R v Bagster

Fact finding.

1. There were a number of agreed facts tendered at trial, exhibits 17 and 32.
2. Where a matter put forward in sentencing proceedings is contested, notwithstanding that the Evidence Act 1995 generally does not apply, it may not be acted upon unless it is established. The proof of such fact must occur in the context of the proceedings concerned, namely, as this is, an uncompleted criminal trial. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v the Queen (1999) 199 CLR 270; [1999] HCA 5; "Matters in mitigation must be established on the balance of probabilities. Matters of aggravation of penalty must be established beyond reasonable doubt." The High Court also recognised that sometimes a sentencing Court must sentence according to what is known or agreed. The High Court made the point that the judge who is not satisfied of some matter urged in plea on behalf of the offender does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt: Olbrich [24],
3. Reviewing the objectively established evidence, what I am left with is this:

• Bagster, consistent with the jury's verdict, was found to have caused Ms Birch's death.
• At the time of her death, Ms Birch was affected by heroin.
• The amount of heroin taken would have disabled her.
• She was tied up.
• She was placed in a wheelie bin.
• Some of her blood was found in the bathroom.
• Bagster had a tendency to assault Ms Birch.
• Bagster had a tendency to tie her up and leave her tied up.
• The person responsible for Ms Birch's death entered the unit more than once, as neighbours noticed a change in the lighting and curtains, and fans were turned on.

1. I note that it is not unusual if a person is assaulted, for them to treat themselves in the bathroom; hence I do not place particular reliance on the Crown's submissions relating to bloodstains made at the trial.
2. I note, on the evidence before me, it was not unusual for Bagster to leave Ms Birch tied up. I accept the evidence of Ms Williams and friends who either saw or had Jane complain to them about being tied up. I note on one occasion, a police officer saw her with something tied around her neck and received a complaint she had been tied up by the offender.
3. Further, it is not without precedent, if a person is well affected by heroin, to be left tied up or kept, where they could not get assistance. But as Mr Todd put to the jury, if she had just been left, say, on the bed or the floor, as her hands were not bound, she could easily have removed her ties.
4. On the known facts, I could not find water was added to the bin while she was still alive. I reach that conclusion because; 1. That would not, in my view, be consistent with the jury's verdict but consistent with Bagster committing the more serious offence of murder. 2. The only evidence of that particular circumstance came from the witness, Baxter, a person who shared a cell with Bagster and had a motive for inventing his evidence. I did not find Baxter a credible or believable witness. My consistent reasons for rejecting him coincide with those set out by Mr Fraser in his written submissions.
5. In sentencing on what is known, consistent with the jury's verdict, holding Bagster responsible for manslaughter I make the following findings: 1. I find that Bagster left Ms Birch in a position in the bin where she was helpless, drug affected and tied. 2. As a consequence, she died. 3. It is more likely than not that Bagster unlawfully and dangerously caused Ms Birch's death by tying her up while she was heavily intoxicated and placing her in the bin. 4. Tying her up, on the evidence before me, given where she was tied, would not and could not have disabled her, as her hands were not tied. 5. Placing her in the bin, tied as she was, would have disabled her as she could not have escaped. 6. Although, as I noted, Bagster was said to have made admissions, I do not rely upon them for the reasons advanced by Mr Fraser. 7. It is more likely the water was added for the same reason the fans were turned on: as an attempt to reduce the smell of decomposition well after her death. 8. Given the medical evidence, it seems logical Ms Birch was alive when placed in the bin. I could not, however, find on the available evidence that at that time: 1. she was conscious, or 2. that Bagster was aware she was alive.

Manslaughter - Unlawful and dangerous act.

