Supreme Court New South Wales Medium Neutral Citation: R v Biles (No 2) [2017] NSWSC 525 Hearing dates: 8 March 2017, 3 May 2017 Date of orders: 03 May 2017 Decision date: 03 May 2017 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: 1. For the murder of Maleeta Hart at Brewarrina on 25 April 2015 Darryl Anthony Biles is sentenced to imprisonment for a non-parole period of 18 years to commence on 26 April 2016 and to expire on 25 April 2034 and a balance of term of 6 years to commence on 26 April 2034 and to expire on 25 April 2040. 2. The offender will be eligible for release on parole at the expiry of the non-parole period. 3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of the Act apply to him and to the offending the subject of these proceedings. 4. Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) the offence of murder of which Darryl Anthony Biles has been convicted is to be recorded on his criminal record as a domestic violence offence. Catchwords: SENTENCE – murder – domestic violence – indigenous offender and victim – prolonged assault by offender on victim – history of violence by offender towards victim – intent to cause grievous bodily harm – where victim vulnerable by virtue of size differential, age and intoxication Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: Bugmy v The Queen; (2013) 249 CLR 571; [2013] HCA 37 R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Fernando (1992) 76 A Crim R 58 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Mahon [2015] NSWSC 25 ZZ v R [2013] NSWCCA 83 Category: Sentence Parties: Regina (Crown) Darryl Anthony Biles (offender) Representation: Counsel: Mr Liam Shaw (Crown) Mr Ian Nash (offender) Solicitors: Mr Daniel Waldmann, Office of the Director of Public Prosecutions (Crown) Ms Samantha Redding, Legal Aid Commission (offender) File Number(s): 2015/122961 Publication restriction: Nil Judgment 1. FAGAN J: Darryl Biles was arraigned before me at Dubbo on 20 February 2017 upon a charge that on 25 April 2015 at Brewarrina in the State of New South Wales he did murder Maleeta Hart. After a trial of 11 days his jury found him guilty on 7 March 2017. 2. At the time of the murder the offender and Maleeta Hart had been in an intimate relationship for about three and a half years. He was 24 years old and she was 18. They had a child together, aged two and a half years at the date of the murder. The offender had frequently been violent towards Maleeta Hart, at least since mid-2013. He on more than one occasion punched her to the head, knocking her down, and kicked her whilst on the ground, as described in more detail below. 3. The murder was committed by the offender punching Maleeta Hart repeatedly to the head and possibly also kicking her in the head, with sufficient force to break her jaw and to render her unconscious. Her concussed state caused suppression of breathing function (possibly also contributed to by her earlier alcohol ingestion). She suffered a degree of obstruction of her airway consequent upon the breaking of her jaw (and possibly also in part caused by inhaling vomitus into her upper airway). I find beyond reasonable doubt that the sustained beating of Maleeta Hart about her head was a substantial cause of her death, through the medical consequences to which I have referred affirmatively in this paragraph. That finding is consistent with the jury's verdict, having regard to the way the case was left to them. 4. The fatal assault took place in the bedroom Maleeta Hart shared with the offender at the time, behind a closed door. There were no eye witnesses to what took place although six other women were in a nearby room of the house as she was beaten to death. Some of them heard her screams and moans during this attack, over about 20 minutes. 5. The offender's counsel in opening read to the jury admissions made under s 184 of the Evidence Act 1995 (NSW) which included that the deceased's fractured jaw "was caused either by a punch by me or Maleeta falling as a consequence of a punch by me". In anticipation of a defence case that the offender landed only one punch the Crown called evidence of past occasions on which his assaults upon Maleeta Hart had not stopped at one blow but had been carried on, with multiple punches to the head and repeated kicks when she had been knocked to the ground. This evidence was adduced with a view to establishing a tendency which made it more likely that the offender had inflicted all of what must have been a large number of blows, as evidenced by the extent of her head injuries ascertained post-mortem. 6. In his evidence in the trial the offender asserted that he punched the deceased only three times to the head and that most of her injuries had been self-inflicted. In my assessment the tendency evidence would not have been important to the jury's evident rejection of the offender's account. The evidence of other persons present in the house on the day Maleeta Hart died and of two forensic pathologists called by the Crown constituted an overwhelming circumstantial case that he was responsible for all the deceased's fatal injuries. The relationship between the offender and the deceased 1. Maleeta Hart was born in November 1996. When she commenced her intimate relationship with the offender in the second half of 2011 she was 14 years of age. The offender was born in March 1991 and was therefore 20 years of age at that time. Ms Hart fell pregnant to the offender shortly after her 15th birthday, in December 2011. Their child, a boy, was born in August the following year. 2. Evidence of the offender's violence towards Ms Hart over approximately two years prior to the murder has satisfied me beyond reasonable doubt of a series of assaults which may be summarised as follows: 1. On 6 August 2013 the offender quarrelled with the deceased about the insufficiency of change which she returned to him after having been sent to do some shopping. Without warning he struck her with a closed fist to the left side of her face near the temple. She fell to the bed. The offender held her down and squeezed her jaw. He then stood up next to the bed and kneed and kicked