R v Gierczynski

Supreme Court of NSW|2013-12-06|Before: Adamson J

Introduction 1On 26 June 2013, the offender was arraigned on an indictment charging him with the murder of his wife, Danuta Gierczynski, at Chipping Norton on 31 October 2010. He pleaded not guilty to murder and offered a plea of guilty to manslaughter. The Crown did not accept the plea in discharge of the charge on the indictment and he stood trial. The second charge on the indictment, to which he also pleaded not guilty, was that he wounded their son Daniel Gierczynski with intent to cause grievous bodily harm. On 18 July 2013 the jury returned verdicts convicting him of murder and wounding with intent to cause grievous bodily harm. 2There was no dispute that the offender killed his wife. The issues in the trial were whether the Crown had excluded self-defence and provocation, whether the offender had established the partial defence of substantial impairment and whether the Crown had established the wounding charge beyond reasonable doubt. 3At the time he murdered his wife, the offender and Danuta Gierczynski had been married for over 28 years.

Facts 4The offender and his wife met in Poland in 1981. They married in Austria in January 1982 and migrated to Australia on 24 March 1982. The following year their son, Daniel, was born. Danuta returned to work as a registered nurse not long after Daniel's birth. Their daughter, Angela, was born in 1988. When Daniel was seven, he was injured in a car accident as a result of which he suffered hemiplegia and brain damage. At that time Danuta stopped working for a period to look after Daniel and to assist in his rehabilitation. 5The household was dependent on Danuta's income as a registered nurse, but the offender nonetheless resented her working and feared that she was having an affair with one of her male colleagues. There is no evidence that his suspicions had any basis. Danuta's repeated assurances that she loved him and was faithful to him did not assuage his concerns. He complained to others, including friends and neighbours, about her presumed infidelity. 6The offender was, at times, tyrannical. He threw food that he considered to be insufficiently hot and physically assaulted Danuta when things did not go his way. He blamed her if he lost at gambling or crashed the car. He also held her responsible for Daniel's accident on the grounds that if she had been a diligent mother it would not have happened. 7He was obsessed with his own sexual fulfilment. He used pornography and sought out prostitutes to satisfy his needs. At times he tried to find a permanent substitute for Danuta and courted at least one woman, Gina, with a view to a long-term relationship. He regarded his inability to maintain an erection as proof of her infidelity. 8He either deliberately refused to recognise, or was incapable of appreciating, the hypocrisy of his insisting that Danuta be not only faithful, but also confined within the home and chaperoned on journeys to the shops and to work, while he was regularly unfaithful to her and came and went at will. 9He became fixated about a particular date in 1996 when he telephoned Danuta at work and she was not available to speak with him. He often reverted, in their regular arguments, to the topic of her whereabouts on that night. In 2006 the offender insisted that his wife no longer work night shifts and that she work on-call for an agency to minimise her opportunity to form a relationship. The offender was keen to find evidence of infidelity. He set traps for his wife by leaving marks on the surface of Vaseline in a jar in the bathroom. When he perceived that the marks had been disturbed, he charged her with deceiving him. He found an old hairpiece in her wardrobe and accused her of buying it and wearing it with another man. 10He regarded Danuta as a chattel and a servant for his exclusive use. The offender commandeered Danuta's income as well as her body. He not only used force to control her, but he also humiliated her to subjugate her. He inculcated such fear of his retaliation in Danuta and the children that they rarely contacted police or otherwise revealed his conduct to the outside world. When neighbours called the police, the offender, his wife and their children by and large adhered to the code of silence that the offender imposed on them and told the officers who came to the door that there was no need for them to intervene. 11On occasions Danuta had to have time off work because of bruising or injury, but where, as was more often the case, any physical marks could be concealed by clothing and make-up she continued to work notwithstanding the assaults. 12I am satisfied that the offender appreciated the extent of the violence he inflicted on his wife in the course of their marriage. He knew that it was unacceptable for a man to assault a woman. His denials of violence towards her, such as in the following passage, were deliberately dishonest: Q. Did you punch her? A. No, never. Just defend myself from, ever attack me many times, and I only just grabbed her hand, push her backwards, or if she start swinging her hands and I protect myself, fling back, and she's possible, maybe hit herself like that, because of my swing my hand, and I never ever ever attack her, never bash her up, never ever in my life. Only I defend myself. 13On one occasion, over a decade before he killed Danuta, the offender required his wife to walk several times around the swimming pool of their Punchbowl home in the heat of the day, carrying a carpet cleaning machine. Angela, who was then a young child, showed her support for her mother by accompanying her as she trudged around the pool. The offender, the instigator and spectator of his wife's degradation, screamed abuse at her. 14The couple socialised with other Polish immigrants in their early years in Sydney but, at least from the time Angela was an infant, the offender became angry with his wife if she brought friends home or had any independent social life. As time went on, their social contact diminished. The offender's outbursts embarrassed onlookers and humiliated Danuta. The offender obstructed social contact, as he was reluctant to allow others into what he saw as his domain. 15In 2002 the Gierczynski family sold the house at Punchbowl. The offender took control of the entire proceeds of sale and used the money, together with the proceeds of his carpet cleaning business, for share trading and gambling. A new house at Chipping Norton was purchased in Daniel's name with damages he had received by way of settlement following the motor vehicle accident in which he had been injured as an infant. 16Daniel, who could not work by reason of his physical and intellectual disabilities, was usually at home. He worked out in a gym constructed in the garage. As he grew older and stronger, he adopted the role of his mother's protector and would intervene to stop his father assaulting her, although Daniel rarely used force himself. 17Danuta considered leaving the offender but was fearful that, if she did so, he would kill her, as he had often threatened to do. She contemplated suicide as a means of escape. Two suicide notes were in evidence, one dated 27 October 2004 and the other dated 13 August 2010. She confided her fears to those of her work colleagues who had become friends. She was, however, unwilling to move out of the house because it was Daniel's home. She felt that Daniel still needed her support and attention because of his disability. She also believed that there was nowhere she could go where she would be safe from her husband. 18On the night of the offender's birthday in October 2005, he went out, became intoxicated and crashed his car on the way home. On his return he punched Danuta in the head and gave her a black eye, on the ground that if she had taken him out that night it would not have happened. Danuta, Daniel and Angela, who was just about to sit her final HSC exams, decided to leave together and take Danuta to a hospital for treatment for her injuries. 