1. There are two categories of manslaughter at common law: manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence: The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [38]. The maximum penalty is 25 years imprisonment.
2. There is no hierarchy of seriousness within the categories of manslaughter: R v Isaacs (1997) 41 NSWLR 374 at 381. Serious or objective gravity may vary, "a joke gone wrong to facts just short of murder": R v Forbes [2005] NSWCCA 377at [133]-[134].
3. Manslaughter is always regarded as a most serious offence, as it involves the taking of another human life. It is a responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31].
4. The basis of the manslaughter charge, as I said, was unlawful and dangerous act. The facts determine the objective gravity of the offence: R v Borkowski [2009] NSWCCA 102 at [49]. Those acts must be intentional and voluntarily done, with the realisation by the offender he was exposing the victim to an appreciable risk of serious injury: Wilson v The Queen (1992) 174 CLR 313 at 333. It is not a matter of mitigation that the offender neither desired not contemplated the deceased's death. If the offender had so contemplated, he would have been liable for murder: R v Chapple NSWCCA 14/9/93, unreported.

Assessment of Objective Seriousness

1. Every offence of this type starts from a fundamental premise: the offender's action led to the loss of the human life. The offence occurred in Ms Birch's home. Tying someone up is indicative of having a negative and cruel attitude to her. I accept the evidence in trial from Ms Williams and others at trial that she had been tied up, and at times, left. That evidence was powerful when combined with the fact her body was found partially tied. While he is not to be sentenced for his behaviour to her on other occasions, it does give some context to the crime for sentence today.
2. The offender and the deceased were in a form of domestic relationship. That relationship, I accept, was very flexible. It was not exclusive but it was close, and during it, he did exercise coercive control over her. I say that even though it is clear that a number of her friends, particularly those who claim to have seen her on Wollongong railway station and later on a train, were clearly inventing many of the aspects of the evidence. There was sufficient evidence apart from those witnesses to establish the element of coercive control. I do not have regard to the two women on the railway station and their allegations as to what he was said to have done on that occasion. Their evidence was clearly, as the CCTV showed, more than embellished, invented.
3. Bagster is not to be punished for earlier actions, but they do remain relevant to give context. The Courts have to recognise the special dynamics of domestic violence, and that they involve ‑ as this offence clearly did ‑ the abuse of a relationship of trust, requiring a deterrent sentence.
4. Although Bagster must only be sentenced for this crime, this was not an isolated incident but part of a larger picture of physical and mental violence in which he exercised control and power over his victim: R v Burton [2008] NSWCCA 128 at [97]: The Queen v Kilic (2016) 259 CLR 256; 2016] HCA 48.
5. I have referred to the maximum penalty of 25 years. That maximum is one that is an important guide to the exercise of my sentencing discretion, but I do not start my analysis and the maximum and then make proportional deductions from it.

Criminal History

1. Bagster has been in custody since 1 October 2019. This sentence must date from then. Although I did grant him bail at one stage, he could not meet the strict conditions it imposed and he did not enter it.
2. He has a criminal history. He has appeared fairly regularly before the Local Court since 1986 for offences relating to dishonesty, including break, enter and steal, driving infractions, drug use and supply. He has served relatively short gaol terms in 1991, 1998/99, and 2015/16. He has received fines and been dealt with in Queensland. He was fined once for dangerous contact with a weapon in Queensland and dealt with in Victoria for drug possession. His last Court appearance was in 2016.
3. His record does not entitle him to the leniency often given first offenders. It is, however, relevant that after the sentence for the 2015 matter, a suspended sentence imposed in 2016, he stopped offending. After an offence in 2016, in 2017 he served a suspended sentence of nine months. There is nothing on his record since that time.

Victim impact.

1. Ms Birch's aunt provided the Court with a Victim Impact Statement, giving particulars of the impact of Ms Birch's death on the family. She also told me something about Ms Birch.
2. Jane Birch was born in Bulli in 1976. She had a happy, contented childhood, and she was a happy and contented child, very artistic. Tragically, her mother died in 1991, the day after her 15th birthday. After that she struggled. Her father was overcome with grief, and Jane was allowed to do whatever she wanted. At 17 she became involved with an older man. She was a victim of domestic violence in that relationship. Her first son was born in 1998, and he was taken from her and placed in foster care. At times Ms Birch would stay with her aunt, who helped her gain physical condition and with drug rehabilitation, but these periods did not last. She formed a relationship with another older man, and a second son was born in 2005. Despite a further attempt at drug rehabilitation, she relapsed, and her second son was fostered out. Both boys have been adopted into loving families.
3. Again, in 2008 her aunt tried to help Jane improve her health and get drug treatment. She told me how excited Jane was when she got the housing department unit in Woonona in October 2010.
4. On finding out about Ms Birch's death and the circumstances of it, her aunt was, as to be expected, "absolutely horrified". She misses Ms Birch's phone calls and their shopping trips together. She misses her infective laughter. She concludes: "Jane has had her life cut short, never to see her boys become young men, and their achievements in life; never to see her grandchildren. Her sons had to hear about her gruesome death as they got old enough to be told the truth."
5. The family have the condolences of the Court.

