R v Cullen

Supreme Court of NSW|2015-06-11|Before: Harrison J

remarks on sentence

HIS HONOUR: The deceased Victoria Comrie Cullen died on 22 January 2014 at Taren Point as the result of severe knife wounds sustained in the course of a ferocious and sustained attack upon her by Christopher Cullen. The deceased was the wife of Mr Cullen and the mother of three of his children. They had been separated since about October the previous year and were in the early stages of litigation about issues that were generated by the breakdown of the relationship.
On 2 June 2015 Mr Cullen was found guilty by a jury of the murder of his wife following a three week trial. Mr Cullen had pleaded guilty to manslaughter for causing her death but the Crown declined to accept that plea in satisfaction of the single charge on the indictment.
The offence of murder carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period. Similarly, I am not required to make an assessment of whether or not the offence is within the mid-range of objective seriousness (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions generally, and the provisions of ss 54B(2) and (3) and 21A of the Crimes (Sentencing Procedure) Act 1999 in particular, require an approach to sentencing in which all of the relevant factors are identified, and a judgment is reached as to the appropriate sentence having regard to such factors (see Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]). The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27] and [31]).

Factual findings

I acknowledge that my fact-finding role is that described in Isaacs v R (1997) 41 NSWLR 374; (1997) 90 A Crim R 587. I am required to find the facts material to the sentence. To the extent that my findings are based on facts led at the trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. A judge's finding of facts upon which the sentence is based is, "both on what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196].

General background

I am satisfied beyond reasonable doubt of the following facts.
Mr Cullen was born in the United Kingdom in October 1963 and was 50 years of age at the date of the offence. The deceased was also born in the United Kingdom in November 1974. She was aged 39 years at the date of her death. Mr Cullen and the deceased met whilst holidaying in Australia in 1997 and commenced a relationship soon thereafter. They were married in Fiji in February 2000. In September 2011 they moved to Australia and were subsequently each granted permanent residency here. There are three children of the marriage born respectively in 2003, 2006 and 2008.
By October 2013 the relationship between the deceased and Mr Cullen had deteriorated to the point where the deceased had ceased to reside with her husband and had moved out of the family home. She initially stayed with friends but later secured premises of her own in an apartment block at 53B Auburn Street, Sutherland. The deceased was at that time employed as a beautician at a salon in Sylvania Waters. Mr Cullen remained living with the children at Sylvania Waters only a short distance from the salon.
The separation and the deterioration in the relationship between the deceased and Mr Cullen spawned legal action in October 2013 in both the Local Court and the Family Court.
On 1 November 2013 Mr Cullen attended the salon where the deceased was working and proceeded to write large signs that were displayed nearby saying that the deceased was sleeping with her clients and was a bad mother. Police attended on this occasion and Mr Cullen was told to move on.
On 10 November 2013 the police applied for and were granted a provisional Apprehended Violence Order naming the deceased as the person in need of protection. However, the evidence from a domestic violence liaison officer to whom the deceased was referred, and the police entries relating to her complaints to them, do not establish that she had been the subject of violence at the hands Mr Cullen. On the other hand, evidence from the deceased's friends and work colleagues suggested that Mr Cullen had been violent and had made serious verbal threats to her during the marriage and even after the separation. As late as the day of her death there were continuing disputes between Mr Cullen and the deceased. The deceased had made appointments with clients for the day that she died.