19Police interviewed Danuta at Liverpool Hospital for the purpose of applying for an apprehended violence order (AVO). Some time later she attended the police station and withdrew her application. After staying with friends for a day or two, the three returned to the Chipping Norton house and peace was temporarily restored. 20In 2006 the offender took the first of several videos of his wife. His technique was to provoke her to lose her temper and then film her when she was enraged, in the mistaken belief that this would provide some "evidence" that would protect him in the future against any conviction if he were ever charged with assaulting her. He secreted the videos behind air-conditioning vents in the house. They were not discovered when search warrants were executed on the house at Chipping Norton. Their existence was revealed to police only when the offender's former solicitors disclosed their whereabouts. The videos depict Danuta screaming at the offender and, at times, holding a knife or knives. 21The offender's voice, as recorded on the video films, was at all times calm. He retained his grasp of the video camera throughout. Even when Danuta was holding a knife or knives, he did not appear to be in any fear of attack. I find that Danuta held knives on these occasions because she was fearful that the offender would attack her. The offender's motive for creating the videos is revealed from the following commentary, addressed to his wife, which he recorded on one of his videos: "Court will take into account that I have been always calm all my life talk quietly, while you are provoking me, screaming, running with a knife, stabbing." 22At the end of 2006, the offender met a woman called Gina, whom he initially hoped would be a substitute for Danuta and "look after" him. He travelled to the United States with Gina, leaving Danuta at home with the two children. While the offender was away he rarely contacted his family. When Gina did not fulfil his expectations he came back to Danuta at the end of January 2007. He travelled with Gina to Malaysia in March 2007. He returned alone after eight days. 23On the day of his homecoming he took photographs of Danuta's genitalia because he was convinced that she had been unfaithful to him while he was away with Gina. He insisted that a gynaecologist resolve the matter. On that day he also made one of the videos referred to above. The video showed that Danuta was very upset by the affair and outraged that he had photographed her private parts. She accused him on the video of turning her into a mad woman. 24On 4 November 2007, Danuta called the police after the offender grabbed a knife and pointed it at her. The offender was arrested and an interim AVO was ordered. In a statement made that evening at Liverpool Police Station, the offender referred to the argument on 26 March 2007, which the offender had videotaped, and alleged that both his wife and his son had run after him with long knives. He also stated that this had occurred again on the evening of 4 November 2007 and that he had been about to call the police, when Danuta had pre-empted him by telephoning the police herself. I do not accept his version. 25Before the hearing of the application for a final order, the offender got Daniel and Danuta to prepare false statements in which they accepted full responsibility for what had occurred on 4 November 2007. As a result, the charge for assault against the offender was dismissed and the interim AVO was revoked. 26In early 2008 Danuta applied for a divorce, which was refused because it did not meet the relevant requirements. They continued to live together. On 29 May 2008 Danuta and the offender went on a holiday to Bali. Danuta returned to Australia early, after a couple of nights, following an argument. The offender remained there for about four weeks. Later that year the offender went to Indonesia for about six months and purchased a restaurant at Lombok. Danuta was with him for much of that time. She later told Angela that the offender had abused her and confiscated her passport so that she could not return to Australia by herself. 27The offender would often check up on his wife when she was at work. He repeatedly rang her to ascertain her whereabouts and often waited for her outside work. Danuta confided in colleagues that she was sick and tired of life with her husband and was thinking about leaving him but was scared. 28In 2009 the offender was diagnosed with prostate cancer. He was overcome with self-pity. Both Danuta and Angela accompanied him to various doctors' appointments and discussed treatment options with him. He cancelled a prostatectomy operation shortly before the scheduled date because he was concerned that it would adversely affect his virility. He asserted in evidence that I do not accept that his wife persuaded him not to have the operation because she wanted him to die. He also accused Danuta of trying to kill him by suggesting he cook a steak on the gas barbecue, when the gas bottle was leaking. That his wife was trying to kill him was advanced as one of the delusions that evidenced a mental illness which caused him to act as he did on 31 October 2010. 29From time to time the offender required Danuta to sign documents that purported to have the effect of conferring rights on him. For example on 30 April 2006, Danuta documented her agreement to pay the offender $400 per week for as long as she was working. The document also recorded her acknowledgement as to the reason why he was entitled to the weekly payment: This has happened because I take full responsibility to what has occurred to him psychologically and I am aware that he is unable to work due to the depression I have caused him because I had given him over the past 15 years sleeping pills. Also in regards to going to mental hospital - Rozelle, I accused my husband for going there which I shouldn't have. 30Another note signed about two months before 31 October 2010, read as follows: I, Danuta Gierczynski, wife of Andrej Gierczynski agree for him to go out any time and anywhere he wants to do it. I also agreed for "sex" once a month only. P.S. I will not make any complaints when he gets back. I am anti-social and he misses his social life. My husband promised me not to gamble and we will get divorced if I catch him gambling. 31The offender frequently predicted violence, if not homicide, in the house. Angela's evidence, which I accept, was: He said that there would be bloodshed in our house one day, whether it's now, tomorrow, in a year's time. He said that what would I say as a witness and whose side would I take. 32This conversation between the offender and Angela took place years before the murder. 33The offender prepared himself for the contingency that one day he would be charged at least with assaulting Danuta by making the videos already referred to. He also kept documents, such as the two examples referred to above, that his wife had signed at his insistence. I accept Angela's evidence that her father told Danuta that he had evidence that would ensure that she would be locked up in gaol. 34The offender gave evidence that about 10 days before he killed his wife he had bought a tablet from an unnamed, unknown man on the street outside a public car park in Liverpool, who had promised him that it was superior to Viagra and would give him a long-lasting erection. He said that he had taken it the night before the killing because he and his wife seemed to be getting on well and he wanted to have sex with her. According to the offender the tablet had not had the desired effect. It caused him to hallucinate. He said that he had heard voices telling him to kill, which he attributed to the drug. I do not accept that he ever purchased the tablet or had any of the symptoms he described.