the left side of Maleeta Hart's head. 2. On 17 August 2013 Ms Hart attempted to leave the home she was occupying with the offender, after a quarrel. The offender ran after her, caught her and punched her with a closed fist to the top right of the head, knocking her to the ground. While she was on the ground he kicked her once to the ribs on the right side of her body. 3. On 19 September 2013 the offender quarrelled with the deceased and said he was leaving her. Outside the home of Ms Esther Gordon, an aunt of Maleeta Hart, he swung a large metal wrench at her head but missed. Shortly after this the offender punched Ms Hart twice to her head. He desisted but then the two began to argue again, heatedly. Ms Hart ran inside Ms Gordon's house. The offender followed her, pulled her to the floor and kicked her to the back of the head and to her arms. These facts were agreed when the offender pleaded guilty to charges arising from this incident. Ms Gordon intervened and separated them, in the house. Ms Hart's nose was bleeding as a result of the assault according to Ms Gordon's evidence in the trial. 4. On 15 January 2014 in the course of an argument the offender punched the deceased heavily to the left side of her head, knocking her to the ground. Whilst she was on the ground the offender kicked her hard in the face three or four times causing her nose to bleed. 5. On 22 December 2014 the offender and the deceased were walking through the streets of Brewarrina when the offender attempted to pick a fight with three boys. When they did not respond he punched the deceased repeatedly to the head knocking her down. Whilst she was on the ground he kicked her once to the side of her body. Two people who were nearby pulled him away. He then held a bottle up to the deceased's head and told her to stop calling out. He said that if the police heard her he would hit her on the head. 6. On 23 April 2015 following a brief exchange in which Maleeta Hart expressed opposition to the offender using the drug ice, he punched her once in the face with force. 1. In his evidence given in the trial the offender disputed the details of events (1) – (4) and (6) and said he had no recollection of event (5). With respect to those occasions of which he admitted a memory he accepted that assaults had taken place but claimed they were limited to single punches or open-handed slaps. He denied having punched or kicked the deceased multiple times in any of these instances. I reject his evidence in this respect. He was not a credible witness. As already mentioned he denied all but a minor aspect of the assault upon Maleeta Hart on 25 April 2015 which caused her death. His claim that most of the injuries to her head and face sustained that day were self-inflicted was a naive and fantastic explanation which the jury rightly rejected and which I reject. His attempt to advance it demonstrated his willingness to deny or minimise his violent conduct towards the deceased in order to escape criminal liability. His willingness to lie discredits him with respect to his account of these earlier instances as well. 2. On the other hand Maleeta Hart's report of the assault described in event (3) was strongly corroborated by oral evidence of Ms Esther Gordon. She was cross-examined when called in the Crown case. I found her believable and reliable. Event (4) was the subject of a record of interview of Maleeta Hart conducted by police on the day it occurred. An audiovisual recording of this was played back to the jury. In it Ms Hart appears lucid, coherent and forthright about her complaints. In that case as with the others in relation to which she provided written statements to police (events (1), (2), (3) and (5)) I see no basis upon which to doubt the veracity of her allegations. Event (6) was proved by eye witnesses who gave evidence of it at the trial. 3. The offender and Maleeta Hart normally resided at Weilmoringle, a small settlement just south of the Queensland border and lying approximately 200 km north-east of Bourke and 100 km north of Brewarrina. The assault described at [7](3) occurred at Weilmoringle. The offender and Maleeta Hart also spent time in Brewarrina and the assaults described at (1), (2), (4), (5) and (6) occurred there. Circumstances leading up to the murder 1. Approximately two weeks before the murder a relative of the offender had died in Brewarrina and the couple travelled to that town to pay their respects. Another relative, Molly Boney, accommodated them in a bedroom of her flat in Byron Street, Brewarrina. They were still staying there, temporarily, on the day Maleeta Hart was killed. 2. The murder was committed between about 5:15 pm and 5:40 pm on 25 April 2015. Both the offender and the deceased had commenced drinking at about 11:00 am that day. On autopsy the deceased's blood alcohol concentration was 0.238%. The offender's blood alcohol concentration is likely to have been similar late that afternoon. 3. At about 5:10 pm the offender and Maleeta Hart argued outside the front door of Molly Boney's flat. The offender admitted in his evidence during the trial that he "smacked her" during this brief confrontation. In other parts of his evidence he used that expression to describe either slapping or punching Maleeta Hart. According to Molly Boney this blow was with his fist to Maleeta Hart's face. I accept her evidence as to this. I also accept Molly Boney's evidence that the offender then took Maleeta Hart by the arm and led her inside the house to the kitchen area. 4. The offender testified that once in the kitchen Maleeta Hart sat down on the floor. He said he lifted her under the armpits to move her into the bedroom because he wished to talk to her further to explain his position in relation to the argument that had commenced outside. I reject that evidence. Other witnesses heard Maleeta Hart offer an insult to the offender in the kitchen. They recalled that the offender in response either punched her again in the face to knock her to the floor or else dragged her to the floor. These witnesses then observed the offender drag Ms Hart forcibly, either by the hair or by the upper part of her clothing, into the bedroom. She resisted and screamed as he did so. I am satisfied that that is what occurred. 