At 9.30 am on 22 January 2014 Mr Cullen and the deceased attended the Sutherland Local Court in relation to a civil claim filed by Mr Cullen regarding damage to his car. Mr Cullen had obtained a default judgment against the deceased which the Registrar set aside. The matter was listed on a later occasion for a pre-trial review. CCTV footage clearly depicts the events at the Local Court on that morning. They include scenes depicting the deceased and Mr Cullen sitting together in the waiting area outside the court, entering the courtroom and sitting separately, sitting at the bar table during the proceedings and then leaving the court thereafter. Footage exposed inside the court shows Mr Cullen leaving ahead of his wife without speaking to her. Images captured outside the court complex show the deceased leaving the building behind Mr Cullen. No words are spoken between them.
The evidence thereafter makes it clear that the deceased drove back to her apartment in Auburn Street, Sutherland, which was only about 500 metres from the court. She drove from the street down the common driveway and parked her car in her garage underneath the apartments. Mr Cullen followed her there in his car and also drove down to the garage area underneath. Evidence from neighbours in the surrounding apartments establishes that screams of pain were heard to emanate from the garage area. Mr Cullen assaulted the deceased in that area, breaking her nose, and forced her into the boot of his car. Later examination of the deceased's garage and motor vehicle established the presence of her blood on the garage floor and on her car. Papers referable to the legal proceedings in the Local Court were found scattered on the garage floor beside the deceased's car.
Mr Cullen then drove his white Hyundai motor vehicle out of the garage area of the apartment complex with the deceased in his boot. That would appear to have occurred at some time close to or around 10.30 am. Mr Cullen subsequently drove to the Boating, Camping and Fishing store at Taren Point. CCTV footage at that location shows Mr Cullen parking his car in the car park and entering the store. The deceased was at that time still trapped in the boot of his car.
Additional CCTV images captured inside the store show Mr Cullen purchasing a packet of two fishing knives and a black shirt. He proceeded to the cash register and paid for these items. He was issued with a receipt that contained a description of these items as well as his name. Mr Cullen left the store with his purchases and returned to the car. He then drove away from the car park at approximately 12.20 pm.
Between approximately 12.30 pm and 1.00 pm Mr Cullen drove to the St George and Sutherland Shire Anglers' Club on the shores of Woolooware Bay at Taren Point. He was a member of that club. Its premises are located in a small reserve at the end of a service road about 400 metres long controlled by a locked boom gate to which Mr Cullen had a key. Later that afternoon the body of the deceased was discovered on an area of lawn adjacent to the clubhouse. She was found slumped forward face down in a kneeling position with her arms in front of her and her head on the ground. Examination of her body revealed that she had sustained several stab and slicing wounds to her body and throat. The deceased was left handed and she also sustained a series of sharp force injuries to that hand that were consistent with defensive injuries. She also sustained a series of blunt force injuries.
Mr Cullen's car was parked a few metres away from the body of the deceased. It was spattered and smeared with both his blood and that of the deceased. The deceased's blood was also found in the boot of the car, together with some remnants of her hair, and blood soaked tissues containing traces of mascara. The two fishing knives that Mr Cullen had purchased earlier that day were located on the ground a few metres or so from the driver's side of his car.
As the result of a call to emergency services, the police and ambulance personnel attended the scene at about 2.30 pm. At approximately 3.17 pm that afternoon police officers were alerted by the sound of moaning and saw Mr Cullen emerging wet and shivering from an area of mangroves lining the shore. He was wearing a black shirt and was suffering from the effects of a series of self-inflicted wounds to his chest, abdomen and wrists. His left lung had been punctured and had collapsed and he was suffering from subcutaneous emphysema, a condition caused by the internal entrapment of escaping air from his punctured lung.
Mr Cullen was arrested at the scene and charged with the murder of his wife. He has not at any time disputed that he killed the deceased using one or both of the fishing knives purchased by him earlier that day.

