R v Day [2010] NSWSC 983 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: Barry William Day (the offender) stands for sentence having pleaded guilty to an indictment which charged him with the murder of Deirdre Joy Burton at Mount Druitt on 2 May 2009. It is pertinent to observe that the offender had previously pleaded guilty in the Local Court and had then adhered to that plea when he first appeared in this Court. The maximum penalty for the offence is life imprisonment and a standard non-parole period of 20 years imprisonment is applicable to it. 2 There is no dispute about the factual background to the offence which is set out in an Agreed Statement of Facts. In addition to that material, I was also provided with the autopsy report which was prepared by Dr Johan Duflou, as well as two lengthy ERISP interviews which were conducted with the offender on 28 May 2009 and 2 June 2009 respectively. 3 The offender and the deceased had been in a de facto relationship for a number of years. They had first met when the offender had been in a relationship with another woman named Cheryl, who as I understand the situation, was the deceased's best friend at the time. In due course, the offender and the deceased became involved in an intimate relationship. As a result, a daughter whom I shall refer to as J., was born. It was nevertheless several years before the offender and the deceased began living together. As best as I can tell, they remained in that relationship for about 8 or 9 years. During that time they lived in various parts of NSW and Queensland but for a period of about 12 months prior to the fatal incident, they had been residing together at premises in Mount Druitt, along with J. Following an argument, the offender moved out of the premises approximately a month before the deceased met her fate. The offender however returned to the premises, apparently by invitation, and spent the night of 1 May 2009 there. Some time during the following day he killed the deceased. However, it was not until 26 May that her body was discovered. 4 On 23 May the deceased's mother went to Blacktown Police Station and reported that her daughter and granddaughter were missing. She told police that she had not heard from them since speaking on the phone to the deceased on 24 April. The deceased's mother informed police that her daughter had told her that the relationship with the offender had recently finished and that the deceased thought that the offender had gone to Victoria to pick fruit. The evidence demonstrates that the deceased had not attended her place of employment when she was expected to do so on 2 May and nor had she contacted her employer to explain her absence since that time. Furthermore, the deceased had not appeared as required in the Mount Druitt Local Court on 7 May to face minor traffic charges. 5 Police attended the deceased's premises on 25 May but found that her unit was locked and secured. When they returned the following day, they discovered that the letter box was full of mail which was addressed to both the deceased and the offender. Later that evening police, with the assistance of a NSW Fire Brigade officer, forced entry into the premises. Police discovered that the electricity had been turned off and that the freezer had been defrosted. Police located the deceased's body in a crawl space under the stairwell. It was wrapped in a grey blanket and was covered by bean bags. The deceased was only wearing underwear and had a ligature around her throat. 6 Handwritten messages were located on a whiteboard in the kitchen and on the lower bed bunk of J's room. Both notes were farewell messages from J. to the deceased. 7 On 27 May Dr Duflou conducted a post mortem examination of the deceased's body. He discovered a red and white rope tied around her neck. The rope was consistent with five millimetre thick standard commercially available rope. There was no evidence of injuries to her body. The deceased's body was badly decomposed and facial recognition was not possible. Dr Duflou expressed the opinion that the deceased had been dead for approximately 4 weeks. He also concluded that the direct cause of death was "ligature strangulation". 8 On 7 May the offender and J. were apprehended in Logan, Queensland after they had been found sleeping in a stolen motor vehicle. The offender was interviewed and told police that he had been in a de facto relationship with the deceased. He said that he and the deceased had had a fight on the morning of 2 May. The offender maintained that the deceased had told him to take J. with him to Bowen in Queensland as the deceased could not do anything with her (J.). The offender told police that he and J. had left Mount Druitt on 2 May and that they had caught a bus from Central Station to Murwillumbah the following day. He said that they had been hitch hiking from Tweed Heads when they had been picked up by an unidentified male who was driving a stolen motor vehicle. 9 The offender was questioned in relation to a mobile phone which was in his possession at the time of his apprehension. The offender stated that it did not belong to him and said that the mobile phone had been with the stolen motor vehicle. Subsequent enquiries established that the phone in fact belonged to the deceased. In due course, the offender and J were released without charge and the mobile phone was returned to the offender. 