5. Maleeta Hart had no physical capacity to resist or fight the offender. She weighed 72 kg and was 169 cm tall. The offender was 6 years older, in his physical prime. He weighed 100 kg and was 183 cm tall. Ms Hart was accustomed to being beaten by him and being unable to defend herself. 6. Once the offender had Ms Hart in the bedroom he closed the door and commenced to assault her savagely. I infer this must have begun at about 5:15 pm or 5:20 pm. Over approximately the next 20 minutes Jodie Moore heard continuous screaming from Maleeta Hart in the bedroom, until she fell silent at about 5:41 pm. Other witnesses spoke of hearing moans and groans from the bedroom but not continuously. Some did not recall having heard such sounds. Nevertheless two of those other witnesses, Molly Boney and Annette Biles, were prompted either by what they heard or by what they perceived of the situation to go to the bedroom door and try to ascertain what was going on. The offender responded at one time by suggesting, implicitly, that he and Ms Hart were having sexual intercourse, at another time by saying he was "going to bed". 7. At 5:41 pm Jodie Moore phoned the 000 emergency number and requested police attendance. I find on the basis of her evidence that by the time she made that call she had heard screaming, shouting, moaning and/or other sounds of distress from Maleeta Hart frequently, and, at short intervals such as to leave an impression of more or less continuous cries, for about 20 minutes. These sounds were so upsetting to Ms Moore that she had tried to borrow a phone from one of the other women present in the house. The others had refused to lend their phones. After some time she snatched a phone from Molly Boney. 8. Ms Moore was a compelling witness. Her perception of what she had heard was recorded, contemporaneously, in her conversation with the triple 0 operator. Her evidence was consistent with it and was given under manifest and genuine distress at having to recall this harrowing experience. I am satisfied beyond reasonable doubt of the facts summarised in this and the preceding paragraph. 9. Soon after commencing the emergency call Ms Moore heard Maleeta Hart utter one final scream, louder than what had gone before. She told the emergency operator "He's bashed this woman in the room and she was just screaming and now she's stopped …". Arrest of the offender, aftermath of the fatal assault and results of autopsy 1. Upon arrival of police at 5:46 pm the accused emerged from the bedroom with blood on his hands, wrists, forearms, face, feet and clothing. He was restrained and arrested. Inside the bedroom Ms Hart was found lying on her back on the floor, her arms and legs spread out. There was a significant amount of blood on the floor with drag marks in it. The deceased's upper clothing was torn and her right breast was exposed. A doona and a dark coloured hooded garment covered her face, her left shoulder and left breast. Her face was covered with blood and her hair was sodden with it. She had deep lacerations above and below her left eyebrow. Both sides of her face were swollen and there was bruising around her eyes and mouth. She was unresponsive and no vital signs were detected. An ambulance was called but paramedics were unable to revive her. She was pronounced dead at the scene. 2. The deceased's blood was spattered on every wall of the bedroom and on the ceiling. I infer that after she had sustained the lacerations near her left eyebrow, which is a highly vascular part of the head, she must have bled profusely. Her hair became blood soaked and subsequent blows, probably whilst she was being held in an upright position, caused blood to be cast off onto surrounding surfaces. Blood near the skirting board of the western wall of the bedroom indicated that the deceased's head had been knocked against the wall at that location. The offender admitted that one or more of the three punches he acknowledged having delivered had caused her to fall and strike the back of her head at this location. 3. The distribution of bloodstains along a demarcation line on the floor showed that a double mattress had been lying flat on the floor throughout most of the assault. The mattress exhibited extensive bloodstaining along one edge, suggesting that the deceased's head had moved along it, either by her own volition or by the offender dragging her, whilst she was being beaten. The mattress was standing on its side against the wall when police first entered the room. 4. On autopsy it was found the deceased had suffered extensive cranio-facial trauma. The extent and nature of this was confirmed by a CT scan. There was widespread subcutaneous haemorrhage with associated oedema on the left side of her face and scalp, a fracture through the angle of the right side of the mandible (lower jawbone) and mild generalised cerebral oedema. She had blunt force trauma injuries around her mouth, both eyes, both cheeks, her forehead, the back of her head and both temples. In the opinion of the forensic pathologist who examined her body the pattern of injuries was consistent with "multiple punch type blows to the face and head". No underlying skull fracture was present but there was "mild generalised swelling of the brain and early microscopic hypoxic change". 5. Despite the offender's claim in his evidence at trial that most of these injuries were self-inflicted by the deceased, I am satisfied beyond reasonable doubt that all of them were the result of a sustained and brutal assault by him. Accepting the opinions of Drs Clifton and Cala, pathologists, I find that the repeated blows to the deceased's head caused death in the manner referred to at [3]. Objective seriousness 1. In short, the offender beat Maleeta Hart to death with his fists. It must have taken him 15 to 20 minutes to do this. The assault simply followed a reflex which had become part of the offender's relationship with Ms Hart, whereby disagreements with her or feelings of dissatisfaction towards her were routinely resolved with violence. There was no premeditation at the outset but, once commenced, the offender showed determination in continuing the beating. 