". In her evidence, which was read to the jury, the neighbour said: "I heard a lot of banging going on, like the walls were being broken and a lot of crockery being thrown around". 6 A little after 11.00 pm the offender knocked on the door of another neighbour's home, and asked the occupants to call the police and the ambulance as his daughter was not breathing. 7 At 11.13 pm the first police arrived at the scene. CB was lying on her back on the kitchen floor. D was kneeling over her crying. The ambulance arrived shortly afterwards. All attempts to resuscitate CB were unsuccessful. 8 After the police arrived, and during the resuscitation attempts, the offender and D were kept outside the house. The offender was reported on a number of occasions to have said to D words to the effect of: "What did you do to her, what did you do to your sister?" to which she replied: "Nothing". During this period the offender's demeanour was described by police officers as generally being aggressive and abusive, interspersed with periods when he was crying and introverted. He became particularly upset and aggressive after being told that CB was dead, at which point he punched the side of the house and said to D: "Go on, tell them what you did". The offender was variously assessed as being "mildly" intoxicated to "moderately to well" intoxicated. 9 Numerous photographs of the house were tendered before the jury. These showed, amongst other things, considerable damage to the gyprock walls in the dining room, as well as to the bedroom and the bathroom doors. The evidence indicated that this damage must have been caused on the evening of CB's death. Considerable force must have been used to cause at least some of this damage. 10 There were bloodstains in various parts of the house, including the bathroom, the dining room and the kitchen. It appeared that an attempt had been made to clean some of the blood using a kitchen sponge. A knife was found in the kitchen bin with CB's blood on the blade. 11 Post-mortem examination revealed that CB had sustained a very large number of blunt force injuries. Indeed, they were too numerous to quantify. These had been inflicted at much the same time (or at least within the space of a few hours), and required the application of considerable force. Although many injuries were seen on the trunk and limbs, the focus of the assault was on the child's head. A number of sharp force injuries had also been sustained. These appeared to have been produced by a short-bladed and sharp-pointed instrument, such as the knife found in the kitchen bin. There were literally hundreds of bruises on CB's body and severe haemorrhaging into her brain. 12 On 11 November 2005 the offender was arrested and charged with CB's murder. He has been in custody ever since. 13 There was no suggestion at the offender's trial that any outsider had come into the home and inflicted the fatal injuries on CB. Indeed, this hypothesis was effectively excluded. This left only the offender as the killer or D, who was then nearly ten years old. D always denied involvement in her sister's killing. 14 D had three interviews with the police. The first was in the early hours of the morning of 30 October 2005. She said that she had gone to bed, when she heard the offender call out for her "D, come quickly". She went out to the kitchen where her sister was lying on the floor with blood on her face. Her father gave her the phone and asked her to ring the ambulance, which she did. She said that, earlier in the evening before she had gone to bed, the offender was in the kitchen reading the paper and watching the TV. CB was on the toilet. The offender normally put CB on the toilet before she went to bed, D said. She said that she loved her sister and that they had never been violent to each other. 15 The second interview took place a little over a year later, on 3 November 2006. This was a brief interview which took the matter no further. Finally, on 21 August 2007, nearly twenty-two months after the event, D said that before she went to bed that night the offender had hit her and she had fallen onto the floor, injuring her hand. Later, when she was in her bedroom, she heard the offender and her sister screaming and shouting. Some time later, the offender asked her to come out and she saw CB lying on the floor. The offender was pushing her chest, trying to resuscitate her. He told D to ring the ambulance, which she did. She saw a baseball bat underneath the kitchen table. Before the police arrived the offender hid the bat behind the door. She said that she had not given these details earlier as she was frightened of the offender. 16 I should interpolate here that the medical evidence at trial indicated that it was unlikely that a baseball bat had been used to inflict any of the injuries on CB. 17 During the offender's trial, the thrust of the defence case was that it must have been D who inflicted the fatal injuries upon CB. The offender did not give evidence, but the defence called three witnesses who were experts in the fields of clinical psychology and forensic pathology. Their evidence was designed to add weight to the possibility that CB's injuries were inflicted by a person of D's age and size. The jury's verdict indicates that it rejected this proposition. 18 The offender was represented by counsel at his trial. After his conviction he terminated the services of that counsel and sought alternative representation through Legal Aid. This was not forthcoming and the offender was given a choice of being represented during the sentencing proceedings by his previous counsel or being unrepresented. He chose the latter. As a result, few of the matters relevant to sentence which would normally be addressed on behalf of an offender were put before the Court. The offender tendered a number of testimonials and affidavits. These testified to some of his past difficulties and to the strength he has shown in surmounting them. I shall be referring to these later. However, the overall thrust of almost all these testimonials was to assert the offender's innocence of this offence. Similarly, the offender himself addressed the court asserting his innocence and referring to the "huge miscarriage" which had occurred during the course of the trial. I told him at the time that I was required to sentence him according to the jury's verdict. Material which effectively cavilled at that verdict could not be taken into account on sentence. 