R v KJS

REMARKS ON SENTENCE 1The offender was found guilty at trial of the murder of his wife. The offence occurred against the background of allegations that he had sexually assaulted his daughter, and it is to protect his daughter's anonymity that his name is not to be published. 2In the morning of Tuesday, 14 April 2009, he killed his wife in the bedroom of their home at Fairfield West by beating her about the head with a plumber's tool known as a leadbeater. That was not in issue at the trial. It was his case that he was acting under provocation, as the law understands that term, so that he was guilty of manslaughter rather than murder. Indeed, he pleaded guilty to manslaughter when he was arraigned at the beginning of the trial, but the Crown did not accept that plea in discharge of the indictment. Provocation was the only live issue left to the jury.

3It is not necessary to refer to the evidence at the trial in any detail, although the parties are in dispute about the facts I should find for the purpose of sentence. 4The offender and the deceased began a relationship in 1990. Their daughter, the subject of the sexual assault allegations, was born in the following year. By then the relationship had broken up, but they got together again about 4 years later and married in 1996. They had two more children, a boy and a girl. I shall refer to their first born child as the offender's daughter, and to the others as the younger children. 5The evidence of family members and friends was that the offender was a quiet, reserved person, whereas the deceased was a strong personality, outgoing and feisty. Their relationship appeared to be normal. However, in evidence the offender gave a different account of their interaction in the privacy of their home. He said that the deceased was very much the dominant party in the relationship, and that she was controlling of him and sometimes aggressive towards him. She did not get on with his family and, out of loyalty to her, he limited his contact with them. He said that he did not disclose any of this to others because it would have been wounding to his ego to do so. 6His evidence, broadly supported by other witnesses, was that he was never violent towards her. There was an occasion in 2005 when he was very angry with her, and "trashed" the bedroom of the house in which they were then living and destroyed items of her property and personal effects. This appears to have been an isolated incident. There was also evidence that she told a friend of hers that he could be violent towards her. That, of course, is hearsay material which is difficult to assess, and I would not place any weight upon it. 7Importantly, his daughter gave evidence that he had sexually abused her between 2003 and 2008. Without going to the detail of her evidence, she alleged a pattern of sexual interference which began with indecent touching and progressed to sexual intercourse, attempted or completed. She told no one about this behaviour until after she had left the family home in 2008. For a considerable period of time thereafter the deceased refused to believe her allegations, and strongly supported the offender in his denial of any such conduct. However, her position changed in the early months of 2009 leading up to the killing. 8This change was at the heart of the circumstances giving rise to the murder, and was central to the offender's case on provocation. As will be seen, his evidence was that on the morning in question the deceased said something to convey to him that she no longer believed him and accepted their daughter's allegations, and that it was this in particular which caused him to lose his self-control. The jury were invited to assess the daughter's evidence because whether or not she was telling the truth was relevant to the gravity of the provocation occasioned by what he alleged the deceased said. Obviously, if he were innocent of any sexual wrongdoing, what she said to him would be more hurtful than if he were not. 9However, it is not necessary for me to assess the reliability of the daughter's evidence for present purposes, and I do not propose to do so. The offender has been charged with offences arising from her allegations, and is yet to face trial for them in the District Court. 10The Tuesday on which the killing occurred was the day after the 2009 Easter break. It is apparent that over that break the marriage was in serious trouble. Quite apart from the deceased's growing suspicion about the offender's sexual assault of their daughter, she came to believe, perhaps wrongly, that he was having an affair. This arose from his contact with an old girlfriend on Facebook on Thursday, 9 April. They argued about the matter and he denied having an affair. 11There was talk of divorce, certainly on his part. The atmosphere in the home was tense. The family had planned to spend the Easter weekend with friends on the central coast. In the event, he did not go and the deceased travelled to the central coast with the younger children. However, they returned on the Sunday night, 12 April, because she was unwell. 12The offender's evidence was that on the Monday, 13 April, there was further talk of divorce and the atmosphere between them remained tense, but otherwise nothing of note occurred. In particular, there was no confrontation between them. However, in the early evening he sent a text to the proprietor of a plumbing business where he was employed, saying that he had "bad family problems" and would be off work for the rest of the week. Later in the evening, the deceased sent a text message to one of the friends with whom she had been staying on the central coast, saying "the shit hit the fan." However, later again that evening, she called the same friend and spoke to him about the offender wanting a divorce. According to the friend, they spoke for about 10 minutes and she did not sound frightened or upset. 13Let me turn, then, to the evidence of the events of Tuesday, 14 April. According to the offender, he had slept downstairs in the loungeroom on the night of the Monday. On the Tuesday morning he went upstairs to the bedroom he shared with the deceased. The atmosphere had not improved, and they argued. He said that he wanted to go away, so that they could try to sort things out. She said that she hated the way he treated her, and that he did not care about her or the children. 14He said, "Don't forget I picked you over my parents, over my family." By that he meant that he had put up with the fact that she resented his family and, even though that resentment was unjustified, he had supported her. She retorted that she had picked him over their daughter. He took that to mean that she no longer supported him in his denial of their daughter's allegations and, in fact, believed that she was telling the truth. He pleaded his innocence of the allegations, but she said, "That's it, I am taking you for everything." She said that she would be taking the house, the children, the car, "the whole lot." She pushed him, he tripped over something and fell. He got up and, as he put it, he "saw red." 15In his evidence, he accepted that it was then that he seized the leadbeater and attacked her with it, although he professed to have no memory of doing so. The leadbeater was a tool which he had had for some time in his trade as a plumber, although it was not used in the course of his employment at the time. His evidence was that, before they moved to the home at Fairfield West, the deceased used to keep a