R v Bretherton

Circumstances of the offence 4The undisputed facts, which I find beyond reasonable doubt, are as follows. 5The offender and the deceased had been in a relationship for approximately ten years. During that time they had separated and reconciled on a number of occasions. The most recent period of separation commenced in October 2010. In May 2011, they decided to try to resurrect their relationship. 6At the time of the offence, the offender and the deceased were seeing a counsellor. The deceased was still residing at a property at Bellbird Heights that they jointly owned, while the offender was living at Telarah. He stayed regularly at the Bellbird Heights address as the house was on the market and he was doing work around the property. It was sold on 8 November 2011. Settlement was due on 13 December 2011. 7There had been ongoing arguments between the deceased and the offender about a property settlement. They also jointly owned a house in Queensland. It had been proposed that the offender would keep the proceeds of the sale of the Queensland house and the deceased would keep the proceeds of the sale of the Bellbird house. However the offender was not content with that arrangement and wished to revisit it during the week preceding the offence. 8The relationship was characterised by the offender's intense jealousy of the deceased's close relationship with her family. This was referred to in evidence during the trial as a feud, although that description is not entirely apposite. The offender apparently continually sought to limit the frequency of the deceased's contact with them, as he did not like her talking to members of her family on the phone or visiting them as she wanted. There was some evidence that the offender had been physically violent to the deceased during the course of their relationship. She complained to several witnesses that he had hit her, kicked her and slapped her, and that it was worse when he was drinking. 9At about 7:35pm on 16 November 2011, the next door neighbour was outside her house having just arrived home from work. She heard loud voices of the offender and the deceased and loud banging coming from their house. She described hearing the deceased screaming hysterically. She ran inside and called "000" telling the operator that she was very frightened for the deceased and admitted she had heard similar things on previous occasions. 10Inside the house, the offender had also called "000". He told the operator that the deceased at that stage was bleeding, but still breathing. He was told to obtain a cloth or towel. He was asked if "the offender" was still nearby and he replied, "Yes". He was also asked if he knew who that person was. He replied "Yeah me". He told the operator the deceased had been stabbed several times in the chest and abdomen. 11Police arrived around 7:55pm. Constable Nicholson had drawn his taser and the camera device was active. On entering the house the police found the deceased in the main bedroom. She was lying on her side. The offender was kneeling beside her body. The floor was stained with a large quantity of blood. Constable Rowe asked, "Fucking hell, who did this?" The offender calmly replied, "It was me". Police directed him to move away from the body and lie face down on the ground. He told police that the knife he used was at the feet of the deceased. He appeared calm and responsive. 12Ambulance personnel arrived but due to the extent of blood loss were unable to revive the deceased. A crime scene was declared. There was physical evidence of a violent struggle, including holes to walls and a quantity of blood. The deceased suffered 12 stab wounds, four to her back, seven to her torso, and one to her cheek. There were additionally defensive wounds to her hands and fingers. One of her fingers had been dislocated. Only two of the wounds were capable of causing death.

