R v Biljuh (No 7) [2015] NSWSC 1917

Supreme Court New South Wales

Medium Neutral Citation: R v Biljuh (No 7) [2015] NSWSC 1917 Hearing dates: 14 August 201530 September 20154 December 2015 Decision date: 16 December 2015 Before: Button J Decision: Convicted of the offence of murder. I sentence you to a non-parole period of 22 years 6 months, to date from 6 March 2014. That will be followed by a parole period of 7 years 6 months, to commence on 6 September 2036 and to expire on 5 March 2044. The first date upon which you will be eligible for release to parole is 5 September 2036. Catchwords: CRIMINAL LAW – remarks on sentence – offender found guilty of murder by jury – manual strangulation and suffocation of the deceased – intention to kill – premeditation – minimal criminal record – no evidence of mental illness – lack of remorse or insight – questionable prospects of rehabilitation – substantial harm to the community Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Category: Sentence Parties: Regina Dario Biljuh Representation: Counsel: P Hogan (Crown) M Dennis (Offender)

Solicitors: Office of the Director of Public Prosecutions (Crown) Toomey Lawyers (Offender) File Number(s): 2014/70168

Judgment Introduction 1. On 26 May 2015, Dario Biljuh (the offender) was arraigned on an indictment before a jury panel and me at Darlinghurst courthouse. The indictment contained a single count, averring that on 14 February 2014 at Villawood he murdered his mother, Laura Biljuh (the deceased). A jury was empanelled on that day, and the trial proceeded for some weeks. 2. Towards the end of the trial, I rejected an application by defence counsel that manslaughter should be left to the jury. On 22 June 2015, after a short retirement, the jury returned a unanimous verdict of guilty of murder. 3. After that, the proceedings on sentence were adjourned more than once so that a report from a forensic psychiatrist, who had also treated the offender for many months some years ago, could be placed before me. The proceedings on sentence eventually concluded on 4 December 2015, and the offender will be sentenced today. 4. The maximum penalty for the offence of murder is imprisonment for life without parole. The Crown prosecutor made no submission in support of the imposition of that ultimate sentence. There is also an applicable standard non-parole period, in the circumstances of this case, of 20 years. I regard both the maximum penalty and the standard non-parole period as important guideposts in my exercise of the sentencing discretion. 5. It is my task to find the facts of the matter consistent with the elements of the offence that the jury found, by its verdict, to have been proven beyond reasonable doubt. Matters of aggravation on sentence that operate against the offender must be proven to the same very high standard; matters of mitigation that operate in his favour need only be proven on the balance of probabilities. 6. I should say at this stage that, due to the fact that the offender has told very many lies (some of them admitted) about the circumstances of the death of his mother, I regard his credibility with regard to any disputed matter as being negligible or non-existent. Objective features 1. I turn to discuss the circumstances of the offence. 2. As at 14 February 2014, the deceased was living in the family home in the Sydney suburb of Villawood. Although she lived alone in those premises, her son Nenad Biljuh was living in a "granny flat" at the back of the property, due to a number of recent business failures on his part. The daughter of the deceased and sister of the offender, Ms Gabriella Biljuh, resided in Melbourne. The offender, for reasons that I shall explain later, was sleeping on a couch at a friend's home in the Sydney suburb of Burwood Heights. 3. The deceased was then aged 70 years. She was known to her neighbours, and was in the habit of going for a daily walk with friends. She had contact with her son Nenad, of course, and also with her daughter in Melbourne. 4. On the evening of 13 February 2014, the offender set his alarm to go off at 4:30 AM the following day. He also had in his possession a "Fitness First" backpack that contained a number of items, including a torch, cable ties, and duct tape. 5. I reject the evidence of the offender that he set his alarm at that early hour because he wished to take some morning exercise at the Bay Run in the inner west suburb of Five Dock. Rather, I am satisfied beyond reasonable doubt that he set his alarm at that time because he had decided to travel, under cover of darkness, to the home of his mother; await the departure of his brother for work later in the morning; enter her home; and murder her. 6. I also reject the evidence of the offender that the contents of the backpack were nothing more than innocent bits and pieces left over from a recent move from one residence to another that had not yet been unpacked. Rather, I am satisfied beyond reasonable doubt that, at the latest by the time he went to bed on the evening of 13 February 2014, the offender had packed that backpack with those items so that he could commit the offence. To adopt respectfully the phrase used by the Crown prosecutor in his final address to the jury, the backpack was a "toolkit for murder". 