Subjective case

1. The defence material, Exhibit 1 has ten tags. It includes an affidavit he prepared. Much of what was set out in the affidavit was not controversial
2. It is important to note that Mr Bagster maintains he is not guilty and that he did not harm Ms Birch and bring about her death. He told his psychologist, Ms Grujoska, "I'm blamed for something I didn't do."
3. That is his right. He is not to be punished in any way for exercising his right to a jury trial. Obviously, he does not get the benefits generally given to those who admit their guilt before trial or express sincere remorse. His denial must be considered when I come to consider his prospects for rehabilitation.
4. Bagster was born in New South Wales in 1966; he is now 55. He was close to his mother all his life. She is now very unwell and in palliative care. The reports provided indicate sadly she will die while he is in custody. Although he was not close to his father, he still has his support and speaks to him weekly. His father is not a well man.
5. Bagster left school early, and by 16 had qualified as a butcher. He worked in that profession for many years, but drug use and an erratic lifestyle meant work was not regular. He has two children but has not had contact with them for many years. He suffers from asthma, and in his thirties was diagnosed with ADHD. He has been taking antipsychotic medication since about 2011. He was receiving medication while in custody and is presently on a Buprenorphine program.
6. Bagster gave evidence. He told me that the history he had given to his psychologist was true, and his affidavit sets out his experiences in custody. It did not address the offence or the background to it, other than saying that what he told Ms Grujoska was true. The affidavit indicates three assaults while in custody, and that he is now housed in Special Management Area Protection. He requested that protective status; it was not imposed upon him. He told me he requested it because he had been stood over by other prisoners who had read the brief which he had in his cell, which had enabled them to find the nature of the charges for which he was then on remand. He has moved from gaol to gaol. Each occasion he was moved, he was quarantined because of COVID. He has been locked down because of COVID on a regular basis, sometimes three to four days a week. Prisoners in lockdown do not have access to showers.
7. He said he was initially prescribed Seroquel, but he is now receiving Buprenorphine. He told me that he has not been using drugs in gaol, except very early on when he had given up hope. He has a number of discipline matters, but they, given the length of time he has been on remand, are not significant. He has done a number of courses in gaol; he has found those programs particularly helpful. His principal concern so far as his family is concerned is that he fears he will not see his mother ‑ and possibly his father ‑ again.

Ms Grujoska, psychologist.

