R v DANNEVIG, Christopher James [2012] NSWSC 1013 | Case summary

Facts 6The relevant facts appeared in the Statement of Facts tendered by the Crown. The following account is derived from that statement. 7The deceased, Nona Belomesoff, was 18 years of age at the time of her death (date of birth 14 August 1991). At that time she had lived with her family in Sydney and she had been attending a TAFE Course one day a week. The course was entitled "Work in the Animal Care Industry". The deceased had a strong interest for animals and their welfare. 8The deceased from time to time spoke online to friends through the internet website Facebook. Between 20 February 2010 and 15 April 2010, the offender, who was then 21 years of age (date of birth 4 November 1989), commenced to communicate with the deceased on-line through an internet website. During conversations with the deceased, he learnt personal information about her including her interest in animal welfare. On 15 April 2010, he befriended her on Facebook and he by that means learnt information about her including the fact that she attended the TAFE course to which I have referred. 9In late April 2010, a fictitious profile in the name of Jason Green appeared on Facebook. The fictitious Jason Green purported to be a team leader employed with the Wildlife Information Rescue and Education Service, known as WIRES. Neither the identity "Jason Green", nor the offender, had any association with WIRES. The offender subsequently admitted to police that he communicated on Facebook posing as the fictitious Jason Green. 10On 27 April 2010, whilst posing as Jason Green, and as a "WIRES employee" the offender offered the deceased employment. He subsequently arranged to meet her near the Leumeah train station to commence training for "WIRES". At that time he lived at Leumeah. The arrangement to meet up was planned over several weeks and was designed to attract the deceased to meet with the offender who posed as a "WIRES Field Trainer". She first met him in person on Wednesday, 5 May 2010 at the Leumeah train station. They walked a short distance to a nearby bush track. The deceased told her mother that the meeting was part of her recruitment into "WIRES". That was corroborated with entries on her Facebook site and in her personal diary. 11The deceased subsequently met the offender on five occasions, namely, Thursday, 6 May 2010 Friday, 7 May 2010 Saturday, 8 May 2010 Sunday, 9 May 2010 Monday, 10 May 2010 12On those occasions the offender and the deceased walked on the same bush track as they walked on the first occasion they had met. 13On 10 May 2010, the deceased told her family of an incident that occurred on the bush track with the offender. 14In the Statement of Facts it is recorded: "20.The deceased told her family that the offender physically assaulted her in what he described as a demonstration on self-defence. The offender hugged the deceased in a restraining position, then pushed her to the ground and laid himself on top of her. 21.The deceased told her family that night that the offender overpowered her to the point where she could hardly breathe and that she was scared. The offender released her shortly afterwards. 22.The deceased told her cousin ... that the offender told her that he would teach her some defence skills. The deceased said that the offender would show her what to do if someone kidnapped her or tried to rape her. The offender blind-folded her and tied her hands up behind her back, and pushed her to the ground the offender then said to her "What would you do?" 23.The offender said that he wasn't joking and put pressure on her as she was lying on the ground. The deceased asked him to get off, and the offender said he wouldn't and that he was serious. The deceased started to cry and the offender released her. The deceased told the offender that she was in a bit of a shock. The offender then appeared to make a phone call and recounted what had happened over the phone. The offender offered to send an ambulance due to the shock but the deceased declined." 15The offender arranged to meet the deceased on Wednesday, 12 May 2010, and to proceed to Smith Creek Reserve, in the Leumeah area, supposedly for an over-night training camp as part of her recruitment into "WIRES". 16The deceased indicated to her mother that she expected to be paid in relation to her training for employment with WIRES on Wednesday, 12 May 2010 and she noted in her diary for that date "camp night - double pay after 5pm - get paid". On 10 May 2010, the deceased provided the offender with her banking details so that she could be paid by "WIRES". 17At 9am on Wednesday, 12 May 2010, the deceased left her family home with the intention of meeting the offender at Leumeah for the bogus "WIRES" training camp. 18This was the first time the deceased had slept overnight by herself or away from her family home. On the afternoon of Thursday, 13 May 2010, the deceased failed to return home. 19One the evening of Thursday, 13 May 2010, family members went to Liverpool police station and reported the deceased as missing. 20At 12.30am on 14 May 2010, police attended at the home of the offender. He acknowledged knowing the deceased. He stated that he last saw her on Tuesday and had last spoken to her on Wednesday. He said that they had met on Facebook and both had an interest in working for WIRES. 21At about 2am on Friday, 14 May 2010, the offender voluntarily participated in an electronically recorded interview with the Liverpool police as a suspect not under arrest. 