R v Edwards

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

Cameron v the Queen (2002) 209 CLR 339 MAH v R [2006] NSWCCA 226 R v AJP (2004) 150 A Crim R 575 R v Durocher-Yvon (2003) 58 NSWLR 581 R v FD & JD (2006) 160 A Crim R 392 R v Fernando (1992) 76 A Crim R 58 R v McNaughton (2006) 66 NSWLR 566 R v Markarian (2005) 228 CLR 357 CASES CITED : R v MLP (2006) 164 A Crim R 93 R v Mostyn (2004) 145 A Crim R 304 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v Thompson [2008] NSWSC 109 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Trevenna (2004) 149 A Crim R 505 R v Vu [2005] NSWSC 271 R v Way (2004) 60 NSWLR 168

PARTIES : Regina Deon James Edwards

COUNSEL : J Baly (Crown) N Harrison (Offender)

SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions) Susan Oliver (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: Deon James Edwards (the offender) stands for sentence having pleaded guilty to the murder of Adelaide Breckenridge (the deceased) at Nambucca Heads on 23 February 2008. The offender was then aged 38 and the deceased was 45. The maximum penalty for the offence is life imprisonment and a standard non-parole period of 20 years is applicable to it. 2 There is no dispute about the factual background to the offence. In outlining that material I have placed considerable reliance upon an Agreed Statement of Facts. 3 In about July 2007 the offender met the deceased and they formed a relationship. Thereafter the deceased regularly stayed at the offender's premises at 3 Sussex Street Nambucca Heads. During the course of their relationship, the deceased and the offender constantly argued. Sometimes the arguments would escalate into violence. On occasions the offender assaulted the deceased and threw her out of the house. Likewise the deceased, on occasions, retaliated by throwing bricks and rocks at the offender. 4 On 9 August 2007 the offender was convicted of assaulting the deceased and causing actual bodily harm to her. He was placed on a bond for a period of 18 months. It was a condition of the bond that he not assault, harass or otherwise interfere with the deceased. The bond was current at the time the deceased was killed. There was also an apprehended violence order in existence which placed restrictions upon the manner in which the offender could behave towards the deceased. Despite the existence of that order the deceased nevertheless continued to visit the offender. 5 The offender and the deceased are both of Aboriginal descent. The offender was employed by the Narala Aboriginal Lands Council on Mondays and Tuesdays. From Thursday of each week until the end of the weekend, the offender and the deceased were accustomed to drinking large amounts of alcohol together on a regular basis. They also smoked cannabis and frequently argued with one another. 6 On Friday 22 February 2008 the offender and the deceased were at the offender's home playing music. Although at times during the day they were arguing, there do not appear to have been any violent incidents. Several other persons, including the offender's sister, came to the premises where they joined in drinking alcohol and listening to music. 7 At about 11pm the police brought the offender's niece to his home as she had been involved in a fight. Police told the offender that his niece would be arrested if police saw her on the streets again. After the police departed, an argument erupted as a result of which the offender's niece left the premises. During the course of the argument, the offender was heard telling the deceased to "get the fuck back in the house, you slut or you will cop it". That argument continued into the early hours of Saturday 23 February.

8 Later that morning the offender and the deceased were again heard to be arguing. The front door of the premises was opened and the deceased was heard to say " I want to go home , I want to go home. I want to see my daughter". The accused said "Get back inside you slut". The front door was then slammed shut.

9 During the afternoon, the offender's next door neighbour, Mathew Barber rang the Nambucca police station and informed police that there was a "pretty bad domestic going on…and [that] they should come and fix it". For reasons that remain unexplained, the police did not attend the premises.

10 At about 5pm the deceased was seen at the front door of the offender's premises. She was heard to say, "I want to go home, I want to go home, I don't want to get bashed anymore". The deceased got part of the way out of the front door before the offender grabbed her by her hair and pulled her back inside. He then shut the door. It appeared that at that stage both the offender and the deceased were intoxicated. As a result of this incident, Mr Barber again contacted the police. The call was diverted to Kempsey police station but again it appears that police did not respond to the call.

11 At about 7:50pm the offender went to the door of Mr Barber's home. He called out " Matt, Matt, I need your help, ring someone. I've done something bad, Adelaide's not breathing." "I've done something wrong. I think I've killed her, come and check".

12 Mr Barber and two other men then returned with the offender to his premises. They discovered that the deceased was lying on her back on the floor in a bedroom. The men were unable to locate a pulse and efforts to revive her were unsuccessful. The offender said "I did it to her. I killed her". He repeatedly asked for a gun in order that he could shoot himself.

