Supreme Court New South Wales Medium Neutral Citation: R v Matthews [2014] NSWSC 608 Hearing dates: 3 February 2014; 4 April 2014; 16 May 2014 Decision date: 22 May 2014 Before: Bellew J Decision: (i)For the offence of the murder of Pia Navida, the offender is convicted. (ii)The offender is sentenced to a non-parole period of 16 years and 3 months imprisonment, commencing on 2 August 2011 and expiring on 1 November 2027, with an additional term of 5 years and 3 months imprisonment, commencing on 2 November 2027 and expiring on 1 February 2033. (iii)The total sentence is one of 21 years and 6 months imprisonment. (iv)The offender will be eligible for parole on 2 November 2027 and his sentence will expire on 1 February 2033. Catchwords: CRIMINAL LAW - sentence - murder - late plea of guilty - where offending occurred in 1992 - necessity to sentence offender according to sentencing practice which applied at that time Legislation Cited: Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Hungerford (NSWCCA unreported 15 December 1993) R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481 R v McDonald (NSW CCA unreported 18 August 1994) R v Paterson (No 4) [2014] NSWSC 162 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Todoroski [2010] NSWCCA 75 R v Webster (NSWCCA unreported 15 July 1991) RLS v R [2012] NSWCCA 236 Category: Principal judgment Parties: Regina - Crown Steve Isac Matthews - Offender Representation: Counsel: Solicitors: Director of Public Prosecutions (NSW) - Crown Legal Aid Commission New South Wales - Offender File Number(s): 2011/ 243687 Publication restriction: Nil Judgment INTRODUCTION 1On 3 February 2014 Steve Isac Matthews ("the offender") pleaded guilty to the murder of Pia Navida ("the deceased") on or about 1 February 1992. 2The offender's joint trial with Rodney Paterson ("Paterson") was due to commence on the day on which the plea was entered. Paterson subsequently went to trial but was acquitted by direction (see R v Paterson (No 4) [2014] NSWSC 162). 3Tendered on sentence was a Form 1 containing particulars of an offence of having sexual intercourse with the deceased without her consent, contrary to s. 61I of the Crimes Act 1900 NSW. I have been asked to take that offence into account when sentencing the offender. 4The maximum penalty for the offence of murder is life imprisonment (see Crimes Act 1900 NSW s. 19A). Although a standard non-parole period of 20 years is now prescribed, that non-parole period has no application to the present case, the offence having been committed in 1992. THE FACTS 5A statement of agreed facts tendered by the Crown states the following: "1. At about midday on Saturday 1 February 1992 two bushwalkers, on a track in the Royal National Park near Bundeena, found some personal effects (deodorant, underwear and other items) and then the naked body of a woman. She was later identified as Pia Navida, aged 39 years. The cause of death was head injuries apparently inflicted with a large, blood stained rock found lying nearby. A car tyre track at the location near the deceased was observed and recorded. The tread pattern has been identified as consistent with a Dunlop Le Mans tyre with specifications J2 70 P195/70HR14. This type and brand of tyre is able to be commonly fitted on HQ Holdens. 2. Ms Navida had last been seen alive at about 2.00pm on Friday 31 January, 1992. Post-mortem examination suggested the time of death as the night of 31 January to 1 February 1992. Various swabs were taken from the deceased's body, including from the vagina, and rectum, together with such samples as fingernails. 3. Subsequent investigation showed that Ms Navida, a Filipina, had for the previous 13 months been living a nomadic lifestyle, earning a limited income from prostitution and using drugs. She and a boyfriend, Wayne Taylor, had frequented a cafe known as "Greasy's" near Central Railway Station in Surry Hills. Ms Navida from time to time would purchase drugs from a person or persons dealing from "Greasy's" cafe. Taylor had stayed at a nearby hostel, Foster House. 4. Forensic examination of exhibits in 1992 found semen on the vaginal and rectal swabs taken from the deceased's body; unidentified DNA was found on the vaginal and rectal swabs. 