19 Also tendered on sentence was a pre-sentence report from the Probation and Parole Service and a report prepared on behalf of the offender by Dr John McMahon, clinical psychologist. Between these reports and the various references tendered by the defence, a reasonably detailed picture emerges of the offender's background. 20 The offender is now aged 33, having been born on 22 June 1975. His father was a Magistrate, who was very distant with the offender and his younger sister. There was a great deal of violence in the home, primarily directed by the offender's father at his mother, but sometimes at the offender himself. His parents separated when he was seven years old, following which he lost contact with his father. 21 The offender and his younger sister were raised by their mother until, when he was in his mid-teens, his mother formed a relationship with her current husband. The offender had difficulty accepting this relationship for some time, and a period of turbulence ensued. However, in due course the offender accepted his step-father and a close bond developed between them. The offender's immediate family: his mother, step-father and sister, have remained extremely supportive of him and have assisted him during the Court processes. 22 The offender left school during year 11. There followed a period when he was employed in various short-term, unskilled positions. In 1996, at the age of 21, he suffered a work-related back injury which incapacitated him from work for a number of years. He then undertook various forms of employment, but was unemployed between 2004 and his arrest in November 2005. In the months leading up to the offence the offender and his step-father were seeking to commence a concreting business together. However, this never eventuated. At the time of the offence the offender and his family were in serious financial difficulties. This was exacerbated by the offender's gambling habit: he would regularly gamble on poker machines or horse races, sometimes to the tune of several hundred dollars a week. This was a source of conflict between himself and JK. 23 The offender had two significant relationships with women before he married JK. Each of them resulted in the birth of two sons. The older ones are now aged 12 and 11 and the younger ones are eight and five. After the offender and JK moved to Gorokan in August 2004, his sons used to visit regularly on weekends and school holidays. On all accounts the family presented a picture of domestic harmony. 24 However, it is apparent that all was not harmonious in the offender's life, nor in his relationships. Probably as a result of his own background, his relationships have been marked by domestic violence, which has been exacerbated by his use of alcohol and cannabis. It was no doubt for this reason that, on the day of the offence, JK elected to go to a refuge rather than return home to her intoxicated husband. 25 This brings me to say something about the offender's alcohol and drug use. It appears that the offender suffered a serious assault when he was about 16 years old. This precipitated his alcohol and drug abuse. He told Dr McMahon that he drank up to 24 beers per day from 17 to 20 years of age. Between the ages of 21 and 25 years of age he drank even more heavily. At the same time he was a heavy cannabis user. The pre-sentence report noted that the offender's alcohol use would sometimes cause him to lose his temper and react violently. He has sometimes "blacked out" when intoxicated. During his late twenties and up to the time of the offence it appears that the offender's alcohol consumption varied from total abstinence to highly excessive consumption. At the same time he was continuing to take cannabis. He told Dr McMahon that he was smoking eight to ten cones two to three times each week. 26 The offender has a criminal history going back to 1991 when he was 16 years of age. These included offences of dishonesty, such as stealing and obtaining a financial benefit by deception. He had a number of alcohol related driving matters and several convictions for driving whilst disqualified. More significantly, there are a number of convictions for assault and other offences suggesting violence. In 1994 he was convicted of assault occasioning actual bodily harm and sentenced to three months' periodic detention. In October 2004 he was placed on an 18-month bond in relation to two charges: one of resisting a police officer in the execution of duty and the other of intimidating a police officer. He was subject to those bonds at the time of this offence. 27 The offender has been kept in protection since his incarceration. This is a relevant matter on sentence and I will return to discuss it later. 28 The maximum sentence for murder is life imprisonment. The standard non-parole period, where the victim was a child under 18 years of age, is 25 years. The standard non-parole period applies to cases in the mid-range of objective criminality, subject to adjustment on account of the offender's personal circumstances. 29 The first step in the sentencing process is therefore to assess the objective criminality involved in the particular offence. And the starting point in relation to this offence is that it involved the unnecessary taking of a human life, moreover the life of an innocent, defenceless child. 30 An aggravating factor in relation to this offence, as opposed to the offender, is the fact that the offender was in a position of trust in relation to the victim, she being his step-daughter and under his care and control at the time of the killing. A further potentially relevant aggravating factor was the victim's vulnerability, given that she was only three years old. However this factor has already been taken into account in increasing the standard non-parole period from 20 years to 25 years. It would therefore, in my view, be inappropriate to have further regard to it. 31 The one mitigating factor relating to the offence is that it was not part of a planned activity. 32 Given that the offender was not represented on sentence, the Crown made no oral submissions and handed up only very brief written submissions. These submitted that the offence falls in the mid to above-mid-range of criminality and that a non-parole period of 25 years is an appropriate penalty. 