R v Da Silva

Factual findings

1. 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) 107 A Crim R 432; [2001] NSWCCA 476 at [196].

General background

1. Having regard to the fact-finding role just described, I am satisfied beyond reasonable doubt of the following facts.
2. Ms Carter was born in November 1963 and was 46 years of age when she died. She married Howard Carter in 1985 and, despite separating in 2005, their marriage was never dissolved and they remained on good terms. Mr and Ms Carter had three adult children. Following the separation, Ms Carter initially moved into rented premises in Arizona Road, Charmhaven before moving to Woongarrah in 2008.
3. Ms Carter was a teacher at Wyong High School.
4. Mr Da Silva was born in October 1949. He emigrated to Australia from Trinidad and Tobago in 1971. He was 60 years of age in May 2010. He worked in the local area as a real estate salesman.
5. Ms Carter and Mr Da Silva met towards the end of 2006. They formed a relationship that lasted initially for about six months before it was briefly terminated by Ms Carter. The relationship resumed after a few days. In 2009, Mr Da Silva began to occupy Ms Carter's home although he continued to maintain his own flat at Bonnell's Bay.
6. Ms Carter had for some years prior to her death been a member of a number of online dating and adult relationship websites. She had met up with men using these facilities in the past. Ms Carter and Mr Da Silva had themselves met on the RSVP dating website in 2006.
7. On 13 August 2009, Ms Carter had had an online conversation with Rick McElrea using the Adult Friend Finder website. She had previously met up with Mr McElrea in about August 2008. A printed copy of Ms Carter's online conversation with Mr McElrea in August 2009 was placed in her letterbox by Mr Da Silva on 13 May 2010. A copy of the same printed conversation, or chat log, was found in Mr Da Silva's work folder at the Wiseberry Charmhaven real estate office where he worked on 18 May 2010. In that chat log Ms Carter made an uncomplimentary reference to her sex life with Mr Da Silva.
8. On 17 August 2009, Ms Carter had sent a text message to Mr Da Silva telling him that she did not want to talk and saying, "I do not want to continue the relationship".
9. Not long thereafter, in November 2009, Ms Carter once again terminated the relationship with Mr Da Silva. However, later that same month, Mr Da Silva proposed marriage to Ms Carter and they became engaged. By December that same year problems between them had once again emerged. Accordingly, on 14 February 2010, the relationship was terminated by Ms Carter for the last time. She gave Mr Da Silva a formal written notice on 19 February 2010 to vacate her premises.
10. On 4 March 2010, Ms Carter chatted online with a man she had previously met on an adult website in about 2006. She informed him of the problems that she was having with Mr Da Silva and that she had asked him to leave. In that same month Ms Carter told Darin Butcher, a family friend and a friend of Mr Da Silva's employer, about the deterioration in the relationship. She sought his assistance in retrieving property that belonged to her.
11. On 14 March 2010, Mr Da Silva and Ms Carter argued at her home in Woongarrah. Mr Da Silva left in his car and collided with a pole. He was taken to hospital. After his release from hospital, Mr Da Silva spent some time at Ms Carter's house before returning to Bonnell's Bay.
12. On 29 March 2010, Mr Da Silva made an anonymous telephone call to the Principal at Wyong High School. He alleged that Ms Carter was having an inappropriate sexual relationship with one of her students at the school. On 2 April 2010, Mr Da Silva and Ms Carter went to Sydney in order to visit Mr Da Silva's daughters and to inform them of the breakup in their relationship. This proposal ultimately did not come to pass as one of the daughters could not be present. They returned together from Sydney on the same day.
13. In the early hours of 3 April 2010, Mr Da Silva called Ms Carter telling her that he had taken pills. She reported the matter to the police. Ms Carter and Mr Da Silva later met up. The police attended and took Mr Da Silva to a local mental health unit for assessment. While he was there Ms Carter and her friend placed a number of Mr Da Silva's personal belongings, that had not yet been removed from her house, into his car.
14. On 20 April 2010, an anonymous letter dated 11 April 2010 was received by Wyong High School. It claimed that Ms Carter was having a sexual relationship with a student. The letter was written by Mr Da Silva.
