R v Duffy

Facts

1. On the evening of Tuesday 8 May 2012, Rachael Evans was at CC's pub located on Queen Street, Campbelltown. While there she met the deceased and they started talking. I shall refer to the deceased as Debbie because that is what her family called her. She was variously referred to as Colleen and Debbie by the participants in the events of those days. At some point in the evening, the offender and Rachael's sister, XY, joined Rachael and Debbie.
2. The group of four boarded a train at Campbelltown train station and travelled to Picton. They checked into the George IV Inn which is located on Remembrance Drive, Picton. At the hotel the offender, Rachael and Debbie engaged in sexual activity with each other. XY filmed the incident on a mobile phone.
3. On the morning of Wednesday 9 May 2012, the group left the hotel and travelled by train from Picton to Campbelltown. The offender and Rachael bought some drugs which the offender said was speed but which Rachael said was methamphetamine, and the group stayed in Mawson Park, Campbelltown, consuming the drugs and alcohol. It is not necessary to decide which of the two drugs was bought and consumed. There is undoubted evidence that the offender, Rachael and Debbie consumed speed, marijuana and alcohol in considerable quantities on the day before, and the day of, Debbie's death.
4. A friend of XY's, Scott Derbridge, had been to the Centrelink Office in Campbelltown that morning and bumped into XY. Derbridge went with her to Mawson Park where the offender, Rachael and Debbie were.
5. At some stage the group was joined by Marc Carran, known by the group as "Kiwi" or "Nozzy". As the evening progressed, Carran became highly intoxicated and was asleep for the majority of the events set out in these facts. He was not able to give any meaningful evidence about what happened.
6. Whilst the group were at the park Debbie and XY went to an ATM where Debbie withdrew a few hundred dollars. She gave that money to XY who gave it to Rachael. It was used to buy methamphetamine.
7. At some stage, Debbie told the group about her parents' rural property. She told the group that her parents were away and that all of them should go back to her parents' place for drinks.
8. Later that day the group of six travelled by train to Picton. Some more alcohol and drugs were purchased, and they travelled in a Maxi Taxi to 220 Rockbarton Road, Lakesland, which is Debbie's parents' home.
9. The property is situated on approximately 25 acres of land. On the property is the main residential house, a two bedroom detached guesthouse and a shed located at the rear of the main residence. There is a large garage underneath the guesthouse. Judith and Bryon Green were the owners of the property. Both Mr and Mrs Green are licensed to hold firearms. Before travelling interstate on 4 May 2012, they believe they locked and secured the property. Debbie did not have permission to enter the premises.
10. The group went into the property accessing first the separate guest house and the garage, and subsequently the main residence and detached shed. They started a fire in the yard of the property and they spent much of the night between the fire and the guesthouse consuming drugs and alcohol.
11. At one point during the night the offender and Debbie went into the main bedroom of the guest house. They could be heard having sex. Derbridge and XY went into the second bedroom to lie down because XY was feeling unwell. Rachael remained in the lounge room crushing Seroquel tablets.
12. What thereafter happened is the subject of conflicting evidence. Ultimately, there were only two accounts of what happened in the bedroom - the account given by Rachael and the offender's account. XY gave evidence that she was not in the bedroom at the time Debbie was killed. I do not believe her evidence in that regard but, of course, she gives no account of what happened until she went into the bedroom, as she claimed, after Debbie was killed. At that point she said the offender was kneeling on the bed near Debbie's legs.
13. It is necessary for me to make findings consistent with the jury's verdict. Any findings adverse to the offender must be beyond reasonable doubt. However, I am not obliged to make the findings that are most favourable to the offender.
14. Rachael's account is that she and XY entered the room whilst the offender and Debbie were having sex. Rachael whispered to the offender that they were going to bash Debbie. Debbie was face down on the bed. The offender was on his knees straddling Debbie over or near her backside. XY hit Debbie with a bottle on the head. The offender said, "Get the belt", and XY took a belt which was over the end of the bed and handed it to Rachael. Rachael put it around Debbie's neck and pulled on it. However, Debbie bucked in such a way the Rachael was knocked off balance onto the floor. At that point the offender took hold of the belt and pulled on it. XY held Debbie's legs down. At one point Debbie said, "No, please". Then Debbie stopped breathing.
15. The offender's account is that whilst he and Debbie were lying next to one another on the bed Rachael and XY came into the bedroom. Debbie was lying on her back. The offender immediately jumped off the bed to the side of the bed. Rachael put a belt around Debbie's neck, Debbie tried to get up and XY hit her on the head with a bottle. Rachael pulled on the belt from behind Debbie's head and within 30 seconds Debbie went limp. The offender was just standing by the bed "freaking out". At no time did anyone, including Debbie, say anything.