5. From the early investigation the following matters arise:- + The area that the body was found is a remote location concealed from the roadway; + The location was a very long distance from the location the deceased frequented at the time; + The deceased worked as a prostitute but had options available to her in her usual locations to engage in sex acts with clients and there was no need for a client or clients to take her to such a remote location for paid sex acts; + She did not have a car and had to be driven by someone to the location; + The body was completely naked; + Part of her clothing and some of her personal items were strewn around the location where her body was found and at some other nearby locations; + Sexual intercourse had occurred with the deceased which included vaginal and anal penetration; + On the track, and near where a tyre track ends, the deceased was struck on the head with a rock causing her death and her body was dragged into the nearby bushes. The combination of the matters enables the inference to be drawn that she was not at that remote location as a result of some agreement with a client. However it is consistent with the murder being sexually motivated which involved driving her to the location against her will and sexually assaulting her and then murdering her. The offender has a prior knowledge of the area. 6. Police continued to investigate. They interviewed Taylor and a number of other "persons of interest", but were able to eliminate all of these as suspects in Ms Navida's death. A Coronial Inquest returned an open finding on 6 December, 1994. The case remained unsolved. 7. Advances in DNA technology permitted further examination of exhibits in 2006 and thereafter. In 2006 such an examination of the rectal swabs identified thereon the DNA of the offender, Steve Matthews. Further testing in 2011 identified the DNA of Matthews on a vaginal swab, and that of co-accused Rodney Paterson on rectal swabs, a swab from the deceased's blouse in the area of the right breast, and on one of the deceased's fingernails. DNA of a male referred to as "unknown male A" was also identified in a rectal swab. Other items (fingernails, swabs, beads worn by the deceased) were examined and were now found to contain DNA from at least three individuals. It was found that the offender, Paterson and an "unknown male A" could not be excluded as the source of the male DNA recovered. It was only on receiving the DNA results in 2011 that police had forensic evidence of the involvement of a third male. 8. DNA recovered from the deceased's fingernails of three individual males is consistent with her struggling with those persons prior to her death. 9. Police established that the offender and Paterson had been together in Queensland some six weeks after the date of the murder, as they had come to the notice of Queensland police at that time. 15. At the relevant time the offender's habit was to purchase drugs from a person or persons dealing from "Greasy's" cafe. 16. Nicole Duffin was in a relationship with Matthews, with some breaks in the relationship, from around the late 1990's to early 2000's. Nicole Duffin, states that he once told her that he killed a person (she thinks he said a male) in a bush area by bashing that person with a large rock which he had wielded with both hands (that is, in the same manner in which the deceased appears to have been killed). Whilst telling this to Ms Duffin, he demonstrated to her what he did. 17. Ms Duffin recounts an occasion where at the request of Matthews she participated in group sexual activity with him and another male. She also states that Matthews initiated anal intercourse. It can be inferred that at the time of the murder the offender had those tendencies. Taking into account that shortly after the murder he was in Queensland with his co-accused, the evidence establishes that the presence of the DNA of both accused and a third male from examination of the deceased and her clothing is the result of the offender acting on his tendencies so that in the presence of the co-accused and with another male they had sexual intercourse with the deceased including anal penetration. 18. Ms Duffin states that during her relationship with Matthews they went on picnics to Bundeena at his suggestion. In an interview with police on 18 July 2011 Matthews admitted that as a school age boy he would camp and fish in the Royal National Park. Accordingly as at the date of the deceased's death the offender was familiar with the road way off which the body of the deceased was located. 19. The offender's hairstyle at March 1992 had changed from the style he had in late 1991 consistent with an attempt to change his appearance after the murder out of a consciousness of guilt. 20. During the interview with Matthews on 18 July 2011 police informed him that his DNA had been located on a rectal swab from the deceased. He offered no explanation. He said that he had no memory of either the deceased or Paterson whenshown their photographs. In the interview and other recorded conversations he maintains a lack of memory due to a traumatic brain injury sustained on 9 October 2005. Dr Reid, clinical neuropsychologist, is of the opinion that the loss of memorydescribed by Matthews is not consistent with what would be expected from such traumatic brain injury. 21. Police enquiries of various intimates of the deceased indicate that she did not engage in anal sexual intercourse with her clients and that if confronted with physical threat she would fight back. This evidence is consistent with non-consensual sexual intercourse and that DNA under her fingernails from three males is as a result of her attempting to fight off her attackers. 