R v Pieter Egbert Helmhout & Anor [2000] NSWSC 651 | Case summary

SENTENCE 1 HER HONOUR: On 21 February 2000 the prisoners, Pieter Egbert Helmhout and Mark William Helmhout, were jointly arraigned before me on an indictment charging that each of them had on 20 June 1998 at Queanbeyan murdered Paul Joseph Harris. To that indictment each prisoner pleaded that he was not guilty. 2 I was asked to deal with a number of preliminary issues relating to the admissibility of evidence prior to the Crown's opening. As a result of one of the rulings that I made I granted an application made on behalf of Pieter Helmhout, that the count in the indictment against him be severed and that he have a separate trial. 3 On 28 February 2000 the trial of Mark William Helmhout commenced. On 21 March 2000 the jury returned a verdict of guilty of murder and the sentence proceedings were stood over to a date to be fixed. 4 On 22 March 2000 I commenced the trial of Pieter Helmhout. On 11 April 2000 the jury returned a verdict of guilty of murder. The sentence proceedings were stood over to a date to be fixed with a view to them being heard at the same time as the sentence proceedings involving Mark Helmhout. 5 Both matters were listed before me for submissions on sentence on 9 June 2000. 6 The two prisoners are brothers. The offence occurred on 20 June 1998. Mark Helmhout was then aged thirty seven years. Pieter Helmhout was aged thirty one years. As at June 1998 both of them were living in Queanbeyan. Mark Helmhout was living in a unit at 10/30 Trinculo Place with his defacto wife, Joanne Delly, and their two children, Jasmine and Rose. Pieter Helmhout was living in a unit with his mother, Marguerite Helmhout. There were two other brothers, David and John. They, too, seemed to have been living in the Queanbeyan area. John was the eldest brother. 7 On or about 12 June 1998 John Helmhout died of a heart attack. He was aged forty and his death came as a blow to both of the prisoners. Arrangements were made for his funeral to be held on Friday, 19 June 1998. 8 John Helmhout had been on friendly terms with the deceased, Paul Harris. On occasions the two had had a drink together at the Raiders Club, Mawson. The deceased was a British migrant aged forty seven years. He was involved in a long term domestic relationship with Karaket Somboonphol. Ms Somboonphol gave evidence at both trials. She had met the deceased some nine years earlier, when both of them were living in Wollongong. Subsequently she had moved to Canberra to be close to her children. The deceased followed and for a time the two lived together. At the time of his death the deceased was living by himself in a unit in Mawson, although he maintained regular contact with Ms Somboonphol. He had moved out of her premises when some members of her family came to visit her from Thailand. These altered arrangements did not detract from the continuing affection between the pair. 9 About three weeks before his death the deceased introduced Ms Somboonphol to John Helmhout and Pieter Helmhout at his flat in Mawson. On 18 June 1998 the deceased told Ms Somboonphol that his friend, John, had died. He and Ms Somboonphol arranged to attend the funeral on the following day. The deceased told Ms Somboonphol that he planned to lend Pieter Helmhout a suit to wear to the funeral. On the morning of the funeral Pieter Helmhout called to the deceased's home and collected the suit. The two drank a couple of beers together. 10 Following the funeral service, the deceased told Ms Somboonphol that he was going to the wake which was to be held at the Raiders Club, Mawson. Ms Somboonphol did not go to the wake. She made arrangements to see the deceased at his unit later that evening. She went to the unit and waited for him until around 3am. 11 The two prisoners and the deceased consumed a substantial quantity of alcohol at the Raiders Club that evening in company with other mourners. Later the three of them, together with others, went to Mark Helmhout's unit where they continued drinking. 12 At each trial a number of persons who had been present at the wake gave evidence. The evidence led in the trial of the prisoner Pieter Helmhout established that he was deeply distressed by his brother's death and grossly intoxicated by the end of the evening. Generally, the evidence led at the trial of Mark Helmhout suggested that he handled his brother's death with somewhat more composure than Pieter although he too was greatly saddened by it. Mark Helmhout had abstained from the use of alcohol since August 1995. He consumed a significant quantity of alcohol and marijuana during the course of the wake. In the light of the period of abstinence preceding it I accept that the affect on him of the alcohol he consumed that day was likely to be heightened. 