15. During April and the first half of May 2010, Mr Da Silva effectively bombarded Ms Carter with emails and text messages. Ms Carter continued to maintain that she did not want to have any further contact with him. During that same period, Mr Da Silva entered Ms Carter's home one morning in the early hours, gaining access through the laundry. Ms Carter was on her computer in her study at the time and discovered Mr Da Silva heading towards her bedroom.
16. On 4 May 2010, an anonymous letter dated 30 April 2010 was received by the Newcastle Herald. That letter was written by Mr Da Silva and claimed that Ms Carter was having a sexual relationship with a student.
17. On 8 May 2010, Mr Da Silva went to Ms Carter's home uninvited to give her some paperwork relating to a cat that he had purchased for her. On 9 May 2010, Mr Da Silva sent a Mother's Day text message to Ms Carter. At 5.50am on 10 May 2010, a vehicle similar to that driven by Mr Da Silva was captured on CCTV on Mataram Road, Woongarrah, only a short distance from where Ms Carter lived. Early on the same morning, Mr Da Silva again attended Ms Carter's home uninvited. At lunchtime that day, Mr Da Silva was seen by neighbours visiting Ms Carter's vacant home.
18. On 10 and 11 May 2010, Mr Da Silva sent emails to Ms Carter concerning the return of his property allegedly still held by her. He attached a copy of the chat log of the conversation between Ms Carter and Mr McElrea from August 2009. On 11 May 2010, an anonymous letter dated 30 April 2010 was received by the Central Coast Advocate, again claiming that Ms Carter was having a sexual relationship with a student. That letter was written by Mr Da Silva. On 11 May 2010, the Principal of Wyong High School saw Mr Da Silva at the school. The following day, the Principal spoke to Ms Carter about taking formal steps to prevent Mr Da Silva from entering the grounds of the school.
19. On 12 May 2010, Jamie Carter, Ms Carter's daughter, discovered the letter from Mr Da Silva with the attached chat log of the conversation with Mr McElrea in Ms Carter's letterbox. That letter was later found in Ms Carter's handbag following her death. On 13 May 2010, Ms Carter attended Wyong Local Court inquiring about obtaining an Apprehended Violence Order against Mr Da Silva. A vehicle very similar to that driven by Mr Da Silva was later seen on CCTV to be driving in Mataram Road at 7.16pm and again at 10.49pm.
20. Mr Da Silva went to the McDonalds restaurant at Lake Haven at 4.49am on 14 May 2010. Later that same morning, at 5.21am and 6.31am, a vehicle similar to that driven by Mr Da Silva was captured by CCTV on Mataram Road.
21. On 15 May 2010, Mr Da Silva was observed at the Wyee Service Station at 4.52am. He went to the McDonalds restaurant at Lake Haven about 11 minutes later. At 5.24am Mr Da Silva deactivated the alarm at the Wiseberry Charmhaven real estate office where he worked.
22. At 11.53am on 15 May 2010, Ms Carter sent an email to her friend Elwyn Bennett that included words saying that Mr Da Silva "seems to have gone past the not accepting stage and is entering the angry stage". At about 12.30pm that same day, Jamie Carter left her mother's home to travel to her boyfriend's parents' home. Ms Carter was at home when she left.
23. Between about 1.30pm and 2.00pm on 15 May 2010, a Silver RAV 4, similar to that driven by Mr Da Silva, was seen by a neighbour driving in Peppercorn Avenue, Woongarrah, not far from Ms Carter's house. Between 12.30pm and 5.30pm Ms Carter was at Pluim Park, Lisarow refereeing soccer. At 7.26pm, Mr Da Silva activated the alarm using the keypad code at his workplace. At 8.54pm, a vehicle similar to that driven by Mr Da Silva was captured on CCTV driving in Mataram Road. At 9.40pm, a 4WD vehicle was seen driving down the bike pathway near Ms Carter's house and onto Peppercorn Avenue, Woongarrah.
24. At 9.56pm, Ms Carter sent an email from her home computer. That was her last known communication with anyone. Sometime thereafter, Mr Da Silva entered her home and beat her to death with an unidentified weapon. She was in her bed at the time. The weapon has never been recovered. Before leaving the premises, Mr Da Silva placed a pan of cooking oil on the stove in the kitchen. An adjacent burner on the stove was found alight. At about 10.00am on 16 May 2010, Jamie Carter and her boyfriend discovered Ms Carter dead in her bed. She had been beaten so ferociously that her face was unrecognisable.