16. There are a number of aspects of the offender's evidence which make his account too incredible to believe or else they mean that he is a person of exceptional callousness. His evidence was that he simply stood by and let these two women kill the person with whom he had just been having intimate sexual relations in front of him without raising even so much as a protest. Then, although he wasn't sure whether she was dead or alive, his main concern was to shield his mate Marc from seeing what had happened. So, he and Marc went down to the fire and had a few drinks.
17. He then went back up to the granny flat and, not knowing still whether Debbie was alive or dead, he did not check to see what her condition was. Instead, he went onto the verandah and called to Rachael to come out and talk to him. She said they were going to rob the house. He did not call triple 0 he said because his phone was out of credit, evidence I reject as an invention in the witness box. Although he was worried that his DNA, which was on record, would be on Debbie, he said nothing to Rachael or anyone about that. Instead, he saw a shovel and decided to dig a hole to bury her without telling Rachael that that was what he was going to do.
18. In the light of what the offender undoubtedly did after Debbie was killed (the failure to assist her himself, the failure to call for any assistance, the burying of her body by him in a grave dug by him, the stealing of the guns, his demeanour and behaviour in the taxi afterwards, and his ongoing dealings with Rachael that day and thereafter) I reject his evidence that he was not involved in her killing and that he simply stood by shocked and "freaking out" as he described it.
19. What I find happened in the bedroom is this. The offender and Debbie were having sex on the bed. Rachael and XY entered the room with the intention at that stage, at least of hurting Debbie, principally because of the bad blood that had developed during the night between XY and Debbie, resulting in two arguments where, at one stage, they had to be physically separated. Whether or not Rachael whispered to the offender that they were going to bash her I cannot say, but it soon became clear to the offender, who knew of the discord between XY and Debbie, that Rachael and XY intended at least to assault Debbie. XY hit Debbie with a bottle. Rachael then put a belt around Debbie's neck.
20. When Rachael put the belt around Debbie's neck Debbie was face down on the bed - that was the way her body was seen by Rachael, XY and Derbridge after she had been killed. I reject the offender's evidence that Debbie was lying on her back when she was attacked. The offender was kneeling over or next to Debbie and put pressure on her back and/or her arms to hold her down. Evidence in the post-mortem report identified bruising on the right lower back, the back of the upper right arm and the back of the right wrist all of which occurred before death. The offender did not know that Rachael intended to inflict grievous bodily harm nor intended to kill Debbie, nor did he intend that Rachael's actions would produce such results. I cannot be satisfied beyond reasonable doubt that the offender himself pulled on the belt. I am, however, satisfied beyond reasonable doubt that the offender assisted Rachael to do an act which was an unlawful and dangerous act.
21. Why he did so is difficult to understand. It is clear, however, that he and Rachael had been in a sexual relationship right up to this time. She was a dominant personality, and it may be that the offender was trying to please her by assisting her in what she was doing to Debbie. Her intentions seem to have been borne out of a combination of jealousy for what was going on between the offender and Debbie, and a desire to support her sister against Debbie.
22. I accept the evidence of Rachael, XY and Derbridge that Debbie cried out whilst she was being assaulted. She said either "please, no" or "please stop" or "please don't". I reject the offender's evidence that Debbie said nothing. The offender must have known that what was being done to Debbie was unwelcome and was being resisted by her. He did not, however, cease his assistance to Rachael even though he did not intend to cause Debbie really serious injury or worse.
23. I do not accept the offender's evidence that he went down to the fire after the killing and had a few drinks before coming back up to the house. No other person present supports that evidence. I find, rather, that the offender and Derbridge went to dig the hole down behind the dam on the property.
24. After the offender and Rachael buried Debbie in the shallow grave they returned to the fire area. The offender said that when he and Derbridge went to put the shovels away Derbridge pointed out a small box underneath the floorboards in the double garage. When they investigated they found it contained ammunition. The offender admits that he and Derbridage then went looking for guns in that area and in the shed behind the house. They found a gun safe. They looked for bolt-cutters and when they located them the offender cut the lock on it and stole the two guns. Meanwhile, Rachael and XY were stealing other items from the main house as the offender admitted knowing at the time. He admitted at the trial that he played his part by going to look for the guns. I find, therefore, that there was a joint criminal enterprise with, at least, Rachael Evans, to steal all of the items identified.
25. One of the guns was later sold by the offender and Rachael for $600 to someone at a drug dealer's place. The offender and Rachael shared the proceeds equally. The other gun was handed to the police by a friend of the offender's at whose place the offender had left that gun. When I sentenced Rachael Evans the agreed facts provided to me stated that the 12 gauge shotgun was sold for $6000 but they were unable to sell the other gun. In her evidence at this trial Rachael agreed that she had deliberately inflated the price they received when she was interviewed by the police. She agreed that the true figure was $600.