Sunday 31 October 2010 35On the morning of Sunday 31 October 2010 Danuta and the offender were in the kitchen. Daniel was upstairs in his bedroom asleep until about 11am. Angela was away overnight in Melbourne. I do not accept the offender's account of what occurred that morning except where it is corroborated or against interest. I accept Mr Lloyd QC's submission on behalf of the applicant that the jury's verdict does not foreclose a finding that Danuta provoked him in some way, or that he attacked her believing that it was necessary for him to defend himself. It is necessary for me to find the facts, in so far as the evidence permits me to do so. 36I am not satisfied that Danuta provoked the offender before he attacked her or at any time in the course of the conflict between them on 31 October 2010. Nor am I satisfied that the offender was defending himself when he attacked her. Although the deceased managed to stab him once in the chest, this did not damage any organs and did not impede or retard his assault on her. I am not satisfied that her stabbing him was provocative or aggressive, as distinct from defensive. He knocked her to the floor and continued to stab her. He stabbed her several times in the face, head and neck when she was lying on the kitchen floor. 37After Danuta was knocked to the ground, Daniel, who had heard his mother's scream from upstairs, came down to the kitchen and saw his father standing over his mother. The offender lunged at Daniel with the knife and wounded him to deter or disable him from interrupting. Because of Daniel's concern for his mother, he did not realise that he had been injured. The wounding of Daniel formed the basis for the second charge on the indictment. 38The offender returned to where Danuta was lying on the floor and passed the knife from his right hand to his left hand so that Daniel, who was disabled on one side, would not be able to stop him. Daniel resorted to grabbing his father's hair which he pulled with such force that a tuft came out by the roots and was later found on the kitchen floor. 39The offender continued to stab his wife. One of the stab wounds penetrated her spinal cord. This had the effect of paralysing her and preventing her from breathing. She died shortly afterwards. At that point, the offender said, "That's enough". He went and sat on the couch and lit a cigarette. I am satisfied that the offender intended to kill his wife and not merely to cause her grievous bodily harm. 40The autopsy established the cause of death to be multiple stab wounds. There were 10 stab wounds to Danuta's head and neck, with associated injury to her upper spinal cord. There were 6 stab wounds to the chest, one of which had penetrated through to the chest cavity and injured the left lung which had caused bleeding and leakage of air into the chest cavity. She had also sustained a further stab wound to the crook of the right elbow. Her right hand had also been injured when she tried to defend herself from attack. There was also a knife wound to her left buttock and bruises on her face and her body.