13 At both trials the principal evidence as to the circumstances surrounding the killing of the deceased came from the witness Edward Szkudelski. In the trial of Mark Helmhout, the Crown also relied on the account of the killing given in the course of his electronically recorded interview with Detective McCloskey made on 20 June 1998. In the trial of Pieter Helmhout, Joanne Delly gave evidence describing events immediately preceding and following the killing of the deceased. 14 Common to the evidence at both trials was the following broad outline of events. By about 12.20am on the morning of 20 June 1998 most of the guests, who had come back to Mark Helmhout's unit from the Raiders Club, had either left or were on the point of leaving. Both of the prisoners were sitting in the dining/kitchen area of the unit. Pieter Helmhout was sitting on a low coffee table. The deceased was sitting next to him. The deceased was very significantly affected by alcohol. Post mortem analysis of his blood showed a blood alcohol reading of .4. The deceased kept interjecting as one of the guests, Noel Gardner, was saying goodbye to the prisoners. Pieter Helmhout, told the deceased to "Shut up". The deceased kept talking. Pieter Helmhout, hit the deceased with the back of his hand. This blow was not particularly forceful and it caused no obvious injury. Mr Gardner left shortly thereafter. 15 In the case of the prisoner, Pieter Helmhout, I accept the following facts for the purpose of sentence. After the first blow the deceased continued talking referring to John Helmhout by name. This was distressing to the prisoner who resumed his attack on the deceased, punching him about the face on several occasions. The deceased said "we're mates what are you hitting me for?". The prisoner told him to keep his mouth shut. Thereafter the violence ceased for a time and the two talked apparently normally. Then, prompted by continuing talk from the deceased about John Helmhout, the prisoner renewed his attack, punching him about the head. By this stage blood was coming from the deceased's face. Mark Helmhout joined in the assault by punching the deceased to the face. For a time Mark Helmhout left the dining/kitchen area. 16 In the early part of this incident Joanne Delly was present. The prisoner told her to go to the bedroom. On the prisoner's behalf I was invited to reject portions of Ms Delly's account. It was submitted that there were significant discrepancies between the account given by Ms Delly and that given by Edward Szkudelski. I considered Ms Delly was a truthful witness and I accept both that she was instructed by the prisoner to go to the bedroom and that, at the time when he gave that command, the prisoner was intent on pursuing his assault upon the deceased. 17 Some time after Ms Delly went to the bedroom, the prisoner put a belt around the neck of the deceased and started to pull on it. Edward Szkudelski intervened and removed the belt. Not long after this first episode of strangulation, the prisoner placed the belt again around the neck of the deceased again and pulled on it. Mark Helmhout came into the room and joined in the assault placing an electrical cord about the deceased's neck and pulling in the opposite direction. Both pulled forcefully on their respective ligatures for a sustained period. On the medical evidence I accept that the second, fatal, episode of strangulation took something of the order of three minutes. 18 Generally, the violence directed by the prisoner, Pieter Helmhout, towards the deceased took place over a prolonged period. The deceased was helpless. He was significantly affected by alcohol and bleeding from his injuries. After the initial assaults but before the first act of strangulation the deceased asked for a taxi. He said that he wanted to go home to his wife. 19 During the second episode of strangulation, a towel was thrown over the deceased's head. After the killing his body was subjected to various acts of degradation. Pieter Helmhout jumped on the head and kicked the body. Joanne Delly described the scene when she came into the kitchen/dining area following the killing. She observed the three men laughing, saying they were sorry and putting cigarettes in the mouth of the deceased. I accept that an incident of that character occurred while Pieter Helmhout was in the room. 20 Pieter Helmhout, helped Mark Helmhout and Edward Szkudelski remove the body from the unit and place it in the boot of Mark Helmhout's car. The body was dumped in an area of bushland at Fyshwick. 