22. Paterson was arrested and charged on 2 August 2011. Matthews was arrested and charged on the same day in Victoria and extradited to NSW. 23. The evidence establishes that on or about 1 February 1992 the offender together with two other males took the deceased in a motor vehicle, consistent with a HQ Holden, to bushland near Bundeena where they sexually assaulted her and thereafter each participated in the murder of Pia Navida which involved one or more of themstriking her with a large rock to her head causing her death. On the admission to Nicole Duffin the offender struck the deceased to the head with the rock located near the deceased." 6Three matters should be noted regarding the agreed facts. Firstly, I have reproduced them in the form in which they were tendered, and absent any paragraphs numbered (10) to (14). Secondly, notwithstanding the contents of paragraphs (17) and (23), the Crown made it clear that there was no suggestion that the offending referred to in the Form 1 was said to have been committed in company. Thirdly, I raised with the Crown what appeared to me to be some inconsistency between paragraphs (16) and (23), in that paragraph (16) purported to attribute the act of killing the deceased solely to the offender, whilst paragraph (23) suggested the involvement and participation of others. The Crown subsequently clarified that it did not assert that any person other than the offender struck the deceased, nor did it assert that any other person was present when this occurred. 7A report from Professor Duflou, Forensic Pathologist, was tendered by the Crown. Professor Duflou conducted a post mortem examination of the deceased and found that she had sustained the following injuries: (i)a massive deformity of the head with crushing of the face and forehead; (ii)a 34mm laceration immediately posterior and superior to the pinna of the left ear, with protrusion of fractured skull fragments and surrounding abrasion of the tissue; (iii)a 12mm x 10mm laceration to the right of the forehead, 20mm to the right of the midline; (iv)a 14mm laceration to the pinna of the left ear at its superior insertion; (v)extensive abrasions of the forehead and surface of the head; (vi)multiple linear abrasions over the superior aspect of the right shoulder, the posterior trunk and the posterior iliac crest, consistent with drag marks over a rough surface; (vii)a 20mm laceration on the ulnar surface of the left thumb with associated degloving of the skin of the thumb but without any underlying fracture of the bones of the hands; (viii)a 50mm x 30mm abrasion and contusion on the dorsum of the left hand, in the region of the first web space; (ix)areas of abrasion on the dorsal surfaces of the fourth and fifth fingers of the left hand; and (x)two areas of red bruising measuring 20mm x 15mm and 30mm x 20mm in the right antecubital fossa. 8Professor Duflou concluded that the head injuries sustained by the deceased were the direct cause of her death. THE OBJECTIVE SERIOUSNESS OF THE OFFENDING 9Counsel for the offender conceded that the nature of the deceased's injuries, and the terms of offender's admission to Ms Duffin, were consistent with a conclusion that the offender's actions were accompanied by an intention to kill the deceased, and I so find. 10The Crown submitted that it would be open to find that the offender's attack on the deceased was sexually motivated, in the sense of being motivated by a desire to ensure that the deceased would not be in a position to attest to the fact that she had been sexually assaulted. Counsel for the offender submitted that the evidence was equally consistent with a conclusion that the offender was motivated by a form of what he described as "self loathing". There is necessarily some degree of speculation inherent in the submissions of each party in respect of the issue of motive. The evidence does not permit me to reach any definitive conclusion about what motivated the offender to act as he did. 11Further, whilst there is evidence which may suggest that there was a degree of planning on the part of the offender in travelling to the Royal National Park with the deceased, I am not satisfied beyond reasonable doubt that the offender's act of killing the deceased was planned. As counsel for the offender pointed out, rocks are commonly found in areas such as that in which the deceased was killed. I accept counsel's submission that the use of a rock, as opposed to some other weapon, would tend against a conclusion that the killing was planned. 