7. The offender rose at 4:30 AM or thereabouts and travelled to the home of his mother with the backpack in his possession. He waited until his brother left for work at 5:40 AM. Thereafter, some time between then and a little before 7:00 AM that day, the offender entered the home of the deceased without her consent or (to my mind, a less likely possibility) inveigled his way in. 8. Once inside his mother's home, he manually strangled her, breaking a small bone in her neck and causing her to become either unconscious or dead. He also inflicted substantial other violence to her person. After that, he dragged her across the grass separating the rear of the house from the granny flat, and used a key to the latter structure that he had previously stolen to enter it. As he was doing so, a young neighbour who was up and about at that time heard the offender abusing his mother about her contact with his children. The neighbour mistook the voice of the offender as being that of a woman, because it was high-pitched. That was in turn due to the fact that the offender was extremely agitated. The offender placed the body of his mother on the floor of those small premises where his brother would find her. 9. Either in the home or in the granny flat, the offender carefully and neatly applied a large amount of duct tape to the entirety of the head of the deceased. Her mouth and nose were completely covered. There were two results. 10. The first was that, if it was the case that at the time that act was done the deceased was unconscious but not dead, her death due to suffocation was prompt and inevitable. 11. The second result was that the appearance of the head and face of the deceased was completely dehumanised. Indeed, to my mind, the appearance of the deceased after she was dealt with in that way was more distressing than the appearance of many deceased persons who suffer more obvious bodily injuries. 12. It is noteworthy that it was not disputed in the trial that, at a family function some months before the murder, the offender told his brother that, if his mother did not cease contact with the offender's children, the offender would "cut off her face". I accept the submission of the Crown prosecutor that, by treating the deceased in the way that I have described on the morning of 14 February 2014, the offender symbolically made good on his threat. 13. As I have said, the offence was planned, and prepared for, at the latest on the evening of 13 February 2014. It featured an act, meticulously performed, that would inevitably cause death by suffocation to any human being. I am satisfied beyond reasonable doubt that, at the time of the offence, the offender intended to kill his mother, rather than merely inflict grievous bodily harm upon her. In the circumstances that I have outlined, I respectfully consider that any alternative thesis is fanciful. 14. Furthermore, I reject any possibility that the offender, on the evening when he prepared the backpack, and on the morning when he travelled to his mother's home, had at those stages merely formed an intention to inflict grievous bodily harm, and only thereafter spontaneously decided to kill her. It is to be recalled that one of the items contained in the backpack in the possession of the offender the night before was duct tape; that is, the very material that was used to ensure that the deceased would be completely deprived of oxygen. Contrary to any alternative thesis, I am satisfied beyond reasonable doubt that, when he retired to bed on the evening of 13 February 2014, the offender had decided that he would bring the life of his mother to an end the following morning. 15. Having done so, the offender left the premises, but not before he deliberately broke off keys that were in his possession in the locks of the sliding door of the granny flat. That meant that entry to those premises was significantly delayed later that day. 16. Thereafter, he sent a number of text messages to his brother that were in the nature of demands for money. Contrary to the evidence of the offender at trial, I reject the proposition that they were sincere attempts to extort money from his brother. Rather, I am satisfied beyond reasonable doubt that they were efforts to create a false trail, and to make it look as though the person who had murdered the mother of Mr Nenad Biljuh was a disgruntled creditor of his, rather than the offender. Again, I am satisfied beyond reasonable doubt that the offender had decided to adopt that strategy at the latest when he went to bed on the evening before the offence. 17. In the meantime, Mr Nenad Biljuh and others were unable to contact the deceased as the day unfolded. They became more and more concerned about her, and eventually Mr Nenad Biljuh returned to the home from his work. There he found his mother in the circumstances that I have described. The recording of the triple 000 call that was played in the trial speaks eloquently of his suffering. 18. Later that day, the offender travelled to various suburbs of Sydney. He attended a shopping centre at Burwood, and was captured on CCTV there. Later still, he met his estranged wife and took custody of his two children for the weekend. The three of them, along with his romantic partner at the time, enjoyed dinner together at a hotel in the west of Sydney. Later again, they checked into a motel in the same general part of the city. 19. At 10:28 PM, the offender undertook a Google search for the lyrics of the well-known song "Motherless Child", which has been recorded by, amongst many others, the folk singer Richie Havens and the blues guitarist Eric Clapton. 20. I accept the evidence of the offender in the trial that that song had a particular emotional resonance for him. On the other hand, I completely reject his evidence that the undertaking of that internet search that evening was merely a matter of regrettable coincidence. Rather, I am satisfied that the offender undertook that search because he wished to reflect on the fact that, because he had murdered his mother earlier that day, he had made himself a motherless child. 