21 In the trial of Mark Helmhout, Mr Szkudelski's evidence was generally consistent with the account I have recited concerning Pieter Helmhout. After Pieter Helmhout had commenced his assault upon the deceased, Mark Helmhout got up to leave the kitchen/dining area, as he walked out of the room he punched the deceased to the face. This was a forceful blow which led to considerable bleeding. Subsequently Mark Helmhout returned to the kitchen/dining area at a time when Pieter Helmhout was strangling the deceased. Mark Helmhout placed an electrical jug cord about the deceased's neck and pulled on it for a sustained period. 22 After the killing of the deceased, Mark Helmhout participated in the various acts of degradation upon the body, kicking and stamping on it. In his interview with the police, Mark Helmhout said "I think I kicked him a couple of times and then I sat on him and had a cigarette" (Q.219). When later asked why he had sat on the deceased he said "because there was no chairs there". He went on to say "when I was kicking him, it was a joke sort of thing, you know" (Q.288). It appears that Mark Helmhout had it in mind to make the killing of the deceased appear to be a "gay bashing". This may explain some of the many injuries which were inflicted upon the body post mortem. In a final act of humiliation consistent with the plan to have the crime appear to be inspired by homophobia the deceased's trousers were pulled down around his lower legs leaving his buttocks exposed at the scene in the bushland in Fyshwick where the body was dumped. 23 While I do not see it as a matter of mitigation I accept that the precipitating circumstance leading to the attack on the deceased was his repeated references to John Helmhout by name. Pieter Helmhout is of aboriginal extraction and had spent his early adult years visiting his mother's people in the Pilbara. Subsequently he lived for a time among an aboriginal community in Arnhem Land. The evidence suggests that it is contrary to aboriginal custom to refer to the dead by name. In his intoxicated state Pieter Helmhout appears to have killed the deceased over this perceived lack of cultural sensitivity. 24 Objectively, this crime is a very serious one. It was not a premeditated killing. Nonetheless, in the case of Pieter Helmhout, it must be observed that it represented a sustained attack over a lengthy period. Despite his gross level of alcohol intoxication Pieter Helmhout persisted with his endeavours to quieten the deceased by violent means. By the time he came to place the belt about the deceased's neck on the second occasion, I consider the inevitable conclusion to be drawn is that he intended to kill him. The acts of degradation of the body are aggravating features of this crime. 25 The case of the prisoner Mark Helmhout is equally objectively serious. He was not the initiator of the violence that evening. However, his participation in the violent assault upon the deceased also took place over a period of time. He participated in the joint strangling of the helpless deceased for no better reason than that it was the brotherly thing to do. In his electronically recorded interview, Mark Helmhout gave at times inconsistent accounts concerning his understanding as to whether the deceased was alive or not when he exerted pressure on the ligature that he held about the deceased's neck. However, I note that in answer to Q.92, he said, inter alia: "I don't know, he looked, I knew he was going, and then I went and got a lead and I sort of, just chucked it in like a loop, like a lasso over his head, over Pieter's rope and started pulling too, and then Pieter said, Oh fuck I'm out of wind, you've got him? … Oh, yeah. And I think that's when Ed fucking took over for Pieter or Eddy come over. We, all three of us were there anyway, look I was pulling the rope, Pieter was there and Eddy's there, and Pieter ran out of wind, so I kept on pulling and leaning sort of back on the table … pullin' strong but, and then the next minute, there was no movement. So we just chucked him on the floor, put him on a sheet and wrapped him up."