2. It is implicit in the jury's verdict that they found he intended, at least, to cause her grievous bodily harm. I am not satisfied beyond reasonable doubt that he intended to cause her death. I find beyond reasonable doubt that he intended to render her unconscious. I infer this from the circumstance that he continued punching her about the head until she fell silent, her head by that stage being literally covered by contusions, her face unrecognisable and blood pouring from her left eyebrow and soaking her hair. The extent of blood spatter on all walls and the ceiling of the bedroom and the distribution of blood on the mattress and the floor – all of which I am satisfied was Maleeta Hart's blood – testify to the ferocity and duration of the attack. 3. Given the physical differences between the offender and the deceased and the latter's intoxication she must be regarded as having been very vulnerable to the offender's assault. The offender's actions cannot be attributed to a fleeting loss of control. To kill another human being in this manner required sustained, persistent savagery. The offender could have ceased after a few blows, observing the damage he had done and her helplessness. But he went on and on. 4. I am satisfied beyond reasonable doubt that Molly Boney and Annette Biles on four separate occasions attended the door of the bedroom and, in effect, asked what was going on. Each time the offender deflected them by saying he and Maleeta were either having sex or going to bed. There was a coolness and deliberation about this. He was sufficiently in control of himself to fob these women off with false explanations whilst he continued to batter Maleeta Hart unconscious, behind the closed bedroom door. 5. The age of the victim contributes to the seriousness of the crime. Maleeta Hart was only 5 months past her eighteenth birthday, barely more than a child, when she was killed. The offender's brutal attack has denied her the whole of her potential adult years. It has deprived their son of his mother, from the child's infancy. 6. Murder may take many forms and there may always be envisaged a more objectively serious crime than the one at hand. This particular offence should be regarded marginally below the middle of the range of possible objective seriousness. Homicide accompanied by intention to inflict grievous bodily harm rather than death is less objectively serious on that account. But in all things there are gradations. The offender's intention to inflict sufficient grievous harm to Maleeta Hart's head to render her unconscious is a very grave aspect of this crime. Further, his persistence in the face of the attempted interventions of Molly Boney and Anita Biles distinguishes his case from the many otherwise comparable cases which have been cited to me. In most instances of domestic murders the male perpetrator has lost control of his emotions in a setting where he is alone with the victim and there is no third party to question what he is doing. This offender carried on with resolve, deflecting attempted interventions. The offender's personal background and characteristics 1. The offender is of aboriginal descent, as was the deceased. He was born in March 1991 at Walgett and is now 26 years old. He has a sister four years older and two brothers, one two years older and one four years younger. His parents drank to excess but he did not see violence between them. They separated when the offender was 5 or 6 years old. Thereafter he and his siblings initially remained with their father in Brewarrina. The father cared for them with the help of his own mother. In his childhood the offender was witness to frequent interpersonal violence amongst visitors to his father's house, which was commonly the scene of excessive liquor consumption. 2. Later in the offender's childhood he and his siblings moved to the care of their mother, who had formed a new relationship and lived in Wagga. This family unit moved back to Brewarrina when the offender was 14 years old and he remained living with his mother and her new partner from then until he was 21, when he commenced to live with Maleeta Hart. 3. Psychometric testing shows his verbal comprehension to be in the lowest 1% of the general population and his perceptual reasoning capacity is in the lowest 8%. These scores are derived from recognised standard tests administered by a psychologist engaged to assess the offender post verdict, Ms Robilliard. Unsurprisingly the offender acknowledges having been a poor student. He withdrew from school at the beginning of year 10. He had been in a special class and found it difficult to learn. Ms Robilliard has expressed the following opinion, which I accept: "Deficits in verbal knowledge and skills are frequently associated with low frustration tolerance and behavioural dysregulation, evident in acting out of emotional responses that cannot be adequately expressed verbally". 1. Ms Robilliard also tested the offender on what she terms a "Trauma Attachment Belief Scale" and sought to test and profile his personality. She found that one of the scores derived under this testing was consistent with the offender having "been severely damaged by exposure to traumatic events and circumstances, in ways that have damaged … subsequent capacity to establish and maintain healthy interpersonal relationships". Elevated scores in another area, in the psychologist's opinion, describe "a personality construct that highlights fears of autonomy and independence which often predispose these individuals to forming codependent pathological relationships". 2. The adverse experiences of the offender's childhood, as related by him to the psychologist, have by no means been extreme. Nevertheless, In accordance with R v Fernando (1992) 76 A Crim R 58 and of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 I take into account the disadvantages to the offender in his development which have flowed from the separation of his parents, alcohol abuse by his father, disruption in moving from one household to another, low natural intelligence and inability to benefit from education, exposure to violence amongst his parents' peers and within the small indigenous community in which he has been raised and his lack of acquisition of employment skills. 