R v Pratsch

Supreme Court of NSW|2016-10-07|Before: Wilson J

Judgment

Mark Beverstock had a difficult life.
He was born on 19 May 1964. At the age of 6 Mr Beverstock was in a car crash and suffered a brain injury that left him with motor and cognitive deficits for the remainder of his life. He was physically uncoordinated to the extent that others referred to him by the nickname "Shakey". He had difficulties with speech and his capacity to learn and manage independently was impaired. He was largely illiterate and innumerate. He required assistance with day to day tasks such as banking. It would seem that Mr Beverstock drank too much, struggling with alcoholism in the last years of his life. He was 50 years old when he was murdered on 25 October 2014.
Mr Beverstock was murdered by the offender, Leanne Gai Bernadette Pratsch. She was charged with his murder on 28 October 2014, and pleaded guilty to it on 9 August 2016, on what would have been the second day of her trial. A conviction was recorded on that date.
Murder carries a maximum penalty of life imprisonment. A standard non-parole period of 20 years imprisonment is specified in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). These are statutory guideposts that the Court is required to bear in mind.
The statutory maximum penalty of life applies because of the serious nature of the crime of murder. A member of the community died in violent circumstances and there has been loss to the community and, more particularly, to the family and loved ones of the person violently killed.
Section 61(1) of the Crimes (Sentencing Procedure) Act provides for the imposition of the maximum penalty where the Court is satisfied that the level of culpability in the commission of the offence is so extreme as to require that sentence to be imposed. The Crown did not submit that a life sentence should be imposed in this case. I accept that concession.

