R v Hettiarachchi [2007] VSC 541

2 The deceased in this case were, as I said, the parents of your wife. They had arrived in Australia from Sri Lanka on 22 February 2006 and were dead by 7 March 2006. They had come to Australia for a holiday and were planning on staying approximately two months, firstly to get to know their grandchildren and to spend time with their daughter. The holiday had been paid for by the siblings of your wife, as a present for your parents-in-law's 50th anniversary. They were both aged 76 at the time of their death. Mrs Perera had been a teacher and then a homemaker, and Mr Perera had retired some years earlier, after being employed as a clerk for many years.

3 Although there is a great deal of background, relating to your relationship with your wife, that is relevant and was led in the trial by consent, I will deal with that material subsequent to describing the circumstances of the actual murders.

4 On 6 March 2006 your wife, Badrakanthi Hettiarachchi, informed you that she was going to leave you, to which you indicated that if she did, she could take your daughter, but she would have to leave your son. The son was Ryan, aged about five. Your daughter, Rosie, was aged then about four months. You also informed her that the majority of the house was yours and that she would get only a small percentage of it's worth.

5 On that same day, while you were elsewhere with your son, she together with her daughter and her parents went to the Dandenong Magistrates' Court. After speaking to a Registrar at the court. she was listed for a hearing and an intervention order was granted by the magistrate. An exclusion order had been sought to enable your wife, your two children and her parents to remain in the house that you jointly owned. But the order from the Magistrates' Court did not in fact grant an exclusion order. The terms of the order were that you were prevented from assaulting, harassing, intimidating or threatening the aggrieved family members, being your wife and two children; or from destroying or damaging any property jointly owned. The order was served the next day on 7 March 2006 by the police. The officers involved in the case made an error and acted upon the basis that the Intervention Order also encompassed an exclusion or sole occupancy order, which as I have indicated was incorrect.

6 The police, in fact, contacted your wife on her mobile phone to ensure that you were at home for the service of the order, and they attended at your premises at 12.10 p.m. They stayed for some time and explained what they understood the order to mean. And they were physically present with you, whilst you collected various personal items, including your glasses and mobile phone. They detailed in evidence, the conversations that you had with them, and your demeanour, which they found to be normal for someone in your position.

7 There was no indication of great anger or verbal abuse at that time. Your wife, her parents and your children were also present in the house. You repeatedly expressed concern about the house and its contents, and wishing to take the contents with you, and reiterated on a number of occasions that everything in the house was yours. You also indicated, that you wanted to take your son, Ryan, with you.

8 The police then escorted you from the house, at approximately 12.35, to your motor vehicle, and then they drove behind you as you left the house, and approached the intersection of Princes Highway, less than a kilometre from your home.

9 Prior to arriving at that intersection, you slowed down for no apparent reason and the police passed you and continued towards the police station. They did not see your vehicle enter onto Princes Highway at that time. As the officers were travelling towards the police station, there was an Intergraph call at 12.42, approximately seven minutes after you and the officers had left your home. That call indicated, there had been a stabbing of two persons, at your home address. They arrived back at your home at 12.45.

10 At the time the police arrived, Mrs Hettiarachchi was present and her mother was lying on the front porch area, and her father was sitting in a chair inside. Both had been stabbed to death. I find as a fact, consistent with the verdict of the jury, that once the police had passed you, you returned to nearby your home, parked and then proceeded into the house. You told your wife, who was on the phone trying to contact her refuge worker, to arrange to get the locks changed, to hang up the phone, which she did.

11 You then walked into the kitchen area of the house, picked up two large knives from the kitchen drawer, went to the lounge chair in which your father-in-law was sitting, holding your daughter, Rosie, and pushing Rosie to one side, stabbed him with a deal of force, on at least two occasions.

12 I find, Mrs Perera tried to come to the aid of her husband and you stabbed her in the face, with such force that the wound went through the nostril area, down through the roof of the mouth, through her dentures, sliced her tongue, and ended in the spine at the back of her neck. You then continued stabbing her, and she had other stab wounds, which included through wounds in the arms and wounds in the chest, all of which, were of significant force. Both of the Perera's died of the combination of blood loss and penetration of the lungs, and they died within a very short time of the stabbings.