10 On 27 May police in Bowen received a call from a worker at a local neighbourhood centre about a girl and an adult male who had recently arrived in the town. The worker advised police that the adult male (the offender) and the girl (J.) had informed the centre that they were brother and sister. 11 The offender and J. were then questioned by police. J. gave a fictitious name to police and stated that she was travelling with her brother and that they were looking for work. After further questioning, the girl gave police her real name. She said that she resided in Mount Druitt with her mother who was named Deirdre. She was informed that she was listed as a missing person in NSW. J. then provided police with her mother's full name, her address and the school which she had been attending. After further questioning, the girl began to refer to the offender as 'Dad'. She told police that the offender had resided at the family home for the last eight years but that he had moved out about two months previously. She said that after the offender had moved out, she had had no contact with him until the night before they left for Queensland. She said that it was at that point that he had discussed the trip with her. J. told police that the deceased should have known that she was with the offender. She said that they had last spoken about 2 weeks previously and that the deceased had been at work when she left. 12 Police discovered that the offender had a number of birth certificates in different names in his backpack. They also located a one way bus ticket for the trip from Central Station to Murwillumbah in the name of Mr B. Davis. When police asked about his identity the offender provided them with the name, Glen Walker. When he was informed that J. was listed as a missing person in NSW, the offender appeared shocked. He stated that he had left Sydney about three weeks previously. He said that he had last spoken to the deceased the day before he had left Sydney and that she had been alive when he had left the house at about 4-5 pm. He did concede however that they had had an argument. 13 The following day J. told police that she had last seen the deceased the day before she had left for Queensland with the offender. When the offender was informed by police of the deceased's death, he then gave an account of his movements after leaving Sydney although he continued to suggest that she had been alive when he had last seen her. 14 On 30 May, the offender was taken into custody and extradited to New South Wales. On 2 June he was spoken to by police from the Homicide Squad. Initially he declined to participate in an ERISP although he did consent to providing a buccal swab. Prior to the commencement of that procedure, the offender became distressed and began to make admissions in relation to the deceased's murder. He then participated in an ERISP during the course of which he indicated that he had left the deceased's home following an argument. He said that for some time he had been suspicious that the deceased had been having an affair. He said that when he had confronted the deceased with his suspicions, she had become angry and had asked him to leave. He said that he had then gone to Victoria for a few days to visit his family. From there he said that he had gone to Mildura seeking work picking fruit. He said that whilst he was there, he was advised that there was no work available locally but that he might try his luck in Bowen. He said that he was also advised that he needed to meet with Centrelink staff in Mount Druitt to discuss the question of his ongoing entitlements. Accordingly, he contacted the deceased who, he says, invited him to stay at her premises so as to enable him to keep that appointment. He said that she also wanted him to fix her computer whilst he was there. He said, that it was in those circumstances, that he had stayed at the deceased's premises on the night of 1 May. 15 The offender said that the following day (2 May) the deceased told him that she was considering leaving Sydney and going to live in the country. The offender expressed concerns that that would mean that he would lose contact with J. According to the offender, at some stage during that conversation the deceased also told him that she had been in contact, over a period of two years with his former partner, Cheryl. (He had previously raised this issue in the ERISP conducted on 28 May). The offender said that the relationship with Cheryl had ended badly as a consequence of which, he said that he had felt unable to have contact with the son that they had had together. Moreover, he believed that he and the deceased had agreed that they would not have any contact with Cheryl. The offender admitted that he was enraged by what the deceased had told him. He said that, as they were arguing, the deceased had been getting dressed for work. He admitted that he had taken hold of her throat with one hand and choked her, causing her to fall to the ground. The offender maintained that he had no memory of what had happened thereafter. He said that the next memory he had was of J. returning from one of her friend's places. He said that he had then persuaded J. to accompany him on a trip, after explaining to her that he and the deceased had had an argument. Although he had no memory of having used it, the offender admitted ownership of the ligature that was around the deceased's throat and the blanket in which her body had been wrapped. 