22He said that he last saw the deceased on Monday, 10 May 2010. He claimed to have no knowledge of her disappearance. He provided an alibi, which turned out to be unsubstantiated. Police investigations revealed that at 5.24pm on Wednesday, 12 May 2010, the deceased's bank account had been accessed using an ATM near Leumeah train station. The first access was an account balance inquiry. This was followed by a withdrawal of the maximum available of $170 leaving a balance of $8.40. 23CCTV footage later obtained by police depicted the offender at the facility of the ATM at the time of the transactions to which I have referred. He subsequently admitted to taking the deceased's purse and accessing her account and withdrawing money. He told police that on Monday, 10 May 2010, he had told the deceased that he always forgets his own PIN, that is, his personal identification number. The deceased said she remembered hers because it was her birthday. By that means the offender became aware of her personal identification number for the ATM. 24At 8.10am on Friday, 14 May 2010, the offender was arrested. 25He subsequently led investigators to an isolated bush track in the Smith Creek Reserve. In a remote area of the track, in a small creek, the police located the deceased lying face down and partially submerged in the water. She was fully clothed and her belongings were on the creek bank. 26In subsequent police interviews, the offender admitted that he had given false information in the earlier interview. He admitted having befriended the deceased and being responsible for creating the false Facebook identity of Jason Green. 27He told police that he was the only person present with the deceased at the time of her death. He claimed they were sitting alone and talking beside the creek where she was later located. 28He claimed that he had "blacked out" for a 5 minute period and when he became conscious again the deceased was lying face down in the creek. He offered no explanation as to how the deceased came to be in the creek. He claimed that he watched the deceased for between 30 and 120 seconds and observed no movement. He concluded that she was deceased. He made no attempt to take any action such as removing her from the water, running to obtain first aid, or notifying ambulance, police or neighbours. 29He also made admissions as to having accessed the deceased's account. In accordance with the Statement of Facts, the offender considered that he probably killed the deceased but claimed, having "blacked out", he couldn't provide any further details of the incident. 30After the interview he was charged with the murder of the deceased. 31In the further record of interview conducted on the 17 May 2010, the offender again admitted to meeting the deceased on 12 May 2010 in Leumeah and admitted to walking the bush tracks with her. He claimed that they were friends and the purpose of the walk was to get to know each other. 32He identified where the deceased was located and re-enacted the movements before and after death. He claimed that he was sitting on the creek bed talking to the deceased, that she was sitting beside him and they were having a general conversation when he "blacked out". He stated that nothing provocative occurred in the moments prior to him "blacking out". He then confirmed details of what he said he saw when he allegedly regained consciousness and details of taking her purse and accessing her account and withdrawing monies. 33On 19 May 2011, whilst in custody, conversations between undercover police officers, posing as prisoners, and the offender were recorded pursuant to a legally obtained listening device warrant. 34The relevant parts of the conversation that took place between the officers and the offender are set out at [66] of the Statement of Facts. It is unnecessary to reproduce the whole of the conversation as there set out. It is sufficient to note that the record of the conversation contained disclosures in the nature of admissions by the offender to the undercover officers that he pushed the deceased, that she was still conscious when she fell back and hit her head on rocks and that he took hold of her when she was in the water and brought about her death by drowning. 35There were further questions and answers as to how the deceased fell after the offender pushed her and later he saw that she was dead. 36The cause and manner of death of Nona Belomesoff could not be determined on autopsy. At 9.40pm, on Friday 14 May 2010, she was located, lying face down in a small creek within Smith's Creek Reserve. The autopsy report, though concluding that the cause and actual manner of death could not be determined, stated that there were features during the post-mortem that were suggestive of drowning. 37I make findings in accordance with the agreed Statement of Facts for the purpose of sentencing the offender. 38The Statement of Facts, in my assessment, establish beyond reasonable doubt the following seven matters:

The offender pursued a strategy involving deception and lies in order to engage and meet with the deceased and lure her to the area in which the offence occurred.
The evidence established that, through an escalating degree of deception, following the initial on-line contact the offender enticed Ms Belomesoff to the Smith Creek Reserve using a ruse by which he falsely represented himself to her as a "WIRES field trainer".
On the sixth occasion, when he met with the deceased, that is, on 10 May 2010, the offender physically assaulted her. In hindsight, his behaviour on that occasion may be seen as evidencing a degree of malevolence in the offender which was directed towards her. His behaviour on that occasion evidenced an unprovoked desire to inflict pain and instil fear into the young woman. This he succeeded in doing.