13 You then went outside and placed the two knives down on the verandah and left the house. Your wife went outside at approximately the same time, supporting her mother, who ultimately collapsed near the outside of the front door. Mr Perera died in the armchair, still holding his grandchild, Rosie.

14 You were observed leaving the house by a nine year old neighbour. Although he could not positively identify you, I am satisfied beyond a reasonable doubt, that you were the person who left at that time.

15 You went from there to Dandenong and attended at a number of solicitors offices, during that afternoon. At the first two solicitors offices, you were observed to have blood on the right and the left sleeves of your shirt, with one person observing the blood on the right sleeve and another person observing the blood on the left sleeve. Later in the day, you were seen in clothes without any bloodstains.

16 Forensic evidence established that the blood of Mrs Perera was found on the sole of one of your shoes and on the upper area. The glasses and mobile phone, that the police observed you take at the time they escorted you from the house, were also found, dropped in the lounge room on the floor, near where the murders occurred.

17 When you were arrested, you were interviewed by the police and indicated that you had nothing to do with these killings, and that it must have been your wife, as she was mad. That line of defence was maintained at trial and it was suggested both during cross-examination and final address, that it was in fact your wife, Badrakanthi Hettiarachchi, who killed her own parents.

18 The jury rejected that proposition, and rightly so. There was no evidence whatsoever, to indicated that Mrs Hettiarachchi had anything to do with the murder of her parents, and in my view, ample and overwhelming evidence that you were the killer. Your wife was physically present and saw you, stab her parents to death and she gave evidence of those matters before the court.

19 Equally, there was an Intergraph call to Triple-0 that was recorded and played during the trial. It is harrowing to listen to Mrs Hettiarachchi trying vainly, to save the lives of her parents. No-one who heard the tape, could be other than moved, and it is a clear indicator of the pain and heartache, that you have inflicted upon your wife and her siblings.

20 Your reaction to the intervention order was absolutely out of proportion, to the upset that you may have felt. Although you remained calm, whilst the police were present at the house, and your wife describes you as saying, very little upon your return, you then have clearly behaved in a savage and agitated manner, at the time of the actual killings. The force, the ferocity and the number of wounds, indicates that.

21 You were then seen shortly after the murders and although described as a little agitated, your behaviour was not so far out of the ordinary as to attract significant attention. You were described by a person who knew you, as behaving normally for you.

22 On the facts as I find them to be, these were vicious murders of elderly, defenceless, innocent people, who were doing nothing more than visiting their child and grandchildren, and undoubtedly feeling protected as a result of the intervention order that had been granted. It is appalling that an intervention order, designed to protect predominantly women from abusive partners, could end up being the precipiter, for such horrific violence.

23 These are bad examples of murder carried out in a domestic setting and there is no doubt, they call for condign punishment. There are some unusual aspects to this case and I mention some of them, for completeness.

24 You have a most unfortunate manner, which became evident during the proceedings, and it gives you the appearance of being overbearing and demanding. I am not able to say if that is your normal manner with all persons, as I have not been in a position to make that determination, particularly as the trial places those involved in the process, under great stress. That, however, is the evidence of your wife, as to how you treated her during your marriage.

25 The circumstances of your marriage to your wife are not the standard circumstances and bear some explanation. These matters were led in evidence and I presume they were agreed to be led, to help you attempt to establish the motive for your wife wanting to murder her parents and to explain why, she would possibly try and set you up, to be the murderer.

26 You and your wife met through an advertisement placed in a newspaper in Colombo by your mother. An arranged marriage was sought. You were living in Australia and you returned to Colombo for a very short period, for the arrangement of the marriage.

27 Your wife was completing her university studies at the time and as a result of the advertisement, you met your wife on 8 February 1990. On the 9th your family returned and indicated, that you wished to marry Badrakanthi. And she consented to the marriage, on that same day. She did not see you again, until 22 February 1990, when you married. She had completed her final exam, in Bachelor of Arts majoring in Sociology, on 20 February. There was another ceremony on 24 February and you left, alone, for Australia on the 25th.

28 I should stress, that this is not an unusual situation in Sri Lanka, and many couples are married in this way and have very happy relationships. In this case, however, you did not see your wife again until 1992, when you returned to Sri Lanka for a short time. It would appear that you did not live together during that visit and it was not until 1 October 1994, that your wife came to Australia to reside with you. During that time, up until then, she had lived with her parents.

