R v Niguidula

Supreme Court of NSW|2023-09-28|Before: Dhanji J

JUDGMENT

Jenny Niguidula murdered Rhonie Apostol on 17 November 2019. She stabbed him once to the chest with a knife, penetrating his heart. He died very soon after. The offender must be sentenced for that crime. The crime of murder, involving, as it does, the taking of a human life through a deliberate act, is the most serious of criminal offences. This is reflected in the maximum penalty of imprisonment for life. Further, a standard non-parole period of 20 years has been prescribed. The standard non-parole period is the non-parole period for an offence, taking into account only the objective factors affecting the relative seriousness of that offence, for an offence in the middle of the range of seriousness.
Acknowledging the guideposts provided by the penalties prescribed and the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), it is necessary that I identify the factors that are relevant to the sentence, consider their significance, and then exercise my judgment as to the appropriate sentence given all the factors of the case. It is unlikely the sentence I impose will satisfy everyone. It is unlikely it will satisfy anyone. For the family and community of the victim, Mr Apostol, it is unlikely any punishment I impose will suffice. They have lost, far too soon, and entirely unjustly, a man they held dear. Any sentence I can possibly impose is likely to be insufficient from their perspective to adequately punish the offender for the extremely serious crime she has committed.

The victim impact statements

The Court was grateful to the deceased's wife, Ms Geraldine Olivares-Apostol, and his sister, Ms Maria Corazon Apostol Sta Maria, for their courage in reading their victim impact statements setting out the pain and loss felt by them as a result of this crime.
While the deceased was not a resident of this country, he was here, in effect, as a guest. Without elevating the value of one life above another, the community is adversely affected by his violent death. The ongoing pain and loss to his family is evidence of the harm done to the community more broadly by this crime, which is a matter to which I have regard. [1] The Court extends its sympathies to Ms Olivares-Apostol, Ms Apostol Sta Maria, and their families.

The jury's verdict and its consequences

The offender pleaded not guilty to murder but guilty to manslaughter. This plea was not accepted by the Crown, necessitating a trial. This took place, commencing on 17 May 2023 and concluding on 7 June 2023, with the jury's finding of guilt.
The evidence before me is that which was led at trial, supplemented by the additional evidence tendered on sentence. It will be necessary to refer to some of the trial evidence in the course of making relevant factual findings. The evidence tendered on sentence will be discussed. At trial, the offender did not dispute her responsibility for the act causing death, although there was no articulation of precisely what that act was. Her case was that the evidence relied upon by the Crown did not establish beyond reasonable doubt an intention to kill or to inflict grievous bodily harm. Failing this, the offender additionally relied on the partial defence of substantial impairment in a bid to reduce her liability from murder to manslaughter.
While the offender was found guilty by a jury, it is necessary for me to determine the facts. Any determination I make is constrained only in that it must be consistent with the verdict of the jury. In the present case, this means that I must sentence the offender on the basis that, by her deliberate act, done with an intention to kill or inflict grievous bodily harm, she caused the death of Mr Apostol. Further, to the extent that there was evidence the offender was suffering an abnormality of mind arising from an underlying condition, I must sentence the offender on the basis that any resulting impairment of her capacity to understand events, judge whether her actions were right or wrong, or to control herself, was not so substantial as to warrant her being sentenced for manslaughter rather than murder.
Matters adverse to the offender must be proved by the Crown beyond reasonable doubt. Matters relied upon by the offender in mitigation must be proved by her on the balance of probabilities. Some matters may remain unknown.
In the sentence proceedings, the Crown tendered the Crown sentence summary; the indictment dated 2 May 2023; the offender's criminal and custodial records; [2] agreed facts; [3] and two victim impact statements. [4]
The offender tendered 11 character references; [5] various certificates in relation to courses completed while in custody; [6] a statutory declaration of Gregorio Castro Villarisco of 16 August 2023; [7] an affidavit of Felix Q Vinluan of 15 August 2023; [8] a United States of America permanent resident identification of the offender; [9] a certificate of death in relation to her father; [10] the reports of Dr Adam Martin dated 16 April 2023 and 16 May 2023; [11] the reports of Dr Antony Henderson dated 2 March 2022, 7 October 2022, and 28 September 2023; [12] and an affidavit of her solicitor of 27 September 2023. [13]

The facts

There is a paucity of evidence as to the precise circumstances in which the offender stabbed the deceased with the knife resulting in his death. The evidence surrounding the event is, however, largely not in dispute. The following is essentially taken from the agreed facts at trial. [14]