21. Later that evening, the police located the offender at the motel. He voluntarily accompanied them to a police station, and voluntarily engaged in a recorded interview with them. As I have said, that was the beginning of many lies. 22. Quite soon after that, the police located the backpack and its contents, crudely concealed at the home where the offender had been staying. 23. Later still, the offender was arrested on 6 March 2014, charged with murder, refused bail, and has been in custody ever since. Objective seriousness of the offence 1. I turn to evaluate the objective seriousness of this offence. 2. Although all murders are examples of the most serious offence known to law, it is possible to create something of a ranking of the seriousness of all of them, without for a moment detracting from the gravity of any of them. And it is necessary to do so in order to give the maximum penalty and standard non-parole period some content as guideposts. 3. Here, as I have said, the murder was planned. There was a settled intention to kill. The victim was an elderly woman. She was attacked in her own home. Being strangled into unconsciousness or death must surely be a terrifying ordeal for the victim. Although the body of the deceased was not mutilated, it was left in a gruesome and dehumanised state for her son to find. Subsequently, planned steps were taken in an effort to hide the guilt of the offender. 4. By any measure, this must be assessed as an extremely grave example of the offence of murder. I consider that it is well above the middle range of objective seriousness of examples of the offence. Inevitably, denunciation of what the offender has done, and considerations of general and specific deterrence, must loom large in the sentence that I shall impose. Subjective features 1. I turn from a discussion of aspects of the offence to aspects of the life and character of the offender. Attitude of the offender to what he has done 1. The offender pleaded not guilty, and thereby exercised his right to trial by jury. He was perfectly entitled to do so, and, of course, is not to be punished for taking that approach. 2. The offender gave evidence in the trial, though not in the proceedings on sentence. As I have said, regrettably much of what he said in the witness box was deliberately untrue. I record that the trial transcript by no means captures the atmosphere of incredulity that prevailed in the courtroom during some of his evidence, and in particular during parts of his cross-examination. Since the return of the verdict of guilty of murder, the offender has said or done nothing to suggest that he regrets what he has done, or even accepts responsibility for it. Indeed, he firmly maintains his innocence. Background and family relationships 1. Separately, the evidence about subjective matters came from what one could glean from the evidence in the trial; the criminal record of the offender; a psychiatric report prepared with regard to him; and, finally, oral evidence given in the proceedings on sentence by an old friend, Mr Phil Small. 2. The Crown prosecutor did not dispute any of the matters of background contained in the psychiatric report. In light of the fact that neither the psychiatrist nor the offender was cross-examined about those matters, combined with my refusal to accept much of the evidence of the offender about contentious matters, I have approached the question of background with substantial caution. Nevertheless, I am prepared to accept the following matters on the balance of probabilities. 3. The offender was born in May 1971, and accordingly was aged 42 at the date of the murder, and is now aged 44. 4. His family are of Croatian background. They emigrated from the former Yugoslavia to Australia many years ago. I infer that, as a result of that disruption and the beginning of a new life in this country, the upbringing of the offender was not attended by privilege. 5. For reasons that are not easy to discern on the evidence, the offender has had very difficult relationships with members of his family over many years. The ill-feeling was by no means limited to the relationship between the offender and his mother, though I consider that she was the subject of the most intense hatred on his part. Indeed, the evidence in the trial showed that there had been a very difficult relationship between the offender and his brother, and also between the offender and his sister, even before the events of 14 February 2014, which have no doubt completely destroyed any such relationship. 6. There was undisputed evidence in the trial that the offender was in the habit of breaking into the granny flat occupied by his brother. There was also undisputed evidence that the offender firmly believed that his brother had defrauded him out of money. There was yet further undisputed evidence that, when Ms Gabriella Biljuh was recovering from a brain aneurysm, the offender told her that he wished she had suffered a worse one. 7. In short, I consider it important that it is not the case that the relationship between the offender and the deceased was the only relationship in his life that was an unsatisfactory one; quite the contrary. That has relevance, I think, to the prospects of rehabilitation, and also to the question of future dangerousness. 8. The offender has been married, and is the father of two children. That relationship broke down in 2009. At the time of the offence, the offender was, as I have said, in a romantic relationship with another woman; it is not clear whether that relationship has survived his incarceration. 