33 The offender, as already indicated, has continued to assert his innocence of this offence. He declined to discuss the circumstances of the offence with the Probation and Parole officer who prepared the pre-sentence report. He told Dr McMahon that on the day of the killing he and his wife went to the hotel at midday and started drinking. He said that there were no arguments or disagreements between them. He told the doctor that his wife proceeded to get him drunk so that he could not go to a Christening the following day. As a result he was significantly intoxicated and his memory was patchy. At about 5.00 pm his wife left the hotel, so he went home to the two girls. He said that the children did not want dinner. He recalled putting CB to bed. His next recollection was of hearing a loud bang and seeing CB lying on the floor. He tried to resuscitate her. He also tried to call emergency services, but his telephone cut out and he went to a neighbour's house and asked them to telephone emergency services. 34 I should interpolate here that much of this account does not accord with the evidence of JK, nor that of the offender's neighbours. The one matter I do accept is that the offender was heavily intoxicated on the night of this offence. He has a history of violent behaviour in a domestic setting when influenced by alcohol. Certainly all previous acts of violence had been directed towards his partner at the time. I accept that he had not previously exhibited violence towards any of his children or step-children. However, on this occasion it was CB who was the recipient of his violence. An adult might have been able to escape or to try to reason with the offender. CB was unable to do either of these things. I think it is highly possible that the offender was in such an advanced state of intoxication that he has no precise memory of these events. In this situation his intoxication does not excuse his behaviour, but might go some way towards explaining what would otherwise appear to be inexplicable and uncharacteristic behaviour. 35 In my finding the killing of CB, brutal as it was, was above the mid-range of objective criminality, although not substantially so. It is apparent from the medical evidence that this series of assaults, which led to extensive internal bleeding, must have continued for a considerable period, probably well in excess of twenty minutes. The next door neighbour described hearing the little girl's screams, and one can barely contemplate the horror she must have experienced when the person who was charged with keeping her from harm and protecting her from violence turned on her and inflicted extreme violence over a sustained period. 36 The offender has frequently expressed grief at CB's death. However, consistent with his denial of responsibility for her death, he has expressed no remorse whatsoever. Indeed, the defence raised at trial was that D, who was then not yet ten years old, must have brutally murdered her little sister. It is not surprising in the circumstances that the jury rejected this hypothesis. It does mean, however, that the offender cannot call upon remorse in mitigation of sentence. 37 Nor are there any other subjective features which can avail the offender in mitigation of sentence. Given his record of previous convictions, he cannot call upon a prior good character. Indeed, he was subject to a good behaviour bond at the time of this offence. Dr McMahon assessed his likelihood of re-offending as within the average range. 38 One significant matter has been raised on the evidence, namely the conditions of the offender's custody. Because of the nature of his offence, and also because his father is a retired Magistrate, the offender has spent his entire time on remand in protective custody under conditions of "limited association". After the sentencing proceedings, the offender's mother furnished myself and the Crown with a statement from the offender describing the circumstances of his incarceration. Although this statement was not provided during the sentencing proceedings, I nevertheless propose to take it into account. In the statement the offender said that for the first twelve months of his incarceration he was allowed out of his cell for only one hour per day. After that he received employment as a sweeper which has alleviated his situation. He has been assaulted twice, he said, and has been told about two death threats levelled against him. He also said that access to drug and alcohol rehabilitation programs and education are severely limited compared to mainstream prisoners. 39 It is well established that the hardship that a prisoner will suffer in gaol through being in protective custody is a matter to be taken into account on sentence. However, as Howie J said in R v Mostyn [2004] NSWCCA 97: "It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population." 40 Given the nature of his offence, I think it likely that the offender will remain on protection for the duration of his sentence. I propose to take this into account as I shall describe shortly. 41 Extremely moving victim impact statements were read in court by or on behalf of JK, D, who is now aged 13, and CB's aunt, who is the sister of CB's deceased father. I would like to extend my, and the Court's, sincere condolences to all of them, whilst recognising that no amount of condolences can start to address the grief and loss they have suffered as a result of the senseless killing of this little girl. I have taken their statements into account in the manner provided by the legislation. 42 Although I have not specifically adverted to these matters, I should emphasise that in sentencing this offender I have had regard to the normal purposes of sentencing, namely the punishment of the offender, general and personal deterrence, the protection of the community, rehabilitation and denunciation. 43 Were it not for the fact that the offender will probably have to serve the whole of his sentence on protection, I would have imposed a non-parole of 26 years with an additional term appropriate to that period. Taking into account the likely conditions of his incarceration, I have reduced both the non-parole period and the additional term which I would otherwise have imposed. 44 PJS, for the murder of CB I sentence you to imprisonment to be served by way of a non-parole period of 20 years, commencing on 11 November 2005 and expiring on 10 November 2025, together with an additional term of six years, commencing on 11 November 2025 and expiring on 10 November 2031. The first date on which you will be eligible for release on parole will be 10 November 2025. ********** 19/03/2009 - Anonymisation - Paragraph(s) numerous 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. 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