Background

In 1993, Mr Apostol married a woman named Ms Olivares-Apostol. They migrated from the Philippines to the United States and settled in New York. In 1994, they had a son together. The deceased's siblings later moved to the United States as well.
In 2009, the offender married Jonathan Olivares. [15] He was the brother of the deceased's wife, Ms Olivares-Apostol. In 2012, the offender and Mr Olivares separated, and in 2015, were divorced. There was evidence that the offender had been violent towards Mr Olivares during their marriage. The violence included punching and scratching.
The offender operated a company called "Kaleidoscope International" which conducted market research. At least part of the work of the company involved collecting and recording data from used cigarette packaging. In around 2010, the deceased started working for the offender's company. As part of his role, the deceased would often travel internationally with the offender, including to Australia.
By 2013, Ms Olivares-Apostol suspected the deceased and the offender were having an affair. Her suspicions appear to have been well founded.
Complicating the relationship, Mr Apostol had also borrowed money from the offender. He borrowed $16,000 to pay off a credit card debt, $65,000 to pay for his son's tuition fees at Berkeley College, and money for travel when his father passed away, resulting in a significant debt.
The offender was also in a sexual relationship with a man named Jan Lei Saret who lived in the offender's Long Island residence with his wife.

Events leading up to the murder

On Sunday 10 November 2019, the offender and the deceased arrived in Sydney on a flight from Manilla. Shortly before boarding the flight in Manilla, the offender became aware that the deceased was involved in a sexual relationship with a woman named Divina Eugenio, after seeing some text messages on the deceased's phone. At the time, Ms Eugenio lived in the Philippines and assisted with the care of the deceased's elderly mother. The offender was extremely upset at what she saw as Mr Apostol's betrayal.
Upon arrival in Sydney, at about 10.22 am, the offender was captured on Closed Circuit Television (CCTV) footage having disembarked the aircraft, walking separately to the deceased. She entered the female toilets, where she remained for the next three hours. She later told police in her record of interview that she was crying. Text messages tendered at trial indicate that, while in the toilets, she was in contact with the deceased, Ms Eugenio, the deceased's sister Ms Apostol Sta Maria, and her mother. Meanwhile, Mr Apostol had negotiated customs and collected their luggage. He did not know where the offender was. He was captured on CCTV waiting for the offender.
The offender eventually left the toilets at about 1.34 pm and went through customs. The offender then walked around the arrivals area for another hour, before meeting the deceased. The agreed facts stated that after they met, the deceased was on the telephone with Ms Eugenio. The offender grabbed the phone from the deceased and spoke to Ms Eugenio. She was said to be "fuming" while on the call. The pair were then seen speaking in an area outside the terminal building where they remained for about 3.5 hours.
At 6.11 pm, the offender was captured punching the deceased to the face, before walking away from him. At 6.12 pm, the deceased was captured trying to pull the offender by her right hand. The offender turned around and threw her phone at the deceased's head. The deceased blocked the offender's left arm. The offender was then seen walking away. The deceased went after her momentarily, before returning to the trolley containing their luggage.
The deceased and the offender travelled by Uber to Wentworthville and were dropped near 38 Alto Street at 11.13 pm, where they had arranged to stay in the granny flat behind Amorlinda Hepper's home. The offender told Ms Hepper she had a migraine and went straight into the granny flat.
On Monday 11 November 2019, Ms Hepper took the offender and the deceased to Merrylands to buy groceries. The offender, the deceased, and Ms Hepper were depicted on CCTV footage at Stockland Merrylands entering a Priceline store and speaking to the pharmacist, where the offender sought advice on how to treat the cut to the deceased's forehead. The offender told Ms Hepper that the deceased had sustained a cut when he was trying to put up a fan and it fell on his head. This was not true. Blood swabs taken from an LED lamp recovered from the scene contained DNA consistent with that of the deceased. The deceased sent his sister, Ms Apostol Sta Maria, a number of photographs depicting a bandage on his head and other abrasions. The offender pleaded guilty to assault occasioning actual bodily harm in relation to the injury to his forehead.
On the same day, 11 November 2019, the offender called the deceased's wife, Ms Olivares-Apostol and told her the deceased was having a relationship with another woman. Ms Olivares-Apostol gave evidence that she did not believe this and brushed it off.
A day or two later, the offender again rang Ms Olivares-Apostol and told her that the deceased was having an affair with a woman named "Vina" (Ms Eugenio). A few minutes later, Ms Olivares-Apostol received a call from Mr Apostol who asked if the offender had called. Ms Olivares-Apostol falsely denied that she had. On a further call with the deceased a day or two later, Ms Olivares-Apostol said she could hear the offender in the background saying, "she should know the truth". Shortly after this, the deceased called Ms Olivares-Apostol and confessed to his relationship with Ms Eugenio. He told her he wanted to quit his job and come home.
Over the next few days, the relationship between the deceased and the offender fluctuated. Notes on the offender's phone on 12 and 13 November 2019, expressed her anger over the deceased's relationship with Ms Eugenio. However, on 14 November 2019, the offender and the deceased attended the Parramatta Westfield shopping centre where they were captured holding hands, shopping, and eating together. The deceased and the offender also spent time with Ms Hepper who said they appeared happy and normal.