29 It would appear, that this was not a happy marriage, with your wife describing many episodes of what she termed emotional abuse and control by you, of what she did, where she went, where she worked and the finances of her family. There was a child of the marriage, Ryan, who was born in September 2000 and he suffers from developmental delay and has required more care than an average child.

30 Your wife gave evidence, that she had sought intervention orders on two previous occasions in 2003, due to both emotional and physical violence. She left you in 2003 and moved into crisis accommodation, but was unable to take her son with her, as you refused to let him leave.

31 She maintained that separation for some months, but you convinced her that you were willing to change and would go to anger management and counselling classes, to become a better partner. She returned to you, as a result of those promises and you had a child, Rosie, in October 2005. Although I must say, the relationship between you appeared to be far from happy. By the stage of these murders, you slept separately and although there was no physical abuse, after her return, your wife said, the emotional abuse continued.

32 I do not intend to punish you in any way for any matters relating to what your wife told this court, in respect of matters of either physical or emotional abuse, as they are not matters with which you are charged and it would be improper, to consider those matters in passing sentence. I mention them, merely, to give a background to the factual scenario in which these offences occurred.

33 I must also consider your personal circumstances. As I said, you are now 47 years old and were born in Colombo, you lived there with your large family for many years. Your mother is still alive, but your father died in 1995 from complications relating to diabetes. You also suffer from diabetes type 2.

34 You have two brothers, the eldest is 37 and living in Italy. You have no contact with him whatsoever, you are not even sure if he has a family. You have a brother 36 who is now living in Canada. I was informed that you had spoken to him, possibly twice, in the last ten years. You have four sisters, all of them married bar one. They are aged 45, 44, 43 and 38 and you had no contact with any of those members of your family, for a lengthy period of time.

35 In the last couple of years, as I understand it, predominantly since you have been incarcerated, you have tried to have contact with your mother, who still resides in Sri Lanka. She is in her early 70s and also suffers from diabetes. There are problems associated with talking to your mother and your counsel indicated that a call to Sri Lanka costs between $18 to $20 and you receive some $12 a week in prison and equally, there are problems, in just trying to be connected.

36 That does indicate that you will serve your prison term in relatively isolated conditions, as only one family member living in Australia, has been to see you since you have been on remand and that is the aunt, who sponsored you to Australia. All other members of your family are elsewhere.

37 You completed both primary and secondary schooling in Colombo. You described yourself as a good student, who enjoyed school, to the psychologist, Wendy Northey, who prepared a report for the plea. You studied mathematics and science for the full time of your schooling and developed an interest in electronics. You left school and worked as a technical officer, under a two year traineeship with the Sri Lankan Broadcasting Corporation. You completed examinations and gained a permanent appointment as a technical officer, within that organisation.

38 It was at that stage, that you left home and went into official quarters. You remained there until you immigrated to Australia in 1998 and you obtained citizenship, I should add, in 1992. You worked for the Ford Motor Company on the production line, for approximately a year and then in Clayton for a cooling company, for approximately five years.

39 You informed Ms Northey that you then drove taxis both part-time and full-time, until the time of your arrest from 1994. It would appear, that you were not working for quite some time prior to these offences, but I am unable to determine, precisely how long.

40 As I indicated earlier, you suffer from diabetes type 2, and also chronic ear infections. Your counsel submitted that you found it difficult in the role of being an assembly worker, to aspire to anything greater and as a result, in 1997 you obtained a diploma in electronics at Moorabbin TAFE, but despite that qualification, you remained unable to obtain any work in that field and continued as a part-time taxi driver.

41 Your son, Ryan, as I said was born in 2000 and he suffers from developmental difficulties. This appeared to become a very major concern for you. Ultimately, Ryan slept with you, and your wife slept in another room. It was stated by your counsel, that you would argue with different staff at different places, due to your desire to advance your child's welfare.

42 Your daughter, Rosie, is now two and despite what your wife says, about your not loving Rosie, it has been submitted by counsel, that you do in fact love both of your children. You have had no contact with your children, which is undoubtedly of great concern to you.

43 Counsel stated, that you have not formed any real social network whilst in Australia. That is consistent with what your wife and the neighbours say about you keeping to yourself. You are extremely concerned about your own health and particularly concerned about your diabetes, although this would appear to be controllable through diet. This may well be related to the death of your father, from diabetes complications.