The Facts of the Offence

At the time of his death Mr Beverstock was living in a granny flat at the rear of a family owned property in Booker Bay. The main house on the property was not continuously occupied, but Mr Beverstock's brother, Larry, shared the two bedroom granny flat with him when he was not away in Sydney.
The offender was acquainted with Mr Beverstock, and had on occasion visited him at his home.
She came to see him on Saturday 25 October 2014, arriving by car at about 11.30 that morning. A neighbour saw the offender's car parked in the driveway of the deceased's property, and heard a female voice call out to him.
Soon after, the offender and Mr Beverstock left the property, driving away in the offender's car.
A little after midday the offender, Mr Beverstock, and a man not identified by police, were at the Ocean Beach Hotel at Umina. Mr Beverstock and the offender drank some beers together before the pair went to an automatic teller machine within the hotel. Using Mr Beverstock's bank keycard, and with him standing in the near vicinity, the offender withdrew an amount of $400 from Mr Beverstock's bank account. That occurred at about 1.20pm.
The offender left the hotel with two males at 1.21pm, returning without either man at 1.35pm. She rejoined Mr Beverstock, and they left the hotel together at 1.37pm. The offender re-entered the hotel briefly at 1.45pm, before again leaving the building. She and Mr Beverstock, who had been waiting outside for her, walked away.
At some point Mr Beverstock returned to his home, accompanied by the offender.
What happened thereafter is not entirely clear on the evidence.
Mr Beverstock must have undressed at some point since the clothing he was observed to be wearing when he was at the Ocean Beach Hotel was later found draped over a chair in the lounge room of the granny flat.
Mr Beverstock went naked to his brother's bedroom where the offender tied him to a bed, using items of clothing as makeshift ligatures with which to secure his wrists and ankles to the bed head and foot respectively.
The statement of facts tendered by the Crown, and not disputed by the offender, relates what happened thereafter as follows: "After Ms Pratsch had tied him to the bed she obtained a knife and stabbed Mark a number of times to the chest and stomach area": (Ex. A, p.4)
As he was being stabbed Mr Beverstock managed to free his left wrist from the cloth tie and he tried to protect himself with his left arm. Later, he was found to have six separate stab and superficial incised wounds to his left arm, those injuries being consistent with defence injuries. Crime scene photographs in evidence suggest that Mr Beverstock also managed to free his left leg from the binding, assuming it had been secured initially.
After the attack upon Mr Beverstock, the offender placed a pillow over his face and left the bedroom. She barricaded the bedroom door so that it could not be opened other than by force.
The offender left Mr Beverstock's home at 3.26pm, taking his black bag and wallet with her. Mr Beverstock's bank keycard was inside the wallet.
The offender drove to a cinema complex at Ettalong where she used the deceased's bank keycard to withdraw the sum of $600 from his account.
By 4pm she had entered the Ettalong Hotel where she made her way to the poker machines and began to play.
Later that night the offender went to the Ettalong Beach War Memorial Club where, prior to midnight, she used an automatic teller machine to make a balance inquiry on Mr Beverstock's bank account. Shortly after midnight, the offender withdrew the sum of $700 from the account.
At some point the offender discarded Mr Beverstock's wallet and bag by throwing them into a public garbage bin in Ettalong, although she retained his keycard. The bag and wallet were found on the following afternoon by a man hunting in council bins for aluminium cans.
On 26 October 2014, at 3.49 in the afternoon, the offender again used Mr Beverstock's card, on this occasion to purchase cigarettes costing $17 from a supermarket in the Deepwater Shopping Plaza at Woy Woy. This last transaction emptied Mr Beverstock's account of all but 83 cents.
During this time Mr Beverstock's body had lain undiscovered where the offender had left him, tied to a bed in the Booker Bay residence. Precisely when he died is not established by the evidence, although it cannot have been long after he was stabbed by the offender, given the nature of his injuries.
When Larry Beverstock was away from home, he regularly telephoned the granny flat, to check on his brother's welfare. He generally made the call around 5pm on such occasions.
At about 5pm on 25 October 2014 Larry Beverstock telephoned the granny flat as was his habit. The call went unanswered.
He telephoned again at about 7 o'clock the following morning, 26 October 2014, but the phone rang out. Larry Beverstock made a further telephone call to his brother at 5 o'clock that afternoon, but the phone continued unanswered. Concerned, Larry Beverstock telephoned Gosford Hospital and inquired whether his brother had been admitted there. He had not.
Larry Beverstock then telephoned neighbours who lived close by, Mr and Mrs Kenyon, and asked them to go to the granny flat and look for Mr Beverstock. They did as they were asked but they were unable to raise Mr Beverstock at the granny flat. They noticed that the carport gates were unlocked and the flyscreen door to the flat was wide open. The television was on and, although Mr Beverstock's sandals were on the floor in front of his arm chair, his black bag was nowhere to be seen.
A sliding door from the living room to a bedroom was jammed closed and Mr Kenyon was not able to open it.
Mr and Mrs Kenyon called out for Mr Beverstock but there was no response.
Mr Kenyon telephoned Larry Beverstock from inside the granny flat to tell him what he and his wife had found.
Thereafter, Larry Beverstock telephoned Woy Woy Police Station to report the situation.
The following morning, 27 October 2014, Larry Beverstock left Sydney and drove home to Booker Bay. He arrived at about 5.25 in the morning. There was no sign of Mr Beverstock in the granny flat.