Factors relevant to sentence 41I turn to the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Act). In dealing with each of the offences I take into account the purposes of sentencing that are set out in s 3A which include punishment, specific and general deterrence, protection of the community, rehabilitation of the offender and a recognition of the harm done to the victims and to the community. 42Section 21A of the Act requires the Court to take into account both the aggravating factors referred to in s 21A(2) and the mitigating factors referred to in s 21A(3) that are relevant and known to the Court, together with any other relevant matters.

Objective seriousness 43The sanctity of human life is of great significance. The unlawful and intentional taking of a human life is a heinous crime. 44The offence of murder carries a maximum sentence of life imprisonment. The applicable standard non-parole period (SNPP) is 20 years. The SNPP represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness (s 54A(2)) whereas the maximum sentence is to be given only in the most severe of cases. The SNPP and the maximum sentence are legislative guideposts that inform the exercise of sentencing discretion. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen (Muldrock) [2011] HCA 39; 244 CLR 120, at [27]. 45The Crown did not contend that this murder is in the category of offences for which a life sentence ought be imposed. 46I am not satisfied that there was any substantial degree of forethought. The offender appears to have long contemplated that he might one day kill his wife. However, there was no indication in the days or weeks before, that he intended to kill her that weekend or at any particular time in the future, notwithstanding the elaborate, and misguided, steps he had taken to defend his position by secreting evidence which he considered would assist him in his eventual defence. Indeed Daniel's evidence, which I accept, was that the environment at home was, on the eve of the murder, "all beautiful". 47That the offence involved the actual use of a weapon, a knife, is an aggravating factor. 48Mr Lloyd submitted on behalf of the offender that the objective seriousness of the offence was lower than the mid-range. The Crown submitted that it was in the middle of the range. 49I regard the objective seriousness of the offence as being above the middle of the range. The offender was a physically powerful man. Danuta was a relatively diminutive woman and weighed only 56 kgs. Her husband knew she was no physical match for him. He knew that Angela was away in Melbourne that weekend and that Daniel, who tended to rise late, was asleep upstairs. He also appreciated that the neighbours had grown accustomed to the sounds of Danuta's screaming during their arguments and were unlikely to intervene to come to her rescue if she screamed for help. Danuta was entirely at the mercy of the man she had spent her adult life loving, fearing, placating and appeasing. Although his level of planning was not substantial, the apprehension that she would die at his hands had hung over her for almost the entire length of their relationship. 50The method of killing was particularly violent. Danuta was vulnerable and posed no threat to the offender. Her last minutes of life must have been spent in terror, pain, despair and anxiety for the fate of her children, particularly Daniel, and for herself.