The deceased's attendance on Wednesday, 12 May 2010, notwithstanding the events of 10 May 2010, was no doubt again influenced by the deliberate deception, which the offender practiced on her, namely, the representation that she would be attending the Smith Creek Reserve for training as part of her recruitment into WIRES.
Whatever the limitations on the offender's cognitive reasoning and behavioural skills (a matter I will shortly discuss), he was nonetheless able to act and did act single mindedly, employing a cunning strategy to win the deceased's trust.
The offender exploited the young woman's trust in persuading her to meet again on 12 May 2010, thereby enabling him to lure her into a remote area, the Reserve.
The offender succeeded to place the deceased in an extremely vulnerable position in a remote area, where it was unlikely that there would be members of the public present or available to render assistance. 39It is necessary to turn at this point to the submissions made by Mr Young SC on behalf of the offender. Mr Young submitted that there is insufficient evidence to enable a finding to be made that the offender met with the deceased with the intention of killing her. That is, of course, an important issue relevant to the gravity of the offence and the culpability of the offender. 40Mr Young conceded, that the offender took "preparatory steps" to gain the deceased's confidence and presence in the remote location where she died and that he employed escalating deception in doing so. However, he submitted, that does of itself lead to a conclusion that those steps were taken with a view to ultimately killing the deceased. That is a matter to be examined in light of the whole of the evidence. If he did not intend to kill her, what then was his purpose? 41The issue of premeditation leads into the question as to the reason or the motive for the offender engaging in what was a somewhat sophisticated on-line course of action designed to deceive and groom the deceased with a view to meeting up with her in the bushland Reserve. There is no suggestion in the evidence that he held any genuine interest in wildlife or bushland vegetation for its own sake. Additionally, there is no support in the evidence for the proposition that he had any bona fide interest in the deceased, romantic or otherwise. In that context, the question arises as to whether his intention in luring her into the remote location was done with an intention to harm, or done with an intention to kill. 42Within eight days of his release on parole under the sentence imposed on him for the earlier offence of detain for advantage (on 17 December 2009), the offender commenced his on-line activity including the creation of the fictional character Jason Green and falsely representing that he was associated with WIRES. He soon ascertained the deceased's interest in wildlife. 43The Crown contended, and I accept, that the offender acted in a cunning fashion in finding out from the deceased the PIN for her bank account. As I have earlier noted, the deceased made an entry in her diary that she was to be paid for the training camp on 12 May 2010. The offender by some means found out from the deceased on Monday, 10 May 2010 what her PIN was. He accessed the account after he killed her (at 5.24pm) the same day. The evidence therefore supports to the required standard the conclusion that he had in mind on 10 May 2012 an intention to steal the deceased's ATM card and access her money. 44The following facts on the other hand, were identified by Mr Young as operating against the proposition that the murder was part of a preconceived plan commencing with the on-line communication:

The guilty plea 63In relation to the timing of the offender's plea, on 31 August 2011, I take account of the time taken for the proceedings to complete in the Local Court, namely August 2011. However it is clear from the recorded conversation between the offender and the undercover police officers on 19 May 2011 that the offender had an adequate recollection of the events as to his actions in causing the deceased's death. The autopsy report, as earlier noted, had been received on 4 November 2010. The conclusion in the report was consistent with death by drowning. In the circumstances it was, as the Crown submitted, well open to the accused to admit to having killed the deceased at a much earlier date than 31 August 2011 and indicate that he would enter a plea in due course. 64Remorse as a mitigating factor is qualified by s 21A(3)(i) of the Sentencing Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damaged caused by his actions. By his plea of guilty, the offender has accepted responsibility for the murder. Furthermore, there is his single paragraph letter, exhibit 1, in which he has declared his sorrow for the loss and pain he has caused to the deceased's family. I have taken the statement into account although the weight to be given to it is limited as it is difficult to assess the sincerity with which it was made, given that the offender has not given evidence. 65On the issue of assistance, Mr Young submitted there was evidence of cooperation by the offender with the police investigation. 66The level of assistance provided by the offender is to be evaluated in light of the fact that the police had already identified him as a suspect by CCTV footage recorded in the vicinity of the ATM soon after the offence, that the offender had initially lied to police, that he later stated he "blacked out" and could offer no explanation as to how the deceased came to be in the creek. He admitted to taking the offender's purse and withdrawing money from the account. Police found evidence at the crime scene that incriminated the offender (namely, his finger prints on the deceased's document entitled "Grade training total score 89/90". Although the offender participated in a 'walk through' with police and had earlier led the police to where the deceased's body was found, he did not make any admissions as to how she came to be in the creek. The account of what he said he saw after he "blacked out" at [64] of the Statement of Facts was not one that revealed his true knowledge of relevant events. A close examination of the Statement of Facts indicates that the level of assistance by the offender to police investigations was limited. Its utility was diminished by his failure to reveal the true extent of his knowledge of what occurred. 