16 Tendered on the offender's behalf was a psychiatric report prepared by Dr Westmore and a psychological report prepared by Dr Kate Seidler. The offender was born in November 1963 and is now aged 46. He spent his formative years in Melbourne as the eldest of four children. His childhood was unhappy and disrupted. The relationship between his parents was somewhat volatile, largely it seems because the offender's father was a violent alcoholic. The unhealthy home environment appears to have been the catalyst for the offender running away from home, as he apparently did on a frequent basis. At the age of 10 he was placed in an institution because he was seen as being uncontrollable. That was the first of his many encounters with the juvenile justice system during his adolescence. Although the offender also had issues with anger management and was expelled from at least one school, he nevertheless managed to complete high school. After leaving school, he obtained employment working mainly in manual jobs. In more recent times he has acquired skills as a computer technician after having completed TAFE courses. The offender has reportedly had only intermittent contact with his family since he reached adulthood. He has had several relationships and apart from J., has an 18 year old son from his relationship with Cheryl and with whom, as I have said, he has had no contact for many years. In all, the picture which emerges of the offender is that of a man who has pursued an itinerant lifestyle and who is somewhat socially isolated. 17 I have received victim impact statements from the deceased's sister and her son. Her sister has now assumed the responsibility for the care of J. whose life is understandably in a state of turmoil. The feelings which they have so eloquently and poignantly expressed and the grief which they and their family have suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226. 18 The offender has a criminal record both in this State and elsewhere. It commenced in Victoria in 1975 where he was dealt with for offences of burglary and stealing bicycles. He continued to commit offences of dishonesty on a regular basis in that State until 1981. He committed further offences of dishonesty in 1983 in this State. In 1984 he received a custodial sentence for offences of break, enter and steal in New South Wales. Later that year he received a custodial sentence in South Australia for an offence of a similar nature. In 1985 in New South Wales he received a custodial sentence for escaping from lawful custody. In 1987 he received a further term of imprisonment for burglary offences committed in Victoria. In 1998 the offender received concurrent sentences of 7 months imprisonment in New South Wales for offences of break and enter, receiving stolen property, cultivating a prohibited plant and assault occasioning actual bodily harm. Although his criminal record deprives the offender of any leniency that might otherwise have been available to him, it is common ground that it does not constitute an aggravating feature: R v McNaughton (2006) 60 NSWLR 566. 19 In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case. First, the offence occurred in the deceased's home although the significance of that factor is somewhat diminished because the offender had also been living there and there was nothing to suggest that he was not welcome there on the occasion in question. Secondly, the use of a ligature has been treated as a form of weapon: Versluys v R [2008] NSWCCA 76. That said, most murders are committed by a person using a weapon. 20 On the other hand, it is common ground that there are also matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate sentence. First, and foremost, the offender is entitled to a discount for having pleaded guilty. As I have said, he did so in the Local Court. In my view, and the Crown very properly concedes that it is within my discretion to proceed in this fashion, the offender is entitled to a discount of 25% for the utilitarian value of his plea of guilty: see R v Thomson & Houlton (2000) 49 NSWLR 383. Secondly, the offender is entitled to some additional leniency for having demonstrated a measure of contrition during the course of the ERISP interview which was conducted with him on 2 June. Indeed police conducting the interview observed that he had begun to cry. When he was asked why he had become distressed he replied "Ah, cause my best friend's dead and it's my fault". Later the following exchange occurred: A Yes, I wish to say that I'm sorry and I regret it. I mean, I don't, I don't understand how I could have possibly done this but I am sorry that it's happened because she's the only friend I've got in the world.