Other matters relevant to sentencing including the offender's moral culpability and his subjective circumstances

The role of mental illness in the commission of the offence 51Mental illness is relevant to moral culpability and is, potentially, a significant matter in the exercise of the sentencing discretion. As Gleeson CJ said in R v Engert (1995) 84 A Crim R 67 at 71: In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system. 52The existence of a causal connection between a mental disorder and the commission of the offence is potentially a matter of some mitigation and, as such, the onus is on an offender to prove a causal connection on the balance of probabilities. Expert evidence is germane, and indeed usually required. This is a separate issue from the partial defence of substantial impairment, which was not established at trial, although the psychiatric evidence is relevant to both. 53I reject the Crown's submission that I should infer from the jury's verdict that the partial defence of substantial impairment failed because the jury was not satisfied that at the time of the killing the offender's capacity to control himself, understand events or tell right from wrong was substantially affected, once the effects of self-induced intoxication, if any, were disregarded. The jury's verdict is consistent with the jury's being satisfied of that matter but, nonetheless, its not regarding the impairment as so substantial as to warrant liability for murder being reduced to manslaughter. I am obliged to accept that the jury appreciated that it needed to be satisfied of both matters since that is what s 23A of the Crimes Act 1900 requires, as was reflected in my directions: Demirok v The Queen [1977] HCA 21; 137 CLR 20 at 22 per Barwick CJ. 54The offender was examined by three psychiatrists: Dr Skinner, who gave evidence in the Crown case, and Drs Allnutt and Nielssen, who gave evidence in the offender's case. The opinions given by the doctors were based on the histories given to them by the offender, which I do not accept. Nonetheless, the psychiatric evidence assists in the determination whether there was a causal connection between mental illness and the offender's killing his wife. 55I accept the psychiatric evidence that the offender suffered from morbid jealousy in that he held at least an overvalued idea, which may at times have amounted to a delusion, that his wife was unfaithful to him. Sufferers of this condition have suspicions about their partner and keep trying to find evidence that the partner has been unfaithful. The offender's morbid jealousy led him to be unduly suspicious of Danuta's conduct and her movements. Dr Skinner did not consider his suspicions to be sufficiently fixed or bizarre to qualify as delusions. Dr Allnutt considered the offender's belief that his wife was unfaithful to span the rational and the irrational. He agreed that the belief was, of itself, not bizarre and that the forms of the beliefs were more consistent with overvalued ideas which fluctuated in intensity depending on his mood. 56The offender alleged before the murder, including in the videos he made, and in the trial that he thought that Danuta would kill him. I do not accept that he genuinely believed that she would and therefore it does not qualify as a delusion. Although Danuta, at times, threatened to kill him, I am satisfied that these threats were no more than hyperbolic expressions of frustration and irritation, which the offender understood as being no more than that. He revelled in collecting evidence that Danuta had wronged him. For example, he made much of the so-called barbecue incident. Yet he daily ate meals that she had prepared and was, as referred to above, perfectly calm on the videos he filmed when she had a knife in her hand and he had a camera in his. 57The offender's lack of memory of what happened at the time of the killing does not establish mental illness at the time. Dr Allnutt gave possible explanations for the alleged amnesia, all of which were plausible in the present case, including that the offender did not want to remember, was trying to avoid a conviction for murder or that his revisiting the experience was too traumatic so he said he could not remember it. 58I do not accept that the offender was suffering from schizophrenia or any other schizoid disorder. To the extent that the psychiatric evidence suggested such a diagnosis, it was based on a foundation that has not been made out in the evidence. 59The offender has, throughout his life, shown a degree of selfishness and immaturity. I accept Dr Skinner's opinion that, although he craved affection and feared solitude, he did not have the emotional capacity to develop the kind of affectionate relationship that he wanted because he did not have that model in his life. Dr Skinner explained that the offender's feelings towards his wife were ambivalent in that he believed he loved her and wanted her affection and yet he felt that she was not providing him with what he needed and wanted. This led to his placing wholly unreasonable demands on her for sex, affection and domestic perfection. 60It is possible that the offender attacked Danuta on the morning of 31 October 2010 because she was not behaving entirely in accordance with his demands. He may have punched her as a result of his own frustration and, when she used a knife to defend herself, he may have been so outraged by her defiance that he killed her. These, however, are matters of speculation. Since I do not accept the offender's evidence, and since he is the only surviving witness of what occurred in the kitchen on 31 October 2010 before Daniel came downstairs, it is not possible to make definite findings as to precisely how the altercation occurred, much less what precipitated the final, fatal conflict between them. 61The Crown accepted that there was some causal connection between the offender's morbid jealousy and the anger the offender exhibited towards his wife that resulted in his attacking and killing her. In light of the whole of the evidence of their relationship, this concession was reasonable. However, I am not satisfied that the morbid jealousy from which the offender suffered impaired in any substantial way either his ability to understand events, to control himself or to tell right from wrong on 31 October 2010. I accept that his morbid jealousy compromised his insight to some degree, although not substantially, and take this into account in mitigation on sentence.