17 November 2019

On the morning of Sunday 17 November 2019, the offender had an extended text conversation over Facebook Messenger with Mr Saret. In those messages, the offender and Mr Saret discussed the offender's relationship with the deceased and also the relationship between the offender and Mr Saret.
At about 3:20 pm, a neighbour, Jason Walandouw, heard an argument between a man and a woman. While this may have been the offender and the deceased, I am unable to make a positive finding in this regard. At about 4:50 pm, the offender called a friend, Diana Ramos, and said "Diana, can you come here I think [brother Ron] is dead". [16] Ms Ramos happened to be in a car a short distance away and went straight to Alto Street. When Ms Ramos arrived, she found the deceased on his back in the shower recess area. He was wearing only shorts and had a dressing on his chest. He appeared to be dead. She began chest compressions. While this was happening, Ms Ramos saw the offender standing in the bathroom holding a knife in her hand. The offender said something about having "washed the knife". [17] The offender took over chest compressions briefly when Ms Ramos became tired, before Ms Ramos and then her partner, Jhovan Catabui, continued.
Paramedics attended at 5:01 pm. They noticed the deceased's body was wet and there were also wet and bloody clothes in the shower recess. Paramedics observed the dressing on the centre left of the deceased's chest. Paramedics asked the offender what happened, and she said, "I woke up and found him in the shower. I don't know what happened. He just organised a trip to go away". [18] When asked about the injury and where the blood came from, the offender said, "[h]e cut himself earlier in the day". [19] When asked about the blood in the bathroom, the offender did not reply and walked away. The paramedics continued to ask the offender about the wound, but she would walk away from them and not respond, at one point saying, "[i]t's fine, I fixed it, don't worry about that". [20]
The deceased was pronounced dead at 5:24 pm.
The offender was upset and crying. She sat with the body, held the deceased's hand, and also slapped him a few times to the head and told him to stop joking and wake up. Ms Hepper asked the offender what happened, to which the offender responded, "I don't know, I found him in the shower". [21] When asked if they had a fight, she said, "no we didn't fight" and then spoke about adopting a baby and said, "I don't think he wants me to adopt a baby". [22]

Events following the murder

Police arrived and spoke with the offender. In a recorded conversation, the offender told police she found the deceased in the shower and thought he was joking. She said she told him she was going to call the police, and that she dressed the wound but did not see any excessive bleeding. She said she asked the deceased if she should call the doctor but was told not to. She also said that the deceased always "gets in trouble" and has "cuts". [23] When asked about the knife, the offender said to the police, words to the effect of, "I even washed because I washed my hands". [24] She told police she had found it "by the toilet bowl" [25] and said she dressed the wound and told the deceased "if you don't get up now, I'm gunna turn on the shower, you're gunna get wet". [26]
In the police car on the drive to the police station, the offender told police about her affair with the deceased. She told them the deceased was attempting to book a flight home as his wife wanted him to return. The offender told Ms Ramos in the foyer of the police station that the deceased had financial problems and that she lost her baby and blamed the deceased for this.
The offender participated in a record of interview at the police station that night. In the interview, she said she started a sexual relationship with the deceased in 2011. She said she had been pregnant with his child the previous year but suffered a miscarriage and further, that they were about to adopt a child. (There was evidence an adoption had been arranged.) The offender said that when they arrived in Sydney on 10 November 2019, she suspected the offender of having another relationship. She said that on arrival in Sydney, she went to the bathroom to cry and refused to come outside until the deceased broke off the relationship with the other woman. She said that the deceased did this and they went home at about 11:00 pm.
The offender told police that she texted the deceased's wife and told her the deceased was having an affair. She told the police that, the following day, Monday 11 November 2019, they spoke about their relationship, and she told the deceased that he had to earn her trust. She repeated her account of the offender being injured putting up an electric fan. She gave an account of the following days, including a reconciliation between them. The offender said that on Friday 15 November 2019, she spoke to the deceased about debts, and he joked that "Geraldine will solve her problems and better, I'm worth, I'm more worth when I'm dead than when I'm alive", [27] raising a motive for Mr Apostol to have killed himself.
In her recorded interview, the offender gave an account of the events of 17 November 2019. She said that the deceased spoke to his mother in the early hours of the morning. She said that the deceased told her his mother was upset because of his relationship with Ms Eugenio. The offender said to the deceased, "[t]hat's what you deserve for ruining everybody's lives". [28] The offender then said she ate some biscuits and drank Moscato and vodka and spoke with the deceased about the loans he owed her. She said that she went for a walk, before returning home and throwing up. She went back to sleep.
She then said that she woke up at about midday and started thinking about her miscarriage. She said to the deceased, "[y]ou took away ten years of my life and my, my, my baby's dead because of you. And that's your baby". [29] She also said, "you didn't even say sorry after I lost the baby ... how can you tell me that you love me if all you do is ruin me". [30] The deceased apologised and promised things would change. He told her to go back to sleep and he wanted to go back to the mall to buy her AirPods.
The offender then said she woke up at "4:00 something". [31] When she woke, she heard inaudible sounds from the bathroom. She asked, "[i]s this one of your [j]okes?". [32] She then told police that she then went to the bedroom to get the basket of medical supplies. She then cleaned the deceased and saw a knife by the toilet bowl. She used the knife to cut the deceased's shirt. She stated that the deceased was still talking and moving at this point. When she cut his shirt, she saw blood on his chest. There was otherwise no blood in the shower and no blood around the deceased.
She said, "I got up, I cleaned my hands, I was holding the knife, I rinsed, not all, but I cleaned, I rinsed the knife, I was holding it". [33] Later in the interview, she repeatedly denied cleaning or rinsing the knife. She denied stabbing the deceased or being angry with him. The offender told police that the deceased had been physically abusive to her in the past. She said that she would scratch the deceased and would normally reach for his face or chest.
Following the record of interview, the offender was released without charge. Investigations into the murder continued. Recordings of telephone calls between the offender and Mr Saret were obtained and relied upon as admissions. The offender was also covertly recorded viewing the deceased's body in the morgue.
On 11 December 2019, the offender was arrested and charged with the murder of the deceased.
An autopsy was conducted and established the deceased had died as a result of a single stab wound to the chest. This was the result of the voluntary act of the offender.