12In R v Hungerford (NSWCCA unreported, 15 December 1993) the Court of Criminal Appeal considered a case in which the appellant had engaged in forced sexual intercourse with the victim before striking the victim's skull with a large piece of concrete, causing her death. McInerney J observed that the primary judge had described the conduct of the appellant in that case as "barbaric", and had described the overall offending as "horrendous". Such terms are apt to describe the conduct of the present offender. He repeatedly struck the deceased with a rock, and in doing so inflicted serious injuries upon her which caused her death before she was dragged into nearby bushland and abandoned. The offender's use of a rock as a weapon for that purpose aggravates his actions, which occurred against a background of the offending set out in the Form 1. The offending was of the utmost seriousness, and the offender's moral culpability high. THE OFFENDER'S SUBJECTIVE CASE The offender's background 13A pre-sentence report sets out the offender's background. He is now 43 years of age. He was born in England and is the youngest of four children. He moved to Australia in 1979 and is a permanent resident of this country. He was married at one point and has two daughters with whom he has no contact. 14The offender left school upon the completion of year 10. He is said to have worked in various short term occupations in (inter alia) the mining and hospitality industries. 15The offender has had ongoing difficulties with drug use from a young age. The pre-sentence report sets out that he commenced using cannabis at the age of 12, amphetamines at the age of 14, and heroin at the age of 16. He was placed on a methadone program in 2005 and 2006 in respect of his heroin addiction. It would appear that his drug addiction has resulted in most, if not all, of his previous positions of employment being of short duration. 16The offender was the victim of a major assault in 2005, in which he suffered a traumatic brain injury. As a consequence, he has limited memory of his life prior to 2005, and thus limited memory of the circumstances of his offending. 17Tendered on sentence was a report of Dr Wayne Reid, Clinical Neuropsychologist, dated 9 December 2013. Dr Reid confirmed that the offender had sustained a significant traumatic brain injury in 2005. However, he expressed some doubts as to the veracity of the offender's claim of memory loss. Ultimately however, the Crown did not submit that I should find that the offender had feigned memory loss and I make no such finding. The position taken by the Crown on this issue renders any detailed examination of Dr Reid's opinions unnecessary. 18The pre-sentence report also documents the offender's other health issues, including an epileptic condition (which appears to be under satisfactory control) and blindness in the left eye. These health issues, and the sequelae from the offender's traumatic brain injury, would appear to explain the fact that at the time of his arrest he was in receipt of a disability support pension, and had the assistance of a carer. It was not submitted on the offender's behalf that any of these health issues would render a custodial sentence more onerous than might otherwise be the case. The plea of guilty 19The offender was first arraigned before Latham J on 1 November 2013 at which time he entered a plea of not guilty. The matter was listed for trial before me commencing on 3 February 2014. The matter came before me on 13 December 2013, when directions were made to facilitate the determination of various pre-trial issues. It was not until 3 February 2014, the first day of the offender's trial, that the plea of guilty was entered. 20It is well established that the utilitarian value of a plea to the criminal justice system should result in a reduction of 10% to 25%. The primary consideration which determines where, within that range, a particular case might fall is the timing of the plea (see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418, 419; [152], [154] and [168](iii) per Spigelman CJ). A discount towards the bottom of the stated range is appropriate for late pleas, unless there are particular benefits arising from the prospective length and complexity of the trial (see Thomson (supra) at 418; [155]). There are no such benefits evident in the present case. The appropriate discount to reflect the utilitarian value of the offender's plea is 10%. Remorse 21Whilst the offender did not give evidence before me, counsel tendered (with the consent of the Crown) a letter written by the offender in which he expressed his remorse. The pre-sentence report recorded that upon reading the agreed facts he was "disgusted and sickened" at his behaviour. 22The offender's admission to Ms Duffin was a fundamental cornerstone of the Crown case. I was informed by counsel for the offender that although it was not put before me on sentence, there was evidence at a committal hearing that the offender had made that admission to Ms Duffin because he wanted to relieve himself of the mental burden of what he had done. I did not understand the Crown to take issue with the fact that there was such evidence available. 