13 Police and ambulance personnel attended the scene. The offender was arrested and conveyed to Macksville police station. Custody management records indicate that the offender was well affected by alcohol at the time. Those records also indicate that he attempted to strangle himself with his underwear.

14 At about 3am the following morning the offender participated in a brief interview with police. He is recorded as having said that: "I loved her, that's the only thing I am saying"

"Man, she's my woman, I'm fretting for her, she's gone." 15 Clothing removed from the offender included a bloodstained pair of tracksuit pants. DNA located on the tracksuit pants was discovered to be the same profile as that of the deceased.

16 Police crime scene officers examined the offender's unit. In the kitchen they located a number of empty wine and port bottles and a number of empty beer and UDL vodka cans. Fingerprints matching those of the offender were found on some of the beer cans.

17 In the lounge room of the house, police located an empty port bottle, an empty bladder from a wine cask and a "bong". DNA, located in an area of blood staining on the carpet in that room, was found to match the DNA profile of the deceased. A blood stain on a picture frame also contained DNA which matched the profile of the deceased as did a blood stained shirt which was also discovered. 18 The largest concentration of visible blood was located in the hallway of the residence. DNA analysis of this blood revealed that it had the same profile as that of the deceased. Police are of the opinion that a "bloodshed event" had taken place in the hallway and that some of the blood in that area had been wiped up. A small bloodstain on the hallway wall was found to have the same DNA profile as that of the deceased.

19 An empty wine cask was found in the hallway adjacent to another area of blood staining. This area was just outside the bedroom in which the deceased's body was located. That blood also had the same DNA profile as the deceased's profile.

20 A pair of white tracksuit pants were found in the bathroom. The pants, which were heavily bloodstained, contained DNA which matched the deceased's profile.

21 The deceased's body was found lying face up in a bedroom. There were lacerations to her right temple, her right cheek, her upper lip and under her chin. There was bruising to the right side of her eye and ear but there was very little blood on her face. Her hair was wet and appeared to have been brushed away from her face. Nor were there any significant bloodstain patterns such as one would expect if the deceased's injuries had been sustained in that room.

22 An axe handle was located near the deceased's feet. There was no head to the handle and one end of it was jagged. DNA was located on both ends of the handle, the major component of which matched the profile of the deceased whilst the minor component matched the profile of the offender.

23 Dr Cala performed an autopsy upon the deceased on 25 February 2008. He observed a large number of injuries to various parts of her body. The deceased had sustained very significant lacerations to her chin, below her right eye and above her right eyebrow and to her upper lip. There was also extensive bruising to both of her ears, to her left eye, to an area near her left eyebrow and an area near to her left cheek. There was also bruising to two of her ribs, her upper chest area and to both of her arms and her shoulders.

24 An internal examination was also conducted. It revealed bruising to the deceased's scalp and two separate lacerations to the heart, the most significant of which was what Dr Cala described as a "through and through" rupture of the apex of the left ventricle resulting in 500ml of blood getting into the pericardial sac. Lacerations to the left and right lobe of the deceased's liver were detected. Multiple recent rib fractures were also located.

25 Dr. Cala concluded that the direct cause of death was "multiple injuries". He went on to express the opinion that the injuries to the heart and liver may have resulted from a blow or blows such as a stomp or "knee drop" to the upper abdomen and lower chest region inflicted whilst the deceased was lying in a supine position. 26 Dr Cala also concluded that the injuries to the deceased's head, face, trunk and arms were consistent with having been inflicted during an assault. He expressed the opinion that they could have involved blows from a blunt object such as a bottle, a lamp, a small baseball bat or indeed from the axe handle that was found next to the body of the deceased.

27 The deceased had a blood alcohol reading of 0.269g/100mls with the vitreous alcohol level being 0.288g/100mls. At the time of her death she weighed 42 kg and was 163 cm in height whilst the offender was estimated to be between 175 cm and 180 cm in height, and to weigh 90 kg. He was described as being of solid build. 28 On 29 February 2008, the offender made a telephone call to a relative from gaol which was recorded. During the phone call the offender stated "Do you know if they have found any weapons…, cause I seen it on the news…, there was no weapon, there was no weapons, I was watching it on the news". 29 I have been informed about the offender's background in a report prepared on his behalf by a forensic psychiatrist, Dr Robert Delaforce. The offender was born in Macksville and spent the first few years of his life there. He was never close to his father who died in 1995 from heart disease. His father was in the habit of consuming excessive amounts of alcohol and left the family home when the offender was about 4. He and the offender's mother had frequently argued. The offender reported having been physically abused by his mother. On one such occasion, when he was aged about 5 or 6, he hid under his mother's bed after having received "a hiding" from her. His mother and a male companion were on the bed at the time and it collapsed on the offender. The offender was only able to escape when he began screaming. He was apparently traumatised by the incident for a long period of time. The offender's brother told the offender that when he (the offender) was about 2 or 3, the offender had been the victim of repeated sexual abuse at the hands of an adult male.