Objective seriousness

1. I accept that the act which resulted in the killing was not premeditated. I reject the evidence of Scott Derbridge that there was any conversation in Mawson Park or elsewhere prior to the group going out to the Lakesland house where anyone expressed an intention to kill Debbie or hurt her. The offender's involvement in the killing was, in the first instance, spontaneous, but there was quite sufficient time for him to have ceased his involvement as he agreed in his evidence at the trial. Even on his own account it took at least 30 seconds before her body went limp. I have determined that Debbie called out for them to stop doing what they were doing. The offender could have ceased his involvement at that point and/or prevented her death. He must have known that what was happening was a serious assault. It would be apparent to anyone that putting a belt around someone's neck and pulling it was a dangerous act indeed. There was no reason for him to have assisted Rachael in what she was doing.
2. I repeat what I said when I sentenced Rachael Evans (R v Evans [2015] NSWSC 254 at [77]): The killing of [Debbie] was gruesome and apparently pointless. Prior to the events concerned she was not known to the offender [Evans], Duffy or anyone else in the group. She had engaged in sex with them the day before and presumably thought they could be trusted because she invited them to her parents' home. Then, when at the house, at one minute she was simply engaging (again) in sexual congress with Duffy, the next she was at the mercy of two and probably three persons who, it must have been apparent to her, were intending to harm and kill her. Death did not come instantly. There was evidence that she had called out to the perpetrators to "Stop it". I do not include the present offender as one who intended to kill her.
3. The offender submitted by his counsel that the relevant unlawful and dangerous act was the striking by XY with the bottle and the joint criminal enterprise concerned that assault. The submission must be rejected for a number of reasons. First, the striking with the bottle was not the act that caused Debbie's death. The lack of any evidence of damage to Debbie's head as the post-mortem examination demonstrates, means that any blow struck could not have been very hard. Secondly, the offender asserts that there was no planning for the offence. In those circumstances, where without warning XY struck Debbie with the bottle after entering the room, it is difficult to point to any joint criminal enterprise before that assault. Thirdly, on the offender's own account the belt was put around Debbie's neck before she was struck with the bottle. This submission is inconsistent with that evidence. Finally, the joint criminal enterprise on which the jury's verdict was based was between Rachael and the offender not XY and the offender. The unlawful and dangerous act was the pulling on the belt around the neck, with which act the offender assisted as I have described.
4. His failure to attempt to assist Debbie when her body went limp, including his failure to ring for help, are aggravating features. So too was the use of the belt (a weapon), the fact that the offence was committed in company and the fact that the offence occurred in Debbie's parents' house, even though she was not supposed to be there when they were not there. She had invited the group to her house and she was entitled to feel safe there.
5. It is an aggravating feature that the offender dealt with Debbie's body in the way he did in order to try to cover his own involvement in her death. That was made worse by the fact that he buried the body on her parents' own property. He then joked about her absence to the taxi driver and he subsequently lied to the police about any involvement on his part.
6. I assess the manslaughter offence above the mid-range of objective seriousness.
7. In relation to the stealing offence I accept that the offence was not pre-planned. Having now heard the evidence of the offender, which was not available to me when I sentenced Rachael Evans, that there was no discussion of guns being at the property before they went to the property, I cannot be satisfied beyond reasonable doubt that the offender formed an intention in advance to seek out and steal the guns. Neither XY nor Derbridge gave evidence to that effect. Only Rachael did so, and whilst that was partly an admission against her interest it was also consistent with her endeavouring the put blame onto the offender.
8. However, when the offender came across the ammunition he then went looking for the guns and broke into the gun safe to steal them. He did not simply happen across the guns. To that extent, there was some planning. The offence is aggravated by having been committed in company. I consider that it is an aggravating factor that the stealing took place from a property to which the offender had been invited by Debbie and with which Debbie had a connection, it being her parents' home.
9. It is a matter of concern that one of the guns was then sold to someone at a drug dealer's house. The combination of drugs and guns has the potential to be, and often is, a lethal one. I accept on the basis of R v De Simoni (1981) 147 CLR 383 that I am not sentencing the offender for the sale of the firearm, but its ultimate disposition is a matter I can and should take into account.
10. I assess the stealing offence in the mid-range of objective seriousness particularly because guns were stolen.