67I have concluded that the overall discount for the offender's plea and remorse and assistance to police should be 25%. 5% of that discount being referrable to assistance and 20% for his guilty plea. 68The principles that apply to the sentencing of young offenders and the importance of their rehabilitation are well-established and are to be applied in this case in the context of the facts. By reason of an offender's immaturity, an offence can be attended by some excess, or a particular act of sudden violence may occur, which someone who is more mature would not engage in. This may, for example, occur with an immature person has been brought up in a violent environment, where all too readily violence is a first response to any kind of opposition. The evidence does not establish sufficient circumstances to put this case in that category. 69In R v Gordon (1994) 71 A Crim R 459, Hunt CJ at CL with whom McInerney and Sully JJ agreed, addressed the factors relevant to the sentencing of a 19 year old offender in respect of serious offences. The Chief Judge observed in that case: "Although the respondent was not a person to whom the provisions of s6 of the Children (Criminal Proceedings) Act 1987 applied - namely, someone under the age of eighteen years - his youth is not to be disregarded in the sentencing process. Far from it. But it does mean that general deterrence remains of primary importance and, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth: ... The respondent, moreover, had already accumulated by that age the appalling record to which reference has earlier been made." (at 469) 70See also the judgment of the Court of Appeal in R v AEM & Ors [2002] NSWCCA 58 at [96] to [102] in relation to the interrelationship between general deterrence and the youth of an offender. 71It is necessary at this point to refer to the offender's criminal history. The Crown observed the aggravating factors under s 21A of the Sentencing Act included, firstly, the offender had a previous conviction for a serious personal violence offence and secondly, that at the time of the subject offence, the offender was on conditional liberty in relation to a previous offence. 72The offender had been sentenced in the District Court on 17 December 2009 in respect of an offence that occurred on 15 November 2008. Upon the latter date, the offender and the victim, a 16 year old girl, had recently met. They caught a train to Ingleburn railway station then proceeded to walk along a bush track ostensibly to retrieve the offender's bag that he claimed that he left in that area. The offender approached the victim from behind and physically restrained her. At the time he was holding a knife, it is unnecessary to recite here the full details, other than to say that the sentencing judge noted the seriousness of the offence, that he had been on conditional liberty at the time of that offence and that he had occasioned extreme fear in the victim. In that sentencing hearing, Dr Jeremy O'Dea, a forensic psychiatrist, noted the offender's developmental history, intellectual disability and the problems with anger and treatment for a diagnosis of ADHD. However, Dr O'Dea did not diagnose the offender as suffering from a major psychiatric illness. A copy of Dr O'Dea's report dated 17 December 2009 was included in exhibit A. Professor Greenberg's report dated 4 February 2009, contained a provisional diagnosis which was not dissimilar to Dr O'Dea's conclusions. A copy of Professor Greenberg's report is also included in exhibit in the present proceedings. 73The earlier offence committed by the offender occurred on 1 April 2005. That offence was committed on a lone woman walking in a bushland setting. It also involved the offender's use of a knife. The woman, having been severely threatened and cut with the knife, escaped only because of the oncoming presence of other walkers in the area. 74The learned senior Crown Prosecutor in the present proceedings stated it is clear the judge who sentenced the offender in the District Court on 17 December 2009 had not been made aware of the 2005 offence because a DNA result did come to hand until 23 September 2010. However, it was stated, his Honour was aware of the need for an extended period of treatment and counselling for the offender's psychological problems and made a condition that he continue with counselling that had been in operation up to that time. 75The Crown submitted in the light of these two earlier offences, the Court would make as far as possible an assessment of future dangerousness. It was submitted that it is open to the Court to take the view that there is a significant risk of this offender re-offending when released. The Crown referred to relevant authorities, in particular, to the observations of Gleeson CJ in Fardon v Attorney General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 at [12] in which the Chief Justice stated: "[12] ... No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release." 76A finding of future dangerousness does not need to be established beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. It is sufficient if the Crown establishes on the balance of probabilities that there is a "risk" of re-offending: R v Harrison (1997) 93 A Crim R 314. In the present case, unless the offender has appropriate treatment and support, the risk of future dangerousness to the community will remain, although that risk may moderate naturally with advanced age. 77I have, however, kept in mind the relevant principle of proportionality namely that the sentence is not to be increased beyond that which is proportionate to the crime: Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465. 