9. Mr Small gave evidence that he had known the offender from when they were young boys, and they had been close friends as young men. He knew that the offender achieved a trade qualification many years ago. The two of them had quite a deal of social contact in their early twenties, but thereafter their contact declined and became sporadic. The witness explained that, having read in the media of the offender being charged with murder, he made contact with him again. He has visited the offender in prison, and the offender often telephones him from custody. The young man whom Mr Small knew was an outgoing person, ready to help a friend, loyal, intelligent, and lively. The witness also gave evidence that he had never known the offender to be a violent person. I accept all of that evidence as truthful. In cross-examination, Mr Small accepted that, in the years before the commission of the offence, he had not really had much contact with the offender. Criminal record 1. I regard the criminal record of the offender as being broadly in his favour. It has a few entries, all of which are matters that were dealt with in the Local Court. In June 1992, when he was aged 21 years, he stole from a dwelling house and was sentenced to perform 100 hours of community work. More concerningly, in 2007, he was placed on a bond for the offence of intimidation. Finally, in 2011, he was fined for a number of driving offences, each of which was committed on the same occasion. 2. It can be seen that in the past, the offender has never been convicted of an offence of actual violence, and he has never been convicted of an offence that remotely approaches the seriousness of the offence for which he will be sentenced today. 3. In short, I approach the sentencing of the offender on the basis that, before he committed the most serious offence known to law, he had very largely been a person of good character, who had very largely avoided intersection with the criminal justice system. Personal crisis at the time of the offence 1. It was the Crown case at trial that, by the evening before the murder, the life of the offender had reached a point of crisis. He was unemployed; without funds; sleeping on a friend's couch; seeing his children infrequently; in conflict with his wife with regard to the payment of school fees; believed that his mother had unfairly and disloyally taken the side of his wife in the breakdown of his marriage; believed that his brother had defrauded him; and was generally on very bad terms with his mother, his brother, and his sister. I accept that proposition, and consider that the fact that the offence occurred in that context of deep personal crisis plays some role in mitigation. Psychological and psychiatric aspects 1. As I have said, the proceedings on sentence were delayed so that psychiatric evidence about the offender could be received by me. I agreed to that course because I considered, on all of the material that I have already outlined, that the question of the psychiatric condition of the offender at the time of the commission of the offence could be a very significant one. 2. A noteworthy aspect of the psychiatric report was that its author, Dr Carne, had treated the offender for a year, from August 2007 until August 2008, and therefore had direct knowledge of how the offender had presented over an extended period in the past. That treatment took place after a referral by the offender's general practitioner. 3. Before then, there had already been a suggestion that the offender had experienced problems with "low frustration tolerance, impulsivity, anxiety, recreational drug use, alcohol use and risk-taking behaviour". A number of physiological investigations had been undertaken, none of which was conclusive. There was even earlier material to suggest that the offender had consulted another psychiatrist with regard to an "adjustment disorder with anxiety", for which that psychiatrist had recommended medication and cognitive behavioural therapy. 4. During the year in which the offender was treated by Dr Carne, his mood benefited from prescription medication. That psychiatrist also recommended marital counselling. Regrettably, the offender stopped seeing that psychiatrist; did not pursue marital counselling except perhaps on two or three occasions; stopped taking his medication; and, in the intervening years, drank alcohol quite heavily. 5. In terms of current diagnosis, Dr Carne did not come to the view that the offender is suffering from any substantial mental condition, let alone any mental illness. It was said that the offender "has been diagnosed as having a personality disturbance characterised by poor impulse control, anger, anxiety and abuse of alcohol and recreational drugs". I accept that diagnosis on the balance of probabilities; apart from anything else, much of it is completely consistent with the offence of which the offender has been found guilty. 6. In light of the long-standing hatred of the offender for his mother; the circumstances of the offence; and the manner in which the body of the deceased was left, I suspect that there may well be a deep emotional or mental disturbance underpinning the catastrophic events of 14 February 2014. However, to be clear, each counsel submitted that there is no evidence before me upon which I could come to a mitigatory finding on the balance of probabilities that any emotional or mental condition or illness played a direct or indirect role in the commission of this murder. I accept that joint submission. The future 1. Turning to reflect upon the future, and in particular the prospects of rehabilitation of the offender, there are a number of adverse matters. 