Additional findings of fact 13It is difficult, if not impossible, to know precisely or even generally what it was that precipitated the offender's violent and fatal attack upon the deceased. As already indicated, they had been in a long-term relationship, which had recently come to an end. They were in the process of extricating themselves from the proprietary and monetary circumstances that linked them, and had each engaged solicitors for that purpose. There was some ongoing tension between them that was apparently connected to the uncertain conclusion of their mutual affairs, but there had been no indication that it would or might lead to violence of any sort. Nothing in the evidence contained the slightest foreboding of what ultimately occurred. 14The offender did not give evidence at the trial or at the sentencing hearing. The only subjective insight into what may have motivated him must therefore be gleaned from his reports to medical practitioners qualified for the purposes of the proceedings, in particular with respect to the partial defence of substantial impairment. 15The offender gave a history to Dr Canaris when first interviewed by him. It is recorded on pages 11-12 of Dr Canaris's 20 August 2012 report in the following terms: "At the time the [offender] was living in Maitland. I gather he was together with his wife who asked him 'if we could go down the road' and 'get some tea'. He had not wanted to go to Cessnock 'in case I saw her family'. He drove to Rutherford near Maitland to get some food thinking all the while 'this is wrong buddy, I'm staying out of town to avoid the feud' - I came back to Bellbird - I had a few beers - Jodie put the tea on - I was having a few beers - I was just relaxing - she came in and said, 'I want to talk to you - what do we do with the money from the sale of the place' - I just said it goes fifty-fifty - then a huge argument started just about everything in the relationship - she said she wanted nothing to do with my family - I said what do we do about my family - I don't know how long the argument went on for - I tried to ring her parents to sort things out - I couldn't get on to them - I've walked into the bedroom - it's back and forth - by this stage I was really fuming - she said something to me - I don't know what she said - I came to - I got a knife and I was stabbing her - [I thought] what the fuck do I do - there was a big spurt of blood coming out of her stomach - I rang 000...I gone back to try and help her..." 16It is evident from the jury's verdict that they were satisfied that the offender was capable of forming an intention either to kill the deceased or to inflict grievous bodily harm. The offender does not contest for present purposes that it was clearly open to the jury to find him guilty of murder upon the basis of either intention. However, both counsel conceded that the only material that informed a choice between the two was to be found in the physical circumstances that surrounded the death. That is so even despite the (limited) additional detail contained in the offender's account to Dr Canaris. 17It was submitted by counsel for the offender that whereas the stab wounds were self evidently numerous, and the attack in the course of which they were inflicted was frenzied, the intent was consistent with an intention only to inflict grievous bodily harm and that I could not be satisfied beyond reasonable doubt that the offender intended to kill the deceased. The submission was in essence to the effect that the choice available upon the evidence was between two competing possibilities of equal probability and that in the absence of any material persuasively favouring one above the other, I could not find beyond reasonable doubt that the offender stabbed the deceased with the intention to kill her. 18That submission was supported by the (not altogether settled) proposition that an offence involving an intention to kill is generally more serious than one involving only an intention to inflict grievous bodily harm. I briefly examined the different possible views about this issue in R v Kristi Anne Abrahams [2013] NSWSC 952 at [25] - [27]. Accordingly, on the basis of what was said by the High Court of Australia in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14], citing R v Isaacs (1997) 41 NSWLR 374, as findings of fact made against an offender must be arrived at beyond reasonable doubt, any reasonable doubt must be resolved in favour of the offender. The practical effect of that approach, if an intention to kill is generally to be regarded as more serious than one involving only an intention to inflict grievous bodily harm, would therefore oblige me in this case to sentence the offender upon a view of the facts most favourable to him, or relevantly for present purposes, upon the basis that he killed the deceased with no more than an intention to cause grievous bodily harm. 19I am therefore unable to find beyond reasonable doubt that the offender relevantly formed an intention to kill the deceased. Put another way, I am unable to find, consistently with the jury's verdict, that the offender killed the deceased with any greater intention than to inflict grievous bodily harm. I would hasten to add, however, having regard to the violent and sustained nature of the offender's attack upon the deceased, that the difference between the level of seriousness of the offence of murder committed with at least an intention to cause grievous bodily harm and the level of seriousness of the same crime committed with an intention to kill, is in the particular circumstances of this case only slight. 20I am satisfied on the balance of probabilities and I find, consistently with the jury's verdict, that at the time the offender killed the deceased he was suffering from an abnormality of mind that substantially impaired his capacity either to understand events or to control himself. Whereas it is once again not possible to be certain, it seems to me, having regard to the medical evidence, that the jury's verdict was more probably than not the product of a disinclination to apply the community standards test in favour of the offender, so as to reduce the verdict from murder to manslaughter, rather than an anterior rejection of a substantial impairment by reason of an abnormality of mind arising from an underlying condition. Howsoever the jury may have reasoned in fact, which is of course completely irrelevant in the present context, their ultimate conclusion is on the evidence wholly consistent with a finding that the offender suffered from an abnormality of mind that substantially impaired his capacity to understand events or to control himself. In summary I find that the jury could not, acting reasonably, have rejected the offender's medical history or the opinions of the experts. The jury must have accepted that an application of community standards did not permit them to reduce the offender's liability from murder to manslaughter. 21There appears to be no medical contest that the offender was suffering from depression at the time of the killing and had been suffering from that condition for at least a short period prior thereto. He had been prescribed medication for it. There is a dispute about whether the offender was suffering from mild depression, which Dr Skinner favoured, or something more serious, which Dr Canaris favoured. 22In this respect Dr Skinner expressed the opinion in her principal report that it was "probable that [the offender's] judgment and decision making was impaired by depressive illness, further complicated by the use of alcohol." Dr Skinner indicated in a supplementary report that by "judgment" she meant the act of comparing and evaluating choices to decide on a course of action. Dr Skinner went on to say that persons suffering from depression have pervasive alterations of mood so that they perceive events in a negative light, out of proportion to the situation. Their judgment may be compromised by their mood state so that they are less able to understand a situation correctly and to act appropriately. The use of alcohol compounds the situation and may lead to impairment of the ability to behave in an appropriate and mature manner. 23Dr Skinner had earlier expressed the following opinion about the offender: "I consider that Mr Bretherton has an obsessional-compulsive personality style characterised by preoccupation with orderliness. This is demonstrated by his own account of his lifestyle and by his diary. He has a rigid personality style with inflexible ideas and is concerned about maintaining control. I believe that Mr Bretherton's personality is better described as obsessional-compulsive personality style. I do not consider that he meets the criteria for diagnosis of an autism spectrum disorder." 24Dr Skinner went on to say this: "In my opinion Mr Bretherton might have a defence at law available to him, based on the diagnosis of depression that he suffered from about October 2010 or earlier. According to the history provided by him and supported by the counselling records, he would have been depressed around the time of the alleged offences. He was experiencing multiple stressors...He attended counselling. He consulted his general practitioner who prescribed anti-depressant medication. It is probable that his judgment and decision making was impaired by his depressive illness, further complicated by the use of alcohol." 25Dr Canaris provided a very long report and gave evidence at the trial consistently with what he had written. He offered the following summary: "To summarise, I believe that [the offender] suffers from lifelong Asperger's disorder with current comorbid major depressive disorder. His major depressive disorder is currently in partial remission. However, it was very likely active at the time of the killing. There is evidence at the time of the killing of comorbid alcohol abuse and possible dependence though this is clearly in remission if for no other reason than the fact that he has no access to alcohol in gaol. He warrants further testing to exclude frontal/executive cognitive impairment arising from perinatal brain injury and/or alcohol related brain damage." 26Having regard to my earlier finding on the balance of probabilities and consistently with the jury's verdict, that at the time the offender killed the deceased he was suffering from an abnormality of mind that substantially impaired his capacity either to understand events or to control himself, I also find that the underlying condition that had that result was depression associated with an obsessive-compulsive personality style. I am unable to be satisfied that the offender also suffered from an autism spectrum disorder or that any such disorder, even if it existed, substantially impaired his capacity either to understand events or to control himself. 27I am also satisfied on the balance of probabilities and I find, consistently with the jury's verdict, that even though at the time the offender was intoxicated when he killed the deceased, the effects of that intoxication were not such as to deprive him of the availability of the partial defence of substantial impairment by abnormality of mind. He had consumed "five or six beers" and a tumbler of wine. His call to the "000" operator is in evidence, as is his reaction to the police when they entered the bedroom following the stabbing. The evidence otherwise reveals that the offender was able to respond to the operator's advice to use a towel for the purpose of attempting to staunch the flow of blood from the wounds that had been inflicted. The evidence from the police that the offender was moderately affected by the consumption of alcohol is on the one hand not capable of scientific verification or elucidation by reference to either an analysis of the offender's blood alcohol content at the time or scientific opinion of what would have been the likely effect upon him of the consumption of an established or assumed quantity of alcohol. On the other hand, the description "moderately affected by alcohol" does not foreclose the possibility that any impairment of the offender's capacity to understand events or to control himself was the result of the underlying condition or conditions that I have found he had.