Objective seriousness

1. The Crown contended that the offence in this case fell into the upper range of objective seriousness. That was said to be for a number of reasons.
2. The Crown submitted that the acts causing death were committed with an intention to kill. That was said to be obvious from the extent and degree of the injuries sustained by Ms Carter in the attack. She sustained skull fractures, brain haemorrhages and extensive facial injuries. The injuries were inflicted with a weapon. Ms Moen, who appeared for Mr Da Silva, did not contest the proposition that the acts causing death were committed with that intention.
3. The Crown contended that the murder involved a significant degree of planning. Mr Da Silva knew Ms Carter's routine and that of her family. He entered her home after she had gone to bed. He probably knew that she was alone in the house. Mr Da Silva took the weapon used to kill Ms Carter with him to the house: nothing apart from Ms Carter's new phone was found to be missing following her death.
4. The attack upon Ms Carter was premeditated and targeted. The Crown submitted that Mr Da Silva's anger at the breakdown of his relationship with Ms Carter developed over time, increasing and culminating with a frenzied attack on the morning of her death. The facts, referred to earlier, are said to bespeak what was in effect a contradictory desire to resurrect the relationship on the one hand and a coincidental desire to harm or damage the other party to it on the other hand. For example, Mr Da Silva sent a card to Ms Carter on Mother's Day but had earlier sent letters to the papers and her school that were at odds with any continuing affection for her. Ultimately Ms Carter's refusal to resume the relationship erupted in Mr Da Silva's violent decision to kill her.
5. To the extent that the murder could be said to have been planned, it offers a counterpoint to the suggestion that Mr Da Silva's moral culpability might be lessened by a finding that it was merely passionate and spontaneous. Ms Moen contended that it is not possible having regard to the facts to say that the murder was planned over a long or extended period. In my view the true position falls somewhere in between these two extremes. I am satisfied beyond reasonable doubt that the murder was premeditated and planned, although the level of planning was not intricate or sophisticated. Mr Da Silva was able with ease to enter Ms Carter's home undetected, in just the same way as he had done on several previous occasions in the then recent past. He took the murder weapon with him.
6. It does not seem to me to be a significant indicator of the objective seriousness of this murder that Mr Da Silva either conceived his plan only in the several days before he killed Ms Carter or in the several weeks and months beforehand. I am satisfied beyond reasonable doubt that the timing of the germination of the plan to kill Ms Carter roughly corresponded to the several vehicle sightings in Mataram Road and the streets near where she lived. Mr Da Silva was by this time no longer living there, so that his erstwhile intimate knowledge of the family's movements was necessarily less complete than once it was.
7. I am also satisfied beyond reasonable doubt that the attack was targeted. In the context of these remarks, that finding is not particularly significant except to the extent that it amounts to an acceptance that Mr Da Silva had a clear motive for doing what he did. The proof of a motive may give comfort to the tribunal of fact and may provide some support for the reliability of other findings, but its existence or otherwise is not presently relevant. In the particular factual context of this trial, however, it seems unlikely in the extreme, if not entirely fanciful, to suggest that Ms Carter could actually have been or was the victim of a random attack by an unknown assailant or of a planned and targeted attack by a previous casual sexual acquaintance.
8. I consider that this offence falls above the mid-range of objective seriousness for offences of this type. I do not consider that it is at the extreme of seriousness suggested by the Crown. I hasten to add, for the benefit of those who have had to come to terms with Ms Carter's death, and who continue to live with the fact of their loss, that my categorisation of the objective seriousness of the crime at hand is no more than a comparative assessment that is required for sentencing purposes, and is not a comment that reflects upon, or that is intended to derogate from, the tragic importance or significance of what happened to her.

Contrition and remorse

1. Mr Da Silva did not give evidence before me at the sentencing proceedings. Ms Moen offered no submissions on his behalf touching the notions of contrition or remorse. Indeed, in a somewhat curious procedural atmosphere, Mr Da Silva has already filed a notice of intention to appeal against his conviction, effectively foreclosing any submission that he is sorry for what the jury has found him to have done. In a similar vein, I have neither been provided with any expert reports from medical practitioners in relevant fields of specialty, nor was I asked to order a pre-sentence report from any relevant authority. The sentencing proceedings were conducted upon the basis that Mr Da Silva continues to deny that he killed Ms Carter and that I would not be in error for taking that denial into account in the circumstances.