Sometime after 7.15 that morning, Larry Beverstock forced open the sliding door that Mr Kenyon had been unable to open the previous day. When he went into the bedroom he saw his brother lying naked on his back on the bed. Mr Beverstock's face was covered by a pillow. There was dried blood on his stomach. Larry Beverstock called an ambulance.
Ambulance officers arrived at the residence a little after 7.30 that morning. The officers saw numerous puncture wounds to Mr Beverstock's stomach and chest and observed that his right wrist and ankle were bound to the bed. He was dead.
Mr Beverstock's body was later forensically examined by Dr Leah Clifton and Professor Tim Lyons of the Department of Forensic Medicine in Newcastle.
Mr Beverstock had sustained some twenty separate stab and incised wounds.
One stab wound had penetrated to a depth of 80 milimetres (+/- 20 milimetres) and into the right ventricle of the heart. This wound was the direct cause of death. There were a further four stab wounds to the left chest area, two of which had entered the superficial capsule of the spleen, whilst two had penetrated into the subcutaneous fat and muscle of the chest wall.
A further complex of nine stab and incised wounds were observed to the stomach, with these wounds having caused a number of underlying injuries. All but one of these wounds penetrated beyond the skin. One wound penetrated the external wall of the stomach, three penetrated the external wall of the small bowel, two entered the lumen of the small bowel, and one went entirely through the small bowel. There were additionally a penetrating injury to the lumen of the large bowel, and two wounds into the mesenteric fat of the large bowel.
A further six stab and incised wounds were located on Mr Beverstock's left arm, consistent with defensive injuries.
The wound to the heart had caused bleeding into the pericardium and was of such a nature that Mr Beverstock could not have long survived it in the absence of immediate medical intervention. The other sharp force penetrating injuries hastened death.
The wounds were consistent with having been inflicted with a single edged, non-serrated knife with a blade length of between 80 and 100 mm, and a width of 20 to 30mm. The wounds had been inflicted from the front to the back, left to right, and mostly in the horizontal plane.
No significant injuries were noted to the wrists, suggesting to the pathologists that the ligatures had been loosely applied.
Mr Beverstock had a post-mortem blood alcohol level of 0.133 grams / 100 mililitres which was most likely attributed to alcohol consumption rather than to post-mortem decompositional changes.
At about 7.45 on the evening following the discovery of Mr Beverstock's body, 28 October 2014, the offender went with her de facto spouse, Peter Howe, to visit Mr Howe's parents at their home. The facts tendered by the Crown state that the offender "told Mr David Howe that she had stabbed a man but didn't know that she had killed him" (Ex. A, p.8). It would appear (from Ex. 1) that the offender heard that Mr Beverstock was dead from a radio broadcast.
The offender gave David Howe some other information as to the incident that she said occurred at Mr Beverstock's home on 25 October 2014. She said that, after seeing blood on the deceased, she had run from the room and barricaded the door. She took the deceased's key to open the carport gate, and drove away. She said that she had put $400 she had taken from the deceased's bank account through the pokies.
The offender said that she could not recall what had happened to the knife.
David Howe told police about the conversation later that evening.
Late that night, at about 11 o'clock, the offender was arrested. She was interviewed by police, giving an account of events of 25 October 2014. The interview is not in evidence. The only evidence about what was said by the offender during the interview is, "amongst other things" as the Crown facts notes, a list of matters (at Ex. A, p.8) to which she referred.
The list includes an acknowledgment that the offender went to Mr Beverstock's home on the morning of Saturday 25 October 2014, to ask about payment for a necklace. After going out with Mr Beverstock to Umina and Ocean Beach Park she returned with him to the granny flat. She told the police that the deceased had said "rude things" to her and there was an argument about which of the two was to have a shower first (Ex. A, p.9). The deceased ended up on the bed and the offender "retrieved" a knife and stabbed him. She thereupon locked Mr Beverstock in the bedroom.
When she left she took the deceased's keycard with her, and withdrew money from his bank account which was used to play poker machines. Another attempt to withdraw money from the deceased's account was unsuccessful, because the daily limit for withdrawals had been reached. Having used the keycard to purchase some cigarettes, the offender said she thereafter threw it down a drain.
The offender said to police that "she did not want him [Mr Beverstock] to be hurt" and had not acted to kill him, but he had done things that were "inappropriate and not right" and "she wanted to be free" (Ex. A, p.9). The offender said that she had not done anything wrong.
A crime scene examination of Mr Beverstock's home found evidence to link the offender forensically to the killing. A DNA profile matching the offender was found on a cigarette butt collected from an ashtray beside the bed where the deceased was killed, and on a beer can found in the lounge room. Biological material from underneath three fingernails of the deceased's right hand also produced a DNA profile consistent with that of the offender. DNA extracted from a swab of the deceased's right wrist, and from his stolen black bag, had a mixed profile, to which the offender could have contributed, and it is likely that she did contribute to a further mixed profile recovered from a swab of part of the bed frame. Her fingerprint was found on the beer can from the lounge area.

Other Evidence in the Crown Case

The Crown also tendered a statement of the offender's criminal antecedents (Exhibit B) and her custodial history (Exhibit C).
The offender's first appearance before a criminal court was in May 1990 when she was convicted and fined for larceny. In February 2000 she was again fined in the Local Court, on this occasion for possessing a prohibited drug. In 2005 the offender was dealt with by the Drug Court for two counts of break and enter with intent to steal, sixteen counts of break enter steal, and one of goods in custody. The sentences were initially suspended by the Drug Court pursuant to s 7(3) of the Drug Court Act 1998 (NSW) but sentences of imprisonment were subsequently imposed. The longest sentence, imposed concurrently for ten counts of break enter steal, was for a term of 2 years and 6 months with a non-parole period of 18 months. Conditions directed to drug and alcohol rehabilitation were specified.
The offender was before the courts in 2007 for further offences of dishonesty, with one offence, for break enter and steal, attracting a short custodial sentence. More recent offences, for possessing a prohibited drug (in February 2014), shoplifting (in March 2014) and drink driving (in June 2014) were all dealt with by way of fine.
Finally, the Crown tendered a report, heavily redacted, from Associate Professor Anthony Samuels.
A/Professor Samuels had been provided by the Crown with considerably more information than was tendered in evidence to the Court. He referred to two psychiatric reports from Dr Christopher Bench concerning the offender (from September 2015 and March 2016) and to a Crown Case Statement that evidently set out factual material not relied upon in this Court (Ex. G, p. 2-5). A/Professor Samuels was additionally briefed with medical records from the offender's general practitioner, Area Health Service medical records, and witness statements and other documents from the police brief of evidence.
The professor interviewed the offender on 6 July 2016 via an audio-visual link. He took a history from the offender of long term drug addiction and mental illness, and of previous violent relationships.
The offender told A/Professor Samuels that she was one of four daughters of her parents, and one of twins. Her parents were both dead, as was her step-father. The offender had had no contact with her sisters since her mother's death in 2010. She has four children, but has no contact with them now, and had little contact with them prior to going into custody in October 2014.
The offender described having been in an abusive relationship with Peter Howell (presumably the Peter Howe referred to in Exhibit A, and so referred to hereafter) for three years, ending in early 2016. She told A/Professor Samuels that there had been a very violent incident about 6 months before Mr Beverstock was murdered, in which the offender had been held hostage by Mr Howe who had "gone crazy" (Ex. G, p. 19). The offender complained that she had been bashed by Mr Howe, who tied her up and doused her and their house with petrol. The incident ended when police, alerted by neighbours, arrived and arrested Mr Howe.
The offender asserted that criminal charges brought against Mr Howe did not proceed after she "wrote a letter withdrawing her allegations" (Ex. G, p. 19), something she did because she would have otherwise been kicked out of her home. She remained with Mr Howe, despite being in considerable and continual fear of him.
The offender asserted that Mr Howe was responsible for other serious violence in January 2014 when he attacked a former partner of hers, Jason, who had come to see her. The offender said that Mr Howe had stabbed Jason ten times to the head, but he was not criminally charged, apparently because he claimed to have acted in self-defence.
The offender said that she ran away from Mr Howe and had a short relationship with Jason, which ended when he was killed in a car crash. She thereafter returned to Mr Howe.
The offender gave A/Professor Samuels a history of Bipolar Disorder diagnosed when she was aged 18 with two admissions to psychiatric institutions, in 2004 and 2008. She referred to herself as always "manic" (Ex. G, p. 20).
The offender said that she had not been taking any medication in the six months prior to the offence, but is now prescribed an anti-depressant and anti-psychotic medication.
The offender said that she is also prescribed methadone and takes it daily. Previously, the offender used "ice", heroin and occasionally marijuana. In the period before Mr Beverstock's murder she was also drinking alcohol with her partner.
As to the circumstances surrounding the commission of the offence, the offender said that she had gone to Mr Beverstock's house on 25 October 2014 because she did not want to go home, following an argument with her spouse. After going out with Mr Beverstock to a pub they had returned to Booker Bay with some beers. The two had argued about where the offender was to park her car and about the fact that Mr Beverstock locked the gate to his property.
The offender asked Mr Beverstock if he wanted to be tied up, intending to leave the flat after having done so. She tied one of his arms and one leg, and after that she said that she stabbed him, "three or four or many times" (Ex. G, p.22).
A/Professor Samuels quoted the offender as saying: "I don't know how it happened. I can't believe it happened. It was like I was on the roof watching myself doing it" (Ex. G, p.22).
The offender claimed not to know that Mr Beverstock was seriously injured when she barricaded the bedroom door and left through the gate, which was in fact unlocked. She returned briefly to take Mr Beverstock's bag and wallet, which she said she did to "piss him off" (Ex. G, p.22).
She drove to Ettalong pub where she said she took $600 from Mr Beverstock's account. After that she went home, telling Mr Howe what she had done when he arrived home. Although she was not able to tell Mr Howe what had happened to the knife she used to kill Mr Beverstock, she told A/Professor Samuels that he found it in a cupboard and "cut it up" (Ex. G, p.23).
She and Mr Howe later went to a club where she withdrew more money from Mr Beverstock's account, she thought $600.
When she discovered that Mr Beverstock was dead she said that she went with her spouse to see his father. She claimed that Mr Howe's parents gave her money to buy ice so that she and Mr Howe could have a "last drink" before she went to gaol (Ex. G, p.23).
On examination, A/Professor Samuels noted the offender to be emotionally reactive, distressed and with pressured speech. She reported poor sleep, saying that she thought a lot about what happened to the deceased. Because she no longer had contact with Mr Howe she reported feeling less jumpy, and regarded herself as "healing".
Although A/Professor Samuels concluded that there was evidence of mental instability in the offender's history, he considered the most significant aspect of her presentation was the history of polysubstance abuse. He did not support a diagnosis of Bipolar Disorder, noting that the offender's admissions to psychiatric facilities had been few and of short duration, and her use of psychotropic medications most likely to be as an adjunct to her consumption of illicit drugs.
The doctor concluded that the most likely psychiatric diagnoses are a range of personality disturbances with prominent dependent and borderline and anti-social type features. Polysubstance misuse was significant. He thought that she "almost certainly" has a complex trauma syndrome with features of Post-Traumatic Stress Syndrome ("PTSD") (Ex. G, p.26).
A/Professor Samuels thought that the offender was in a heightened state of emotional arousal on the day of the murder because of ongoing problems with her spouse. She may have used drugs on the day, and had consumed some alcohol.
He speculated that in the context of tension developing between the offender and Mr Beverstock on 25 October 2014, and against a general background of emotional arousal, the offender may not have been able to control her feelings of anger.
The account the offender gave to A/Professor Samuels of sitting on the garage roof observing herself commit the crime was, in the doctor's view, implausible. He considered that any dissociation would more typically be momentary, and ended by the "victim's struggles, cries, pain and presumably requests for her to stop" (Ex. G, p.27). He also thought her act of barricading the door to the room in which the deceased was left, and returning to the flat to steal his bag and wallet were, "vengeful", and not consistent with the fear she expressed to him of the deceased. He concluded (Ex. G, p.28): "The violent attack on the deceased is more likely to have been motivated by a combination of personality factors, alcohol, stimulants and marijuana leading to disinhibition, aggression, fear and release of repressed anger."