3. In taking into account the offender's disadvantaged background and its ameliorating effect with respect to the weight to be given to general deterrence, I recognise other conflicting considerations which must be balanced. In particular the need to protect the community which is discussed explicitly in Bugmy v The Queen at [44] to [46]. Also there is a need, in fixing the offender's sentence, to send as strong a message as the law permits to discourage such cowardly violence against vulnerable female partners in domestic settings. 4. The offender's age is not a factor which warrants mitigation of sentence. At 24 he was old enough to be able to control impulsive behaviour. He was well aware of the seriousness and criminal nature of his violence towards Maleeta Hart. He had been prosecuted for it before (in relation to the assaults of 19 September 2013) and had been the subject of an Apprehended Violence Order ("AVO") which had been issued for her protection. In 2014 he had served a ten month sentence of imprisonment for his violence to her. There is a need for specific deterrence which is not reduced on account of his relative youth. The offender's criminal history 1. From age 15 the offender was frequently before the Children's Court on charges such as larceny, breaking and entering, use of uninsured and unregistered motor vehicles and driving when unlicensed or disqualified. Offending of this nature has occurred also in his adult years. He commenced to commit offences of violence (detaining a person with intent to obtain advantage and stalking or intimidating with intent to create fear of harm) in September 2009, at age 18 years. 2. The assault on Maleeta Hart on 19 September 2013 was a contravention of an AVO which the Local Court at Brewarrina had ordered in April 2013 for her protection. On 5 March 2014 the Magistrate at Brewarrina Local Court sentenced the offender to concurrent terms of imprisonment of 10 months and 6 days with a non-parole period of 5 months and 3 days for the assault and for the breach of the AVO. The offender served the non-parole period between 13 January 2014 and 15 June 2014. 3. On an additional charge of stalking with intent to cause fear of harm the Magistrate imposed a bond of 23 months, under supervision. The bond included terms as follows: "3. To obey all reasonable directions counselling educational development or drug and alcohol rehabilitation and complete drug and alcohol rehabilitation for alcohol, cannabis and ice addiction. 4. Complete parenting program or equivalent complete program for counselling for domestic violence." 1. A Community Corrections officer reported on 29 January 2015 that the offender had by that date only engaged in two sessions of counselling for alcohol and drug misuse and for unresolved emotional issues pertaining to domestic abuse. He had attended the two sessions in September and October 2014, during the parole period of the sentences referred to at [43]. After expiry of his parole period, on 18 November 2014, he had ceased to maintain regular contact with Community Corrections in disregard of directions issued to him by that service. The report stated that "numerous attempts" were made "to re-engage Mr Biles by way of home visits to his home address in Brewarrina, however with little impact". 2. The Community Corrections officer's report of 29 January 2015 concluded as follows: "It appears Mr Biles is a young man who lacks the motivation and assertiveness to address his offending behaviour. The offender would benefit from ongoing counselling and support to assist with his unresolved emotional issues, however by failing to maintain contact with Community Corrections … and by not attending required appointments with health professionals it is difficult to assist the offender. It would appear since the offender's parole order has expired Mr Biles has displayed blatant disregard for the conditions of his current Good Behaviour Bonds. Mr Biles current response to his supervision obligations is deemed poor. It is recommended the offender's current Good Behaviour Bonds be revoked and an alternative sentence be considered." 1. The result of the call up for the breach of bond was that after his arrest on the murder charge, on 4 June 2015 at Bourke Local Court he was sentenced for the offence of stalking and intimidating (19 September 2013) to imprisonment for 15 months including a non-parole period of 10 Months. That sentence has been served during the offender's remand on the murder charge, for which he has been refused bail. The non-parole period of 10 months commenced 26 June 2015 and expired 25 April 2016. The entire sentence, including the period in which he would have been eligible for release on parole, expired on 25 September 2016. 2. On 16 January 2014 the offender contravened an AVO which had been issued on 4 June 2013 for the protection of Maleeta Hart. The AVO forbade him to approach or contact Ms Hart except through his legal representative. Brewarrina police had arrested him at a house occupied by Ms Hart on Narran Street in that town. He had attempted to evade police through the back door and rear yard of the property. When police intercepted him he ran back inside. Police had had to force the door because he would not respond to their calls to come out. On 5 March 2014 Brewarrina Local Court imposed a 23 month bond for this offence. This was either the same bond, or another one in the same terms, as the bond entered into that day in respect of the charge of stalking and intimidating on 19 September 2013 (see [39] above). 