Subjective matters

1. The offender was aged 31 at the time of the offences and is now aged 34. He was the youngest of four children and he told the psychologist, Istvan Schreiner, that he had a good upbringing and had maintained a reasonable relationship with his parents. He has had a number of serious relationships and has a daughter, now aged about 12, from one of those relationships.
2. After leaving school the offender had a number of different jobs including landscape gardening, various labouring jobs as a council sub-contractor, working as a gyprocker and a forklift driver. It was not clear if the offender had work at the time of the events for which he is being sentenced.
3. He told the psychologist that he first started using alcohol and drugs at the age of 16. He used marijuana, ecstasy, LSD and amphetamines regularly, and he started using methamphetamine in March 2012.
4. His record of offences commences in August 1999 when he was convicted of driving whilst disqualified. On his third such offence only 2 years later he was sentenced to periodic detention for 6 months. Although his offending may be regarded as being at a low level it includes assault, contravening domestic violence restrictions, break and enter, and behaving in an offensive manner. He has been given suspended prison sentences, home detention and a second order for periodic detention. His record entitles him to no leniency.
5. Mr Schreiner concluded that he had no symptoms of a diagnosable mental disorder nor pre-existing personality disorder. On the Carlson Psychological Survey he was classified as an offender Type 1. This type is characterised by drug and alcohol abuse. Individuals within this type, Mr Schriener said, are usually concerned about getting into trouble but show little motivation to change. They are sociable and friendly with no apparent hostile behaviours. However, due to long-term drug and alcohol abuse they may have a quick temper that may result in impulsive behaviour.
6. Mr Schreiner said that the offender's responses during the assessment suggested an acknowledgement of important problems and the perception of a need for help in dealing with these problems, particularly drug and alcohol use. Mr Schreiner thought that with appropriate long-term goals, family support and abstinence from alcohol and drugs, the risk of offending was minimal.
7. I have been provided with a number of references from family friends and from his mother. It is clear that the offender has the support of his parents. The referees all express surprise that someone from the loving family that they know could have committed such a terrible crime. Their only explanation, a view I share, is that it came about from the offender's choice of associates and immersion in illicit drugs, and I would add, alcohol with those drugs.
8. I have also noted the certificates tendered on behalf of the offender showing the courses he has completed whilst in custody.
9. I have some reservations about the extent of the offender's remorse. His behaviour after the offences, as I have said, showed a callous disregard for Debbie and what he had done. Having participated in her killing, he buried her body in a hole he dug, and proceeded to search for and steal guns. His demeanour and conversation in the taxi afterwards showed no concern at all for what had happened.
10. Over the next week or so he continued to buy and consume drugs. In fact, the first thing he did after the taxi arrived back at Picton was to go to his friend's hose with the group to smoke more marijuana and to see if they could sell the guns with the assistance of his friend. Then, having stopped briefly at his parents' house, he and Rachael went to a drug dealer's house in Leumeah "to go and score some more speed" as he said. He also bought some heroin "to get myself out of it so I didn't think of what had happened the night before". Some days later on Mother's Day he had Rachael stay over at his parents' place. A few weeks later he went to Campbelltown Court with her for a case involving XY.
11. In his first ERISP on 1 June 2012 he not only lied about his involvement but spoke in demeaning terms about the sex he had with Debbie on the night she was killed.
