R v Ellis [2008] VSC 372

Supreme Court of Victoria|2008-09-23|Before: COGHLAN J

Criminal Law - Murder - Circumstantial case - Prisoner convicted of stabbing and shooting his 19 year old de facto - Attempt to conceal body in lake - Prisoner continues to deny offence - Imprisoned for 21 years with a non-parole period of 17 years.

1 Darren John Ellis, on 25 June 2008 you were found guilty of the murder of Naomi Marree Bernaldo on or about 19 September 2006.

2 The trial at which you were convicted lasted nine days. There had been three attempts to complete your trial in Ballarat, but each of the three juries empanelled had to be discharged without verdict. None of the delays were as a result of what was done by you or your legal advisers. It did increase the pressure on you. It caused the trial to be transferred from Ballarat to Melbourne, which made it more difficult for your family to support you in your trial.

3 After the trial, your father wrote to me and I have placed the letter on the Court file. There is nothing I can do about the matters he raised in that letter, but you should understand that you have his complete support.

4 Ms Bernaldo's body was found in St George's Lake, Creswick on Thursday 2 November 2006. At the time of her death, she was 19, having been born on 17 July 1987.

5 When her body was found, it was contained within a chicken wire "cage". The cage was weighted down with a foundry weight and some rocks. It was held together with cable ties. It is clear that her body was never meant to be found.

6 You have always denied any involvement in Ms Bernaldo's death and you continue to do so. That makes the plea somewhat more complicated than it would otherwise be because it means that there is no explanation of the circumstances under which she met her death.

7 It also follows that you cannot be said to be remorseful, but I accept that you do regret the fact that Ms Bernaldo has been murdered.

8 You and Ms Bernaldo had been living together since the early part of 2006. Your relationship commenced in Ballarat and you later moved to live in a rented house at 100 Clunes Road, Creswick in about March 2006.

9 Although the cause of Ms Bernaldo's death was said by the pathologist Professor Ranson to be stab wounds to the chest and a gunshot to the head, there is nothing about the circumstances leading up to Ms Bernaldo's disappearance and death from which I would conclude that her murder was premeditated. It can only be assumed for these purposes that there was some falling out between you. Ms Bernaldo had been told that she was pregnant at about this time. Whether or not that fact led to some dispute can only be guessed at. The evidence is not entirely clear but I could not find on the whole of the evidence that you did not want the baby.

10 You had been in a long-term relationship up until the end of 2005 or beginning of 2006. That relationship appears to have ended on relatively amicable terms. What your tolerance would have been to a breakdown of your relationship with Ms Bernaldo is very difficult to assess.

11 The case against you was largely circumstantial. Ms Bernaldo disappeared in September 2006. You told your former wife on 30 September 2006 that Naomi had left you. You did not report her missing. You said that you got up one morning to find that she had disappeared. She had given you no notice or expressed any dissatisfaction with you. You said that you might have heard a car during the night.

12 Later in conversation with the Seager family, who were close to the deceased, almost like adopted grandparents, you gave the impression that a note may have been left, but never produced it. The Seagers received a text message purporting to be from Naomi. The message said: "Hi, it's Naomi, I've gone away, I'm no good to myself, I'm no good to Darren and I'm no good to you. Please don't phone me because if they know I have a phone I'll get kicked out".

13 Mr Seager found that message on about 18 October 2006, but it purported to have been sent on 2 October 2006. When the Seagers rang you, you said you had received a similar message. Some time later, you went to their house and saw the message on their phone. You did not produce your phone to show the message you allege you had received. When the Seagers asked you what to do, you advised them to delete the message.

14 You told the Seagers that when Ms Bernaldo left, she took her clothes and personal belongings. After her body had been found, Mrs Anne-Marree Burke, Ms Bernaldo's mother, found the deceased's baby album and some of her jewellery at 100 Clunes Road.

15 Ms Bernaldo had had a difficult life after the age of 14 of 15. She left home and developed a nomadic lifestyle. She became involved with drugs. She was involved with Lisa Lodge and Tabor House to assist her with accommodation and drug issues. She had fought addictions to amphetamines and cannabis. She had numerous mobile phones, and was sometimes difficult to contact.

16 It was suggested on your behalf that she may have left you to either recommence her drug-taking lifestyle, or to go into rehabilitation. She did not contact either Lisa Lodge or Tabor House after she left. How it was, if she left to do either of those things, that she finished up in the lake at Creswick, has never been explained. If it is suggested she was placed there to incriminate you, then the attempts to conceal the body are inconsistent with that. There were some items found at and near the house which could be connected to the concealment of the body, namely, cable ties and volcanic rocks, like those found with the body. They are both common items. You had access to chicken wire and possibly a weight similar to the one found with the body. You had access to weapons, both knives and guns; all of the weapons found at your home or directly traceable to you, were eliminated from the inquiry but that would not necessarily be the end of the matter.