2. The first and most important is that, regrettably, the offender is completely lacking in insight. Upon the delivery by the jury of its verdict, the offender expressed his shock and disagreement with it, an outburst for which he subsequently apologised through his counsel. As I said at the time, I do not hold that against him. But it is also the case that the offender recently described himself to the psychiatrist as continuing to be "gobsmacked" by that guilty verdict. In truth, the Crown case was so strong as to be virtually overwhelming. 3. The fact that the offender – whom I assess as being an intelligent man – is unable to take responsibility for what he has done, and is unable to see that his guilt was plain at trial, is a matter of serious concern. In particular, it makes one wonder whether, in the many years of incarceration ahead, the offender will seek help, and try to rehabilitate himself. 4. The second matter of serious concern is that, as I have said, the anger and ill will of the offender was by no means directed towards his mother only. It extended to at least two other people. In other words, it is not as if the offender bore some obsessive hatred for his mother only, which has now dissipated. In light of what has happened, and in light of the long-standing difficulties that the offender has experienced with regard to aggression and anger, there inevitably must be concerns about the future dangerousness of Mr Biljuh. 5. To be weighed against those pessimistic aspects is the fact that the offender will have many years to reflect, not only upon the enormity of what he has done, but also upon the aspects of his life and personality that led him to do it. As I have said, in the past, he realised that he needed help, and expended quite a bit of time, trouble, and possibly money in order to receive it. 6. Having reflected on the matter, I have come to the view on the balance of probabilities that, at some stage during his non-parole period, the offender will ask for psychological or psychiatric help. If that occurs, and if that help is able to be effective, one is entitled to leaven what I said a moment ago with some measure of optimism. 7. Having said that, as things currently stand, I consider that the most that one can say in favour of the offender on this topic is that the future must be approached very guardedly. Various aspects 1. I turn now to discuss briefly various aspects of my task. 2. First, these remarks on sentence set out all of the aggravating and mitigating features of the matter that I have found to exist. For that reason, I do not propose to engage mechanistically with s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. Secondly, both counsel were agreed that the offender has been in continuous custody since his date of arrest; namely, 6 March 2014. My sentence will commence on that date. 4. Thirdly, each counsel provided me with sentencing decisions in broadly similar matters. That was of assistance; but because sentencing is an exercise in intuitive synthesis of a number of factors, and each such exercise must turn on its own facts, I shall not pause to examine those other cases in any detail. 5. Fourthly, defence counsel submitted that it would be open to me to find special circumstances that could lead to a shortening of the non-parole period. He invited my attention to the need for psychiatric help and medication in the past, and suggested that perhaps there should be a very extended period of conditional liberty in the future. So much may be accepted; but the inevitable length of the parole period that I shall impose shortly is, to my mind, sufficient for those purposes. 6. Fifthly, I am required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to inform the offender that it is possible that he will remain incarcerated even despite the complete expiry of his head sentence, if it is judged at that stage that he constitutes an unacceptable danger to the community. Harm to the community 1. Finally, speaking of the community, and the harm the offender has caused to it, it is true that no victim impact statements from any members of the family of the deceased were placed before me. But it cannot be controversial that this offence has inflicted substantial harm on the community, above and beyond the fatal harm inflicted upon the deceased herself. 2. Quite apart from family and friends who loved the deceased and lost her in harrowing circumstances, it must surely be the case that people who lived near the deceased were unsettled and upset when they heard that an elderly woman had been strangled and suffocated to death in her own home. More broadly, I think that older members of the community who heard of the murder, even those living well away from Villawood, must have been frightened at the thought of what had occurred. And speaking even more generally, it must surely be seen as inflicting great harm upon the community when one of its members decides to murder another, plans and prepares for it, and thereafter does exactly that. As I have said, what the offender has done calls for significant denunciation. 3. On behalf of the Supreme Court of New South Wales, I extend my condolences to all of those who have suffered as a result of the murder of Mrs Laura Biljuh. The conclusion of the proceedings today may provide a measure of relief; I accept that for some the pain will be unrelenting. Imposition of sentence 1. Dario Biljuh, you are convicted of the offence of murder. 2. I sentence you to a non-parole period of 22 years 6 months, to date from 6 March 2014. That will be followed by a parole period of 7 years 6 months, to commence on 6 September 2036 and to expire on 5 March 2044. The first date upon which you will be eligible for release to parole is 5 September 2036. 3. To express my sentence another way, I have imposed a head sentence of imprisonment for 30 years to commence on 6 March 2014, with a non-parole period of 22 years 6 months.