Supreme Court New South Wales Medium Neutral Citation: R v KJS [2011] NSWSC 1690 Hearing dates: 4.05.11-6.05.11, 9.05.11-12.05.11, 16.05.11-20.05.11, 23.05.11-25.05.11, 9.08.11 Decision date: 25 August 2011 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Imprisonment for 20 years, NPP 15 years, from 14 April 2009. Catchwords: CRIMINAL LAW - sentence - murder - after trial - only issue provocation - killing spontaneous - loss of self-control Category: Sentence Parties: Regina (Crown) KJS (offender) Representation: M M Hobart SC (Crown) R Button SC (offender) S Kavanagh - Solicitor for Public Prosecutions (Crown) S E O'Connor - Legal Aid Commission (offender) File Number(s): 2009/69980 Publication restriction: Yes REMARKS ON SENTENCE 1The offender was found guilty at trial of the murder of his wife. The offence occurred against the background of allegations that he had sexually assaulted his daughter, and it is to protect his daughter's anonymity that his name is not to be published. 2In the morning of Tuesday, 14 April 2009, he killed his wife in the bedroom of their home at Fairfield West by beating her about the head with a plumber's tool known as a leadbeater. That was not in issue at the trial. It was his case that he was acting under provocation, as the law understands that term, so that he was guilty of manslaughter rather than murder. Indeed, he pleaded guilty to manslaughter when he was arraigned at the beginning of the trial, but the Crown did not accept that plea in discharge of the indictment. Provocation was the only live issue left to the jury. Facts 3It is not necessary to refer to the evidence at the trial in any detail, although the parties are in dispute about the facts I should find for the purpose of sentence. 4The offender and the deceased began a relationship in 1990. Their daughter, the subject of the sexual assault allegations, was born in the following year. By then the relationship had broken up, but they got together again about 4 years later and married in 1996. They had two more children, a boy and a girl. I shall refer to their first born child as the offender's daughter, and to the others as the younger children. 5The evidence of family members and friends was that the offender was a quiet, reserved person, whereas the deceased was a strong personality, outgoing and feisty. Their relationship appeared to be normal. However, in evidence the offender gave a different account of their interaction in the privacy of their home. He said that the deceased was very much the dominant party in the relationship, and that she was controlling of him and sometimes aggressive towards him. She did not get on with his family and, out of loyalty to her, he limited his contact with them. He said that he did not disclose any of this to others because it would have been wounding to his ego to do so. 6His evidence, broadly supported by other witnesses, was that he was never violent towards her. There was an occasion in 2005 when he was very angry with her, and "trashed" the bedroom of the house in which they were then living and destroyed items of her property and personal effects. This appears to have been an isolated incident. There was also evidence that she told a friend of hers that he could be violent towards her. That, of course, is hearsay material which is difficult to assess, and I would not place any weight upon it. 7Importantly, his daughter gave evidence that he had sexually abused her between 2003 and 2008. Without going to the detail of her evidence, she alleged a pattern of sexual interference which began with indecent touching and progressed to sexual intercourse, attempted or completed. She told no one about this behaviour until after she had left the family home in 2008. For a considerable period of time thereafter the deceased refused to believe her allegations, and strongly supported the offender in his denial of any such conduct. However, her position changed in the early months of 2009 leading up to the killing. 8This change was at the heart of the circumstances giving rise to the murder, and was central to the offender's case on provocation. As will be seen, his evidence was that on the morning in question the deceased said something to convey to him that she no longer believed him and accepted their daughter's allegations, and that it was this in particular which caused him to lose his self-control. The jury were invited to assess the daughter's evidence because whether or not she was telling the truth was relevant to the gravity of the provocation occasioned by what he alleged the deceased said. Obviously, if he were innocent of any sexual wrongdoing, what she said to him would be more hurtful than if he were not. 9However, it is not necessary for me to assess the reliability of the daughter's evidence for present purposes, and I do not propose to do so. The offender has been charged with offences arising from her allegations, and is yet to face trial for them in the District Court. 