1. Apart from denials and when he took up drug use, her report was not controversial. The history given was supported by his criminal record and some of the evidence at trial.
2. It is not controversial because Ms Grujoska opens her conclusions as to her findings by noting that her testing has produced a profile that should be interpreted with caution. However, she said, in her professional opinion it remains valid. Her testing reflects what she was told in the completion of the tests by Mr Bagster, and she applied her professional skills to it.
3. She says her testing reflects an individual who has adopted maladaptive coping mechanisms to deal with trauma. It reflects a person who is detached from others and likely to experience feelings of pessimism, glumness, loss of hope, with little ability to experience pleasure. Someone who has difficulty trusting others, becomes defensive when sensing criticism or judgment. Bagster has, she finds, significantly elevated scores in anxiety, dysthymia, alcohol dependence, and post‑traumatic stress disorder. His profile reflects significantly high scores for major depression and thought disorder. Many of these factors, she opines, would have impacted on his cognitive functioning.
4. She recommends Bagster participate in the Violent Offenders Therapeutic Program and engage with the EQUIPS Foundation and the Real Understanding of Self‑Help Programs. He will need to see a psychologist while in custody and receive appropriate support and treatment for his drug abstinence. He requires treatment for his trauma and depressive symptoms, but it is unlikely he will receive all the support he requires until he is released into the community. In the community he will need assistance in dealing with life and in adjusting to normal community life, given that he will have spent a significant time in custody.
5. In the affidavit, in the report to Ms Grujoska, and in material tendered from his solicitors who are dealing with possible civil action arising, there is evidence to support a conclusion that as a child Bagster was sexually assaulted by a teacher. On balance, I accept that evidence.
6. A sexual assault can have a profound and highly detrimental impact on a child so assaulted. Such impacts are relevant by way of mitigation. A Court should not devalue the traumatic events detailed in the material to which I have referred, and such material is commonly destructive of the childhood or adolescence of a young person; findings I make regularly when I deal with those who offend in a sexual manner against children.
7. That material is relevant and should be given proper effect when synthesising an appropriate and just sentence. It helps explain why, as a young person, the offender's schooling was disrupted and why he took up at an early age ‑ although there is some dispute given the cross‑examination today as to when that was ‑ the use and abuse of alcohol and illicit drugs; there being no dispute that it still occurred when he was too young to make rational choices.
8. His background is referred to by Ms Grujoska. His mother had a number of medical problems, and his father was distant because he spent most of his time at work. They were, however, supportive of him. This is not a case where there was violence or drug use in the family home. There is evidence that they were not supporting or believing of allegations of sexual abuse. There is also evidence that he left home very young and took up with the criminal element.
9. I take into account that an adult is generally formed by their childhood experiences. I also take into account that as a consequence of his conviction and sentence, he will not be there in his parents' final years and it is unlikely that he will ever have an opportunity for a face‑to‑face visit.

Assault in custody.

1. I accept that Bagster has been assaulted in gaol more than once. It is a relevant factor on sentence. Although he made reference to what other prisoners said at the time, I could not find that this was extra‑curial punishment.
2. A sentencing Court cannot ignore the lived experience of gaol. Judges must take into account and synthesise all relevant considerations. Even after the injury heals, the prisoner who is assaulted in custody will inevitably suffer anxiety and other concerns as they are being kept in the same type of environment where they were previously assaulted. Even in protection, gaols are nasty, violent places. All prisoners are at risk. They have no control over who they associate with and no control over their immediate safety. If they could not be protected in the past, it requires no imagination to conclude that a person who has been assaulted in gaol will find incarceration at least more worrying than someone who has not.

COVID

1. Bagster has been in custody during the whole of the pandemic. The crisis has increased apprehension by all prisoners about infection in gaols, as it does in the community. Concerns about elderly parents that we all, those of us who are blessed with elderly parents, have, are magnified because nothing can be done for them when you are in gaol.
2. As a community, we have been asked and urged to self‑isolate. This cannot happen in gaol. Social visits have been suspended and only recently reintroduced. There have been increased access to calls and perhaps audio visual links. Prisoners, as the evidence before me shows, are regularly quarantined and locked in cells for extended periods.
3. The offender has endured more than two years of such restrictions. He may face them again. All of those matters must be synthesised and are relevant to the determination of my sentence.

Drug use.

1. Bagster has used alcohol and illicit drugs since well before he was old enough to make rational choices. His life has been blighted by drug use. Ms Grujoska describes this use as a maladaptive coping strategy to deal with trauma experienced as a child and as a result of lack of connection with his parents. She says that his drug use is likely to have impaired his judgment, and those with impaired judgments do not think clearly or rationally.
2. But drug use and abuse cannot excuse what he did, nor is it put forward as an excuse given the offence is not admitted. His drug use and any attempts to reduce the impact of drug use on him remain factors I must take into account when I come to consider his prospects of rehabilitation. He says ‑ and I have no reason to doubt ‑ that he stopped regular use of illicit drugs on about his 50th birthday. I accept there may have been some relapses. In custody he has completed a number of drug relapse programs and benefited from them.

Mental health.