The trial

Because Mr Cullen pleaded guilty to the manslaughter of the deceased, the trial was conducted upon the basis that there were only two fundamental issues in dispute. They were whether the Crown could satisfy the jury beyond reasonable doubt that in killing the deceased Mr Cullen acted neither in self-defence nor under provocation. Mr Cullen's plea also carried with it the consequence that there was no issue that his actual response to any real or perceived threat was excessive, quite apart from the anterior issue of whether or not the jury were otherwise satisfied he had acted in self-defence in the first place.

Intention

I am satisfied beyond reasonable doubt that Mr Cullen intended to kill the deceased. Even though the possibly different sentencing consequences of a finding that he intended only to inflict grievous bodily harm may be insignificant in this case, I am satisfied that Mr Cullen decided, from a point no later than his decision to purchase the fishing knives, that he had in mind a plan to take the deceased to the Taren Point location and kill her. It is apparent that Mr Cullen was physically capable of overpowering the deceased without the need to use a weapon. I consider that the fact that he was able to force her into the boot of his car bears eloquent testament to that proposition. Secondly, and in a related sense, I consider that Mr Cullen purchased the knives in order to kill the deceased and not merely to inflict non-lethal injuries with them. Thirdly, as was conceded by his counsel during the trial, the attack upon the deceased was frenzied. The multiplicity and severity of the sharp and blunt force injuries to the deceased are indicative of a brutal and sustained attack upon her and as such wholly inconsistent with an attempt only to cause injury or harm falling short of death. Fourthly, Mr Cullen took the deceased to a location that was either deserted or at least not the subject of large amounts of passing pedestrian or vehicular traffic at which he could kill the deceased in relative seclusion and privacy. That would not have been necessary if he had wanted to do no more to the deceased than he did in fact at the Auburn Street garage.
There is no basis for a finding that Mr Cullen decided to kill the deceased any earlier than some time on the day that she was killed. Mr Cullen did not have the knives or any other lethal weapon with him when they arrived at the Sutherland Local Court that morning. That also applied to the events in the car park at Auburn Street. I accept that this supports the proposition that when Mr Cullen arrived at those premises that his fatal attack upon her had not been premeditated. The duct tape and rope found in the boot of his car were not used to restrain the deceased while she was in it. It is possible that Mr Cullen had decided to kill the deceased at about the time that he assaulted her in the garage of her home but there is no satisfactory evidence to support such a finding. I am however satisfied that Mr Cullen had formed the intention to kill the deceased by the time he arrived at the Boating, Camping and Fishing store where he purchased the knives.
The Crown was not required to establish that Mr Cullen had any specific or other motive to kill the deceased as part of its case at trial. However, I consider that the evidence establishes beyond reasonable doubt that the deceased was killed as the result of considerable frustration and resentment built up over time secondary to the breakdown of the marital relationship between Mr Cullen and the deceased. The deterioration in the relationship came to a head in late 2013 when the deceased left the family home. Mr Cullen was then confronted with the day to day care of their children as well as a dispute about custody and access arrangements for them. Mr Cullen accurately suspected that the deceased was in a sexual relationship with another man, and the couple exchanged heated text messages throughout the period between the separation and her death. The temporarily unfavourable result in the Local Court proceedings on the day of the murder appears to have been the final straw in the accumulation of this resentment and frustration that led directly to the death of the deceased.
It is apparent that the jury entirely rejected any suggestion that the death of the deceased was the result of, or was in any way connected with, self-defence. That is in my view entirely consistent with the evidence at the trial. Any suggestion that Mr Cullen was defending himself from any real or perceived threat from the deceased realistically stands or falls with a finding that he sustained a wound inflicted by the deceased. Such a suggestion seems in the circumstances of this case to be wholly unbelievable and it is unsurprising that the jury rejected it outright.
It is equally clear that the jury was satisfied that the Crown had negatived provocation as a defence, although it is less clear which of two possible courses to that result they followed. Doing the best I can it seems probable that the jury concluded that Mr Cullen was provoked to the point of loss of self-control by what he perceived to be the words and conduct of the deceased over time in the latter stages of their marriage, even though the deceased was doing no more than acting reasonably as one party to a relationship who wished, and who was perfectly entitled, to bring it to an end. A finding that Mr Cullen was, or may have been, provoked by the deceased is not to be confused with a finding that she provoked him intentionally or maliciously or for some spiteful or hurtful purpose. The words and conduct of the deceased in this case were no more and no less than the understandable and expected reaction of any woman or man in her position. The fact, if it be the fact, that Mr Cullen was provoked by the deceased is not any reflection upon her so much as it is an indication of Mr Cullen's own inability to deal with his situation in an ordered and civilised way. Marital breakdown and collateral discord are well documented causes of anger and frustration across an extreme range of variations from what is normal and acceptable at one end to what is violent and unacceptable at the other. Mr Cullen's reactions were clearly and tragically at one extreme.
Whatever conclusion the jury may have formed on this aspect of the provocation equation, I am satisfied that Mr Cullen's response clearly exceeded the response of an ordinary person with his capacities and capabilities in his position. I am satisfied beyond reasonable doubt upon all of the evidence that an ordinary person in Mr Cullen's position would not have responded as he did to anything said or done by the deceased at any time during the latter stages of the marriage. I am satisfied, consistently with the jury's verdict that the conduct of the deceased was not such that it could have induced an ordinary person in Mr Cullen's position to have so far lost his self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon the deceased, whether the conduct of the deceased occurred immediately before the acts causing death, or at any previous time.

Subjective circumstances

Mr Cullen was born in 1963 in the United Kingdom and is now 52 years of age. Apart from the details concerning his marriage to the deceased to which I have earlier referred, I am only aware that he was a self-employed carpenter and a member of the St George and Sutherland Shire Anglers' Club where he regularly went fishing with his children.
I have not been provided with any expert medical, psychological or psychiatric reports or other material detailing Mr Cullen's background, his childhood, his early or later life experiences or other information or material upon the basis of which to form any opinions about him at all. This also includes his custodial experience since his arrest, his medical status, and any matters specifically affecting or relating to his period on remand. Apart from the available details of his criminal record, referred to later, I am therefore unable to express views about Mr Cullen's personal situation in any relevant or reliable way.

Aggravating factors

Mr Cullen has no criminal history in Australia although he does have a criminal record from his time in the United Kingdom. Mr Cullen was first convicted at the age of 13 for burglary and theft. He has a series of convictions for assault occasioning actual bodily harm and two convictions for assault occasioning grievous bodily harm for which he received sentences of imprisonment. The most significant of these offences would appear to be an assault upon a victim with a knuckleduster in late 1994 for which he was sentenced to a term of imprisonment for 2 years. Mr Cullen has served other lesser periods of imprisonment for other offences of violence.
I am mindful of the well-known comments of the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 456 at 477. Mr Cullen's relevant criminal history does not include an offence such as the one for which he now stands to be sentenced. In terms of the protection of society, prior to the commission of this offence Mr Cullen had not committed an offence of violence in Australia at all or in his country of birth for approximately 20 years. Moreover, having regard to the sentence that I intend to impose, Mr Cullen will be much older when he becomes entitled to be released on parole.