3. The offender was called up for breach of this bond also, on the basis of the breach report dated 29 January 2015 referred to at [41] and [42]. This breach was also dealt with at Bourke Local Court on 4 June 2015. A sentence of imprisonment of 6 months commencing 26 May 2015 and ending 25 November 2015 was imposed, in lieu of the bond, for the original breach of the AVO. 4. On 24 June 2014 the offender drove a motor vehicle during a disqualification period. At that date he was at liberty on parole under the concurrent sentences for the offences of 19 September 2013 (see [39] above). He had been released to parole only nine days earlier. A Community Service Order ("CSO") for 160 hours was imposed for this offence at Brewarrina Local Court on 7 October 2014. According to a subsequent report from Community Corrections (dated 6 March 2015) it was explained to him on the day the CSO was made that he was required to report on 21 October 2014 and on each subsequent Friday to perform work from 8:00 am to 3:00 pm. He repeatedly failed to attend. On each occasion of non-attendance he offered excuses which the supervising officer found unsatisfactory. Each time he was warned that continued defaults would result in the commencement of revocation action. 5. By 6 March 2015 he had completed only 20 hours (representing three Fridays) over the four months the CSO had been in force. On the application of Community Corrections the offender was called up for revocation of the CSO. At Bourke Local Court on 4 June 2015 the CSO was revoked and he was sentenced to 6 months imprisonment commencing 26 April 2015 and concluding on 25 October 2015, for the offence of driving whilst disqualified. 6. On 7 January 2016 at Bourke Local Court the offender was dealt with for charges of supplying a firearm, possessing an unauthorised firearm and receiving stolen property. The offender and two others sold to a third party electronic goods and a 0.22 calibre rifle, all of which the offender knew to be stolen. Three concurrent sentences each of 3 months, commencing 7 January 2016 and concluding on 6 April 2016, were imposed. 7. The result of the above-mentioned sentences imposed in the Local Court is that, during his remand from 25 April 2015 to date, the offender has served one full year of custody, without eligibility for parole, attributable to matters unrelated to the murder. Having considered the facts underlying each of those other matters I do not consider that the sentence I am to impose for the murder should be backdated to commence from a date which would make it to any extent concurrent with the non-parole periods for these other matters. Each of those other matters involves an episode of criminality entirely distinct from the murder of Maleeta Hart. The only reason the sentences for these earlier matters have commenced following his arrest on the murder charge is that the administration of criminal justice has not been able to keep up with his repetitive, almost continuous, offending and breaching of conditions of conditional liberty. 8. The sentence for the murder will commence from 26 April 2016. From that date to 25 September 2016 the offender's imprisonment has been in part referable to the balance of term for the offence of stalking and intimidating committed in September 2013 (see [41] – [44]). But for the murder charge he would likely have been released on parole in that period. I consider that those 5 months from 26 April 2016 to 25 September 2016 should count towards his sentence for the murder. The culmination of a course of domestic violence 1. The experience of courts in this State has shown that men who perpetrate violence against their female partners do not stop after one occurrence. Often they become accustomed to inflicting violence of escalating severity. The offender conformed to that trend. In giving evidence during the trial concerning his prior assaults on Ms Hart he spoke in matter-of-fact terms about having "smacked" her in the past for what he perceived to be defaults on her part. I infer that he considered he was within his rights on these earlier occasions to punch his young partner, 16 years or 17 years of age at the time, and knock her to the ground when he disapproved of something she did. Of course he had no such right. Those earlier assaults, like the sustained assault which killed her, were cowardly and disgraceful. They were an abuse of the power the offender had over Ms Hart as a result of his superior physical strength and through their relationship. 2. Maleeta Hart may have been too young and inexperienced to have appreciated the danger to herself from the offender's habit of punching and kicking her. In particular she faced the danger that his violence would increase in severity to the point that it did. I find that despite her attempts at separation, the combination of living in a small isolated community, some measure of emotional attachment to the father of her child and the persistence of contact by the offender all prevented her from disengaging from him until it was too late. 3. Evidence given in the trial showed that the women of the indigenous communities at Weilmoringle and Brewarrina, notably Esther Gordon, did what they could to protect Maleeta Hart on the earlier occasions. On the afternoon of the murder Jodie Moore acted as promptly as she was able, by calling the emergency number. There was no man in the house to intervene to protect Ms Hart. It could not have been expected that the other women present would try to restrain the offender physically. 4. The apparent lack of a sense of urgency amongst the other women in the house on 25 April 2015, with the exception of Jodie Moore, may have been due to resignation amongst them; a feeling that to some extent domestic violence is inevitable and must be endured and, perhaps, that it is a matter private to the couple, in which others should not interfere. None of that is so. The occupants of the house would have been right to call the police the moment Maleeta Hart was knocked to the floor of the kitchen and dragged screaming into the bedroom. 5. Police officers who were then stationed at Brewarrina, in particular Sergeant David Wheatley and Senior Sergeant Tanya McDevitt, demonstrated in their evidence a personal knowledge of individual members of the indigenous community in their area (including Weilmoringle) and a commendable and proactive concern to provide protection against domestic violence by such means as were available to them. When the emergency call was ultimately made by Jodie Moore the response by Constables MacGee and Swift within four minutes of the dispatch notification was exemplary. 