23In all of the circumstances I am satisfied that the offender is genuinely remorseful for his actions. The offender's criminal history 24The offender has a history of offending in New South Wales as well as in a number of other states. Such offending occurred both before and after the death of the deceased. Many of the entries are for offences of dishonesty. To the extent that any of the entries relate to violence, they are, in relative terms, of a minor nature. There is certainly nothing in the offender's criminal history which indicates previous violent offending of the magnitude of that which he exhibited in killing the deceased, and there is no history of sexual offending. However, the offender's criminal history disentitles him to leniency. The offender's prospects of rehabilitation 25Accompanying the pre-sentence report was an Actuarial Risk Assessment regarding the offender's suitability for, and access to, sex offender treatment programs. The offender's risk category, in terms of sex offending, was assessed as being "moderate-high". However, in determining what weight should be attached to that assessment, it is relevant to note a number of matters. 26Firstly, the assessment was expressly stated to be other than comprehensive. Secondly, the conclusion as to the offender's risk category was reached without the benefit of any direct interview with him. Thirdly, and in circumstances where there was no such interview, the report expressly acknowledged that when considering an offender's risk of further sexual offending, any assessment would "take into consideration a number of factors obtained through interview and other collateral sources". Fourthly, as I have already noted, the offender has no history of sexual offending of any kind. 27The pre-sentence report states that since being taken into custody the offender has been employed as a sweeper, a position he has managed to hold down despite the health issues to which I earlier referred. Reports obtained from his supervisors are generally positive. The pre-sentence report also indicates that the offender has successfully completed two courses of retraining since being taken into custody. 28In light of the matters set out in [26] above, and without intending any disrespect to those who prepared it, I am unable to attach any weight to the risk assessment which accompanied the pre-sentence report. Further, the matters to which I have referred in [27] above are generally positive. 29In all of the circumstances I regard the offender's prospects of rehabilitation as generally encouraging. Whether they become more favourable over time will necessarily depend upon (inter alia) the offender's willingness to continue what appears to be his present positive approach to rehabilitation. THE APPROACH TO SENTENCING 30It was agreed between the parties that in circumstances where the offending occurred in 1992, a determination of the appropriate sentence must be reached having regard to the sentencing practice which applied at that time (see R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481 at [31] per Spigelman CJ, Mason P, Grove J, Sully J and Newman AJ agreeing). Counsel for the offender submitted, and I did not understand the Crown to disagree, that the adoption of that approach would necessarily result in the imposition of a sentence which was lower than would be the case if the offending were more recent. 31The parties agreed that the decisions in R v McDonald (NSWCCA unreported 18 August 1994), R v Webster (NSWCCA unreported 15 July 1991) and Hungerford (supra) provided some guidance as to the sentencing practice which applied at the time of the offending. I accept that submission and have had regard to those authorities. However, it is necessary to bear in mind that care must be taken when comparisons are sought to be drawn between one case and another, for the simple reason that no two cases are the same (see RLS v R [2012] NSWCCA 236 at [122] per Bellew J, McClellan CJ at CL and Johnson J agreeing). The aim of all sentencing is to render individual justice and the exercise of sentencing discretion must be directed to fulfilment of that stated aim (see R v Todoroski [2010] NSWCCA 75 at [26] per Grove J with whom Allsop P (as his Honour then was) and Hislop J agreed). 32It is agreed between the parties that any sentence should be backdated to commence on 2 August 2011, being the date on which the offender was taken into custody. ORDERS 33I make the following orders: (i)In respect of the offence of the murder of Pia Navida, the offender is convicted. (ii)The offender is sentenced to a non-parole period of 16 years and 3 months imprisonment, commencing on 2 August 2011 and expiring on 1 November 2027, with an additional term of 5 years and 3 months imprisonment, commencing on 2 November 2027 and expiring on 1 February 2033. (iii)The total sentence is one of 21 years and 6 months imprisonment. (iv)The offender will be eligible for parole on 2 November 2027 and his sentence will expire on 1 February 2033. ********** 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: 22 May 2014