28 The significance of intoxication upon a prisoner's culpability for his or her offence was considered by the Court of Criminal Appeal in R v Fletcher-Jones (1994) 75 A Crim R 381. In that case the appellant was an alcoholic, who had set out on the day of the offence to become intoxicated. He persisted in drinking even when asked by his wife to desist. McInerney J (in a judgment with which the other members of the Court agreed) observed that in these circumstances "voluntary ingestion was an aggravating rather than a mitigating factor". The appellant in that case had abstained from alcohol consumption for six months prior to the commission of the subject offence. Taking this factor into consideration the Court considered that the appellant's alcohol consumption should not be treated as a circumstance of aggravation. 29 Pieter Helmhout, as at the date of the commission of this offence, had a long standing problem of drug and alcohol abuse. He has a criminal record disclosing entries as a juvenile consistent with his history of alcohol abuse. Over the years he continued a pattern of criminal offending. The offences were of a relatively minor nature when compared with the subject offence. There are convictions recorded for assaults which (in association with other convictions) tend to suggest that the prisoner may behave violently when affected by alcohol. 30 Mark Helmhout has a criminal record which discloses a somewhat more serious pattern of criminal offending over the years. Of particular significance is a conviction before the Supreme Court in Darwin, recorded on 2 September 1996, in respect of an offence shortly described as "Dangerous Act Causing Death". This offence occurred on 27 August 1995. The prisoner had been drinking from a cask of Coolabah Moselle with the deceased. On the prisoner's account, the deceased had made a sexual overture to him on more than one occasion. Ultimately, the prisoner responded by repeatedly striking the deceased about the head with a heavy bag. The deceased died in consequence of the blunt head trauma sustained during this assault. 31 The prisoner Mark Helmhout was sentenced to a term of 2 years and 6 months imprisonment in relation to the offence of Dangerous Act Causing Death. A non-parole period of 15 months was specified, which commenced on 28 August 1995. Remissions operated to reduce the non-parole period. It appears that the prisoner served approximately 12 months of this sentence, prior to his conditional release. 32 The Crown Prosecutor drew my attention to the judgment of Mason, Brennan, Dawson and Toohey JJ in Veen v The Queen No 2 (1988) 164 CLR 465 at 477 where their honours explain the significance of a prisoner's antecedent criminal history in determining the sentence to be imposed. It is legitimate to take account of the criminal history where (among other things) it illuminates the moral culpability of the offender or shows dangerous propensity. I will return to the latter consideration in due course. For the present I should note that it was the Crown's submission that the prisoner Mark Helmhout was aware that he was a person who when intoxicated might commit serious crimes of violence. This had the capacity to make his consumption of alcohol a circumstance of aggravation. In the time following his release from custody in late August 1996 Mark Helmhout abstained from the consumption of alcohol until the date of the subject offence. Given what I accept to be his genuine attempts at rehabilitation in the previous two years I am not disposed to treat the consumption of alcohol on the day of his brother's wake as a feature of aggravation. For the same reason I do not do so in relation to the case involving Pieter Helmhout. I consider in each case the consumption of alcohol is a neutral circumstance, albeit it one which provides some context for the occurrence of this abhorrent crime. 33 The Crown Prosecutor tendered a Victim Impact Statement, prepared on behalf of the Harris family by Angela Hall, the sister of the deceased. Ms Hall makes particular reference to the deceased's eight nieces and nephews for whom he was a loving uncle. She speaks personally of her sense of extreme loss arising out of the murder of her brother. Understandably she has suffered from depression following the murder. She reports the family's bewilderment at such a brutal killing. The Court extends its sympathy to the family. The death of the deceased might be thought the more poignant when it is remembered that he had attended the funeral as a mark of respect to the Helmhout family and that he had lent his good suit to Pieter Helmhout. I note the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 85. I adopt that approach in the instant case. 34 A number of reports were tendered on behalf of the prisoner, Pieter Helmhout. They included the report of Anna Robilliard, psychologist, dated 8 March 2000, the report of Dr Olav Neilssen of 5 June 2000, the report of Dr Jennifer Thompson of 6 June 2000 and a social work assessment prepared by Ms Tingate of 2 June 2000. Each of the reports sets out, in broadly similar terms, details of the prisoner's background. 