30 The offender had a disrupted schooling. He was always in the lowest class and had difficulty reading and writing. He was teased because of his shortcomings and was constantly in trouble. He was eventually expelled in Year 11. As a young man the offender showed considerable promise as a rugby league footballer. However his career was cut short because of his dependency upon alcohol which he first started consuming at the age of 9. From the age of 14 he began to drink excessively, a pattern which continued until his incarceration for the present matter. It would seem that he was in the habit of drinking throughout the day commencing from first thing in the morning. If he was unable to purchase alcohol, he would drink methylated spirits. He described himself as having been "born an alcoholic". Since the mid 1990s the offender reported having experienced "blackouts" after consuming alcohol. He said that he had little, if any, recall of the events which culminated in the fatal incident. 31 The offender also reported having commenced using cannabis at the age of 12. He estimated that for many years he had been in the habit of smoking 20-30 "bongs" a day. Following a court order, the offender spent a total of 9 months during the 1990s in a rehabilitation centre in an endeavour to overcome his dependency upon illicit drugs and alcohol.

32 The offender's abuse of alcohol and cannabis appears to have also plagued his personal relationships, all of which appear to have been volatile. A de facto relationship in the 1980s, during which his 21 year old son was born, faltered for that reason. An 11 year relationship with another de facto partner ended in about 2001 for the same reason. After that relationship broke down, his partner denied the offender access to their three children, an issue which caused the offender a considerable degree of distress. Indeed he was forced to go to court in order to obtain access to them.

33 It is to the offender's credit, that despite his various challenges, he has been in fairly constant employment, albeit that it has been in quite menial positions. Despite having employment, the offender nevertheless owed a substantial sum of money to the Aboriginal Lands Council for outstanding rental on the premises which he was occupying.

34 Concerning the offence, the offender told Dr Delaforce that "I just can't believe I could do something like that and kill somebody". Dr Delaforce observed that the offender "expressed some remorse that [he] judged to be genuine".

35 Dr Delaforce was able to examine the offender's Justice Health file. It revealed that when he was first received into custody, the offender was assessed as being "highly suicidal" and that he "appeared to be grieving for the loss of his partner". Those suicidal thoughts continued for some time. The offender is now, for the first time, on medication for his depressed condition although he has had something of a history of self-harm and attempts at suicide.

36 Dr Delaforce observed that the offender was very depressed when he first examined him. Nevertheless he concluded that there were "no signs of any psychotic features" and that the history which the offender provided indicated "satisfactory cognitive functioning".

37 Dr Delaforce arrived at the following conclusion: I nevertheless assessed [the offender] to be a very sad and tragic figure who is a psychiatric/psychological victim of traumas in his childhood that permanently changed his mental health in a way that he found best able to deal with by excessive substance use. That use contributed to his repeated violence and failures in life that include substantial problems with his education, employment, relationships, and to even his failure to develop further his obvious football ability. Stressors he experienced in recent years aggravated his chronic overall severe psychiatric problems with his increasing accommodation rent debt, loss of the building construction site employment, legal attempts to overcome no contact with his children, alleged death threats from [the deceased's] family that he accepts followed his prior violence to her, and his only father figure's heart by pass surgery. 38 The offender is serving his sentence in protection because he maintains that he has received threats from relatives of the deceased some of whom are also in custody. A letter from the Department of Corrective Services confirms that fact.