1. Bagster has suffered for most of his life from a number of underlying mental conditions, which were referred to by Ms Grujoska. They helped form the man and were present when he committed this offence. His drug use, his trauma history, his underlying psychological conditions, all go to his capacity for rational thought and his cognitive capacity. His trauma history and the consequences of it, in particular, must be taken into account, in reducing his moral culpability.
2. I do not compartmentalise all these factors. Given the background that is put before me, I can find that his moral culpability is not the same as a person whose background was not marred by the trauma and personal experience he had prior to the commission of this offence.
3. His underlying mental conditions mean that, compared with the hypothetical prisoner who does not have such conditions, his time in custody will be harsher. I note, sadly, that most prisoners do have underlying psychological conditions, but they must be always taken into account.
4. That does not mean that he is not morally responsible for what he did. Far from it. That does not mean that principles relating to general deterrence and specific deterrence do not apply. It does not mean that a retributive sentence should not apply. A retributive sentence is called for in this matter to vindicate the dignity of Ms Birch, the person whose life he took, and signal to others in the community the consequences of behaving as he did.

Efficiency of trial - s 22A Crimes (Sentencing Procedure) Act 1999

1. The trial was conducted in a very efficient manner. Section 22A of the Crimes (Sentencing Procedure) Act 1999 must be considered. In his submissions, Mr Fraser noted a number of factors, but primarily the admissions and the very narrow focus of the trial issues.
2. There was utilitarian benefit in the manner in which the trial was conducted, and Mr Coulton today, on behalf of the Director of Public Prosecutions, fairly notes that it went to the extent of the offender's solicitor facilitating audio visual links by a prosecution witness.
3. I will take those matters into account. For transparency, I will indicate that I have, rather than using a percentage, to facilitate ease of calculation reduced the otherwise appropriate sentence by six months.

Delay

1. The offence occurred in 2011. Bagster was arrested in 2019. He was the focus of the police investigation for a number of years, but it was only on his arrest that he became aware that he was at risk of conviction. He has been on remand for three years exactly, a very lengthy period of time. That period of time and the state of uncertainty he was placed in has to be factored in.
2. Sentencing for a stale crime long after the commission of the offence calls for a considerable measure of understanding and flexibility. It is desirable prosecution authorities act properly. It is also in the public interest that those who are suspected of serious crimes be brought to justice quickly It is also in the public interest, if it cannot be done quickly, that they still be brought to justice:
3. Every case is individual and there is no general principle as to the operation of whether leniency arises from delay: R v Todd [1982] 2 NSWLR 517 at 519: Mill v The Queen (1988) 166 CLR 59 at [14]) & R v Cattell [2019] NSWCCA 297.
4. I must evaluate any factors which might reflect to the offender's advantage or disadvantage. Here, he has had the benefit of eight years' freedom in the community. Some of those years, I accept, he was subject to considerable suspicion, and a number of members of the community expressed those suspicions to him. He also has, during that period, matured sufficiently to understand some of his underlying problems and to take steps to reduce significantly his drug and alcohol intake. Matters that help me formulate an appropriate sentence.