Subjective factors

1. Mr Da Silva is nearly 67 years of age. It is very difficult not to have some regard to his age when assessing what is a proper sentence in this case. However, the issue is governed by relevant authority. So far as his age is concerned, Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507 commented relevantly as follows: "It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged of the offender, that he well may spend the whole of his remaining life in custody. A helpful review of the relevant authorities is contained in Braham (1994) 73 A Crim R 353. It is submitted for the applicant that Angel J was correct, in that case, in stating (at 369): 'Where advanced age is a factor justifying significant leniency - and the learned sentencing judge so held in fixing the disproportionate head sentences he did - ex necessitate considerations of ... proportionality of sentencing are irrelevant and the case is an inappropriate vehicle to give voice to general deterrence - as opposed to personal deterrence or deterrence to others of a like age.' I would not accept, however, that any of those considerations is irrelevant when sentencing a person of advanced age who, albeit generally in good health, has a statistically short expectation of life. Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant. Likewise, the effect of the sentence upon general deterrence is not irrelevant. What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free."
2. In Barton v Regina [2009] NSWCCA 164 at [24], Giles JA, with whom Howie and Latham JJ agreed, had this to say: "[24] In Goebel - McGregor v R [2006] NSWCCA 390 the applicant was found guilty of murder, and was sentenced to imprisonment for a non-parole period 15 years and a total term of 20 years. The sentence commenced when the applicant was aged 62. James J, with whom Hidden and Hislop JJ agreed, recorded at [126] the submission that the sentencing judge 'having decided that the offence did not call for a life sentence, had imposed a sentence which, having regard to the prisoner's age and life expectancy, was tantamount to a life sentence'. His Honour said of this - '128 As regards the further submission made by counsel for the appellant, it is true that this Court has said that, if a life sentence is to be imposed, it should be imposed "frankly and directly" and a sentencing court which refrains from imposing a life sentence should not impose a determinate sentence which would have the effect of a life sentence. R v Chen (2003) 138 A Crim R 433 at 444 (67). However, a sentence must reflect the objective seriousness of the offence and when the offender is of advanced years a determinate sentence, in order to reflect the objective seriousness of the offence, may unavoidably extend for all or most of the offender's life expectancy. In Des Rosiers v Regina [2006] NSWCCA 16 Latham J, with whom the other members of the Court agreed, referred with approval at par 30 of her judgment to a statement by Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507... 129 In the present case the appellant was sixty-two years old at the time he committed the offence of murder by what the sentencing judge found to be a cowardly and brutal act. It was inevitable that there would be a real risk of the appellant dying in custody, before he completed serving even the non-parole period of any sentence which adequately reflected the objective seriousness of the offence.'"
3. Mr Da Silva's age means that a sentence appropriate in all the circumstances for the murder of Ms Carter may well see him still in custody at the end of his life. There is no certainty of that but the actuarial probabilities and common experience suggest that it is so. I am bound to take that fact into account but not in a way that modifies or reduces my obligation as the sentencing judge to impose a sentence that adequately reflects the objective seriousness of the offence. Mr Da Silva's age is a matter I take into account when determining what is a proper sentence in all of the circumstances and whether or not to vary the statutory ratio of the non-parole and parole periods.
4. Mr Da Silva has a limited criminal history. The Crown conceded, and I accept, that Mr Da Silva's criminal record does not operate to disentitle him to any leniency to which he would otherwise be entitled based upon the particular subjective features of this case.
5. No evidence of any other kind was called on Mr Da Silva's behalf. No-one gave evidence, in the ways that have become common and accepted, about his character, predispositions or antecedents. No references or testimonials were proffered on his behalf. He appeared throughout the sentencing proceedings to be unsupported by any one apart from his lawyers. There was also no evidence about Mr Da Silva's current medical condition, despite passing references to his physical and mental health at his trial.
6. In all, the only significant subjective factor is that Mr Da Silva is shortly to turn 67 years of age and that it is almost inevitable that he will be in his eighties before his non-parole period expires.