21 When asked at the end of the interview if there was anything further he wished to say, the offender said "I'm sorry that Deirdre's dead because she doesn't deserve to be dead". Nonetheless it needs to be said that the offender's conduct in the aftermath of the deceased's murder suggests that his expressions of remorse were somewhat belated. That is amply demonstrated by the fact that he was still maintaining the pretence that the deceased was alive when police spoke to him on 28 May. 22 I would regard the offender as still having some prospects for rehabilitation. In arriving at that conclusion, I have paid particular regard to the fact that he has pleaded guilty and that he has accepted responsibility for his actions in committing this offence. Moreover, notwithstanding his lengthy criminal history, it is pertinent to observe that in the two decades prior to the commission of the present offence, he had apparently only offended on the one occasion in 1998. Those offences were committed, as I understand it, in the context of his relationship with his former partner Cheryl. Nor have I lost sight of the fact that by the time he is eventually released from custody after having served the present sentence, he will have reached an age at which the prospect of further re-offending is likely to have been significantly reduced. 23 All that said, it is axiomatic that a court must not be unduly influenced by subjective considerations, particularly where as here, appropriate consideration must be given to the very serious criminality which the offender displayed. 24 As I observed earlier, the offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness". In approaching this aspect of the matter, I have had regard to the principles set out in R v Way (2004) 60 NSWLR 168 especially at pars 117-124; 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v MLP (2006) 164 A Crim R 93; R v McEvoy [2010] NSWCCA 110. 25 The Crown submitted that the offence should be characterised as falling in the "middle of the range of objective seriousness", albeit at the higher end of that range. He pointed, in particular, to the fact that the offender intended to kill the deceased, a submission which I am inclined to accept. He also reminded the court that strangulation has been described as "a horrible way to die": see Versluys (supra) at 37. On any assessment of the matter, the murder of the deceased was brutal and senseless. Nonetheless, I am disposed to conclude that the offence should be characterised as falling below, but only slightly below, the "middle of the range of objective seriousness". I do so largely because the evidence indicates that the offender's conduct constituted a spontaneous reaction to the situation in which he found himself. In any event, it is common ground that I should impose a non-parole period which is shorter than the standard non-parole period. I intend to proceed upon that basis particularly because of the offender's early plea of guilty, and the contrition which he has demonstrated. I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance "as a reference point, benchmark, sounding board or guidepost". 26 My attention was drawn to four decisions which were, it was contended, of a somewhat comparable nature in that all of them involved instances of murder by way of strangulation committed by male offenders upon their former partners. In R v Valiukas [2009] NSWSC 808, the offender was sentenced, following his conviction by a jury, to a term of 18 years imprisonment with a non-parole period of 13½ years imprisonment. That offender was in a dissociative state at the time of the offence, had no previous criminal convictions and his offence having been committed in 1999, occurred before the introduction of the legislation concerning standard non-parole periods. The offence itself was not planned. In R v Joyce [2007] NSWSC 218 the offender received a sentence of 21 years imprisonment with a non-parole period of 16 years after he was convicted by a jury. That offender strangled his victim using a necktie as a ligature. He then placed her, whilst she was still alive, in a swimming pool as a result of which she drowned. The offence was not premeditated and the offender had lost his self-control following an argument. In R v Christov (No2) [2006] NSWSC 1179 the offender was convicted following a "judge alone" trial. He received a sentence of 23 years imprisonment with a non-parole period of 17 years. The offender entered the premises of his former partner and then lay in wait for his victim. Following a confrontation, he then strangled her manually before tying first a shoe lace and then a leather dog lead around her neck. The offence was accompanied by a degree of premeditation by an offender who had a criminal record. In Versluys (supra) the Court of Criminal Appeal dismissed an appeal against a sentence of 26 years 8 months imprisonment with a non-parole period of 20 years following the offender's conviction by a jury. Not only had the offender previously assaulted his victim, but he had also threatened to kill her. The court also found that there was a "vast physical difference" between the offender and his victim. 27 Although I have derived some assistance from those decisions, it is apparent that none of those offenders pleaded guilty. In any event, I must exercise my own sentencing discretion upon the basis of the factors that are relevant to this case. 28 The offender has been in continuous custody since 30 May 2009 and it is accordingly appropriate to commence the sentence which I shall impose upon him from that date. In setting the overall non-parole period, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.

R v Day

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