Moral culpability 62As sentencing judge I must assess the moral culpability of the offender, which is a separate matter from the objective seriousness of the offence: McLaren v R [2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing. This requires a consideration not only of the facts relating to the commission of the offence, but also those that shed light on why it was committed. 63Why the offender killed Danuta on that morning and not on any other occasion is not revealed by the evidence. He had assaulted her on prior occasions without her having done or said anything that could conceivably be regarded as provocation. Although Daniel heard her screaming from upstairs, she may have been screaming as a result of the assault rather than in the course of an antecedent argument. I do not accept what I understood Mr Lloyd's submission to be, that because it was the first time he had used a knife against her, there must have been some provocation. I am not persuaded that there was any provocation by Danuta or that she initiated the attack. I do not consider there to have been any element of self-defence in the offender's conduct towards her. Although I am satisfied that she stabbed him with a knife, I find that this was in response to his aggression. 64The offender's violence towards Danuta throughout their marriage and in the final minutes of her life was, in my view, an expression of his desire to exert his power over her because she was his wife. When she complied with his demands he was happy; when she did not meet his unreasonable standards or accede to his every wish, he retaliated, at times violently. Mr Lloyd's description of the relationship as "tumultuous" may be accepted, but I reject the suggestion that Danuta was responsible for the conflict, rather than an unwilling victim of it. That she was sometimes driven to react was an indication of the extent of his provocation throughout their marriage. In so far as she "reacted" in the period immediately before her death, it was to try to defend her own life, as best she could.

Other sentences imposed in such cases 65Both the Crown and Mr Lloyd referred me to several judgments where a male offender has been sentenced for the murder of a woman with whom he was, or has been, in an intimate relationship. There is a substantial sub-category of such cases where the relevant weapon was, as here, a knife such as might be found in any domestic kitchen. I have read and considered those cases, some of which were decided before the introduction of the SNPP for murder. I am conscious that each case is to be determined by reference to its own facts and also to the circumstances pertaining to the individual offender. 66However, the prevalence of such cases demonstrates that Andrzej Gierczynski is not the first man to consider himself to be entitled to exert absolute power and control over his wife. Such men, as the cases (including the present) demonstrate, behave as if the protection that the law extends to strangers does not extend to their intimates. They act as if they were a law unto themselves in their own homes and were not subject to the criminal law of the society in which they live. They may justify or excuse their conduct by relying on morbid jealousy as if infidelity, whether real or imagined, were ever an excuse for violence. They use their physical superiority to tyrannise and subjugate. Mr Gierczynski, and others of this kind, must be disabused of this misapprehension. The deceased's loved ones, as well as society as a whole, need to be reassured by the sentences imposed that such men are not entitled to any form of domestic immunity. The community ought not need reminding that the home is a sanctuary, not a fortress within which violence and abuse can be perpetrated without exposure or consequences.