35 The prisoner is the youngest of four boys. His father came to Australia from Holland as a young man. He was an engineer. The prisoner's mother is Aboriginal and was born and raised in West Australia where she trained as a nurse. The couple met and married in West Australia where the older boys were born. The father joined the Air Force and at the time of the prisoner's birth, was stationed at Fairbairn in Canberra. Both parents worked during the prisoner's formative years. When the prisoner was aged around three years, the family moved to Papua New Guinea. His father was employed as a chief engineer on a hydro-electric scheme. 36 Generally the prisoner described a happy and close-knit family, with parents who were both loving and supportive. Their marriage was a stable one. The prisoner attended primary school in Papua New Guinea and high school in Canberra. He did not encounter any significant troubles while at school. 37 The prisoner's father died suddenly in 1982. The prisoner was then in his last year of high school. He did not complete his schooling following the father's death. Thereafter the prisoner travelled to West Australia to meet relatives on his mother's side of the family. On his return to Canberra he worked for a time as a laboratory assistant with the CSIRO. However, by this time he was abusing drugs. He was involved in a relationship with a girl who was a heroin user and the two of them moved to Sydney where they lived an itinerant life in the Newtown and Redfern areas. Subsequently the prisoner moved to the Northern Territory where his brother Mark was working on prawn trawlers. The prisoner also worked on trawlers from time to time. 38 While living in Darwin the prisoner formed a relationship with an Aboriginal girl named Robyn. The pair were alcoholic. Robyn became pregnant and they admitted themselves to a rehabilitation program. They remained in the program for a number of months. Robyn gave birth to their daughter, Gabrielle. Subsequently they lived in Darwin for a time and managed to remain alcohol free. After two years they went to live with Robyn's family on a dry mission in East Arnhem Land. 39 The prisoner went back to work on trawlers and was at sea for periods of three to four months at a time. On occasions he would return to Robyn and Gabrielle on the mission. About four years ago he visited his mother in Canberra. During this time he describes himself as becoming caught up again with drugs and alcohol. He told Ms Robilliard that he had "not really been sober for the last four years". 40 Ms Tingate's report details a history of violence involving the prisoner's older brothers in the context of a culture of heavy drinking. When Pieter Helmhout was aged about ten, his brother John (who was ten years his senior) stabbed his brother David several times. David almost died from the wounds. Pieter Helmhout did not claim to have been the victim of his brothers' violence, but he had often witnessed it. 41 Ms Robilliard administered a number of neuro-psychological tests to the prisoner. The results revealed memory loss and some level of cognitive impairment. In Ms Robilliard's opinion, both are likely to be related to his many years of abuse of alcohol and drugs. Dr Neilssen, forensic psychiatrist, noted that the prisoner's response to questions at interview conveyed the impression that he suffered cognitive problems resulting from severe alcohol abuse. His responses and presentation were not typical of the presence of any form of personality disorder. 42 Dr Neilssen concluded that the prisoner suffers from alcohol dependence syndrome and, probably, mild alcohol related brain damage. Significantly Dr Neilssen reports that alcohol related brain damage typically affects the frontal lobes of the brain, which are important for emotional regulation, planning and social judgment. Impairment in those areas is typically worse in the presence of intoxication. 43 Dr Thompson, consultant psychiatrist, agrees with the diagnosis that the prisoner suffers from some mild brain damage with cognitive impairment. She reports that during the period of his incarceration (following his arrest on the subject charge) the prisoner has complained of auditory and visual hallucinations. It is Dr Thompson's opinion that the hallucinations are from persistent alcohol induced hallucinosis and not psychosis. 44 Mr Webb, who appears for the prisoner Pieter Helmhout, submitted that although the prisoner had defended the matter at trial, there had been no challenge to the essentials of the Crown case in a factual sense. The issue to the fore related to the prisoner's state of alcohol and drug induced intoxication. The prisoner gave evidence and admitted to placing a belt or strap about the mouth of the deceased. He did not, in terms, deny the subsequent act of strangulation. Mr Webb invited me to find that the prisoner is remorseful. His evidence at trial was not inconsistent with such a view. Ms Tingate describes the prisoner as expressing deep regret for the death of Paul Harris, who he described as having been a friend. In Ms Robilliard's report she notes that during her second interview with the prisoner, he reported distressing and intrusive thoughts and images of the incident and profound feelings of regret at the death of his friend Paul Harris. I accept that the prisoner has experienced genuine feelings of remorse. 