Subjective matters 28The offender would appear to have had a less than happy childhood. He was born in Gosford on17 April 1975 and was accordingly 38 years of age at the time of his trial and 36 years of age at the time of the offence. He attended Kanwal Public School until Year 3. He then moved to Sydney and attended Ermington Public School and later Marist Brothers in Parramatta. He finished school at St Patrick's College in Dundas in Year 10. 29The offender had a history of learning difficulties although he was mostly managed in the mainstream classes, apart from a period in a slow class in Years 4 and 5. He is able to read and write. He was required to see the school counsellor on occasions throughout his school career. He described being bullied at school and having very few friends. 30The offender's parents separated during his early childhood and divorced when he was aged about seven or eight years of age. He has little if any contact with either of his parents. He denied being exposed to domestic violence or other major problems in his family. He reported a history of sexual abuse to Dr Canaris. 31He worked as an apprentice plumber with his father after leaving school at the age of 16 years. He continued to work in that trade until the age of 21, when he moved to Queensland for a period of about four years. He has since lived in Cessnock and the surrounding areas since the age of 26 years. He described himself as a good worker, although he sometimes had some problems fitting in with workmates. 32His first relationship was at around the age of 18 years in Queensland. He had had a few other relationships before he met the deceased in about 2001. His relationship with her, and with her family, was fraught with difficulties, to which further reference is made later in these reasons. 33The offender has had a significant alcohol habit throughout his early twenties and thirties, including up to the date of the offence. He drank on average six beers per day, sometimes also drinking a bottle of wine at the same time. He occasionally went on drinking binges of up to 20 beers at a time. He was not a smoker or a user of illicit drugs. 34The offender's sister Toni Dibb gave evidence at the trial. She is six years older than him and lives in Sydney. She had also provided Dr Canaris with a history that partly formed the basis of his diagnosis of autistic spectrum disorder. Ms Dibb spoke of how the offender had no friends as a child. No one would come to their house to play and the offender would not go to other children's homes either. 35Ms Dibb's recollection of the offender in recent times included what she considered amounted to an obsession with the deceased's family. Whatever may have been the genesis of the problem, the offender was unable to speak to his sister without at some point raising that issue. It was a matter that he was clearly unable to let go of or to resolve. Whether the offender's issues with the deceased's family were a function of his own personality or their response to it is not easy to discern. 36In this last respect it should be observed that members of the deceased's family also found him to be different. The deceased's parents and her brother gave evidence at the trial concerning specific incidents involving the deceased in which his reactions to ordinary situations and social settings appeared to be completely inappropriate. There is no doubt that the deceased's family found it hard to get close to the offender. The reverse was also true. 37The respective diaries of the offender and the deceased cast some light upon the difficulties that existed between them. The offender appears constantly to be controlling the deceased, or attempting to do so, by removing the SIM card from her phone so that she could not call her family when they were on vacation and by attempting to restrict her visits with them at other times. The deceased's frustrations at all of this emerge clearly from her writings and complaints to friends about the offender and his never-ending ruminations about her family. This obsession appears from material tendered on sentence from the prison chaplaincy service to be continuing right up to the present time. 38All of this notwithstanding, the offender would appear to have engaged successfully in continuous employment in difficult and important work in various capacities within the mining industry. This includes working on continuous miners, road headers, shuttle cars, Eimco loaders and similar plant at various mines in New South Wales for approximately ten years prior to his arrest. The offender and the deceased were together throughout the same period.