78The present case presents a difficult exercise given the seriousness of the offence and the offender's criminal record on the one hand and the offender's relative youth and disadvantage on the other. The balance to be achieved in giving effect to the purposes of sentencing set out in s 3A of the Sentencing Act, in a case such as the present, in particular between retribution and rehabilitation, can give rise to divergent views as to where the proper balance lies in a particular case. That said, the youth of an offender is a factor that can mean less weight is to be given to deterrence and more to rehabilitation. 79In considering the sentence to be imposed, I have had regard to the documents constituting exhibit 2, including the letter from Fr. Peter Carroll, Catholic Chaplin, dated 28 April 2012, which deals with the offender's participation in programmes offered by chaplaincy and his growing awareness of his responsibility for his offending. I note the evidence as to the offender's participation in a TAFE First Aid Course. Finally, I note the offender's admission and treatment for an act of deliberate self-harm on 30 March 2012. 80In considering an appropriate penalty for an offence of murder the Courts recognise the starting point is that it involves the felonious taking of a human life: R v Kilmore (NSWCCA, 13 August 1998, unreported) at [4] applying R v Low (1991) 57 A Crim R 8. The sanctity of human life is of course of great significance: Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. The law recognises, without specific evidence the value which the community places upon human life that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 502; R v MacDonald (NSWCCA, 12 December 1995, unreported) at 8; and R v Previtera (1997) 94 A Crim R 76. 81On the question of special circumstances, a matter relevant to the length of the non-parole period, Mr Young submitted that all the experts make clear the high level of assistance the offender requires and that this could constitute special circumstances. However he, with respect, properly acknowledged that when the statutory ratio of the non-parole period to the parole period is applied to the inevitable length of the sentence to be imposed, an adjustment may not be appropriate. 82The Crown submitted that there was nothing about the circumstances personal to the offender that is sufficiently special to vary the statutory proportion. That submission was reaffirmed in the Crown's oral submissions (at 10). 83I do not consider that a finding of special circumstances should be made. There is no recent psychiatric evidence that identifies a need or basis for such a finding. Clearly, the offender will require support and counselling during the term of his imprisonment in order to assist him to maximise his rehabilitation prospects in light of his psychological and other deficits as revealed in the evidence. 84I note Mr Young's observation that the offender is currently held in custody where developmentally disabled prisoners are housed and that there is a significant degree of restriction on his movements there. The document under Tab 5 of exhbit 1 contains details of his placement having regard to the intellectual disability aspects. Mr Young stated that there is no material available as to what is likely to happen with the offender's specific placement following sentence. However, as observed in submissions, the restricted access provision under the middle level of protection is very likely to continue. I have taken these matters into account in determining sentence. 85I acknowledge receipt of the statement, dated 14 February 2012, written on behalf of Nona Belomessoff's direct family, which conveys their reactions to the murder expressed in moderate and compassionate terms. The statement cannot by law be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. That said, I acknowledge the grief and distress of the deceased's family and express, on the community's behalf, sympathy and compassion for them. 86Taking into account all factors that are relevant to sentence, the appropriated undiscounted starting point of the overall sentence, taking into account the Form 1 matters, I conclude is 36 years. The overall sentence is reduced by 25 percent to 27 years. In determining the non-parole and parole period for the sentence, which I will announce, I have taken into account the particular ratio the non-parole period bears to the total sentence. The balance of 7 years is a sufficient period under supervision to enable the offender to adjust to community life and to establish an effective support regime. 87The standard non-parole period for the offence of murder is 20 years. I have determined that the minimum period for which the offender must be left in detention in relation to the offence is 21 years. The prescribed standard non-parole period for an offence of murder is, I have earlier stated, a period of 20 years. I accordance with s 54B(3) and (4) of the Sentencing Act, I record that the longer non-parole period of 21 years to be imposed for the subject offence has been determined taking into account the offender's previous conviction for a serious personal offence within s 21A(2)(d) and that the subject offence was committed while the offender was on conditional liberty within s 21A(2)(j). 88Christopher James Dannevig for the murder of Non Belomesoff, I convict you. I sentence you to a term of imprisonment with a non-parole period of 21 years, which is to commence on 8 August 2011 and is to expire on 7 August 2032. I set a balance of term of 7 years, which is to commence on 6 August 2032 and is to expire on 5 August 2039. In determining the non-parole period the earliest date of eligibility for your released to parole is 7 August 2032. 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: 31 August 2012

R v DANNEVIG, Christopher James

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