39 The offender has a criminal record dating back to 1988. Although it contains a number of entries, the offender has never previously been sentenced to a term of imprisonment. He has twice been convicted for driving with the high range prescribed concentration of alcohol and twice for driving whilst disqualified. He has several convictions for relatively minor matters of dishonesty, the last of which was in 1998. He also has a number of convictions for street offences such as offensive behaviour, not leaving licensed premises, resisting arrest, damaging property and possessing a prohibited drug. Of more significance for present purposes are convictions in the Local Court in 1993, 1995 and 2001 for offences of common assault. The first two of those offences attracted pecuniary penalties, whilst for the 2001 matter the offender received a community service order. Breaches of apprehended domestic violence orders, in 1996 and 2001 respectively, attracted pecuniary penalties. The most serious offence on the offender's criminal record is the assault occasioning actual bodily harm which, as I have said, he committed upon the deceased in 2007. 40 The offender's record, along with the other material which is before the court, suggests that most, if not all, of his offending behaviour has occurred against the background of his excessive consumption of alcohol. 41 I have received victim impact statements from one of the deceased's sisters and from one of her daughters. The feelings which they have so eloquently and poignantly expressed and the grief which they and their families 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. 42 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. 43 Although there remains considerable uncertainty as to the precise circumstances in which the deceased was killed, there are a number of aspects of the case about which there is agreement. First, the Crown realistically acknowledges that the offence is not in the worst category such as to warrant the imposition of the maximum penalty. That being so, it is appropriate to impose a determinate sentence. Secondly, the parties are in agreement that the evidence supports the proposition that the offender intended to inflict grievous bodily harm upon the deceased but did not intend to kill her. Thirdly, it is common ground that the fatal incident was not premeditated and that the offence is not to be treated as being "part of a planned or organised criminal activity" within the meaning of s 21A(2)(n) of the Act. Fourthly, the Crown concedes that it is unable to establish to the criminal standard that a weapon was used in the commission of the offence. Although there is evidence available which suggests that the offender may have had resort to the axe handle during the course of the fatal incident, the Crown accepts, in light of the somewhat tentative opinion expressed by Dr Cala, that it cannot prove beyond reasonable doubt that it was in fact used. Fifthly, it is common ground that the fact that the fatal incident occurred within a home should not be treated as an additional aggravating factor within the meaning of s 21A(2)(eb). Although the deceased was accustomed to staying at the offender's premises, it was not her home. Nevertheless she was entitled to feel safe and secure in those premises and the fact that she was not, is a relevant factor in assessing the overall objective gravity of the offence. Finally, it is accepted on behalf of the offender that it was a matter of considerable aggravation that he was on a bond at the time of the offence, particularly as it had been imposed for an assault upon the deceased. 44 That said, the circumstances surrounding the offence reveal criminality of a most serious kind. The nature and extent of the injuries which the deceased sustained reveals that the blows which the offender inflicted upon her were administered with very considerable force. It is not possible to determine precisely when the various blows, including the fatal injuries which the deceased sustained, were inflicted. It can however be reasonably inferred that the attack upon her occurred over a not insignificant period of time and that it consisted of a number of blows. Moreover, the deceased endeavoured unsuccessfully to escape from the offender. Dr Cala formed the opinion that the bruises which were located on the deceased's right shoulder, arm, elbow and wrist suggested that she had been restrained by the offender. Finally, given the physical disparity between them, it seems clear that the deceased was in no position to adequately defend herself in the face of the offender's violent conduct. 45 On the other hand, there are a number of mitigating factors upon which the offender is entitled to rely. A significant factor to be weighed in his favour is his plea of guilty: see s 21A(3)(k) and s 22. I was informed that sometime before the trial the offender offered to plead guilty to manslaughter. That offer however was rejected. I was also advised that the offender's legal representatives obtained a further report from a forensic pathologist, and also explored other possible defences, before indicating to the Crown shortly before the trial commenced that the offender would plead guilty to murder. It was submitted that the offender should not be disadvantaged by the fact that steps taken on his behalf by his professional advisers had delayed the entry of his plea of guilty. I have given that matter due consideration and recognise that it is no small matter to plead guilty to the most serious offence in the criminal calendar. Although the plea of guilty could hardly be described as being entered at the first available opportunity, there was still some significant saving of the resources of both the State and the Court. I was informed that the trial had been set down for three weeks and that the Crown intended calling 40 witnesses. The offender's plea has spared them from the ordeal of having to give evidence. 46 In the circumstances the offender has "facilitated the course of justice": Cameron v the Queen (2002) 209 CLR 339. Accordingly, and because his plea of guilty has utilitarian value, he is entitled to a discount which I assess to be worth 15%, in accordance with the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383. 47 The Crown accepts that it is appropriate to allow a further reduction of sentence to the offender on account of the contrition which he displayed both in his conduct and by his utterances at the time of, and shortly after, the offence was committed: s21A(3)(i). Furthermore, by pleading guilty the offender abandoned any chance that a jury may have returned a verdict of manslaughter upon the basis that the Crown had not established, in the light of his state of intoxication, that he had formed the requisite intention for the crime of murder. 