10The Tuesday on which the killing occurred was the day after the 2009 Easter break. It is apparent that over that break the marriage was in serious trouble. Quite apart from the deceased's growing suspicion about the offender's sexual assault of their daughter, she came to believe, perhaps wrongly, that he was having an affair. This arose from his contact with an old girlfriend on Facebook on Thursday, 9 April. They argued about the matter and he denied having an affair. 11There was talk of divorce, certainly on his part. The atmosphere in the home was tense. The family had planned to spend the Easter weekend with friends on the central coast. In the event, he did not go and the deceased travelled to the central coast with the younger children. However, they returned on the Sunday night, 12 April, because she was unwell. 12The offender's evidence was that on the Monday, 13 April, there was further talk of divorce and the atmosphere between them remained tense, but otherwise nothing of note occurred. In particular, there was no confrontation between them. However, in the early evening he sent a text to the proprietor of a plumbing business where he was employed, saying that he had "bad family problems" and would be off work for the rest of the week. Later in the evening, the deceased sent a text message to one of the friends with whom she had been staying on the central coast, saying "the shit hit the fan." However, later again that evening, she called the same friend and spoke to him about the offender wanting a divorce. According to the friend, they spoke for about 10 minutes and she did not sound frightened or upset. 13Let me turn, then, to the evidence of the events of Tuesday, 14 April. According to the offender, he had slept downstairs in the loungeroom on the night of the Monday. On the Tuesday morning he went upstairs to the bedroom he shared with the deceased. The atmosphere had not improved, and they argued. He said that he wanted to go away, so that they could try to sort things out. She said that she hated the way he treated her, and that he did not care about her or the children. 14He said, "Don't forget I picked you over my parents, over my family." By that he meant that he had put up with the fact that she resented his family and, even though that resentment was unjustified, he had supported her. She retorted that she had picked him over their daughter. He took that to mean that she no longer supported him in his denial of their daughter's allegations and, in fact, believed that she was telling the truth. He pleaded his innocence of the allegations, but she said, "That's it, I am taking you for everything." She said that she would be taking the house, the children, the car, "the whole lot." She pushed him, he tripped over something and fell. He got up and, as he put it, he "saw red." 15In his evidence, he accepted that it was then that he seized the leadbeater and attacked her with it, although he professed to have no memory of doing so. The leadbeater was a tool which he had had for some time in his trade as a plumber, although it was not used in the course of his employment at the time. His evidence was that, before they moved to the home at Fairfield West, the deceased used to keep a baseball bat in their bedroom for protection, presumably against intruders, but that was misplaced when they moved houses and he gave her the leadbeater to replace it. 16The deceased had died by the time police arrived at the house later in the day. She was lying on the floor of the bedroom near the ensuite, and the bloodstained leadbeater was lying next to her. Underneath her upper body was a doona, which was bloodstained. A physical evidence officer noted that there was no sign of spatter from projected blood in the area, as might have been expected. He thought it likely that this was because her head was covered by the doona either before the attack or, at least, after the initial blow. The offender accepted that he had done that, although again he said that he could not remember it and he could offer no explanation for it. 17The younger children were present in the house at the time. They did not give evidence at the trial, but videotaped police interviews with them were played to the jury. The effect of their evidence, particularly that of the young girl, was that the offender walked up the stairs to the main bedroom, and returned quite shortly thereafter, looking shocked and "rushed." They did not hear anything suggesting a violent incident, such as raised voices or the sound of fighting. The offender said that their mother had "gone back to sleep." He put them into the family car, drove to the home of an aunt, and asked her to look after them for a few hours. 