45 I approach the matter upon the basis that the prisoner suffers some mild level of brain damage. I have regard to Dr Neilssen's observation concerning the impact of alcohol related brain damage on planning and social judgment. 46 Dr Neilssen reports that the prisoner's background and presentation suggest that he is not especially anti-social when compared to the general prison population. He notes that his offences to date have all been alcohol related and observes "his risk of further offending appears to depend on whether or not he remains abstinent from alcohol after his release". 47 I approach the case of the prisoner Pieter Helmhout on the basis that he is not without prospects of rehabilitation, provided he is able to come to terms with his alcohol problem. The sentence that I must inevitably impose will see him alcohol free for a lengthy period. It will be necessary for him to be supervised on his release to ensure that he does not lapse back into alcohol or drug abuse. 48 I have given consideration as to whether there are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 such as to make it appropriate that I specify a non-parole period of less than three-quarters of the term of the sentence. This necessarily would produce a longer than usual term during which the prisoner might be at liberty on parole, but subject to supervision. Having regard to the length of the sentence, which I feel constrained to impose, I do not consider that I should depart from the statutory proportion fixed by s 44(2) on this account. No submission was made that there were special circumstances for the purpose of s 44(2). 49 I turn now to the case of the prisoner, Mark Helmhout. As I have noted in dealing with the question of the significance of the prisoner's intoxication, he has a lengthy criminal history which deprives him of any claim for leniency. 50 Reports were tendered in this prisoner's case from Dr Neilssen dated 21 February 2000 and 5 June 2000. A letter from Captain K R Mitchell, certifying that the prisoner had served under his command upon a number of fishing vessels and ferries in the period January 1992 to December 1995, was also tendered on his behalf. 51 Mark Helmhout described a history of being the third of the four sons born to Mr and Mrs Helmhout. He described a happy childhood in Port Moresby. He completed the school certificate in Canberra and thereafter obtained employment as an apprentice mechanic. He has worked as a mechanic at intervals throughout most of his adult life. He held down one job for seven years. 52 Like his brother, Pieter, Mark Helmhout gave an account of travelling to the Pilbara region of West Australia following his father's death, with a view to learning of his mother's family and gaining knowledge of Aboriginal life and customs. 53 Mark Helmhout lived in a defacto relationship with Joanne Delly, by whom he has three children. His relationship with Ms Delly had been in difficulties associated with his drinking and drug taking, but things had improved considerably at the time of the offence following his period of abstinence. 54 Mark Helmhout gave a history of commencing drinking alcohol around the age of ten or eleven and of being a regular drinker by nineteen or twenty. He had not come to appreciate that alcohol abuse was a problem for him until his late twenties. His criminal offending was principally in the 1990's at a time when he was a very heavy drinker. Dr Neilssen considered that Mark Helmhout suffers from substance dependence syndrome. He has probable mild alcohol related brain damage. 55 It is to be noted that in his interview with Detective McCloskey made on the day of his arrest, Mark Helmhout gave a detailed account of the killing of the deceased. He made frank admissions concerning his involvement and acknowledging the ugly behaviour which had followed the killing. The impression created on viewing the interview was of a person who was thoroughly ashamed of his conduct. However, the trial was conducted upon the basis that the police officers had procured his apparent cooperation during the interview by threats. It was suggested that the police had, in essence, supplied him with a script as to the admissions he was to make. 56 I accept that the admissions Mark Helmhout made in his interview were entirely his own work. Such remorse as I consider he exhibited at the time of the interview is no longer evident. In his interview with Dr Neilssen, he maintained the account that he had played no role in the strangling of the deceased. He denied stamping on the body notwithstanding the admissions contained in the interview in this regard. I approach the matter upon the basis that Mark Helmhout has not evidenced remorse for his conduct arising out of this offence. However, I do take into account Dr Neilssen's observation: "Although he restated his case and did not accept the conviction, on the whole his responses did not have the quality of someone with an immature personality, and his attitude to his situation was rather stoical. Moreover, he did not have exhibit the shallow remorse and glib responses typically seen in people with severely anti-social personalities".

R v Pieter Egbert Helmhout & Anor

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