Prospects of rehabilitation and likelihood of re-offending 67As for the offender's prospects of rehabilitation, I do not consider that he poses any particular danger to anyone other than any, and perhaps every, woman with whom he is in an intimate relationship. I am not persuaded that he will ever regard any such woman as a fellow human being, who is an equal and deserving of respect, as distinct from a chattel for his exclusive use and control, to be dominated where necessary by threats of violence or actual violence. 68Mr Lloyd submitted that the likelihood of the offender's re-offending was remote because his advanced age when released from custody after expiry of the non-parole period would make it improbable that he would form another intimate relationship. I reject that submission. As Gleeson CJ said in De Sales v Ingrilli [2002] HCA 52; [2003] HCA 16; 212 CLR 338 at [29]: Attempts by courts to make a subjective assessment of a particular claimant's chances of remarriage are also fraught with danger. In most cases, courts cannot safely predict, either from statistics or a subjective assessment of the claimant in court, whether the claimant is more or less likely than any other person to remarry. 69I do not regard the offender's prospects of rehabilitation as good. The pattern of his behaviour towards Danuta was intractable although the frequency of violence waxed and waned and there were good times as well as bad. The evidence indicated that his relationship with Gina, although short-lived, was also problematic. 70I am not satisfied that the offender feels any remorse for killing his wife except in so far as it has caused him loss. Any tears he has shed are the product of self-pity and, possibly, a degree of sympathy for Angela and Daniel who have, by their father's acts, forever been deprived of their mother's love and support. I regard his story about taking the tablet as a concoction. His version that he had heard a voice or seen images was, in my view, nothing more than a cynical and desperate attempt to avoid the consequences of his actions. I am satisfied that his accusation that his wife had stabbed him first was deliberately false.

Previous convictions/ character of the accused 71The Crown tendered documents from Poland that were located in the offender's house that showed that the offender was prosecuted in Poland for assault against his first wife and received an 18-month period of imprisonment. His appeal against sentence appears to have been allowed and he was released on a bond on 12 February 1981 after having been imprisoned on 15 July 1980. Accordingly he served about 7 months of his 18-month term in prison. The indictment summarised the offences which are said to have occurred between 11 January 1976 and the beginning of 1977 which involved his beating his wife and threatening to kill her. 72The offender gave evidence at the sentence hearing that the charges had no substance, that he was charged because his first wife's family were senior in the Communist Party and that the regime was corrupt. I do not accept his evidence. 73The offender relied on his lack of criminal record in Australia as a mitigating factor in the sentence. 74The offender's behaviour as described in the Polish indictment for which he was convicted is consistent with his behaviour towards his second wife, Danuta. It does not particularly add to my view of the danger he would pose to the community. 75I do not consider the offender's lack of criminal record in Australia to be a mitigating factor of any weight in the circumstances of the present case. The evidence at trial was replete with examples of his violent conduct towards Danuta, which did not result in prosecution because on each occasion he persuaded Danuta, either by intimidating her or manipulating her love for him, not to give evidence against him, to lie to the police about what happened or not to report his assaults to the police at all. 76His conduct towards Danuta for 28 years and his interference with the reporting by her and his children of his assaults deprive him of the benefit of the suggestion that, but for the murder, he was otherwise of good character.

The offer to plead guilty to manslaughter 77By letter dated 7 May 2012 the offender's then solicitors wrote to the Office of the Director of Public Prosecutions attaching a report of Dr Nielssen dated 1 November 2011. They informed the DPP that they were instructed to offer pleas of guilty to manslaughter and reckless wounding. The offer of manslaughter was based on provocation and/ or substantial impairment of mental responsibility. Mr Lloyd contended that this showed the offender's acceptance of responsibility for killing his wife and that this ought be taken into account in mitigation. 78The offender's offer to plead guilty to manslaughter showed, in my view, no more than hopeful pragmatism. The killing was witnessed by his son. The offender was the only relevant suspect. When the ambulance and police arrived, the offender still had blood on his hands. The plea did not indicate any true acknowledgment of responsibility, much less remorse. Since the plea was not accepted by the Crown it had no utilitarian value: the Crown was required to prove every element of murder beyond reasonable doubt and it remained within the power of the jury to acquit him both of murder and the alternative count of manslaughter: Pemble v The Queen [1971] HCA 20; 124 CLR 107 at 132-133 per Menzies J.

Wounding with intent to cause grievous bodily harm 79The maximum penalty for the wounding with intent to cause grievous bodily harm is 25 years' imprisonment. The SNPP is 7 years. 80The Crown conceded that the only relevant intent was the intent to cause grievous bodily harm to Danuta and that Daniel was injured because he got in the way. The wounding of Daniel was incidental and impulsive. There was no degree of planning. 81There should be a substantial degree of concurrence because the wounding of Daniel was substantially related to the murder of Danuta but it is, in my view, necessary that there be some accumulation to take account of the total criminality. 82I am obliged by s 54B(4A) of the Act to specify a non-parole period for this offence.