17 For the purposes of sentencing, I find that you were prepared to deliberately mislead the Seagers, and that fact has added to their distress.

18 You are now 37 years of age. You have been previously married and have a son and daughter from that marriage, now aged approximately 11 and 9 respectively. I accept that you care for them. As I have already observed, the breakdown of your earlier relationship, which lasted for close to 16 years, was relatively harmonious.

19 You were born and grew up in Creswick. You are a qualified fitter and turner, having completed your apprenticeship at John Valves in Ballarat, where you worked for 12 or 13 years. As you grew up, you were active in local sports, including BMX bike racing, football, soccer and baseball. You were an avid competitor in BMX racing all around Victoria for about six years.

20 You were brought up in happy circumstances. Your schooling was satisfactory. Your family is a close one, and, as I have already observed, support you unequivocally. Your preferred apprenticeship would have been in panel beating, but that did not eventuate.

21 You married Tania in 1996 or 1997. By then, you had been living together for a couple of years, but had been in a relationship for many years.

22 You pursued sporting activities, both in water skiing and motor cross racing or motorbikes. In 1997 or 1998, you were involved in a serious motorbike accident, in which you badly broke your left leg. That accident occurred in competition, so no compensation was available. The three or so years which it took to resolve the medical issues were financially very difficult for you and your wife. You were not able to continue work at John Valves after that. It was then about 2000.

23 You had an ongoing interest in sporting shooting and as a result, started work as a travelling sales representative on a commission-only basis selling firearm supplies. The remuneration relative to travel and hours was not great. You eventually gained a management position at Kevin Grinters in Ballarat and later at Frank O'Reilly's Sports, a gun shop in Thornbury. Your family life was very difficult once you were working in Thornbury and travelling to and from Ballarat.

24 You had maintained your interest in motorbikes. You had purchased a motorbike with some of your termination payment from John Valves. You crashed that bike in February 2005 and broke your already badly damaged left leg. Your left leg damage led to the collapse of your right leg. You spent a good part of 2005 immobilised. Your wife was then working at two jobs to support the family. Over the Christmas holidays 2005/2006, you decided to leave the family, which ultimately led to your relationship with Ms Bernaldo. Even after your recovery, your lifestyle in 2006 appears to have been pretty aimless.

25 The damage to your leg led to your involvement with amphetamines. You used amphetamines occasionally, and supplied any excess to your friends. Whether or not you were technically a trafficker, you did not act for profit, and I will not, for these purposes, make that finding against you. It does reflect, at least in part, that your previously stable lifestyle had collapsed. Your present offending, although apparently not caused by it, is the culmination of it. You have no prior convictions, and I have taken that into account.

26 As I have already observed, Ms Bernaldo was just 19 at the time of her death. She had her life ahead of her. Her immediate past had been difficult but she did have support and her prospects at the time of her death appeared better than they had been for some time. That was on the basis of what appeared to be a reasonable relationship with you. She had recently been told she was pregnant and, subject to matters I have set out earlier, seemed pleased by that.

27 The fact that the circumstances of her death remain unexplained make the situation for her loved ones all the more difficult. Although not showing premeditation, there is something calculated about death by both stabbing and shooting. You have been found guilty of that conduct.

28 There is nothing in your background to suggest you suffer psychiatric illness. The difficulties with your physical health have been dealt with above.

(a) Paul Roger Seager - close friend of the deceased;

(b) Doreen Ann Seager - close friend of the deceased;

(h) Belinda Seager - close friend of the deceased; and

30 They speak eloquently of the loss which they have suffered. In particular, it is to be noted that her relative youth is a matter which increases the loss for those close to her.

31 In this case, just punishment and both general and personal deterrence are significant features of the sentence. Apart from my conclusion that the killing was not premeditated, there are no other redeeming features in the circumstances.

32 I can only proceed on the basis that you killed Ms Bernaldo after some dispute between you. The killing itself, involving two weapons, is a brutal one. The concealing of the body and thereupon the degradation of it, and the fact that you knew she was pregnant, are also matters in aggravation.

33 I do believe that your prospects of rehabilitation in the future are reasonable. I have therefore fixed a slightly lower than usual non-parole period. You were for a good part of your life, a useful member of your local community. It is hoped in the future that can be so again. You have been doing as well as possible in prison.

34 Darren John Ellis, for the murder of Naomi Bernaldo I sentence you to be imprisoned for 21 years. I fix a period of 17 years before you will be eligible for parole.

35 I declare that 688 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties