JOHNSON J: The Offender, Robert James Pluis, has pleaded guilty to the murder of Darren Greenfield on or about 21 January 2013 at Wyalong.
The maximum penalty for murder is imprisonment for life: s.19A Crimes Act 1900. There is a standard non-parole period of 20 years for this crime.
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Facts of the Offence
What follows is drawn from an Agreed Statement of Facts tendered on sentence.
Mr Greenfield was aged 44 years at the time of his death. He had lived in the West Wyalong area all his life. At the time of his death, he resided in premises which he owned at 78 George Bland Avenue, Wyalong. Wyalong is a small town about 3.5 kilometres from West Wyalong.
Mr Greenfield was a single man, separated from his former partner. He had a close relationship with his 19-year old son, Dylan.
At the time of his death, Mr Greenfield was employed as a pest control officer at Graincorp and had been so employed for over 20 years. Despite having a drinking problem, Mr Greenfield was regarded as a reliable worker and as a gentle, kind person who was willing to lend a helping hand to others in need.
The Offender was born in July 1969 and was 43 years of age at the time of the offence. He had resided in the West Wyalong area since about 2010.
The Offender met Mr Greenfield whilst working for Graincorp when he first moved to West Wyalong. The Offender was a seasonal worker, employed during the harvest period in November and December. For the 2012 harvest season, he was employed by Grainflow West Wyalong.
Around October 2012, the Offender moved in with Mr Greenfield at his residence at 78 George Bland Avenue, Wyalong. Prior to that time, the Offender was living in a shipping container in bushland. The living arrangement was organised by Mr Greenfield and his son, when they learnt of the Offender's residential circumstances. The Offender was to pay $100.00 per week rent to Mr Greenfield.
As at January 2013, the Offender was unemployed and received government benefits. At that time, the Offender was a client of Sureway Employment & Training at West Wyalong, and had been on that organisation's books for some three years. His case manager was Anne Maree Davies. Ms Davies had placed the Offender in a number of employment positions, but the positions were short lived due to the Offender's discipline and temper issues.
Mr Greenfield Tells the Offender to Move Out
In January 2013, Mr Greenfield told the Offender that he had to move out and find other accommodation. Mr Greenfield had arranged for his own father to come and stay at the end of January 2013.
Between 10 and 20 January 2013, the Offender expressed his displeasure with Mr Greenfield arising from the request to leave.
On Thursday, 10 January 2013, the Offender attended the offices of his employment agency and spoke to Ms Davies. He told her that he was sick and tired of Mr Greenfield, that Mr Greenfield was kicking him out when intoxicated and when sober, he would tell the Offender he could stay. The Offender told Ms Davies that he felt Mr Greenfield was happy to have him stay when his unemployment benefit was there, but when his money ran out, he would be asked to leave again. The Offender felt cranky because Mr Greenfield was supposed to be his mate.
On Wednesday, 16 January 2013, the Offender returned to Sureway Employment & Training and spoke with Ms Davies. He told her a number of times that he was sick of Mr Greenfield and that he was "pissed off" with him.
At about 11.00 am on Saturday, 19 January 2013, Mr Greenfield and the Offender dropped off a lounge to Terry Reid and were assisted by Mr Reid to pick up another lounge.
At 10.30 am on Sunday, 20 January 2013, Mr Reid went to Mr Greenfield's house. The Offender was asleep on the new lounge. Mr Greenfield hit the Offender on the leg and told him to go to bed, but the Offender did not respond. Mr Greenfield told Mr Reid that his father was coming from Campbelltown to stay and that he wanted the Offender to move out. Mr Greenfield held up three fingers and told the Offender that he had three days to move out. The Offender yelled out "You are an areshole". Mr Greenfield told Mr Reid "That's why I have given him three days to get out". Mr Greenfield told Mr Reid that the Offender had drunk his beer and asked Mr Reid to go to the hotel with him. Mr Reid declined and left at 12.30 pm.
20-21 January 2013 - The Offence
At about 2.45 pm on Sunday, 20 January 2013, the Offender attended the Top Town Tavern and purchased four long necks of beer, using loose coins, and then left the hotel.
At about 3.30 pm, Mr Greenfield came into the same hotel, where he drank beer and socialised. During the afternoon, Mr Greenfield received a telephone call. The bar attendant observed Mr Greenfield to be agitated and heard him say loudly "That's not good enough". After the call, Mr Greenfield quickly finished his beer and left the hotel. The bar attendant sold a slab of "Melbourne Bitter" cans that afternoon, but cannot recall if she sold it to Mr Greenfield.
At about 6.30 pm, Terry Cronin, a work colleague and close friend of Mr Greenfield, saw him leave the hotel and walk across the road to the take-away shop where he purchased fish for dinner. Mr Greenfield was carrying a case of beer. The proprietor of the take-away shop saw Mr Greenfield take his fish and beer and walk into the laneway that leads to Mr Greenfield's residence, a distance of around 180 metres.
Around 8.00 pm, Mr Greenfield was observed on his back in the front yard of his home at George Bland Avenue. He was moving around and trying to roll on to his side. He was observed to have a graze on the left side of his face. Mr Greenfield was further observed lying on the ground at the front of his house with his pants falling down, and then trying to get up and again lying face down. No person observed a carton of beer on the ground.
Around 8.00 pm, Ms Tricia Reynolds saw Mr Greenfield on the footpath running from the mailbox to the veranda and front door of his house. Mr Greenfield was lying flat out on the footpath on his stomach, with both his arms out in front of him. Ms Reynolds turned her car around and stopped it on the opposite side of the road in front of Mr Greenfield's home. She saw Mr Greenfield try and push himself up four or five times to his hands and knees, on each occasion falling back to the ground on his stomach. On about the third occasion, Mr Greenfield fell to the ground, his jeans and underpants came down exposing his buttocks. Ms Reynolds did not see a carton of beer.
At about 8.25 pm, Ms Reynolds saw the Offender leave Mr Greenfield's residence and pick him up, pulling his pants up and assisting him into the house.
The Location of Mr Greenfield's Body
Mr Greenfield failed to attend work on Monday, 21 January 2013. It was highly unusual for him not to attend work without contacting his employer. It was Mr Greenfield's usual practice to travel to work with Mr Cronin. Mr Greenfield did not arrive at Mr Cronin's home as usual for this purpose. However, Mr Cronin thought that Mr Greenfield must have been picked up by an earlier work crew.
On 22 January 2013, Mr Greenfield again failed to arrive at Mr Cronin's home. At about 7.29 am, Mr Cronin rang Mr Greenfield's mobile telephone which was answered by the Offender. Mr Cronin asked the Offender if Mr Greenfield was there. The Offender said he would go and see. Mr Cronin heard the Offender calling out Mr Greenfield's name in the background. The Offender came back to the telephone and said "Jeez, he don't look good". Mr Cronin told the Offender to get Mr Greenfield to a doctor and ended the call.
At 7.31 am, the Offender rang "000" and told the operator he had found Mr Greenfield in his bedroom and requested an ambulance. The Offender told the operator he had found Mr Greenfield kneeling beside the bed, with his arms cradling his head which was resting on the bed. The operator told the Offender to lay Mr Greenfield on his back. The Offender moved Mr Greenfield and told the operator he could tell that Mr Greenfield was dead.
Ambulance Officers Arrive
Ambulance officers attended Mr Greenfield's residence at about 7.35 am. Upon arrival, they were met by the Offender who directed them to Mr Greenfield. They determined that he was dead and observed signs of decomposition. Both ambulance officers noted facial trauma and blood around the face and nose, specifically to the right side of Mr Greenfield's face. Both ambulance officers noticed dried blood about halfway up the path leading to the house and on the veranda outside and on the front door.
The Offender initially told one of the ambulance officers that he had last seen Mr Greenfield "last night around midnight", leaving him intoxicated in the lounge room when the Offender retired to bed. A short time later, the Offender stated that he had last seen Mr Greenfield on Sunday night.
Both ambulance officers knew the Offender and had treated him previously for seizures. At different times, the Offender was alone with one or the other of the ambulance officers who had conversations with him. One of the ambulance officers observed that the Offender seemed very vague and almost dazed, as if he had just woken up. He seemed not to realise what day it was and he seemed to have no memory of the previous 24 hours.
The other ambulance officer also noted a problem with his recall of the days and observed him to be quite distressed, agitated and emotionally upset. The Offender approached one of the ambulance officers and stated "There is sugar all over the table, there must have been a struggle". An examination revealed a small amount of sugar on the countertop.
Arrival of Police
At about 8.35 am, the first police officer arrived at Mr Greenfield's house. Bloodstains were observed on the path leading to the house and the veranda. The Offender told the police officer that Mr Greenfield was kneeling when he found him. He told the police officers that he did not really remember when he last saw Mr Greenfield, that he saw him before he went to bed and that Mr Greenfield had been drinking all night and was quite drunk, and that he did not see any bloodstains on the path and had not been outside at all the day before (21 January 2013).
Police observed three empty beer cans of Melbourne Bitter in the house on the dining room table. There were 18 empty Victoria Bitter beer cans, 21 empty Melbourne Bitter beer cans and three empty 750 ml Tooheys New beer bottles within two garbage bins beside the refrigerator, and an empty can of each brand of beer found on the floor in the lounge room. Remnants of the take-away fish meal were found on the veranda.
The stains on the concrete path outside, on the veranda, on the exterior of the front door jamb, on the exterior of the door to the bedroom of Mr Greenfield and found in and on tiles at the entry to the bedroom occupied by the Offender, were found to be human blood. The DNA profile extracted from the path, the front door and the tiles outside the Offender's bedroom matched Mr Greenfield's profile.
The Offender is Interviewed
On 22 January 2013, police conducted an electronically recorded interview with the Offender who, at that stage, was not being interviewed as a suspect. He confirmed that he had last seen Mr Greenfield around midnight on Sunday, 20 January 2013, in the living room at 78 George Bland Avenue.
The Offender told police that he had been heading to bed and had been watching television. He stated that he and Mr Greenfield had a brief conversation before the latter retired to his bedroom. Mr Greenfield was said to be in good spirits. The Offender stated that he did not have any disagreement with Mr Greenfield and that the latter did not have any injuries on him when he arrived home.
The Offender stated that, when he rose the next morning about 8.00 am, he did not see Mr Greenfield, but did not think it unusual as Mr Greenfield normally went to work around 7.00 am.
The Offender told police that Mr Greenfield's bedroom door was closed all day and that no one was at the house, apart from himself, between Sunday, 20 January and Tuesday, 22 January 2013.
He said that he had found Mr Greenfield when he answered a call on Mr Greenfield's mobile telephone on Tuesday morning from a work colleague checking as to the whereabouts of Mr Greenfield. The Offender went into Mr Greenfield's bedroom and found him kneeling on the floor and leaning over the bed in a "praying sort of position". The Offender stated that on 21 January 2013, he smelt a bad smell in the house, but did not know where it was coming from. At this time, West Wyalong was experiencing temperatures around the high 30 degrees.
The Offender denied seeing bloodstains on the path on the Sunday and Monday. When asked about the bloodstains, he stated that he thought they might have been from his dog hurting himself. The Offender had checked his dog and found that it was uninjured.
The Post-Mortem Findings
A post-mortem was conducted on the victim on 24 January 2013. The cause of death was found to be thoracic and abdominal blunt-force injuries. Externally identified injuries included a full thickness blunt-force injury of the right ear (1.27 centimetres in length) and a Y-shaped superficial laceration (three centimetres) behind the same ear. The knuckles of the right hand showed two faint contusions with associated subcutaneous mild haemorrhage.
The autopsy revealed that Mr Greenfield suffered extensively fractured ribs on the left side only, accompanied by severe contusions of corresponding intercostal muscles. Ribs 2 to 10 were fractured with Ribs 5 and 7 being fractured at two locations and Rib 6 at three locations. Examination also showed the presence of 200 mls of frank blood on the left side. Deeper soft-tissue haemorrhage was noted on the back. The extensive rib fractures compromised the respiration of the victim.
Abdominal examination showed the presence of 900 ml of frank blood. The source of that bleeding was lacerations to the liver and lacerations to the spleen. Bilateral retroperitoneal haemorrhage was noted, however no definite bowel injury was identified.
In the opinion of the pathologist, the possible mechanism of the infliction of the injuries observed was the application of repetitive and relatively large force to the abdominal and thoracic areas. There were no facial skull or brain injuries. There was a moderately high alcohol level (0.231 grams/100 ml) in the post-mortem sample of the victim's leg blood.
Mr Greenfield was of slim build, weighed 57 kilograms and was 1.73 metres tall.
Other Events Shedding Light on What Had Happened to Mr Greenfield
Mr Greenfield's son, Dylan, had two missed calls from his father's number at 6.11 am and 6.22 am on Monday, 21 January 2013.
Pene Iremonger accidentally dialled Mr Greenfield's mobile telephone number at 6.23 pm on 21 January 2013, with the call being answered by the Offender. Ms Iremonger hung up on hearing the Offender answering the call.
James Barber, a retired farmer, went to Mr Greenfield's residence on Monday, 21 January 2013 where he observed what appeared to be bloodstains on the footpath. He knocked on the door, but no one answered.
Mr Barber had known the Offender since 2010 and regarded him as a good worker. He was aware that the Offender had trouble keeping work and that he was a heavy drinker. He had also seen the Offender suffer fits. Mr Barber was aware that the Offender had been told by a medical practitioner to stop drinking or his fits would get worse. As a result, the Offender stopped drinking in the Christmas period. The Offender later confirmed this in his second interview with police.
On 22 January 2013, Mr Barber rang the Offender early in the morning to offer him work for the day. The Offender said "Somebody's rang me to wake up Darren, he hasn't turned up at work". The Offender ended the call. The Offender called Mr Barber back a short time later and said "I think he's dead" and stated that he had called an ambulance.
On 23 January 2013, the Offender attended the office of Ms Davies with a view to handing in an employment form. The Offender said to Ms Davies "I know you know I was pissed off with Darren, but I wasn't that pissed off that I would kill him. He was my mate and my only mate". The Offender also stated "I was in the house when it happened" and "Apparently he was bashed outside on our lawn and then they dragged him inside and left him in the bedroom". When interviewed later by police, the Offender denied this conversation.
On 25 January 2013, the Offender attended the West Wyalong Police Station and was informed by police that he could leave town. The Offender relocated to the Top Hotel in Narrandera.
Also staying in Narrandera at that time was Nicholas Dolan, who had previously worked with the Offender. He was aware that the Offender sometimes got into aggressive moods. Mr Dolan was informed of Mr Greenfield's death and was aware that the Offender had been living with the victim. He also knew that the Offender, when drunk, would "spit out things".
Mr Dolan and the Offender drank heavily together on about 25 January 2013. When Mr Dolan asked the Offender questions about Mr Greenfield's death, the Offender said "I can't remember if I killed Darren or if I didn't kill Darren. I just can't remember".
During the week commencing 28 January 2013, the Offender was staying at the Town Centre Motel in Leeton. There the Offender met and spoke with Kenneth Noack. The Offender told Mr Noack that he was unable to go to his mate's funeral that was coming up at West Wyalong. The Offender, during that conversation, began to cry. The following evening, Mr Noack had another conversation with the Offender. The Offender again repeated that he could not go to his mate's funeral stating "I think I murdered my best friend" and "I had an argument with my mate and punched him in the nose and he fell backwards hitting his head on the gutter. I grabbed his ankles and dragged him inside and left him there". The Offender was upset and crying when speaking with Mr Noack.
On 4 February 2013, Mr Noack contacted police after seeing a news report about the arrest of a man for a murder at West Wyalong.
On 31 January 2013, the Offender engaged in a lengthy conversation with a registered source, with that conversation being recorded on a listening device. This conversation followed a period of three days where the registered source booked in, met the Offender at the Town Centre Motel at Leeton and spent time in his company. The registered source was offering to find work for the Offender and, in the course of organising that work, put concerted pressure on the Offender to tell him about the death of Mr Greenfield. In lawfully recorded conversations, the Offender stated that Mr Greenfield could have been killed by Trevor Reid or by himself "in a fit". Mr Reid was eliminated by police as a suspect.
In summary, the Offender said in these recorded conversations that he had no memory of the period of time when Mr Greenfield must have been assaulted. He said he had lost chunks of time before and had waited until the memory came back. He could not think of an explanation as to why he might have assaulted Mr Greenfield other than that he may have had a fit. He also observed that it would be unlikely that he would have been able to hit Mr Greenfield hard during the course of a fit, and that Mr Greenfield would have been able to cope with this by pushing him over. He repeatedly said that he could not remember assaulting Mr Greenfield, that he had been thinking about it all the time and would like to know if he did or did not kill him. He further said "Well I could say 'No I didn't do it' but I don't know and I could say 'Yeah I did do it' and I'd be pissing in your pocket, because I don't fucken know mate". He also said "… If it was me, I don't mind going and nodding my head and fucken doing whatever, you know what I mean, copping it on the chin like".
Arrest and Charging of the Offender
The Offender was arrested at Griffith on 1 February 2013 and participated in an electronically recorded interview. The Offender added to what he had told police in his initial interview. He stated that he had been drinking heavily on Sunday, 20 January 2013 after not drinking since Christmas, and that he had no memory of events until Tuesday morning.
The Offender was visibly upset during the interview, leading to the interview being temporarily suspended. The Offender stated that he last saw Mr Greenfield around midnight on Sunday, 20 January 2013. The Offender stated that he might have committed the offence, but he had no memory of doing so.
The Offender was charged with murder and has remained in custody since his arrest on 1 February 2013.
The Offender's Plea of Guilty
The Offender suffers from epilepsy and takes medication for that condition. The matter remained in the Local Court for a lengthy period whilst that issue was examined, and reports were obtained by the Offender's legal representatives. As soon as the Offender was in a position to do so, he entered a plea of guilty to murder in the Local Court at Griffith on 24 September 2014 and was committed for sentence.
Given the foregoing account drawn from the Agreed Statement of Facts, it is appropriate to recite the concluding paragraphs of that document, which address the basis of the Offender's plea of guilty:
"38. The offender assaulted the deceased by the application of repetitive and large force to the abdominal and thoracic areas causing the injuries noted at autopsy. That assault caused the death of the deceased. The assault was a deliberate act on the part of the offender and done without lawful excuse.
39. The offender by his plea admits that he either intended to inflict grievous bodily harm to the deceased or to kill the deceased when he assaulted him."
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The Offender's Subjective Circumstances
The Offender was 43 years of age at the time of the offence and is now 45 years old.
The Offender has a prior criminal history. His record contains entries for stealing, assault and robbery, drink driving, driving whilst his licence was cancelled, armed robbery in company, assault occasioning grievous bodily harm, possession of a prohibited drug, common assault, assault occasioning actual bodily harm and cultivation of a prohibited plant.
The most serious offences were dealt with as follows.
In September 1990, the Offender was sentenced for assault and robbery to 12 months' imprisonment by way of periodic detention.
In February 1994, the Offender was sentenced in the Newcastle District Court, for robbery whilst armed and in company, to imprisonment comprising a minimum term of one year and three months with an additional term of two years.
In February 1997, the Offender was sentenced in the Newcastle Local Court for assault occasioning grievous bodily harm to imprisonment for 12 months.
In June 2008, the Offender was sentenced in the Wagga Wagga Local Court for offences of common assault and destruction of property by way of a 12-month good behaviour bond.
In May 2010, the Offender was sentenced in the Wagga Wagga Local Court for assault occasioning actual bodily harm by way of an order to perform 80 hours of community service.
On 30 August 2012, the Offender was sentenced in the West Wyalong Local Court for cultivating a prohibited plant to a 12-month good behaviour bond.
The present offence was committed by the Offender on or about 21 January 2013, whilst he was subject to conditional liberty arising from the sentencing order on 30 August 2012.
The following documents concerning the Offender were relied upon in the defence case:
1. affidavit of the Offender dated 15 February 2015 - he was not cross-examined on this affidavit;
2. affidavit of Deborah Lynnette Pearce dated 7 February 2015 - Ms Pearce is the Offender's foster sister;
3. report dated 2 February 2015 of Anna Robilliard, forensic psychologist;
4. report dated 7 September 2014 of Associate Professor Ernest Somerville, consultant neurologist;
5. report dated 19 September 2013 of Dr Bruce Westmore, forensic psychiatrist;
6. report dated 26 November 2013 of Dr Wayne Reid, clinical neuropsychologist;
7. documents obtained on subpoena from the Department of Corrective Services concerning the Offender.
The Offender had a highly disturbed upbringing. The evidence reveals that the Offender lived with his mother until he was three months of age and did not know his father, although he now knows his name. He was placed in a children's home as a baby, as his mother could not care for him. The Offender was fostered out to a stable family between the ages of three and seven years.
His mother reclaimed him when he was seven years old and he lived with her and her partner for some months, experiencing violence himself from his stepfather and his mother. At seven years of age, the Offender was placed by the Department of Community Services in a children's home at Bathurst, where he lived for two years. Between the ages of nine and 11 years, he was placed again with the foster family with whom he had resided when he was aged three to seven years.
Between the ages of 11 and 14 years, the Offender resided at a children's home at Lismore in which he experienced some abuse.
Between the ages of 14 and 20 years, the Offender lived at times with his mother's former de facto partner and his mother's sister.
The Offender became involved in a relationship at the age of 20 years. A son, now aged 22 years, was born of that relationship. The Offender did not have contact with his son over the years, until he came into custody for the present offence and his son has attempted to visit him.
The Offender attended many schools, but left during Year 10 before he had obtained his School Certificate. The Offender states that he intends to further his studies and obtain his Higher School Certificate whilst in custody, and undertake a bakery apprenticeship and a small business course.
Testing undertaken by Ms Robilliard indicated that the Offender had a full-scale IQ on the Wechsler Abbreviated Scale between 100 and 113, or equal to or ahead of 68% of his age group.
The Offender was not employed at the time of the offence with his last period of employment being in 2012 with Graincorp. He has a history of casual employment working as a builder's labourer and engaging in farm work, such as fencing, tractor driving, harvesting and seasonal work.
The Offender has undertaken work in custody including ground maintenance and bakery duties in 2013 and 2014.
The Offender first used cannabis whilst in a children's home at the age of 11 or 12 years, and he became a regular user from about 16 or 17 years of age.
The Offender consumed alcohol from the age of 18 years and became a heavy drinker in his 30s. He moderated his drinking when employed.
The Offender's criminal history discloses a long association with alcohol and the commission of alcohol-related offences.
The Offender moderated his drinking in the period prior to the commission of the present offence, but had increased his consumption of alcohol in the weeks leading up to the murder. The evidence suggests that the Offender drank heavily on the day of the offence.
The Offender has a history of epilepsy which appears to date back to a motor vehicle accident in Victoria in 2003. He has been taking, and continues to take, medication for this condition. Associate Professor Somerville considers that the Offender suffers from focal epilepsy, which has been invariably controlled by medication. Dr Reid noted that the Offender's medical records indicated multiple admissions to hospital accident and emergency departments following seizures. The Offender has experienced seizures in custody including a seizure noted in Corrective Services' records on 6 September 2013.
Associate Professor Somerville has expressed the opinion that the Offender is not cognitively impaired by his epilepsy, nor does his medication produce any significant cognitive effects or add to the effects of alcohol in more than a minor way. He has expressed the opinion that the offence could not have been committed whilst a seizure was taking place.
Dr Westmore has expressed the opinion that, whilst the Offender may have suffered from periods of depression in the past, there was no history to suggest that he was depressed at the time of the offence or that he may have suffered from a psychiatric illness or a psychotic condition.
Dr Reid conducted testing of the Offender leading to the conclusion that the Offender's premorbid level of intelligence was within normal limits. However, Dr Reid continued:
"On examination he had widespread impairment in his cognitive functioning affecting his information processing skills, verbal abstract reasoning, memory for both verbal and visual information and impairment in his executive/adaptive skills effecting his verbal abstract reasoning and speed and flexibility of thinking."
Dr Reid expressed the opinion that the Offender's difficulties with memory were due, on the balance of probabilities, to psychological factors and were consistent with a DSM-V diagnosis of dissociative amnesia.
Personality testing undertaken by Ms Robilliard revealed a marked elevation on the schizotypal scale, part of the severe personality pathology scales which measure system clusters that are likely to attract a diagnosis of personality disorder.
Ms Robilliard concluded that the first years of the Offender's life in the children's home would be highly likely to have given rise to disrupted attachment disorder, which typically manifests itself later in life in an inability to maintain close emotional relationships. Ms Robilliard reported that individuals exposed to prolonged traumatic life events and circumstances may become adept at cognitively disassociating from emotional distresses as a survival strategy, something which can continue to occur throughout life. Ms Robilliard pointed to the Offender's life history and conditions, which he described, which were likely to translate into later dysfunctional personality attributes and particularly dysfunctional interpersonal behaviour.
The affidavits of the Offender and Ms Pearce indicate that, despite his difficult upbringing, his loner-type existence and his offending history, he does have some family support at this time. Further, since the Offender has been in custody for the present offence, his mother has sought to make contact with him as has his son.
An assessment of the Offender's prospects of rehabilitation must be guarded given his history and the lengthy period of time for which he will be in custody before possible release on parole. The existence of some constructive plans for education and employment in custody, combined with the existence of some level of family support, leads to a cautious view that there are some prospects of rehabilitation. That said, the Offender has a long history of offending with courts having extended opportunities to him in the past with limited success. The present offence was committed whilst he was subject to conditional liberty. A guarded view only can be formed at this time, with the Offender's future progress in custody being significant.
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The Offender's Plea of Guilty
The Offender was arrested on 1 February 2013 and charged with the present offence. He pleaded guilty to the charge of murder before the Griffith Local Court on 24 September 2014, and was thereafter committed for sentence in this Court.
Despite the passage of time between February 2013 and September 2014, Mr Wilson SC for the Offender, submitted that the Court should approach the matter upon the basis that the Offender's plea of guilty was entered in the Local Court at the earliest possible time. He submitted that a discount of 25% should be extended for the utilitarian value of the plea.
Mr Wilson SC pointed to aspects of the Offender's medical background which required consideration and were explored by way of reports from Dr Westmore, Dr Reid and Associate Professor Somerville. He submitted that these aspects were important to allow a conclusion, firstly, that the Offender was fit to be tried and, secondly, that no other aspect of his health stood in the way of a plea of guilty to the charge of murder.
The Crown did not advance a submission against a finding that the plea of guilty was entered at the first available opportunity, so that a discount of 25% was open.
Applying the relevant principles, I am satisfied that a discount of 25% should be extended to the Offender for the utilitarian value of his plea of guilty. The plea was entered in the Local Court. To the extent that there was delay prior to the entry of the plea in September 2014, the Local Court was informed that steps were being taken to explore the complex medical and psychological issues bearing upon the plea.
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Victim Impact Statements
A number of victim impact statements were made for the purpose of the sentencing hearing. Statements were made by Dylan Lee Greenfield, the son of Mr Greenfield, Natalie Hanily-Greenfield, the sister of Mr Greenfield, Geraldine Anne Greenfield, his mother, and David Greenfield, his father.
Each of these statements was given by a family victim. The Crown applied under s.28(4) Crimes (Sentencing Procedure) Act 1999 that the Court take into account these statements in connection with the determination of the punishment for the offence, on the basis that the harmful impact of Mr Greenfield's death on the members of his immediate family was an aspect of harm done to the community. One of the purposes for which a court may impose a sentence on an offender is to recognise the harm done to the victim of the crime and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999.
The victim impact statements speak eloquently of the generosity of Mr Greenfield and the care demonstrated by him towards his family and the community. He was a valuable and hard-working member of the community. The great loss caused by his death to his parents, sister and his son is demonstrated in the statements. The shock and horror experienced by the family members is clear and entirely understandable.
I accept that the harmful impact of the offence upon the primary victim's immediate family is an aspect of harm done to the community in this case. Under the law, all lives are precious and the death of any person is a harm inflicted on the community in general: R v Barbetta [2008] NSWSC 688 at [18] (Howie J). Harm to the community is always caused when an innocent life is taken, but the way in which the harm is felt varies.
The victim impact statements in this case evidence the harmful impact of Mr Greenfield's death on the members of his immediate family, and this is a particular aspect of the harm done to the community. I take it into account in determining sentence in this case.
I extend the condolences of the Court and the community to the family of Mr Greenfield for the great loss which they have suffered as a result of this crime.
I am conscious that substantial parts of these remarks on sentence concern the circumstances of the Offender. The law requires that these matters be considered on sentence. It should not be thought, however, that I have lost sight of the impact of this terrible crime on those affected by it.
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Objective Gravity of the Offence
I have had regard to the provisions in ss.54A and 54B Crimes (Sentencing Procedure) Act 1999 in considering the role of the standard non-parole period on sentence. The standard non-parole period is a guidepost to be taken into account, together with the maximum penalty, as part of the instinctive synthesis process. The standard non-parole period is to be taken into account in determining the appropriate sentence, together with other relevant considerations: s.54B(2). The Court must record reasons for setting a non-parole period that is longer or shorter than the standard non-parole period: s.54B(3). However, the Court is not required to record the extent to which the seriousness of the offence differs from that of an offence to which the standard non-parole period applies: s.54B(6).
Using the statutory language in s.54A(2), the Crown submitted that the objective seriousness of the present offence lay within the mid-range for murder.
Senior counsel for the Offender submitted that the offence lay below the mid-range of objective seriousness for the crime of murder.
I have considered the objective gravity of this crime, having regard to both common law and statutory factors which bear upon this topic. In forming a view concerning the objective gravity of the Offender's crime, I have taken into account a number of the features of the crime addressed by counsel, including the moral culpability of the Offender. I note that a number of these features extend beyond "objective factors affecting the relative seriousness" of the offence for the purpose of the standard non-parole period: s.54A(2) and 54B(2) Crimes (Sentencing Procedure) Act 1999.
The factors to which I have had particular regard in assessing objective gravity appear in the following paragraphs.
I am satisfied that the context in which the Offender attacked the victim fatally was his grievance arising from the repeated statements by Mr Greenfield that it was necessary that the Offender vacate the premises. The evidence indicates that the Offender has anger problems. I am satisfied that the physical attack upon the victim arose in a relatively spontaneous context, likely in circumstances where both men had consumed substantial amounts of alcohol. Viewed in this way, the attack was not planned or premeditated, but involved a significant loss of control on the part of the Offender in which he launched a severe attack upon the victim. I am satisfied that both the Offender and the victim were significantly affected by alcohol at the time of the offence.
The Offender used a significant level of violence involving force to the abdominal and thoracic areas and multiple rib fractures. There was internal organ damage and bleeding. There is no evidence to suggest that a weapon was employed. It is likely that the Offender used his fists and perhaps his feet in the attack.
The evidence indicates that the attack upon the victim was not confined to one area in the house. The forensic evidence suggests that there was an assault on the path to the house and in the victim's bedroom.
Both the Crown and Mr Wilson SC submitted that the appropriate finding was that the Offender acted with an intention to inflict grievous bodily harm as opposed to an intention to kill. Having regard to the totality of the evidence, including the evidence of injuries, I am satisfied that the Offender acted with an intention to inflict grievous bodily harm upon the victim, but not to kill him.
There is no evidence that the victim acted in any way to provoke the Offender prior to the attack upon him. It should be kept in mind that the Offender only came to live in Mr Greenfield's house in the first place because Mr Greenfield and his son felt sorry for the Offender (then living in a shipping container in bushland) and wished to help him.
The fatal attack occurred in and about the home of the victim. This aspect aggravates the crime. Mr Greenfield was entitled to feel safe in his own home. It is true, as Mr Wilson SC submits, that the Offender resided in the house as well (at least temporarily pending his forced departure). This is not a case of a person being attacked in his own home by a stranger or intruder. However, those features do not reduce to any real extent the aggravation of the crime which involved a fatal attack upon Mr Greenfield in what should have been the sanctity of his own home.
I accept that the Offender was intoxicated by alcohol at the time of the commission of the offence, although the extent of that intoxication is difficult to assess. The murder occurred in January 2013 before the introduction of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999. However, the law applying before that provision was enacted made clear that an offender's intoxication could explain an offence, but ordinarily did not mitigate penalty: R v Loveridge [2014] NSWCCA 120 at [220]. The Offender's intoxication does not mitigate penalty in this case.
It is the case that the Offender, having attacked Mr Greenfield with considerable force, left him and took no steps to assist him. The process whereby Mr Greenfield was discovered by others following Mr Cronin's telephone call and the Offender's "000" call was referred to earlier (at [25]) above). An extended period of time passed before the Offender took any step to report what had happened to Mr Greenfield. It is the case that the Offender did not flee, but remained in the house, with subsequent investigations leading to him being arrested and charged. On the evidence, it appears that the Offender's varying accounts were the product of memory problems, rather than any contrivance on his part. These features do not operate against the Offender on sentence.
I accept that the Offender's history of deprivation and exposure to alcohol, violence and abuse bear, to some extent, on his moral culpability given the role of alcohol in the commission of the offence: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-595 [43]-[44]. The fact that this circumstance may be taken into account in assessing the Offender's moral culpability must be balanced as well with the seriousness of his offending: Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 at 621 [57].
There is no psychiatric explanation for the Offender committing the offence which may have operated to reduce his moral culpability. The medical evidence does not indicate that his epilepsy played a part in the commission of the offence so as to operate in this way.
The psychological evidence points to the existence of anger issues in the Offender, with his anger being easily triggered. The Offender, of course, was 43 years old at the time of the offence and his criminal history included a number of offences of violence.
All offences of murder are, of course, most serious. This was an offence of significant objective gravity.
To the extent that it may assist the sentencing process, I record my conclusion, using the statutory language of s.54A(2), that the present offence lies in the middle of the range of seriousness for an offence of murder.
[7]
Other Factors Relevant to Sentence
An assessment whether the Offender has demonstrated remorse and contrition in this case is not without its complications. Having fatally attacked Mr Greenfield in the house, the Offender took no steps to assist him. The Offender remained in the house, answering Mr Greenfield's mobile phone in the manner described earlier in these remarks. The Offender did not flee nor does it appear that he took any action to cover up his crime. It was the Offender who made the "000" call as a result of the telephone call as to the whereabouts of Mr Greenfield. As said earlier (at [119]), the Offender's behaviour over this period appears to have been the product of memory problems, rather than any contrivance on his part.
I accept that the Offender has come to demonstrate remorse for killing a person who had been a friend of his. This remorse is demonstrated by his plea and statements made by him accepting responsibility for the death of Mr Greenfield and expressing regret for his actions and the harm it has caused to others.
The Offender has a significant criminal history including offences of violence. It is clear that alcohol has played a part in past offences. The Offender was subject to conditional liberty at the time of the present offence and this is an aggravating factor on sentence.
The Offender's criminal history does not assist him on sentence. It stands in the way of leniency being extended to him on sentence.
General deterrence is an important factor on sentence for a crime involving substantial violence causing the death of another person. Specific deterrence is important as well, in circumstances where the Offender has had opportunities extended to him by criminal courts in the past, but nevertheless has committed this serious offence.
I take into account the Offender's highly disturbed upbringing involving different carers and homes in an atmosphere marked by violence and abuse. These factors shed light upon the Offender's makeup and personality.
[8]
Determining an Appropriate Sentence
I have referred to a range of factors to be considered on sentence. It is necessary now to conclude the process of instinctive synthesis for the purpose of passing sentence.
The offence committed by the Offender is of significant objective gravity. Aspects of the Offender's background and personal history operate to reduce his moral culpability.
The Offender's criminal history does not assist him on sentence. His subjective circumstances, including his health issues, must be taken into account on sentence.
The sentence to be imposed must reflect the need for specific deterrence and general deterrence.
The Offender has demonstrated remorse and, although difficult to assess, his prospects of rehabilitation are not without hope.
The Offender is entitled to a 25% discount on sentence for his plea of guilty.
Having regard to all relevant objective and subjective factors and relevant sentencing principles, I am satisfied that an appropriate head sentence, prior to application of the 25% discount, would be one of 26 years. After allowance is made for the 25% discount, a head sentence of 19 years and six months ought be fixed.
Mr Wilson SC submitted that special circumstances might be found here. He submitted that the Offender will need an extended period of supervision to readjust to community life after what will necessarily be a lengthy custodial sentence. I do not make a finding of special circumstances in this case. I am satisfied that the parole period component, which will form part of the sentence, will provide ample opportunity to the Offender by way of conditional liberty, in the event that he is released to parole at the conclusion of the non-parole period.
Accordingly, the sentence to be imposed will comprise a head sentence of 19 years and six months with a non-parole period (after some rounding) of 14 years and seven months. The sentence will commence from 1 February 2013.
These remarks on sentence record my reasons for setting a non-parole period that is shorter than the standard non-parole period in accordance with the requirements of s.54B(3) Crimes (Sentencing Procedure) Act 1999.
Would the Offender please stand.
Robert James Pluis, for the crime of murder of Darren Greenfield, I sentence you to imprisonment comprising a non-parole period of 14 years and seven months commencing on 1 February 2013 and expiring on 31 August 2027 with a balance of term of four years and 11 months commencing on 1 September 2027 and expiring on 31 July 2032.
The earliest date upon which you will be eligible for release to parole is 1 September 2027.
Pursuant to s.25C(1) of the Crimes (High Risk Offenders) Act 2006, I advise you of the existence of that Act and the fact that it applies to you and to this offence.
[9]
Amendments
30 March 2015 - Coversheet amended
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Decision last updated: 30 March 2015