Intention to kill or intention to do grievous bodily harm?

It was submitted on behalf of the Crown that it would be open to find the offender acted with an intention to kill. The Crown points to the use of the particular weapon to stab the chest of Mr Apostol in the vicinity of his heart. The Crown also points to the circumstances from 10 November 2019 which established the offender's extreme anger with the deceased. This included her throwing the mobile telephone at him at the airport, and the assault on him with the lamp leading to the injury to his forehead.
The offender's diary notes on her phone indicate the depth of the offender's unhappiness with the deceased. I would accept that the offender was upset, and indeed, angry with the deceased from the time she discovered his affair on 10 November 2019. While that emotional state fluctuated, and included at least one period of reconciliation, I am satisfied beyond reasonable doubt that something occurred around the time of the stabbing to reignite that emotional state. It is unnecessary to determine precisely what that was. There is some evidence that the deceased decided to terminate his employment and relationship with the offender and return to the United States to reconcile with his wife.
I would also accept that, in circumstances where she was upset and angry with the deceased, the offender attacked the deceased with a knife determined to inflict at least grievous bodily harm. I am, however, not satisfied beyond reasonable doubt that, in doing so, she intended to kill him. While the location of the wound is significant, in circumstances where both the deceased and the offender may have been moving, I am not satisfied the offender deliberately targeted the area. Of greater significance is the evidence in relation to the level of force required to inflict the wound. Professor Johan Duflou, a forensic pathologist, said "you wouldn't need more than a moderate amount of force". [34] His evidence was that the location penetrated, that is, between two ribs, was such that, sadly, the strongest membrane pierced was the skin. Professor Duflou's evidence was that once the skin was broken, there would be very little resistance. Further, having stabbed the deceased once, there is no suggestion she tried to do so again.
In all the circumstances, I cannot be satisfied the offender acted with an intention to kill. To the contrary, I am positively satisfied on the balance of probabilities that the offender did not intend to inflict more than grievous bodily harm.

Was the offender suffering a mental health impairment, and if so, did it impact her at the relevant time?