baseball bat in their bedroom for protection, presumably against intruders, but that was misplaced when they moved houses and he gave her the leadbeater to replace it. 16The deceased had died by the time police arrived at the house later in the day. She was lying on the floor of the bedroom near the ensuite, and the bloodstained leadbeater was lying next to her. Underneath her upper body was a doona, which was bloodstained. A physical evidence officer noted that there was no sign of spatter from projected blood in the area, as might have been expected. He thought it likely that this was because her head was covered by the doona either before the attack or, at least, after the initial blow. The offender accepted that he had done that, although again he said that he could not remember it and he could offer no explanation for it. 17The younger children were present in the house at the time. They did not give evidence at the trial, but videotaped police interviews with them were played to the jury. The effect of their evidence, particularly that of the young girl, was that the offender walked up the stairs to the main bedroom, and returned quite shortly thereafter, looking shocked and "rushed." They did not hear anything suggesting a violent incident, such as raised voices or the sound of fighting. The offender said that their mother had "gone back to sleep." He put them into the family car, drove to the home of an aunt, and asked her to look after them for a few hours. 18In the early afternoon he spoke to members of his family by mobile phone. The effect of what he told them was that he had killed the deceased, and that he was going to burn the house down and kill himself. His sister contacted police, who went to the home. When they arrived, he said, "My life is over. You might as well arrest me now." He said that he had killed the deceased, and that she was upstairs in the bedroom. He was conveyed to Fairfield Police Station, where he admitted having struck her with the leadbeater. In evidence, yet again, he did not deny that he made that admission but claimed to have no memory of it. 19Consistently with his phone conversation with members of his family in the afternoon, police found a jerry can of petrol in the house. They also found a torn up handwritten note in the house and, in the car, two further handwritten notes, one of them addressed to the younger children. The torn up note was later able to be reconstructed. Put shortly, the effect of these documents was an expression of his intention to commit suicide, and an explanation of his actions by reference to his daughter's allegations, which he denied, and the deceased's domination of him in their relationship. In the torn up note he wrote that he had "no remorse" for the deceased. The three documents were written in very emotive terms. 20The offender gave evidence in the sentence proceedings, maintaining his account at the trial. The Crown prosecutor also maintained his stance at the trial. He accepted that the offence was committed in anger and was occasioned by the background disclosed in the evidence, in particular, the daughter's allegations of sexual abuse and the deceased's change of heart about them. Nevertheless, he submitted that I should conclude that the killing was planned. 21He argued that there had been a confrontation between the offender and the deceased on the Monday night and, in all probability, it was then that he decided to kill her. He relied on the text message from the deceased to her friend, saying "the shit hit the fan." He also said that it was consistent with the offender's text message to his employer that he would be off work for the rest of the week. 22The Crown prosecutor also relied upon the evidence of the younger children that on the Tuesday morning the offender was upstairs in the bedroom only for a short time, and that they did not hear anything suggestive of an altercation or a fight. This evidence, he said, was inconsistent with the offender's account of what happened in the bedroom. He argued that I would reject the offender's evidence that the leadbeater was kept in the walk-in wardrobe, and would conclude that he had taken it with him to the bedroom for use as a weapon. Finally, he argued that the offender placed the doona over the deceased's head to contain blood spatter, and that this showed that he had given some thought to the method of killing. 23In response, Mr Button SC, for the offender, noted that late on the Monday night the deceased had a phone conversation with her friend about the marital situation and did not appear to be frightened or upset. This, he said, was not consistent with there having been a confrontation with the offender. The evidence of the younger children that on the Tuesday morning the offender was in the upstairs bedroom only for a short time should be approached with caution, given their ages. That they did not hear anything could be explained by the fact that, on their own evidence, they were downstairs watching television at the time. Mr Button argued that there was no reason not to accept the offender's evidence about the leadbeater being kept in the bedroom. 24As to placing the doona over the head of the deceased, he pointed out that the multiplicity and nature of her injuries identified at a post-mortem examination suggested a frenzied attack, during which the offender was likely to have acted irrationally. He suggested that he might have covered her head so as not to see her face as he attacked her. However that may be, he argued, the offender did nothing to conceal his crime. Police observations suggested that he had made an attempt to wipe up some blood deposited in the ensuite area, but that was far from successful. The bloodstained leadbeater was left in the bedroom, and the offender made no attempt to flee from the area. These features, he submitted, were not the indicia of a planned killing. He added that the handwritten notes demonstrated that the offender was in a highly emotional state. 25I have given this important issue careful consideration. I could not sentence the offender on the basis that the killing was planned unless I was satisfied of that fact beyond reasonable doubt. For the reasons identified by Mr Button, I am not. This is not to deny that I have reservations about aspects of the offender's account and about the extent of his professed lack of memory of the killing and of his later admission at the police station. As to that matter, however, I am mindful of the observation of Ms Anna Robilliard, psychologist, who prepared a report for the sentence proceedings, that his "stated inability to recall the exact details and sequence of events of the assault is plausible given his highly emotionally aroused condition as it is well recognised that memories are not well laid down or consolidated when the brain is in a highly emotionally aroused condition." 26The offender will be sentenced upon the basis that the killing was spontaneous and was the product of a loss of self-control. This is not inconsistent with the jury's verdict, which necessarily rejected provocation. To have found the offender guilty of manslaughter on that basis, the jury would have to have found it reasonably possible that, having regard to all the circumstances, an ordinary person in his position could have lost self-control so far as to have formed the intent requisite for murder. It was well open to the jury to have been satisfied beyond reasonable doubt that that objective test had not been met.