44 It was submitted that, from the evidence in the trial, it was apparent that you were a man who wished to progress financially and could be described as a fairly prudent manager, who was able to acquire a house and meet the repayments, whilst living on welfare payments, although your wife it should be noted had worked full time, up to the birth of Ryan.

45 In discussing your lack of friends, your counsel stated, that your personality traits may not enhance that situation. I have Ms Northey's report, but it does not really comment in any sort of useful way in relation to those matters, but it is clear to anyone who has observed you, that whilst you are quite intelligent, you are also quite a rigid and unbending man. Consistent with that view, your interview with the police was an insight into your personality, in some ways.

46 Although denying any involvement in the killing of your parents-in-law, neither did you express any horror or sorrow or even shock at what had occurred to them. Ms Northey's report stated at p.4:

It was estimated that Mr Hettiarachchi's level of intellectual capacity and cognitive functioning was extremely high. At no stage did he contradict himself. His account of his personal life and history was congruent and clear. He did not express or indicate any element of grief or remorse, in relation to the death of his parents-in-law, or loss of contact with his wife. He did, however, express his firm desire to be allowed to see his children "now".

47 I have taken into account that you also have no prior convictions of any nature, nor of course any subsequent matters. I have no doubt you will find incarceration difficult, despite the fact, you are a rather solitary man. There will not be many people with whom you have any common interests and I also accept, that you will have very limited visitors and contact with the outside world.

48 Equally, it must be noted, that you did not plead guilty to these offences and still maintain your innocence. The consequence of that is, that your wife had to give evidence over a substantial period of time and also listen to the recording of the 000 tape, a matter to which she referred in her victim impact statement. I have read that statement and although a large amount of it is inadmissible, I do take into account the contents that are admissible.

49 There is no doubt, that this was an appalling and harrowing crime for her to witness and to try and maintain her parents' lives, while you fled the scene of the murders. There is equally no doubt, that this is horrific for her siblings in Sri Lanka, as they appear to be a caring and close family. The impact on your children will be to a large degree unknown and maybe none, in terms of the visual impact of being present at the commission of the crime, due to in Rosie's case, her age and in Ryan, to his developmental difficulties. But you have certainly deprived them of the opportunity of having any real interaction with their father. They may at some stage forgive you, but that is not something that I can determine.

50 The fact that you have pleaded not guilty, does not increase in any way the penalty that will be imposed, but it does indicate a total lack of remorse and prevents me from providing any substantial or any discount at all for contrition, remorse or saving your wife, having to go through this trial.

51 As I said, these are appalling crimes and call for condign punishment, but I have to balance all the matters to which I have just referred and ensure, that the punishment is just and appropriate, whilst not imposing a crushing sentence. The prosecutor on the instructions of Director of Public Prosecutions submitted, that a sentence of life imprisonment with a minimum of between 30-35 years was the appropriate sentencing range. I disagree.

52 The examples that were tendered to the court, by the prosecutor, as being examples of double homicides, are certainly what could be referred to as some of the worst examples of murders, that this court has ever seen. Make no mistake, there are no good murders, but like in all sentencing cases I must consider the individual circumstances of how the murders came to occur, which I have addressed earlier.

53 As I have stated, what you have done was deserving of condign punishment, for you have taken the lives of two elderly, innocent people, whose behavior had done nothing to cause this situation. But the murders were not planned for any lengthy period of time. It really could not have been much longer than seven minutes. It was not two separate killings on different days, different locations, with time for you to think in between. It was at the least a violent over-reaction, to your loss of control of your wife and children and your domestic environment, of that being removed from you.

54 I have examined the sentencing statistics in respect of murders and whilst I accept that they are limited in the information that they can provide, it is a useful exercise and of assistance to the sentencing judge. The average total effective sentence imposed in respect of murder has varied little in the period from 2001-2006. The total effective sentence is of course higher than the average sentence.

55 But the averages in 2001-2002 was 19 years five months with a minimum of 15 years two months. In 2002-2003, 19 years one month with a minimum of 16 years 10 months. 2003-2004, 19 years one month with a minimum of 15 years six months. 2004-2005, 19 years five months with a minimum of 15 years. 2005-2006, it was 20 years with a minimum of 16 years two months.