6. On the earlier occasions, as the criminal history shows, police had laid charges when they received complaint of the offender's violence against Ms Hart. They had caused the issue of an AVO and they had brought the offender back before the court when he breached it. The Local Court had imposed measured penalties in an endeavour to strike a balance between protection of Ms Hart, punishment of the offender and the allowance of opportunities for him to receive counselling and to correct his behaviour. He abused and disregarded those opportunities. Community Corrections were driven to apply for him to be called up. It is difficult to see what more could have been done by the authorities to curb and correct the offender before he became a murderer. 7. Tragically, so long as Maleeta Hart continued to keep the company of the offender and to cohabit with him she was exposed to the danger of his violence towards her, which had become habitual. 8. These observations ([52] – [58]) are no more than a narrative of how the untimely death of Maleeta Hart came about. The offender is not to be punished again on account of his past violence towards his victim. The previous occurrences and his prior criminal history including his conviction on a guilty plea for offences of violence against Ms Hart on 19 September 2013 show that he is not entitled to lenience on the basis of past conduct. The record of prior convictions for personal violence offences is an aggravating feature: s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. 9. The Court of Criminal Appeal and individual judges of this Court have repeatedly stated that crimes of domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend similarly: R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [65] – [88]; R v Mahon [2015] NSWSC 25 at [101] – [103]. Darryl Biles' sentence must be sufficient to convey clearly the Court's denunciation of his crime: R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47]. Prospects of rehabilitation, remorse 1. I find that the offender's prospects of rehabilitation are poor having regard to the pattern of his violence towards the deceased, its escalation, his lack of full acknowledgement of his own wrongdoing and the lack of insight reflected in his belated expression of remorse. This is not a case where the youthfulness of the offender gives rise to increased expectation of rehabilitation and on that account warrants a lesser penalty. 2. A recording of the offender's reaction when told he was charged with the murder of Maleeta Hart, at Brewarrina police station late on the evening of 25 April 2015, shows that he was emotional and extremely upset. This may have been anguish at the thought of a long term of imprisonment. He must have realised immediately how strong the proof against him would be because earlier that evening he had emerged, covered in blood, from the bedroom in which the deceased lay battered on the floor straight into the hands of two police officers. On the other hand, his emotional reaction may have reflected regret at the death of Ms Hart. Neither of these alternatives would constitute any indication of remorse in the sense of regret for his actions. 3. Before trial the offender offered through his counsel a plea of guilty to manslaughter on the basis of criminal negligence. I determined at the conclusion of the defence case that criminal negligence was not open to the jury even on the offender's evidence taken at its highest. I gave reasons for having come to that view on 3 March 2017, immediately before addresses commenced. The offer to plead guilty to manslaughter on this basis does not exhibit any acknowledgement of the criminality which has now been proved to the jury's satisfaction beyond reasonable doubt. The offer cannot form the basis of a finding that he showed, at the time it was made, remorse in any degree. He also offered a plea of guilty to manslaughter on the basis of unlawful and dangerous act. But his contest of the charge, including by offering the fanciful version of events referred to earlier (self harm by the deceased), showed his continuing failure throughout the trial, two years after the event, to come to terms realistically with what he had done. 4. According to Ms Robilliard the offender reported "deeply regretting Maleeta's death and stating that he thinks about every day". At interview he "was adamant that he loved Maleeta and still does". Ms Robilliard reported that he "impressed as deeply distressed and remorseful over her death. He stated that since he was imprisoned he has had time to reconsider his attitudes, values and behaviour in relation to violence and now understands that it is not normal or acceptable". Notwithstanding this, at pars 35, 36 and 37 of her report Ms Robilliard has recorded that the offender maintains he only punched the deceased 2 or 3 times, causing her to fall. In substance, what he has communicated to the psychologist was regret at the victim's death but a failure to accept responsibility for it. 5. At last, during the sentence proceedings on 3 May 2015, the offender in evidence on affirmation acknowledged that the blows he admits having delivered to Maleeta Hart were a cause of her death. From the witness box he read a letter to her family, and to his and the deceased's son expressing regret "for the pain that has been caused" and describing his own love for and sense of loss of Ms Hart. I consider that the pre-requisites of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act are satisfied in relation to those expressions of remorse. Victim impact statements 1. As provided for in s 28(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) I received victim impact statements which were read in open court during sentence proceedings. These included statements of the deceased's father, stepmother and maternal grandfather. A statement of the legal guardian of the deceased's son, now aged 4 years, was read on his behalf. I take these statements into account. They demonstrate how widely and sincerely the deceased was loved by her family and how much her loss is felt. The statements read included some parts read on behalf of aunts and uncles. Whilst these relatives are not "members of the primary victim's family" with the meaning of s 26 and do not have the status of recognition under s 28, I received their statements and had them read in open court in view of the evident concern of this wider group of relatives, demonstrated by their attendance at court during both the trial and the sentence proceedings. 