Mitigating factors

There are no mitigating factors. Mr Cullen's self-inflicted wounds do not qualify as such: see Christodoulou v R [2008] NSWCCA 102.

Remorse and contrition

Mr Cullen did not give evidence at his trial and did not give evidence at the sentencing proceedings. He has not expressed remorse or contrition for his offending either directly or indirectly. No submissions to the contrary were made on his behalf in this respect.

Deterrence and retribution

Mr Cullen's conduct is definitively unacceptable. It cannot be justified or excused on any legal or moral basis. The death of the deceased is another example of the extremely prevalent violence perpetrated by men in our society against women to whom they are married or with whom they share a relationship of domestic intimacy. This malignant cycle of domestic violence is given significant publicity and media attention without corresponding or equivalent success in its prevention. To the extent that a sentence in a case such as this can operate to deter its repetition in another similar case, then it should be formulated and calculated to do so. I have considerable doubt that murders or assaults that are committed by men in the context of physical or psychological dominance or control over women are ever or often influenced by a rational appreciation of the penal consequences. The importance of general deterrence, strictly understood in cases like the present, has therefore to be approached with caution. However, the importance of retribution is quite another thing. There is an uncontroversial and recognized need to emphasise clearly that violent and controlling men who commit such crimes against women will be punished severely.

Special circumstances

It was not suggested that there were any reasons why the statutory ratio of parole to non-parole periods should not apply.

Objective seriousness

This offence of murder in this case is subject to a standard non-parole period of imprisonment for 20 years: s 54D of the Crimes (Sentencing Procedure) Act 1999. The standard non-parole period represents the non-parole period for a hypothetical offence in the middle range of objective seriousness without regard to factors affecting the sentence for a particular offender.
In my view the murder of the deceased in this case represents an offence above the middle of the range of objective seriousness. The deceased was assaulted and incarcerated in the boot of Mr Cullen's car for some hours between the events at Auburn Street, Sutherland and her death at Taren Point. It is unknown at what stage in that period preceding her death that the deceased started to fear, or even became aware, that her death was or might have been imminent, and it is important in the absence of evidence not to speculate about it. By the same token, the deceased was clearly Mr Cullen's captive as she lay injured, probably terrified and at the very least confused in the cramped confines of the boot of his car as he drove to the scene of her death.
If the deceased was unaware or confused about her fate at any time up until then, her lack of awareness and confusion must quickly have dissipated as soon as the boot was opened and she was confronted by Mr Cullen by then presumably armed with the knives he would use to kill her. It is difficult if not impossible to imagine, let alone describe, the terror that must at that moment have consumed her. In so saying I accept that there is no direct or precise evidence of the order of events, or of the events themselves, that occurred from that time until the deceased came to rest in the posture described, by now dead, on the lawn behind the vehicle. However, the rear end of Mr Cullen's car was smeared with the deceased's blood, and it seems likely that Mr Cullen's attack upon the deceased commenced before she was liberated from it. The nature and number of her wounds makes it plain that she was ferociously attacked. The forensic evidence reveals that stab wounds to her torso caused her death, although the deceased also sustained two very significant and gaping wounds to her throat on each side. As previously mentioned, the deceased's left hand was also severely lacerated, suggesting clearly that she attempted unsuccessfully to deflect or shield herself from Mr Cullen's several and repeated assaults.
There is no evidence to establish how long the fatal attack lasted. It would appear clearly however that the deceased's death was not instantaneous, so that combined with her uncertain journey in the boot of the car, and the patently terrifying circumstances that finally confronted her, the offence was one of awful brutality and of a very high level of culpability.
The death of the deceased was unnecessary, unwarranted, unfair and inexcusable. Mr Cullen callously decided to kill the deceased for his own selfish and personal reasons. It is a tragedy for the deceased as well as for her family and friends, in particular for their children. It is also a tragedy for Mr Cullen.

Orders

Mr Cullen has remained in custody since the date of his arrest. In the circumstances I make the following orders: 1. Christopher Cullen, for the death of Victoria Comrie Cullen you are convicted. 2. I sentence you to a term of imprisonment of 30 years commencing on 22 January 2014 and expiring on 21 January 2044 with a non-parole period of 22 years and 6 months expiring on 21 July 2036.

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: 02 July 2015

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