As I have noted, the jury rejected the partial defence of substantial impairment. Nonetheless, I have before me, as relevant to the sentencing exercise, the evidence before the jury together with two reports of Dr Martin and two reports of Dr Henderson prepared for trial, and a further report of Dr Henderson written after conviction, all relevant to the offender's mental condition. It is necessary for me on sentence, within the bounds of the jury's verdict, to determine whether a relevant mental condition existed and, if so, its impact.
Prior to trial, the defence served reports prepared by Dr Henderson prepared in March and October 2022. By the time of his October 2022 report, Dr Henderson had seen Ms Niguidula on four occasions for a total of approximately eight hours. Dr Henderson's opinion was that the offender suffered a severe borderline personality disorder and was thus substantially impaired by an abnormality of mind. [35] Dr Martin was called by the Crown at trial, in response to the offender's reliance on the evidence of Dr Henderson. Dr Martin was briefed with the relevant documentation and conducted a 90-minute interview with the offender by audio-visual link. Dr Martin, in his report of 16 April 2023, expressed the view that the offender "demonstrates borderline personality traits, and the narrative history that she gives, together with information contained in the collateral sources is consistent with borderline personality disorder". [36] He was not, however, prepared to make a definitive diagnosis, "within the limitations of cross-sectional forensic assessment". [37] Ultimately, there was an evolution in Dr Martin's evidence such that by the time of his re-examination, his evidence was that "it's likely she does - that she can be diagnosed with a borderline personality disorder". [38] While much time had been spent on the issue at trial, when asked "so are you going to the extent of saying you agree with Dr Henderson in his assessment that there is a severe borderline personality disorder at the time of the stabbing in effect?", Dr Martin said "yes". [39]
As to the severity of the disorder, Dr Martin said: [40] "Given that a person has died I think it's reasonable to conclude that it's severe and - and there is clearly evidence from the witnesses which has been referred to of very, very severely destructive behaviour, apparently self-destructive, but also destructive to others, so I think there is a severe element to this disorder."
The Crown submitted that the problem with the evidence of Drs Martin and Henderson was that the diagnoses depended on the history given by the offender. This, in my view, misunderstands the evolution of Dr Martin's evidence. His reluctance to offer a definitive diagnosis in his initial report was based on his unwillingness to make such a diagnosis on the basis of his interview with the offender and the material then available to him. Subsequent to Dr Martin's first report, further material became available, including, in particular, medical notes indicating prior psychiatric diagnoses, including a borderline personality disorder. (There was also a diagnosis of a bipolar disorder, and evidence was given that a borderline personality disorder is sometimes mistaken for a bipolar disorder.) Ultimately, I understood Dr Martin's answer in re-examination to accept, based on all the evidence known to him, including the unreliability of reporting on the part of the offender (which can itself be a feature of a borderline personality disorder), that it was likely the offender had a severe borderline personality disorder. The real issue between the experts was the impact of the disorder on the offender.
With respect to the impact of the borderline personality disorder, it should first be noted that "borderline" does not describe the degree of the disorder, but rather, its nature. Dr Henderson, in his most recent report, maintained the position he had taken at trial. He said: [41] "I remain of the opinion that Ms. Niguidula suffers from a severe Borderline Personality Disorder (BPD) and that her mental health condition significantly contributed to the offending behaviour with respect to her reduced ability to know what she was doing, know what she was doing was wrong and control her behaviour at the material time as described in the psychiatric report dated 7 October 2022 (paragraph 4.4 - 4.14)."
In his earlier report of 7 October 2022, Dr Henderson reported his view that each of the relevant capacities were impacted, stating: [42] "4.19 I am of the view the accused's ability to know the physical nature of the act would likely to have been moderately impaired on account of being in a state of detached experience from herself (depersonalisation) and reduced conscious awareness of her surrounds (derealisation) as a result of her being in a dissociated state at the material time. 4.20 I am of the view the accused's capacity to reason and consider the wrongfulness of the act would have been severely impaired on account of the disintegration of her thought processes, primary process thinking, impulsivity and dissociation, which would have severely compromised her ability to reason and consider the consequences of her actions with sense and composure. 4.21 I am of the view the accused's capacity to control herself was likely to have been the faculty that was most severely impaired at the time of the act, given the severity of the accused's emotional dysregulation and impulsivity (Krause-Utz et al., 2019). Childhood maltreatment has been correlated with impulsivity in individuals with BPD, which has been further correlated with aggressive acts (Goodman, 2000). Crimes committed by BPD patients also tend to be impulsive and likely to consist in 'explosive episodes of physical violence', whereas those committed by patients diagnosed with antisocial personality disorder are more goal-oriented (instrumental) (de Barros DM and de Padua SA, 2008). Impulsivity in BPD has been shown to be associated with abnormalities in the prefrontal cortex of the brain and serotoninergic dysfunction (Solof et al., 2014), which have been demonstrated to respond to serotonergic pharmacological treatment (Ripol et. al., 2013). 4.22 The accused has demonstrated a significant history of impulsive behaviour with respect to suicide attempts, damage to property and aggressive acts toward others. The accused's impulsivity appears to have intensified in the days prior to the offending behaviour. The nature of the offending also appears to have been impulsive with limited planning. I am of the view the accused was impaired in her ability to exercise impulse control on account of her BPD and impaired inhibition on account of her impaired understanding of the nature and wrongfulness of the act."
The Crown submitted that, even if I were to accept the presence of a severe borderline personality disorder, I would not find that it impacted on the offender in a manner contributing to the offence. It was submitted that I would, in this regard, prefer the evidence of Dr Martin to that of Dr Henderson.
Dr Martin referred to the offender's obvious capacity to function, including running a significant business enterprise. During the course of cross-examination, while accepting the presence of a borderline personality disorder, he said: [43] "… But let's just assume she's got borderline personality traits, and let's call it severe, a severe predisposition to losing one's temper and not controlling one's - or choosing not to control or having volatile relationships. And I say, so what? Because the issue is really what was her mental state at the time, was she substantially impaired in her capacity to control her behaviour or did she choose not to control her behaviour? And I think that is - look, personally I think it's unclear and I've said before and I'll say it again I think it's highly speculative to understand exactly what the motivation was or mental state right at that time and the time leading up. I think it's - I don't automatically accept that a person who may have a severe borderline personality disorder is constantly substantially impaired."
While the diagnosis ultimately agreed on by the doctors had the result that the disorder was constantly present, I did not understand either expert to suggest that it resulted in constant impairment.
The asserted loss of the offender's ability to control herself was in the context of a period of heightened emotions commencing from the time the offender learnt of the deceased's relationship with Ms Eugenio. Awareness of this apparent betrayal coincided with the apparent fulfilment of the offender's long held desire to adopt a child. The evidence suggests the offender bore considerable grief as a result of an earlier miscarriage (of a child conceived by the deceased); that she was heavily emotionally invested in becoming a mother through the imminent adoption; and anticipated that the deceased would have a substantial role in the raising of that child. This further added to the emotionally charged situation. Whilst, clearly, the offender's emotional state fluctuated during the time she was in Sydney, including at least one period when the couple apparently reconciled, I am satisfied on the balance of probabilities that something occurred in the period immediately preceding the stabbing of the deceased which again triggered the offender's emotional response in the context of those recent events. This time, however, instead of throwing a mobile phone or simply punching at the deceased, the offender stabbed the deceased to the chest.
I do not accept Dr Martin's opinion that the offender's borderline personality disorder did not contribute to the events. Indeed, Dr Martin's ultimate acceptance of the presence of a severe borderline personality disorder, was based, at least in part, on the actions of the offender. That is, as I have noted with respect to the severity of the disorder, Dr Martin's evidence was that "[g]iven that a person has died I think it's reasonable to conclude that it's severe". [44] That answer also referred to the offender's history of destructive behaviour to herself and to others.
Viewed in the context of the offender's history, the present offence was a further act of violent and destructive behaviour. I would not accept the Crown submission that past medical records demonstrated it to be a relatively mild and manageable condition. All that can be said is that it had not, in the past, produced drastic consequences. Further, in the present context, the condition coincided with external events, which produced an extreme emotional state. Whilst, of course, the offender's anger with the deceased may be capable of explaining her actions, any explanation for her actions is significantly more coherent in the context of the operative effect of the offender's severe borderline personality disorder.
I am not satisfied there was any impairment to the offender's understanding of her physical acts. I am, however, of the view that the offender's mental condition significantly impacted the offender's ability to control herself and additionally, and perhaps relatedly, I accept that the quality of her thought processes was impaired, impacting her understanding of the moral quality of her actions. Any impairment was not, however, so substantial as to warrant her conviction for manslaughter rather than murder.