12. Mr Schreiner reported that when the offender told him of the night in question, he displayed a somewhat detached and logical approach to describing the events. He gave Mr Schreiner a similar account of what happened to what he gave at the trial, minimising his own involvement to being a mere onlooker. However, contrary to what he said at the trial about jumping off the bed when Rachael and XY entered the room, he told Mr Schreiner that he had had sex with Debbie at that point and he was in the process of dressing when they entered the room.
13. His evidence concerning any remorse at the sentencing hearing was this: Q. What do you think when you reflect back on your behaviour, what do you think about yourself? A. I was a mess, yeah, not happy with what I was doing. Q. What about being involved in the death of Ms Ayers, how do you feel about that? A. I'm very - I don't really know how to put it into words, yeah, about what I did. Q. Do you think about that from time to time? A. Yes, I do. Q. Do you think about Ms Ayers' family? A. Yes. Q. Do you think about how they feel? A. I can't fathom I can't fathom how they feel. I've never had that happen, so I can't understand how they would be feeling. Q. How did you feel when you heard the victim impact statements read? A. Shocked.
14. In my opinion the offender has shown only minimal remorse for what happened to Debbie and his participation in it.
15. Debbie's sister, Tracey, read a heartfelt Victim Impact Statement. A further Victim Impact Statement from Bryon Green, Debbie's father, was tendered. The evidence at trial disclosed that Debbie had some problems of her own. Her son, who was aged 14 at the time, was living with Mr and Mrs Green. It is clear that Debbie was loved by her family and that they were trying to assist her to resolve her problems. The Court again extends to all of Debbie's family its deep sympathy for their loss.
16. The minimal remorse which I have found is not unconnected with his prospects of rehabilitation. Despite Mr Schreiner's opinion, referred to earlier, I am less sanguine about the offender's prospects of rehabilitation. Of concern is that fact that, despite being in custody related to a crime that occurred in the midst of what can only be described as a drug and alcohol binge, the offender has continued to use illicit drugs. The offender gave evidence that the last time he used illicit drugs was about 18 months ago. He has received punishments whilst in custody related to some of this continued drug use. Moreover, nothing in Mr Schreiner's report suggests that he was aware the offender had on occasions continued to use illicit drugs in custody.
17. Further, when the offender was asked by his counsel at the trial what drugs he had used and was using at the time of the relevant events at no stage did he admit to using methamphetamine. The first time such admission was made was to Mr Schreiner when he said in March 2012 he was experimenting with methamphetamine. At the sentence hearing he admitted, but only in cross-examination, to using it at first every couple of weeks, and then more regularly after he got addicted to it, after the first month of trying it. Such a lack of honesty, under oath at his trial, of what drugs he was using is a reason to have considerable doubts about accepting his evidence about his intentions regarding drugs, and to have considerable reservations about his prospects of rehabilitation.
18. The offender said that he intends to do courses in prison related to drug rehabilitation. Once he is released, he said, he will probably start going to AA and Narcotics Anonymous again. He said that he stopped using drugs 18 months ago because of the thought of what he was doing to himself and he didn't want to be that kind of person any more.
19. I consider that the offender's prospects of rehabilitation can only be considered to be on the low side of average. If his involvement in Ms Ayers' death was not sufficient to persuade him not to go on using illicit drugs, although he described it as a big wake-up call, I have serious doubts that mere reflection on what he was doing to himself and on the type of person he was, will be sufficient to bring about a change. He will need some assistance with rehabilitation.