Subjective circumstances 83The offender was born in Gubin, Poland on 6 October 1952. He was the fourth of five children. His father, an alcoholic who resorted to violence, spent some time in a mental hospital. I do not accept the offender's evidence that his mother cut his throat, although I accept that his childhood was unhappy and that he entered adulthood lacking emotional maturity. He left school at 14 and went to a technical college where he trained to be a fitter. He became fully qualified at 18. He married and had a son. He separated from his first wife and met Danuta who was already a registered nurse in Poland. 84As I have said, the couple migrated to Australia, established themselves, had two children and bought a house in Punchbowl and later lived in Chipping Norton. The offender had a carpet cleaning business which he sold in about 2002. He traded in shares and gambled. His expenses were often met either from resort to the proceeds of the Punchbowl house or from his wife's income. 85Notwithstanding the offender's odd behaviour as far as his relationship with his wife was concerned, he was capable of presenting as a charming, worldly man who was fond of poker, travel and business ventures, including overseas. Indeed, shortly before the murder he was negotiating a venture in Indonesia. Photographs were in evidence that showed the offender and Danuta in various exotic locations as a happy, relaxed couple. The evidence revealed a dark underside to those images. 86The offender is now 61 years of age. He has long suffered from insomnia and anxiety. He has been in custody since his arrest on 31 October 2010. He resides in the hospital section of the prison because of his mental health. His mental state prior to the murder has been addressed in the reasons above. I am satisfied that there has been some decompensation due to the murder, the loss of Danuta, the absence of the children and the need to adjust to the prison environment.

Special circumstances 87The offender submitted that this will, effectively, be the offender's first custodial term, because his incarceration in Poland was so long ago. He contended that for this reason, and because of his mental health and age, there were special circumstances which created a need for him to have a longer than usual period on parole. 88I am not persuaded that there are special circumstances in the instant case. Nor am I persuaded that if I had found special circumstances there would be any proper basis to disturb the ratio. The non-parole period needs to be of sufficient length having regard to the factors referred to above, of which the most significant are the objective seriousness of the offence and the need to protect the public. The desirability of having a parole period of some length to assist the offender to live in the community is also accommodated because of the length of the overall sentence. 89The effect of accumulation requires an adjustment to the statutory ratio that would otherwise apply with respect to the sentence for murder, in order to preserve the statutory ratio for the overall sentence: s 44(2B) of the Act.

Totality, accumulation and concurrency 90I am required to arrive at a total sentence that reflects the overall criminality of the offences committed: Pearce v The Queen [1998] HCA 57; 194 CLR 610. 91The two offences were committed on the same occasion and form part of the same event. It is appropriate that there be a substantial degree of concurrence in the sentence. However, there should, in my view, be some partial accumulation to take account of both offences. 92I am obliged to take into account time spent in custody. The offender has been in custody since he was arrested on 31 October 2010. Accordingly, it is appropriate that the sentence be backdated so as to commence on that date.

Loss of the deceased 93The Crown provided a Victim Impact Statement from Angela Gierczynski who described her feelings of grief at the loss of her mother and the magnitude of the responsibility she now bears, alone, to look after Daniel. 94Under the law, the loss suffered by the deceased and her loved ones cannot be reflected by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Danuta Gierczynski to her children and to her friends. I take this opportunity, on behalf of the Court, to extend my sympathies to all those to whom she was dear. 95Retribution is one of the many aspects of punishment and is particularly significant when a life has been taken. However, under laws that have been in existence for a long time now, the loss suffered by the deceased and her family cannot be reflected in any sentence I impose. I am conscious of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87-88. It is the approach that I adopt.

Sentence 96Andrzej Gierczynski: (1)For the offence of wounding with intent to cause grievous bodily harm, I sentence you to a term of imprisonment for three years, to date from 31 October 2010 with a non-parole period of two years and three months . (2)For the murder of Danuta Gierczynski, I sentence you to a term of imprisonment of 28 years, commencing 30 April 2011, with a non-parole period of 21 years and 4 months. The earliest date upon which you are eligible for release on parole is 31 August 2032.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2013

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