The relevance of the offender's mental health impairment to the sentence

The courts have had long experience with, and have developed principles applicable to, persons with mental conditions who commit crimes.
In the present case, I find that the offender's mental health materially contributed to the commission of the offence. As I have found, in the context of a heightened emotional state, the offender's ability to control her actions was impacted, as was her ability to understand the wrongfulness of her acts and, in particular, her ability to reason clearly as to their potentially catastrophic results. As a result, I find the offender's moral culpability to be reduced from that which would have pertained had she been unimpaired by any mental health disorder.
There should be some amelioration of the role given to general deterrence on the basis that the offender's particular condition impacts the extent to which it is appropriate that she should be used as an example to others.
I have considered whether specific deterrence should have an increased role. This comes in the context of the offender's history of violent behaviour related to extreme emotional states. While the offender has sought treatment in the past, it would obviously have been preferable that she had done more. Be that as it may, the fact is, not only has the offender not previously been subject to the disapprobation of conviction, her past behaviour has not had anything like the impact of the present offence. I am of the view that the consequences of her actions themselves, together with the sentence I must impose, provide sufficient deterrence such that it is unnecessary for additional weight to be given to specific deterrence.
A mental condition also has the capacity to impact on the onerousness of any imprisonment. In the present case, Dr Henderson notes that, as a result of the offender's borderline personality disorder, she is "vulnerable to stress and prone to depression, anxiety, dissociation, deliberate self-harm behaviour and suicide under overwhelming circumstances". [45] Imprisonment is likely to be overwhelming. Dr Henderson states that "individuals with a [borderline personality disorder] are more likely to experience a deterioration in their mental state and more likely to experience victimisation in the custodial environment than inmates without this condition". [46] Dr Henderson indicated that the offender has reported increased depressive and anxious symptoms, and has been subjected to intimidation, threats, and assaults while in gaol. Based on this, I am of the view that imprisonment for the offender will be more difficult than for a person without her particular mental impairment and I take this into account.

All offences of murder are serious

There is always a peculiar quality to a discussion as to the objective seriousness of an offence such as murder. To the family of the deceased, he died at the hand of the offender and there is little room for gradations. The law, however, provides a maximum penalty within which an appropriate sentence is to be determined, with variations dependent upon, amongst other things, the objective gravity of the particular crime. For example, a cold-blooded premeditated execution for political gain will be more serious than an unplanned offence involving an intention to inflict grievous bodily harm rather than to kill. It is necessary to consider where the present offence sits.