Plea and assistance

1. The offender pleaded guilty to the stealing offence at the earliest opportunity. He is entitled to a discount of 25% for that plea.
2. The offender submitted that he should receive a discount for facilitating the course of justice pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW). He said that the following matters were relevant:

• He admitted being present at Lakesland and being present when Debbie was murdered;
• He admitted disposing of the body;
• He admitted stealing the guns from the property.

1. I do not consider that there was any facilitation of justice in respect of these matters. There was abundant evidence of the offender being at the property and of being present in the room when Debbie was killed. Even to the time of his interview with Mr Schreiner I do not consider that the offender has been honest about the extent of his participation in Debbie's killing. There was also evidence of three other witnesses concerning the offender's disposing of the body. Those admissions had no effect on shortening the trial or limiting the evidence which was led. In relation to the admission of stealing the guns, I have discounted his sentence for that admission contained in his plea.

Deterrence

1. In my opinion both general and specific deterrence are considerations of some significance for a terrible crime occasioned by, and in all probability brought about by, the offender and the others involved having consumed large quantities of alcohol and illicit drugs over two days or longer. There is nothing to indicate, however, that, despite that ingestion, all of the participants were unable to make rational decisions including the cover-up of the crime and the stealing.
2. Given that there are no psychiatric or psychological issues, apart from drug and alcohol abuse, that can explain what happened, the offender bears a high moral culpability for the abuse and death of a vulnerable young woman.

Parity

1. Rachael Evans pleaded guilty to murder. Scott Derbridge was sentenced as an accessory after the fact to murder. There is no issue of parity involved in relation to either of their sentences.
2. In relation to the stealing charge to which she also pleaded guilty, Rachael was sentenced to a fixed term of 3 years which included a modest discount for the plea. There was a Form 1 offence attached but I considered that it arose as a consequence of the stealing offence and did not result in any increased penalty for the stealing offence. On the evidence I had at Rachael's sentence hearing I considered that the stealing offence had been planned at the park before the group left for Lakesland. I have not made such a finding in relation to this offender. At the time of the offending Rachael was on conditional liberty, and she had prior offences on her record as does the offender, including, as I have said, a break and enter. Derbridge pleaded guilty to break, enter and steal. Before discounts for plea and assistance, the Sentencing Judge said that his sentence would be a head sentence of four years "notwithstanding what might be seen to be his lesser role in this event". I have had regard to both of those sentences when fixing a sentence on the stealing charge.

Sentence

1. The offender has been in custody since his arrest on 1 June 2012. That is a period of 3 years 3 months and 18 days. The sentence will be backdated to that date.
2. The starting point for the stealing offence should be 2 years 9 months. With a 25% discount for the early plea the sentence will be a fixed term of 2 years.
3. I consider that the appropriate non-parole period for the manslaughter is 8 years with an additional term of 4 years.
4. There should be some accumulation for the stealing offence. The two offences were separate but were committed in close proximity.
5. I find special circumstances by reason of the offender's need for rehabilitation and because of the accumulation of the sentences.
6. Micheal John Duffy, for the offence of steal in a dwelling-house I convict you and I sentence you to a fixed term of imprisonment of 2 years commencing 1 June 2012 and expiring 31 May 2014. For the manslaughter of Colleen Deborah Ayers I convict you and I sentence you to a non-parole period of 8 years commencing 1 March 2013 and expiring 28 February 2021 with an additional term of 4 years expiring 28 February 2025.

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