Facts Relevant to Sentencing
5 I am satisfied that the following facts have been established to the requisite standard.
6 The prisoner met the victim in the year 2002 and in December 2003 they were married. After their marriage the prisoner and the victim lived together in a house owned by her at 33 Orchard Road, Colyton. There was a swimming pool in the backyard of the premises.
7 In January 2005 the victim broke her arm in an accident at her work and was incapacitated from working. Because the victim was unable to work and was receiving only compensation payments, she became subject to financial pressures.
8 The victim discovered that the prisoner had withdrawn a substantial amount of money from a joint bank account and had spent it on gambling. The victim demanded that the prisoner move out of her house. The prisoner complied and went to live in a rented house in Magga Dan Avenue, which was not far away from Orchard Road. The prisoner hoped that cohabitation between himself and the victim might be resumed.
9 On 10 April 2005 the prisoner on a number of occasions went by car to the victim's house from his house in Magga Dan Avenue. Some of the prisoner's belongings were still at the victim's house.
10 On one of these visits on the afternoon of 10 April 2005 the prisoner observed that the victim was having coffee with a next-door neighbour, a Mr Rukavina, with whom the victim had been friendly for many years and of whom the prisoner was jealous.
11 On another visit the prisoner arrived at 33 Orchard Road at approximately 5.50 pm. The victim was then inside the house.
12 On this visit an argument occurred between the prisoner and the victim, which led to a physical encounter. When police examined the premises later in the night, they found items of personal jewellery scattered in rooms of the house and I infer that these items of jewellery had become detached from the wearer in the course of a violent struggle. When interviewed by police the prisoner said that, when he had tried to embrace his wife, she had told him to get his hands off her and had grabbed a chain he was wearing around his neck and had ripped it off. I am prepared to find that these events happened.
13 In a bedroom of the house the prisoner strangled the victim from behind, using a necktie as a ligature. The pathologist who performed the post mortem examination on the victim's body observed horizontal bands of abrasions on the front and the sides of the victim's neck and petechial haemorrhages on her face and in her eyes, which, in the pathologist's opinion, were caused by an obstruction of her airways, thus causing increased pressure on the blood vessels in her head. The victim struggled, as she was being strangled, as was shown by the appearance of the abrasions on her neck.
14 The victim was rendered unconscious by being strangled. The prisoner then carried or dragged the victim to the backyard swimming pool and put her in the water in the pool.
15 The pathologist who performed the post mortem examination found a large amount of frothy fluid in the victim's lungs and expressed the opinion, which I accept, that the victim was still alive when she was put in the pool and then drowned in the water in the pool.
16 At the trial the Crown relied on the act of strangling as being the act of the prisoner causing the victim's death, on the basis that the act of strangling had at least substantially or significantly contributed to the victim's death, in that, even if it did not of itself kill the victim, it rendered her unconscious and incapable of resisting being put in the pool or of rescuing herself or of surviving after she was put in the pool.
17 At the trial the Crown, although alleging that the prisoner had performed both acts, that is the act of strangling and the act of putting the victim in the water, did not rely on the act of putting the victim in the water as an act causing the death of the victim done with intent to kill the victim, because at the time of performing the latter act the prisoner might have believed that the victim was already dead.
18 After putting the victim in the water in the swimming pool the prisoner left 33 Orchard Road by car. He travelled to the rented house in Magga Dan Avenue, where he was seen by neighbours.
19 While the prisoner was away from 33 Orchard Road, he made a telephone call and used an automatic teller machine; he bought petrol at a service station which had closed circuit television and he is shown in closed circuit television film at about 7.20 pm; and at another service station he bought a bottle of Coca Cola and a bottle of another kind of soft drink which his wife liked. It was part of the Crown case at the trial, and I accept, that the prisoner engaged in this conduct for the purpose of bringing into existence evidence that, at times proximate to the time of the killing, he had been at places other than 33 Orchard Road and had bought a drink of a kind his wife liked, thereby rendering it less likely that he could have been the killer.
20 The prisoner returned to 33 Orchard Road. He telephoned an emergency number and said that he had found his wife floating face down in the swimming pool. He dragged the victim out of the swimming pool and laid her body beside the swimming pool. Ambulance officers arrived soon afterwards.
21 I summarise some of the more important objective facts of the offence, by saying that the prisoner killed his estranged wife by strangling her and putting her, while unconscious, in the water in the backyard swimming pool, where she drowned. I find that in strangling his wife the prisoner intended to kill her. The commission of the offence was not premeditated or planned. When the prisoner arrived at 33 Orchard Road at about 5.50 pm he had not formed any intention to kill his wife. He formed the intention to kill her during the argument with her at 33 Orchard Road.
22 At the trial I gave directions to the jury about provocation. By returning their verdict of guilty of murder the jury showed that the Crown had proved beyond reasonable doubt that the prisoner had not acted under provocation within s 23 of the Crimes Act. I do not find that there was any conduct on the part of the victim which could properly be described as provocation. However, I accept that the act of killing was done while the prisoner was subject to some loss of self-control.
23 The prisoner asked the Court to take into account, and I take into account, in sentencing the prisoner for the offence of murder, three offences under the Firearms Act, of possessing an unregistered firearm, possessing an unauthorised firearm and not keeping a firearm safely. All three offences were committed on 10 April 2005, when police attending 33 Orchard Road after the murder discovered a single firearm in a room of the house. There was no ammunition for the firearm.
24 The firearm had belonged to the prisoner's grandfather. After his grandfather's death about twenty years previously the prisoner's brother had insisted on all their grandfather's property being sold at auction and the prisoner had bought the firearm at the auction. I do not consider that such minor offences should have any effect on the sentence for murder.