56 As indicated, I have also perused the more recent cases of the Court of Appeal and an example of a case of double homicide is a matter of R. v. Guthrie and Nuttall.[1] A case in which, both men had pleaded not guilty to the murder of one man and Guthrie had pleaded guilty to the murder of the other and Nuttall had pleaded not guilty to that murder.

57 The appeal was against both conviction and sentence. The appeal against conviction was dismissed, the appeal against sentence allowed. In that case the two men had gone to the home of the two deceased and forcibly removed them from the premises. They locked one in the boot of the car and one in the back seat. They were driven to the river. The one in the back seat was removed and beaten many times with a steel steering lock. Then dragged to the river, thrown in the water and jumped on, in order to drown him. The other man was then removed from the boot, assaulted, dragged to the river and held under the water until, he too, was dead. In that case, the court agreed with the judge's comments, that the killings were senseless and unprovoked, horrific in nature, and the culmination of a sequence of deliberate and extended acts, on the night in question. The court stated that each of the murders constituted a very serious example of the inherently dreadful offence of murder.

58 In respect of the count to which Guthrie pleaded guilty, the court imposed a sentence of 24 years, and 22 years on the second count of murder that was contested. They cumulated five years of that sentence, making a total of 29 years' imprisonment, and set a minimum term of 25 years.

59 In respect of the co-accused, Nuttal, who pleaded not guilty to both counts, the court imposed a sentence of 22 years on each offence and directed that four years of the sentence on the second count be served cumulatively, making a sentence of 26 years and imposed a minimum of 23 years.

60 As I stated, cases that the prosecution submitted to the court for consideration were the worst examples. The three cases: the first was R v. Crosbie,[2] which was the sadistic and perverted killing of a mother and daughter for sexual gratification, and the sexual defiling of the daughter's body post-mortem.

61 The second was R v. Sharpe,[3] that was the planned murder of his pregnant wife because he was unhappy, and the killing two days subsequent of his 18 month old child, who he had taken with him to purchase the murder weapon. The child and her mother were both killed with a spear gun and neither died instantly. They had to be shot a number of times with the spear gun. The circumstances relating to the murder of the child were particularly horrific. That killing, being done to maintain the façade that his wife had left him for another man. He pleaded guilty and was sentenced, not unsurprisingly, to life imprisonment with a minimum term of 33 years.

62 Finally, the case of R v. Beckett[4]. These murders related to the abduction and murder of two young girls aged 14 and 16, from a school camp near Bega in New South Wales. This is possibly one of the most horrific crimes to ever come before this court. They were raped, tortured and bashed repeatedly for many hours, and murdered then in an exceedingly sadistic manner. The murders were described as methodical, cold blooded, without a shadow of provocation, cowardly contemptible. The judge described the girls as being tortured in mind and body, humiliatingly debased. Beckett received a sentence of life imprisonment with a minimum of 35 years.

63 Whilst your crimes are appalling, in that you have taken the lives of two elderly frail and innocent people, they cannot be, in my view, compared to the crimes to which I have just referred, and I am accordingly of the view that a sentence of life imprisonment is not at all appropriate.

64 Taking into account all of the matters to which I have earlier referred, I order that in respect of Count 1, the murder of Sammy Perera, you are convicted and sentenced to be imprisoned for a period of 22 years. In respect of Count 2, the murder of Iranganie Perera, you are convicted and sentenced to be imprisoned for a period of 22 years. I direct that five years of the sentence imposed upon Count 2 is to be served cumulatively upon the sentence imposed on Count 1. That makes a total sentence of 27 years. I direct that you are to serve a minimum of 22 years before becoming eligible for parole.

65 I declare that you have served - and can you tell me the precise number of days, please?

MR TINNEY: Your Honour, it is 647 to yesterday. Yes.

HER HONOUR: I declare that you have served 648 days in pre-sentence detention and that such is to be noted in the records of the court. I make the disposal orders sought and the order for retention of forensic sample.

HER HONOUR: I declare you to be a serious, violent offender. In my view the sentences imposed do not require a sentence disproportionate to the offence. I think the community will be well and truly served, in terms of protection, with a sentence that will take you to almost the age of 70, before being eligible for release.

[1] [2006] VSCA 192.

[2] (2003) VSC 69.

[3] (2005) VSC 276.

[4] (1998) VSCA 148.