Mitigating factors 39The offence was not part of any planned or organised criminal activity. It would appear to have been a spontaneous uncontrolled over-reaction to a domestic dispute that was to all outward appearances being handled in an ordered fashion by the solicitors engaged by the deceased and the offender. I do not accept the fact that the offender appears to have gone to the kitchen to obtain the knife used in the fatal attack operates to modify that conclusion in any way. 40The offender does not have any record of prior convictions. The Crown contended that he could not, however, be considered to be a person of good character to the extent that the evidence suggests that he had been violent towards the deceased on earlier isolated occasions. I note that despite complaints by the deceased that the offender had occasionally physically mistreated her, this would appear never to have resulted in a complaint to the police or, as far as the evidence goes, to have been observed or detected by the deceased's family. Without in any way wishing to derogate from the seriousness and unacceptability of any form of domestic violence, the evidence is relatively scant, and not sufficient to deprive the offender of a finding that he was otherwise a person of good character. 41I am unable to find that the offender is unlikely to reoffend or that he has good prospects of rehabilitation. Correspondingly, I am unable to find that he is likely to reoffend or that his prospects of rehabilitation are poor. The somewhat enigmatic nature of the subject offence, committed against a background of the offender's mental condition, makes any prediction about these matters particularly speculative and of little value. 42An offender's remorse is available to be taken into consideration as a mitigating factor but only if he has provided evidence that he has accepted responsibility for his actions. There is no doubt that the offender has admitted responsibility for the physical acts that killed the deceased. He has not provided evidence that explains what he did or why he did it. The offender did not choose to give evidence at the sentencing proceedings, which might have informed these outstanding questions. It is not possible in such circumstances for me to be satisfied on the balance of probabilities that the offender has shown or demonstrated any remorse at all. In forming that view I have taken into account the fact that the offender reported the matter to the police immediately and has not sought to deny his involvement in the death of the deceased. His plea of guilty to manslaughter is a formal manifestation of that. 43I should also observe that the offender's ability to show or to express contrition or remorse is likely to have been significantly impeded by the personality traits and characteristics that the evidence so clearly described. One of those was the medical opinion that the offender was unable to identify with or understand any point of view that was different to his own. He was found to have a fixed and rigid approach to ideas and concepts and was inflexible in his attitudes and interactions with others. The so-called feud with the deceased's family was one obvious manifestation of that personality style. It would not surprise me if his plea of not guilty to the murder of the deceased, in the face of what on any view was a very strong Crown case, were another. If genuine remorse includes the recognition and acceptance of the damage caused to others by a person's actions, it is probably absent in this offender. However, even though such an absence of remorse is not an aggravating factor, it is nevertheless important in the offender's case that his apparent lack of it is not misunderstood and thereby improperly counted against him. 44The offender is also entitled to the benefit of s 22A of the Crimes (Sentencing Procedure) Act 1999 having regard to the degree to which the administration of justice has been facilitated by his conduct at trial. The case was effectively conducted around the single issue of substantial impairment by reason of abnormality of mind. That had the consequence of limiting the issues upon which evidence was required, the number of witnesses that needed to be called, the length of the trial as a consequence, as well as the time needed for addresses to the jury and my summing up.