General and specific deterrence

1. I do not consider that there is any need for specific deterrence in this case. Mr Da Silva is unlikely, to a degree approaching certainty, to offend in a similar way again, or indeed, by reason of his age and likely post-release circumstances, to offend in any way at all.
2. The same is not true of the need for general deterrence. It is now an unfortunate and reoccurring fact that women in intimate relationships with men appear increasingly to be subjected to violence that all too often either leads to or includes their death. It is trite to observe that no level of violence by a man against a woman can ever be acceptable. I make that remark with a specific acknowledgement that men are themselves also sometimes treated violently by women. However, that very situation only serves to emphasise the importance of discouraging the violent treatment of women in all situations, lest anyone should think quite wrongly that there may occasionally be circumstances which justify or excuse it.
3. As I have indicated already, I have no information apart from the facts that supported the jury's verdict, that explain what occurred. Mr Da Silva has offered no insights. I have found that Mr Da Silva killed Ms Carter because of the failure of their relationship and because he could not accept that she was entitled to take steps to bring it to an end. It is apparent that those circumstances produced so much hatred for Ms Carter that Mr Da Silva became unable to see any rational way to come to terms with what he perceived had been done to him other than to kill the person that he considered was the cause of his angst.
4. No civilised society can ever permit such a reaction to go unpunished or to be punished only in a way that does not mark out its total disapprobation. Even putting aside acts of passionate, spontaneous or reactive violence, when calm contemplation of the consequences is unlikely to operate as a quelling influence, there can be no excuse ever for the planned or calculated death of a woman whose only fault is to exercise the perfect right to lead her own life in the way that she chooses. In this case it is clear, and I find beyond reasonable doubt, that Mr Da Silva was fully aware of the consequences of his actions but planned Ms Carter's death notwithstanding. Presumably he never contemplated the prospect that his crime would be detected. Whatever be the true position, his actions should attract a punishment that makes clear precisely what consequences the law considers should flow for such a crime.

Prospects of rehabilitation

1. Mr Da Silva's prospects of rehabilitation remain entirely unexplored. For practical purposes, however, the relevance of this aspect of the sentencing exercise is of little, if any, importance. This is because in my view Mr Da Silva's age and likely physical condition when released on parole effectively circumscribe any requirement to make what in the present circumstances would amount to uninformed predictions about it.
2. Mr Da Silva is, by reason of the offence for which he is to be sentenced, a person who has committed a "serious violence offence" for the purposes of the Crimes (High Risk Offenders) Act 2000. That Act establishes a regime by which such offenders may become the subject of extended supervision orders or continuing detention orders before the expiration of their sentence. I am required by s 25C(1) of the Act to warn Mr Da Silva of the existence of the Act and its application to him.
3. Although it will not be a matter for me to determine, I note simply in passing that, for any number of reasons that will be apparent, it is highly unlikely that Mr Da Silva will become the subject of any application of the sort contemplated by the Act.

Special circumstances

1. Once again I note that I am entirely without any material that assists me in the assessment of how Mr Da Silva will fare in custody or that is directed to an understanding of his likely post-release needs. These matters are in most respects likely to be a function of his age, from which no more than general conclusions can be drawn.
2. I accept that Mr Da Silva has not previously been in custody, so that allowances for that fact can be taken in his favour. In addition, Mr Da Silva's nearly three years in custody on remand appear to have been uneventful from an administrative or disciplinary perspective. I certainly do not have material to suggest that Mr Da Silva has himself been the subject of violence or threats of violence from other inmates. Furthermore, I know nothing of Mr Da Silva's custodial conditions, his security classification, his work status within the prison, whether he has completed courses or whether or not he regularly receives visits from his daughters or his friends.
3. I do not therefore propose further to adjust the statutory ratio between the non-parole period and the balance of term.

Victim impact statements

1. Victim impact statements from Ms Carter's daughter and her husband were read aloud to the Court by the Crown. Each statement spoke of their understandable reactions to Ms Carter's death, as well as that of her other family and friends. All of these people would appear to be labouring with the burden of grief in various and personal ways. Ms Carter's death 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 Ms Carter 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.

Conclusions and orders

1. The killing of Ms Carter was brutal, premeditated and senseless. It was gratuitous and unnecessary. It inflicted a premature and violent death upon an innocent and much-loved mother, a well-regarded teacher and a dedicated local sporting identity. As I have already noted, Mr Da Silva did not give evidence at his sentencing proceedings and has never once expressed remorse for his actions.
2. The maximum sentence for the crime of murder is imprisonment for life with a standard non-parole period of 20 years. Even though the offence is in my estimation one that falls above the mid-range of objective seriousness, I have had regard to the fact that Mr Da Silva is nearly 67 years of age, has no prior relevant criminal record, is relevantly speaking of prior good character and faces imprisonment for the first time in his life with the very real (statistical) prospect that he will die there. It is a coincidence of his incarceration that Mr Da Silva is unlikely ever to reoffend.
3. Ricardo Francis Herman Da Silva, for the murder of Amanda Carter on 16 May 2010 you are convicted. I sentence you to a term of imprisonment consisting of a non-parole period of 18 years commencing on 30 November 2013 and expiring on 29 November 2031 with a balance of term of 6 years expiring on 29 November 2037. The first day upon which you will become eligible for release on parole is 30 November 2031.

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: 20 September 2016