Finding as to objective gravity

No planning was involved in the offence. It was impulsive. It involved a single stab wound. That wound did not require a significant level of force. The knife was not imbedded to its hilt, although, for reasons discussed below, it is difficult to draw much from this. Presumably, the offender had the opportunity to inflict further wounds but did not. I have relied on these matters to find the offender did not intend more than grievous bodily harm which, at least in the circumstances of this case, is not as serious as had there been an intention to kill. While the murder involved the use of a knife, the nature of the weapon, an ordinary kitchen knife, and its use in the context of the offence of murder is such that it does not add to my assessment of objective gravity.
While there is no evidence of any immediate provocation, having regard to the previous discussion, I find that the offence was committed in the context of offender's charged emotional state resulting in her impulsive act causing death. In the circumstances of the present case, I find it impossible to separate out this emotional state, her motive for the act, and her mental condition. I consequently find that the offender's borderline personality disorder impacted the objective gravity of the offending. [47]
In making this finding, I am conscious that the infliction of a single wound, with an intensity less than required to fully depress the knife, might speak of a level of control inconsistent with the emotional state to which I have referred. A controlled wounding of this type is not only speculative, but, in my view, unlikely. The failure to fully depress the knife may have been the result of the deceased moving away in an effort to the limit the offender's reach. It is impossible to know. Ultimately, I am left with what I regard to be a very strong inference as to the offender's emotional state, and uncertainty beyond that, subject to what is known, as to the degree of force required and a conclusion that the offender desisted after the single stab wound.
The offence is, on the basis of theses matter, at the lower end of the range of offences of murder. It is also, however, important to be mindful that the offence occurred in the context of a domestic relationship, or at least something akin to a domestic relationship, given each had other partners. The offence occurred in a premises where the offender and the deceased were, at least temporarily, residents, although it was not, as the Crown submitted, the deceased's home. The point however, remains that the offence was committed in a place where the deceased had a legitimate expectation that he was safe. Indeed, the deceased had particular vulnerability in that, not only had he been in an intimate relationship with the offender, but he was also her employee, indebted, and thus, dependent on her. This dependence was likely to have made it difficult for him to leave both the relationship and the Wentworthville premises at which he was residing. The killing of Mr Apostol in the context of this vulnerability, increases the objective gravity of the offending. It is not, therefore, at the very bottom of the range.

The offender's subjective case

The offender is presently 47 years old. At the time of the offence, November 2019, she was 43 years old.
The offender has no prior criminal record. There is evidence before me of a number of assaults, including assaults occasioning injury, committed by the offender against the deceased and against her former husband, Jonathan Olivares. As previously noted, the offender has not previously suffered the disapprobation of a conviction. It was not submitted by the Crown that that history should be used in a manner adverse to her. Indeed, the Crown accepted that her prior history was attributable to her mental health condition (whilst simultaneously denying the significance of that condition to the present offence). The offender's failure to obtain more rigorous treatment for her condition suggests a lack of concern for the effects of the behaviour. There is, however, some complexity to this given the evidence that she was weaned off the medication prescribed to her with psychiatric assistance in around 2015, as a result of her desire to fall pregnant.
A number of references were tendered which speak of a woman who was successful in business, intelligent, and caring to others. The Crown submitted this was inconsistent with her condition being one of any severity. I note the references did not address the offender's prior violence at all. It would appear that the referees did not observe her in situations where her borderline personality disorder impacted her ability to control her emotional response to events.
Having regard to all the circumstances, I do not have regard to the history of violence in a manner adverse to the offender. Subject to what I have said as to her failure to undertake more effective treatment, I accept that she is a person who was a hardworking and generally a pro-social contributor to her community, but succumbed, at times, to rage, in the context of her borderline personality disorder.
The reference of the offender's mother spoke of a level of childhood deprivation, however, the offender was explicit in not seeking to rely on this material. This was somewhat inconsistent with the offender's written submissions which rely on the offender's account of her childhood to Drs Martin and Henderson. Insofar as this background might be relevant, in this case it appears to have manifested in more than just deprivation, poor judgment, and learned responses. If established, it is likely it manifested in the severe borderline personality disorder which I have taken into account as already discussed. I do not, therefore, have additional regard to any suggested childhood deprivation.
While the offender pleaded not guilty to the murder, I do not regard this as necessarily inconsistent with some remorse. On the other hand, while at trial she accepted responsibility for the act causing death and pleaded guilty to manslaughter (a plea not accepted by the Crown), these matters are consistent with decisions made for sound forensic reasons, and do not, themselves, in the circumstances of this case, provide evidence of remorse. I am, however, satisfied on the balance of probabilities that her capacity to give evidence with respect to her thought processes surrounding the act causing death was limited. The fact that she desisted after the single stab wound was inflicted, attempted to dress the wound and (after some delay) sought help, supports a finding she immediately, or at least very soon after, regretted her actions. I accept that she regarded (and regards) the death of Mr Apostol a significant loss. She expressed remorse to Dr Henderson and the expression of remorse is supported by some of her referees. I am of the view the offender, while not necessarily accepting her guilt of murder, does accept her responsibility for Mr Apostol's death, and is, at least to that extent, remorseful.
I would also accept that, in not disputing her responsibility for the act causing death, and in working with the Crown to agree on a comprehensive set of agreed facts, court time was saved, and the offender is entitled to an allowance for her facilitation of the administration of justice, although this need not be quantified. [48]
The offender provided evidence of her progress while in custody, including the completion of various courses available to her. I am satisfied that the offender, consistent with her character more generally, is determined to use her time in custody as productively as she is able.
These matters, together with her background generally, informs my finding that she has good prospects of rehabilitation.
The offender submitted that, as a result of this offence, she will lose her permanent residence status in the United States. However, the evidence tendered by the offender to support this contention suggests that it is open to her to provide evidence that she has not abandoned her intention to permanently reside in the United States. Even if this was a relevant consideration, [49] it would, in any event, be difficult to make any prediction as to what the executive of a foreign country might do, at a time that will necessarily be some years into the future. I would, however, accept that uncertainty in this regard adds to the burden of imprisonment. There has been additional uncertainty as a result of the fact that almost four years have now passed since her arrest in December 2019, with the offender not knowing how long her custody will persist. That period was impacted by the more difficult conditions experienced by prisoners generally as a result of measures taken in response to the COVID-19 pandemic. In addition, I accept that Ms Niguidula's imprisonment, in a country where she has no family or close connections, has borne, and will bear, more heavily on her. The offender also pointed to the tragic death of her father whilst she has been in gaol, and her consequent inability to attend the funeral, or otherwise join with her family in grieving his death. Unfortunately, the inevitable result of a sentence of the length that must be imposed for an offence of murder, is that hardship will be occasioned as a result of missing important life events. I would not make any specific allowance for this event, but I treat it as a reminder of the impact of imprisonment more generally.