Aggravating factors 45I do not consider that the offence was accompanied by any special aggravating factors that are not otherwise subsumed within the offence itself. The fact that the offence took place in the home of the deceased does not in the present case operate as an aggravating feature of the offence. The Crown contended that the offender abused a position of trust or authority in relation to the deceased and that the offence was aggravated as a result. I do not accept that submission.

Objective seriousness 46Having regard to all relevant factors, I consider that this offence falls to be considered as slightly below the middle of the range of objective seriousness for offences of this type.

Special circumstances 47I do not consider that there are any special circumstances that support a variation of the statutory ratio between parole and non-parole periods. Having regard to the length of the sentence that I propose, the period during which the offender will be supervised on parole will be more than adequate to accommodate any particular issues requiring attention. I include in that category any matters that relate to the offender's personality disorder or depression. The former is likely to be ever present and the latter seems historically at least capable of responding favourably to medication.

Deterrence 48There is necessarily considerable tension between the concepts of special and general deterrence on the one hand and offences with the particular characteristics of the subject offence on the other hand. A murder committed in circumstances of an apparent and spontaneous loss of control, such as here, does not confidently invite a conclusion that the offender ever contemplated the possible or likely consequences of his actions at the time or at any time beforehand. It is therefore difficult to see how a similar uncontrolled response to equivalent influences or events in the future is likely to be moderated or constrained by some quiet but timely reflection upon the prospect of a return to prison. 49Having said as much, I accept that public denunciation of crimes of this type is important. I have taken the need for deterrence into account in forming my views on what is a proper sentence in this case. However, while it is always a question of degree, general and specific deterrence play a lesser role in sentencing offenders with a mental condition: R v Scognamiglio (1991) 56 A Crim R 81; R v Champion (1992) 64 A Crim R 244; R v Engert (1995) 84 A Crim R 67; R v Hemsley [2004] NSWCCA 228; DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177].