48 As I have said, the offender has been in protective custody whilst on remand. The authorities make it plain that the circumstances in which an offender who is on protection is serving, and is likely to serve, his or her sentence should be carefully scrutinised by a sentencing court: see R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168 at 199-200. 49 I accept that the offender entertains reasonable fears for his well-being. In any event, it is highly likely that he will remain in some form of protective custody for the remainder of his sentence, a period of time which will, of necessity, be very lengthy. Those factors will mean that his time in gaol will be more burdensome than would be the case for a mainstream prisoner: see generally Durocher-Yvon (supra) at 587. Nevertheless, as best one can tell at this stage, it seems that the offender is likely to go to a facility which is predominantly a protection gaol and so his access to facilities and programs should not be unduly interfered with. 50 The offender does not have the benefit of a clear criminal record. In approaching this issue, I have borne steadily in mind the principles enunciated in R v McNaughton (2006) 66 NSWLR 566. He has a number of convictions for offences of violence, although none of them of course even remotely approach the seriousness of the present offence. However, in light of all the material which is before the court, it is appropriate to have some, albeit limited, regard to the need for personal deterrence. It is also important to acknowledge that considerations of general deterrence must also take their place in the sentencing process. The present offence, seen against the background of the offender's overall history, would suggest that the offender's prospects of rehabilitation must, at first blush, be approached with considerable caution. However, there remains some room for optimism, particularly in view of his acceptance of responsibility for the current offence. Moreover, by reason of the sentence which I shall impose, the offender will, by the time he is released into the community, have reached an age at which it can be reasonably anticipated that he will have attained a measure of maturity. His rehabilitation will also depend very largely upon whether he can overcome his dependency upon illicit drugs and alcohol. 51 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 Way (supra) 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. 52 It was submitted on behalf of the offender that the offence should be assessed as falling "in the low or at worst the low to mid-range". The Crown submitted that it fell into "the mid-range of seriousness". In my view, the circumstances which I earlier outlined demonstrate that the offence should be characterised as approaching, but falling a little below, the "middle of the range of objective seriousness". In coming to that conclusion, I have had regard amongst other things, to the fact that the offender did not intend to kill the deceased, the fact that the offence was not premeditated and that it was not established that a weapon was used. 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 do so particularly because of the offender's plea of guilty, the contrition which he has demonstrated and the other favourable subjective features of the case to which reference has been made. 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". 53 It was also submitted, although somewhat faintly, that I should make a finding of "special circumstances". I am not inclined to do so because the factors upon which the submission is based, are matters which I have already taken into account in arriving at the appropriate sentence. In that respect I have given due weight to the issues raised by Dr Delaforce in his report concerning the offender's disadvantaged background. Moreover, to the extent that it is appropriate to do so, I have had regard to the principles enunciated in R v Fernando (1992) 76 A Crim R 58. The effect of the overall sentence which I shall impose will, in any event, enable the offender to have an extended period of supervision in the community whilst on parole. 54 In written submissions filed on behalf of the offender a possible range for the present kind of offence was suggested. That submission however was somewhat refined in oral submissions presumably because the initial range was based largely upon cases which were decided before the introduction of standard non-parole periods. Reliance was placed in oral submissions upon the decision in R v Vu [2005] NSWSC 271 as providing a useful comparable authority. That offender received a non-parole period of 13 years 6 months with an overall term of 18 years imprisonment. In response, the Crown drew my attention to R v Thompson [2008] NSWSC 109 in which a non-parole period of 15 years with an overall term of 20 years imprisonment was imposed. 55 Whilst I have derived some assistance from a consideration of other decisions, and in particular from the two authorities which I have just mentioned, the extent of any such assistance is necessarily limited given the inevitable differences between those cases and the facts of the present case: see R v Trevenna (2004) 149 A Crim R 505. In the final analysis, I must exercise my own sentencing discretion having had proper regard to the relevant sentencing principles to which I have referred and having considered the salient features of the present case: see R v Markarian (2005) 228 CLR 357. 56 Because a human life has been needlessly and unlawfully taken, it is necessary to impose a sentence which properly reflects the objective gravity of the offence. It must also give effect not only to the various matters referred to in ss 3A and 21A of the Act but also to the maximum penalty prescribed by the legislature. In setting the effective 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.

Sentence 57 For the murder of Adelaide Breckenridge the offender is sentenced to a non-parole period of 14 years with an overall sentence of 18 years 8 months imprisonment. Both terms will commence on 23 February 2008. The total term will expire on 22 October 2026. The non-parole period will expire on 22 February 2022 on which date the offender will be eligible for release on parole.

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