2. Consistently with the descriptions of Maleeta Hart given in the victim impact statements, she presented in the recorded interview from January 2014 (referred to at [9]) as a spirited and appealing young woman, full of life. The grief that her wider family and her friends feel upon her loss is readily understood. Aggravating and mitigating circumstances 1. The offender was affected by alcohol when he committed the crime but not to a degree which bears upon sentence in any way. The jury were clearly not satisfied that intoxication gave rise to any reasonable doubt about his culpable state of mind and intent to inflict grievous bodily harm. Police officers who knew him well and had observed him in various states of intoxication in the past saw him and spoke to him at Brewarrina police station shortly after his arrest. They did not assess him to be significantly affected. He spoke rationally. He did not show signs of intoxication in the manner of his speech. A video recording of him walking up a passageway to the dock in the police station does not reveal any impairment of physical capacity. This was confirmed by observations of police officers who saw him changing from the clothes he was wearing at the time of the offence (which were taken for forensic testing) into a coverall suit. He was able to stand on one leg and maintain balance for the purpose of doing this. 2. To whatever extent he was affected, self induced intoxication has limited relevance to sentencing for a crime of violence: ZZ v R [2013] NSWCCA 83 per Johnson J at [110] – [112]. The evidence has not shown that alcohol caused the offender to act out of character on this occasion. 3. The murder is aggravated by the circumstance that at the time it was committed the offender was under a supervised bond imposed for a prior instance of domestic violence against the deceased (s 21A(2)(j), Crimes (Sentencing Procedure) Act). The bond was imposed for the offences of stalking and intimidating Maleeta Hart on 19 September 2013 (see [7](3) and [39]) and breaching an AVO for her protection on 14 January 2014 (see [43]). I have mentioned that Ms Hart was vulnerable (s 21A(2)(l) because of her relative disadvantage in age and size and because she was heavily intoxicated. The offender knew from past assaults she could not defend herself. 4. Although there is evidence that Ms Hart offered the offender an insult immediately before he dragged her into the bedroom, in his own evidence he denied this and said that in any event he would not have been provoked by an insult of the kind related by other witnesses. He said Maleeta Hart often insulted and taunted him and that he was inured to her remarks. I consider it more likely than not that she did insult him but I do not consider that whatever was said could be regarded as provocation which might operate in mitigation pursuant to s 21A(3)(c). The savage and persistent beating which the offender immediately commenced to inflict could not in any realistic sense be regarded as having been provoked by her. It simply followed from the way in which the offender was accustomed to dealing with his partner when she annoyed him, however trivially. Relationship between non-parole period and balance of term 1. I do not find any special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act which would require that the balance of term of the offender's sentence should exceed one third of the non-parole period which I intend to fix. The balance of term will be an ample period for him to be under conditions of parole after release into the community. His non-parole period for the murder will be continuous with the year he has served since his arrest for other offences. I do not consider that I should adjust the non-parole period to give effect to the statutory ratio across that accumulated period. The underlying offences are not connected or related in any way which would justify this. Sentence 1. The maximum penalty for murder of life imprisonment may be reduced to a specific term of years (under s 21(1) of the Crimes (Sentencing Procedure) Act) unless the "level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through" a sentence of life imprisonment (s 61(1)). In such a case a life sentence would be mandatory. 2. I am not satisfied that this case satisfies the statutory test in s 61(1). An appropriate finite term of imprisonment must be fixed, having regard to the standard non‑parole period of 20 years which applies to the offence of murder under Part 4 Div 1A of the Crimes (Sentencing Procedure) Act. The Crown has properly accepted that a finite term should be fixed. 3. Taking into account all considerations referred to in these reasons sentence is imposed as follows: 1. For the murder of Maleeta Hart at Brewarrina on 25 April 2015 Darryl Anthony Biles is sentenced to imprisonment for a non-parole period of 18 years to commence on 26 April 2016 and to expire on 25 April 2034 and a balance of term of 6 years to commence on 26 April 2034 and to expire on 25 April 2040. 2. The offender will be eligible for release on parole at the expiry of the non-parole period. 3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of the Act apply to him and to the offending the subject of these proceedings. 4. Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) the offence of murder of which Darryl Anthony Biles has been convicted is to be recorded on his criminal record as a domestic violence offence. ********** 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: 03 May 2017