Comparable decisions 50I was very helpfully referred by counsel for the offender to a comprehensive list of comparable cases. I have had regard to that list, particularly R v Toki [2003] NSWCCA 125 and to the equally helpful review of a series of decisions contained in the judgment of Hidden J.

Victim impact statement 51A victim impact statement from the deceased's mother was read aloud by her to the Court. She spoke of her own reaction to the death, as well as that of the extended family. All of these people would appear to be labouring with the burden of grief in various and personal ways. The death of the deceased is undoubtedly a terrible and unending fact of life for them and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of her family and friends who remember her. I am, however, mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them.

Consideration 52The murder of the deceased was violent and unpremeditated. The events surrounding her death suggest an unexpected and largely unexplained loss of self-control, probably associated with anger provoked by disagreement about unresolved financial issues emerging as a consequence of the end of a long-term relationship. It was an isolated incident, even though the evidence suggests prior examples of low-level violence from time to time throughout the relationship. However, the death of the deceased does not appear to represent the culmination of escalating violent conduct on the offender's part. 53Also necessarily to be factored into any consideration of these tragic events is the part played by the offender's mental condition. At one level I can well understand and accept that those close to the deceased who survive to endure the loss of their loved one might feel less than sympathetic to the notion that the offender should receive any benefit in these proceedings from his underlying mental condition. From their point of view, the offender's actions are unforgivable and he should be dealt with accordingly. On the other hand, there is potentially some solace to be found in the fact that the acts that killed the deceased are only explicable as a significant departure from normal behaviour, arguably the result of some supervening medical condition, and that any explanation for them is better than a painful and unending vacuum of uncertainty. 54The evidence from Dr Skinner makes it clear that the offender's judgment and decision-making were probably impaired at the time he killed the deceased. To the same effect, Dr Canaris was of the opinion that the offender's depressive illness was very likely active at the time of the killing. Even though the jury rejected the offender's defence of substantial impairment by abnormality of mind, it does not follow that I am not entitled to find from the evidence, as I have, the existence of some impairment of the offender's responsibility or culpability for his actions short of that which a defence pursuant to s 23A of the Crimes Act 1900 requires. 55I note in this respect the comments of Smart AJ in R v Cheatham [2002] NSWCCA 360. That was a case in which the offender unsuccessfully sought to appeal against a sentence of 24 years imprisonment, with a non-parole period of 16 years, that he received for murdering his wife. At [134] his Honour said the following: "[134] At the forefront of any consideration of penalty must be the murders of the appellant's wife and elder daughter and his wounding of his younger daughter with intent to murder her and the savagery of what he did. The appellant failed to satisfy the jury that his abnormality of mind substantially impaired his mental responsibility. However, allowance has to be made for the abnormality of mind from which he was suffering and that but for this it is unlikely the stabbings would have taken place." 56It does not appear to me to be surprising that the partial defence raised by the offender did not succeed in this case. I can well understand why a jury might have considered that the impairment by abnormality of mind afflicting the offender was not so substantial as to warrant his liability for murder being reduced to manslaughter. That does not, however, detract from the significance of my finding, based upon the whole of the evidence, including the learned opinions of the psychiatrists on both sides, that the offender was suffering from an abnormality of mind for which some appropriate allowance must be made in arriving at a proper sentence. I am equally satisfied that, but for his abnormality of mind, it is unlikely the stabbing of the deceased would have taken place.

Sentence 57Robert Bretherton, for the murder of Jodie Jurd you are convicted. I sentence you to a term of imprisonment of 21 years with a non-parole period of 15 years and 9 months commencing on 16 November 2011 expiring on 15 August 2027 with a balance of term of 5 years and 3 months commencing on 16 August 2027 expiring on 15 November 2032. The first date upon which you will become eligible for release on parole is 16 August 2027.

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: 19 September 2013