Submissions

1. Mr Coulton, Crown Prosecutor, who took over the matter but had some involvement with the matter, provided written submissions to which he spoke. In his submission, the facts give rise to an aggravating circumstance of gratuitous cruelty. As I could not find beyond reasonable doubt Ms Birch was conscious when placed in the bin, I am reluctant to make a formal finding. Rather, I prefer to go back to my findings as to what I can find was done, and to note that I have reflected on the impact of what occurred prior to death on the deceased, Ms Birch, when I came to formulate my assessment of the seriousness of the offence. Otherwise, apart from referring to some cases and helpfully setting out relevant principles, he relied upon those written submissions, to which I have had regard in formulating this judgment.
2. Mr Fraser in his written submissions accepted that this was a serious example of manslaughter. So far as the facts are concerned, he notes that no Court could be in a position to determine what exactly the offender did. What I am left with and tried to work from, is the evidence of how Ms Birch was found. But precise assessment of what was done to her before that is impossible.
3. I accept his submissions so far as Mr Baxter is concerned.
4. So far as the prior tying of the victim, I did not accept his submissions so far as Ms Williams was concerned. She may have sought to rationalise her own behaviour, but there is more than enough evidence before me to accept that the history of this offender tying up Ms Birch on other occasions.
5. I accept his submissions with regard to facilitation of the administration of justice "[29] In the present case the trial was conducted in an efficient manner. This included: i. Confining the issues in the trial to those actually in dispute ii. The tender of extensive agreed facts iii. Permitting the evidence of several witnesses to be led via the reading of their police statement and without requiring them to be cross examined iv. Permitting the Crown to lead much of the prosecution evidence in circumstances where the personalities of many witnesses was such that it was known that they would be difficult to control and that they may ignore warnings that they not reveal prejudicial (and inadmissible) material that had been included in their statements. v. Not opposing applications that several witnesses give evidence via audio visual link. That included several witnesses who contracted or were suspected of contracting COVID -19 during the trial and so may otherwise have been unavailable."
6. I accept that when the offender was young, he was sexually abused. It is to be expected, as Ms Grujoska concludes, that his development was hampered as a result.
7. I take into account his alcohol and substance use disorder, his major depressive disorder and the post‑traumatic stress disorder, and that his moral culpability has accordingly been reduced.
8. I have had regard to the other cases the Crown referred me to. The consistent application of principle must always be considered, as is the guidance offered by those cases. But particularly in a case such as manslaughter, a crime described as - "protean" ‑ which means "exceedingly variable" - there is no range. Sentencing requires a discretionary judgment, and every case is different. Statistical data is of limited assistance in matters such as this.
9. There must be a significant sentence. A submission was made that I could increase the amount of time that the offender spends on parole by finding special circumstances. The minimum term in gaol must be the minimum necessary to reflect the purposes of sentencing. In the ordinary course, three years would be more than sufficient. But given the pandemic and the fears experienced during it; given the offender's underlying mental health conditions and the need to address the trauma history, which is unlikely to occur in custody; given his need for monitoring and supervision on release; and given that there are signs that before his arrest and in his behaviour in custody, he has some reasonable prospects of rehabilitation; I will allow slightly longer than that period and make a modest finding of special circumstances.

Synthesis.

1. Bagster committed a very serious crime. He must be punished for that crime. The evidence before me indicates that his background contributed to his drug use and impaired his cognitive capacity. He has a criminal history but no history of offending of such seriousness. He had, it seems, moderated his criminal activity and his drug and alcohol use around the time he turned 50. He is presently abstinent and receiving drug abstinence treatment. All those matters will be taken into account.
2. The sentence I impose does not and cannot measure the value of Ms Birch's life. I have to sentence informed by proper principle. My sentence must reflect an adequate punishment, recognise the harm done, and denounce the conduct of the offender. It must reflect the objective seriousness of the offence, take into account his moral culpability, his prospects of rehabilitation, and, if those prospects are met, the unlikelihood of future offending of this type. Any release to parole will be subject to an order of the State Parole Authority, informed by the Serious Offenders Review Council. They will not allow his release if the safety of the community will be jeopardised. His age, his mental health issues, COVID, his underlying trauma, and the need to deal with that trauma must all be taken into account, but they cannot divert the Court from imposing a sentence which properly reflects the part the law must play in upholding the protection of human life and punishing those who take it.
3. Jane Birch was a lively, vivacious woman. She had many problems in her life. At the time of her death, she was looking forward to some stability. The offender's actions cut that life short. She was affected by drugs, but those drugs did not cause her death; the actions of the offender did. He did not seek help for her. He tied her and he placed her, still tied, headfirst in a wheelie bin. His actions demeaned her both in life and death. He did not care for her. His actions resulted in her death, and for that he must be punished.
4. Had it not been for his assistance, I would have imposed a sentence of 12 years' imprisonment. The sentence is one of 11 years and six months. To give rise to it, I make a modest finding of special circumstances, but the minimum term must reflect all the purposes of sentencing, particularly the seriousness of the offence.

Orders

1. The formal orders of the Court are that you are convicted. There will be a non‑parole period of eight years which will date from 1 October 2019, making you eligible for release to parole on 30 September 2027. That release will be contingent on good behaviour and the State Parole Authority being satisfied of community safety. I suspect you will also be speaking to the Serious Offenders Review Council.
2. The balance of the term is one of three years and six months, reflecting a modest finding of special circumstances. The parole period commences on 1 October. The total sentence should then expire on 30 March 31.

Amendments 08 December 2022 - Typographical error in appearances 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: 08 December 2022