18In the early afternoon he spoke to members of his family by mobile phone. The effect of what he told them was that he had killed the deceased, and that he was going to burn the house down and kill himself. His sister contacted police, who went to the home. When they arrived, he said, "My life is over. You might as well arrest me now." He said that he had killed the deceased, and that she was upstairs in the bedroom. He was conveyed to Fairfield Police Station, where he admitted having struck her with the leadbeater. In evidence, yet again, he did not deny that he made that admission but claimed to have no memory of it. 19Consistently with his phone conversation with members of his family in the afternoon, police found a jerry can of petrol in the house. They also found a torn up handwritten note in the house and, in the car, two further handwritten notes, one of them addressed to the younger children. The torn up note was later able to be reconstructed. Put shortly, the effect of these documents was an expression of his intention to commit suicide, and an explanation of his actions by reference to his daughter's allegations, which he denied, and the deceased's domination of him in their relationship. In the torn up note he wrote that he had "no remorse" for the deceased. The three documents were written in very emotive terms. 20The offender gave evidence in the sentence proceedings, maintaining his account at the trial. The Crown prosecutor also maintained his stance at the trial. He accepted that the offence was committed in anger and was occasioned by the background disclosed in the evidence, in particular, the daughter's allegations of sexual abuse and the deceased's change of heart about them. Nevertheless, he submitted that I should conclude that the killing was planned. 21He argued that there had been a confrontation between the offender and the deceased on the Monday night and, in all probability, it was then that he decided to kill her. He relied on the text message from the deceased to her friend, saying "the shit hit the fan." He also said that it was consistent with the offender's text message to his employer that he would be off work for the rest of the week. 22The Crown prosecutor also relied upon the evidence of the younger children that on the Tuesday morning the offender was upstairs in the bedroom only for a short time, and that they did not hear anything suggestive of an altercation or a fight. This evidence, he said, was inconsistent with the offender's account of what happened in the bedroom. He argued that I would reject the offender's evidence that the leadbeater was kept in the walk-in wardrobe, and would conclude that he had taken it with him to the bedroom for use as a weapon. Finally, he argued that the offender placed the doona over the deceased's head to contain blood spatter, and that this showed that he had given some thought to the method of killing. 23In response, Mr Button SC, for the offender, noted that late on the Monday night the deceased had a phone conversation with her friend about the marital situation and did not appear to be frightened or upset. This, he said, was not consistent with there having been a confrontation with the offender. The evidence of the younger children that on the Tuesday morning the offender was in the upstairs bedroom only for a short time should be approached with caution, given their ages. That they did not hear anything could be explained by the fact that, on their own evidence, they were downstairs watching television at the time. Mr Button argued that there was no reason not to accept the offender's evidence about the leadbeater being kept in the bedroom. 24As to placing the doona over the head of the deceased, he pointed out that the multiplicity and nature of her injuries identified at a post-mortem examination suggested a frenzied attack, during which the offender was likely to have acted irrationally. He suggested that he might have covered her head so as not to see her face as he attacked her. However that may be, he argued, the offender did nothing to conceal his crime. Police observations suggested that he had made an attempt to wipe up some blood deposited in the ensuite area, but that was far from successful. The bloodstained leadbeater was left in the bedroom, and the offender made no attempt to flee from the area. These features, he submitted, were not the indicia of a planned killing. He added that the handwritten notes demonstrated that the offender was in a highly emotional state. 25I have given this important issue careful consideration. I could not sentence the offender on the basis that the killing was planned unless I was satisfied of that fact beyond reasonable doubt. For the reasons identified by Mr Button, I am not. This is not to deny that I have reservations about aspects of the offender's account and about the extent of his professed lack of memory of the killing and of his later admission at the police station. As to that matter, however, I am mindful of the observation of Ms Anna Robilliard, psychologist, who prepared a report for the sentence proceedings, that his "stated inability to recall the exact details and sequence of events of the assault is plausible given his highly emotionally aroused condition as it is well recognised that memories are not well laid down or consolidated when the brain is in a highly emotionally aroused condition." 