Assault occasioning actual bodily harm

The offender, following her plea of guilty, is also to be sentenced for the offence of assault occasioning actual bodily harm committed against Mr Apostol between 9 November 2019 and 14 November 2019, by striking him with a lamp, resulting in the injury to his forehead. The various matters I have referred to are relevant to this matter, in particular the offender's lack of record. Were the offender to be sentenced for this matter alone, a custodial sentence would not be appropriate. The Crown properly accepted that, in the circumstances, it should not add to the offender's sentence and could be dealt with by conviction alone.

Conclusion

I have regard to the various matters I have discussed in coming to my sentence. The total term I propose, in my view, provides, by application of the usual proportion between the non-parole period and the head sentence, sufficient time on parole and I decline to make a finding of special circumstances. The sentence should commence on the date the offender entered custody.

Sentence and orders

I make the following orders: 1. Jenny Niguidula is convicted of the murder of Rhonie Apostol. 2. For the offence of murder, you are sentenced to imprisonment for a term of 16 years commencing on 12 December 2019. I set a non-parole period of 12 years commencing on that date and expiring on 11 December 2031. The balance of term is 4 years commencing on 12 December 2031 and is due to expire on 11 December 2035. 3. For the offence of assault occasioning actual bodily harm, you are convicted. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), no further penalty is imposed. 4. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I direct your legal team to explain the significance of this fact to you.

Endnotes

Crimes (Sentencing Procedure) Act, s 30E(3)
Exhibit S-A
Exhibit S-B
Exhibits S-C, S-D
Exhibit S-1
Exhibit S-1
Exhibit S-1
Exhibit S-1
Exhibit S-1
Exhibit S-1
Exhibits S-2, S-3
Exhibits S-4, S-5, S-6
Exhibit S-7
Exhibit O
In her evidence, Ms Olivares-Apostol provided slightly different dates. I have preferred the dates set out in Exhibit Y.
Exhibit Y, [62]
Exhibit Y, [69]
Exhibit Y, [74]
Exhibit Y, [75]
Exhibit Y, [75]
Exhibit Y, [80]
Exhibit Y, [80]
Exhibit I
Exhibit I. A slightly different version is quoted Exhibit Y. I have preferred the version in Exhibit I.
Exhibit J
Exhibit J
Exhibit O, [A510]
Exhibit O, [A532]
Exhibit O, [A534]
Exhibit O, [A534]
Exhibit O, [A915]
Exhibit O, [A535]
Exhibit O, [A535]
Tcpt, 19 May 2023, p 176(41)
See Wornes v R [2022] NSWCCA 184 as to the potential for a personality disorder to operate as a relevant mental condition on sentence.
Exhibit S-2, [48]
Exhibit S-2, [48]
Tcpt, 22 May 2023, p 309(7)-(8)
Tcpt, 22 May 2023, p 309(22)-(25)
Tcpt, 22 May 2023, p 309(17)-(20)
Exhibit S-6, [10.1]
Exhibit S-5, [4.19]-[4.22]
Tcpt, 22 May 2023, p 306(16)-(26)
Tcpt, 22 May 2023, p 309(17)
Exhibit S-6, [10.3]
Exhibit S-6, [10.3]
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96]; MDZ v REGINA [2011] NSWCCA 243 at [67]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [53].
Crimes (Sentencing Procedure) Act, s 22A; Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [104]-[105].
See Afful v R [2021] NSWCCA 111; Kristensen v R [2018] NSWCCA 189 in the context of deportation from Australia. 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: 30 October 2023

(2020) 103 NSWLR 806

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Judgment (18 paragraphs)

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Cases Cited (10)