26The offender will be sentenced upon the basis that the killing was spontaneous and was the product of a loss of self-control. This is not inconsistent with the jury's verdict, which necessarily rejected provocation. To have found the offender guilty of manslaughter on that basis, the jury would have to have found it reasonably possible that, having regard to all the circumstances, an ordinary person in his position could have lost self-control so far as to have formed the intent requisite for murder. It was well open to the jury to have been satisfied beyond reasonable doubt that that objective test had not been met. Subjective case 27The offender was 36 years old at the time of the offence, and is now 38. He has no prior convictions. The psychological report discloses a normal upbringing. He completed the Higher School Certificate, obtained his qualification as a plumber, and was in consistent employment thereafter. There was a body of character evidence at the trial, which portrayed him as a decent man, quiet, reserved and industrious. He had no history of violence. Indeed, personality testing conducted by Ms Robilliard led her to conclude that he was of a "dependant, avoidant predisposition." 28His account of the offence and its background to Ms Robilliard led her to conclude that his "remorse and distress over killing his wife appeared to be genuine and heartfelt." She added that he said that he "misses her and recognises his children and her extended family have also lost a loved one." In his evidence in the sentence proceedings he expressed remorse in similar terms, and I also accept it as genuine. 29Since being in custody he has worked consistently in building maintenance, sometimes using his skills as a plumber. He also wishes to undertake further education and training through TAFE as it becomes available. His family visit him regularly and remain supportive of him. He has also had visits from the younger children, although these have been infrequent and under supervision. He would appear to have good prospects of rehabilitation. Victim impact statements 30I received victim impact statements from both of the offender's daughters, who read them to the court through a videolink. I also received statements by the deceased's sister and brother, which were read in court by her niece. 31These statements were a moving testament to the grief and outrage the deceased's family has experienced as a result of her violent and untimely death, and of the enduring effects this dreadful crime has had upon their lives. They all have my deepest sympathy. I can only hope that the conclusion of these proceedings will be a step towards their coming to terms with this tragedy, but I am well aware that nothing this court can do could assuage their pain. Sentence 32This was, of course, a serious crime. The facts speak for themselves. Spontaneous as the attack was, it was a brutal assault. I am satisfied that the offender intended to kill the deceased but, given his emotionally charged state and his loss of self-control, that finding does not have quite the significance it might have in other cases. In all the circumstances, I find the objective gravity of the offence to be significantly below the mid-range. For that reason, and in the light of the offender's favourable subjective case, I would not impose the standard non-parole period for this crime. 33I take into account the offender's remorse. Consistently with that remorse, I also take into account the fact that he has never denied criminal responsibility for the death of his wife, that he pleaded guilty to manslaughter (and, as I understand it, was always prepared to do so), and that the trial was conducted on the basis that provocation was the only issue. 34I have regard to his prior good character. In so doing, I put aside his daughter's allegations of sexual abuse, which he denies and for which he is yet to be tried. This offence of murder was the product of a combination of circumstances at the relevant time, and was clearly out of character. I do not believe that the offender is a danger to the community, and I think that he is unlikely to re-offend. 35The Crown prosecutor provided me with statistics for sentence for murder over the years since the introduction of the standard non-parole period. Mr Button provided me with a Public Defenders' schedule of sentences in broadly comparable cases, extending from 1991 to 2010. I have had regard to this material but it is not necessary to refer to it in these remarks. 36I have determined that the appropriate sentence is imprisonment for 20 years, with a non-parole period of 15 years. I do not find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. Any lesser non-parole period would fail to reflect the offender's criminality, and the sentence I propose leaves a substantial period of parole eligibility to foster his rehabilitation. He has been in custody since his arrest on 14 April 2009, and the sentence will date from that day. 37The offender is sentenced to imprisonment for a non-parole period of 15 years, commencing on 14 April 2009 and expiring on 13 April 2024, and a balance of term of 5 years, commencing on 14 April 2024 and expiring on 13 April 2029. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2012