Other Evidence as to the Offender's Mental State

The other evidence of the offender's mental state at the time of the commission of the offence comes from evidence tendered by her, being a report from Dr Mary Jurek, a consultant psychiatrist.
Dr Jurek saw the offender on 9 September 2016. She had been extensively briefed prior to the consultation, including with a copy of A/Professor Samuel's report.
The offender gave Dr Jurek a similar history of mental instability and drug use to that given to A/Professor Samuels. She said that she had continued using illicit drugs in gaol, although she expressed a desire to overcome her addictions.
The offender referred to a series of violent relationships with men, commencing with violence from her first boyfriend, with whom she lived for three years from age 14. She complained that her second significant partner, the father of her four children, was also violent to her, referring the doctor to "a large Police file" about the violence (Ex.1, p.5).
She attributed responsibility for the many break and enter offences of which she has been convicted to a boyfriend who, she said, committed the crimes. She claimed to have taken "the rap" for him because to do otherwise would have meant that she would have been shot or bashed by him.
The offender described Peter Howe as an "insanely jealous" and controlling individual who frequently assaulted her. She described an incident in April 2014 (also described by her to A/Professor Samuels) when Mr Howe had detained her in their home, tying her up and pouring petrol over her and the house. To Dr Jurek, the offender gave an involved account of how it came about that criminal charges against Mr Howe arising from that incident were withdrawn, including details of a conspiracy between her and Mr Howe's parents to pervert the course of justice: "She said she, Peter and his parents sat around and helped make up a Stat Dec (Statutory Declaration) that she was a "drug fucked sex pervert" and that they had been engaged in a sex game. She said she was charged with "being a hostage". She is pleased that she was able to reconcile Peter with his family." (Ex.1, p.7)
As to the circumstances of Mr Beverstock's murder, the offender said to Dr Jurek that she and Mr Howe had used drugs on the morning of 25 October 2014, injecting ice and oxycontin and sharing a fentanyl patch of uncertain dose. The latter had made her head and brain feel hot.
After arguing with Mr Howe she went out, eventually going to Mr Beverstock's home. The two went out for a time and, on returning to the Booker Bay residence they had argued about the carport gates and whether they were to be locked. She claimed that Mr Beverstock had said rude things to her, such as expressing a wish to "grab her arse."
Dr Jurek recorded the following: "She said she had an image of herself sitting on the roof of the garage swinging her legs watching herself stab him. When she regained awareness after seeing herself sitting on the roof, she thought "Oh my God, Oh my God" and felt sick. She thought she stabbed him two or three times and was surprised to learn later that she had inflicted twenty wounds. She said she could not recall putting a pillow over his face. She jammed the door of the room shut so that he could not follow her and left." (Ex. 1, p.8)
The offender told Dr Jurek that she took the knife home with her and hid it in a beer box. Her partner later cut it up and threw it down a drain.
She acknowledged having gone to an ATM to take money from Mr Beverstock's account, money she used on poker machines.
The offender said that she thought about Mr Beverstock each day with guilt and regret, and felt very sorry for what had happened.
Dr Jurek set out the offender's history of interaction with mental health professionals, much of it being in the context of the offender's use of illicit drugs and encounters with the criminal justice system. From the history the diagnosis of Bipolar Disorder seems to have only ever been tentative, with drug-induced psychosis regarded as a likely diagnosis from time to time.
Drug use has been a constant feature of the offender's presentations to hospitals or doctors more generally. Her drug use evidently continues, with Dr Jurek referring to the offender using intravenous heroin, oxycontin, ice, and suboxone, as well as smoking cannabis in custody. She additionally uses methadone prescribed to her.
An assessment in January 2015 by a psychiatry registrar pointed to the existence of a bipolar affective disorder and PTSD. Stress relating to the outstanding criminal proceedings was noted.
Having reviewed the documentary history and assessed the offender, Dr Jurek concluded that the offender suffered from Polysubstance Abuse Disorder, PTSD and Borderline Personality Disorder. She referred to Bipolar Disorder having been earlier discounted. Dr Jurek notes (Ex. 1, p.16): "From the history obtained, medical records, and clinical evaluation, Ms Pratsch has a number of significant problems including childhood trauma, domestic violence relationships, alcohol abuse, illicit drug use including ice, heroin, cannabis and unstable moods which are inextricably linked."

The Gravity of the Offence

The sentence to be imposed upon the offender must reflect the objective seriousness of the offence committed, and provide reasonable proportionality between it and the circumstances of the crime: R v Scott [2005] NSWCCA 152, at [15].
Objectively, the gravity of this offence can only be assessed as very high.
Mr Beverstock was a particularly vulnerable individual. The acquired brain injury that affected him left him cognitively impaired and physically unstable. As a friend or acquaintance of the deceased, the offender would have been well aware of his situation, and of the difficulties under which he laboured. She must also have known that he would be less able to resist a physical attack upon his person than would an adult male of ordinary health and strength.
Having spent the preceding few hours with Mr Beverstock, and having accompanied him to licenced premises where he consumed alcohol, the offender must also have known that he was intoxicated, even if she did not know the extent of it. Mr Beverstock had a blood alcohol level of 0.133 on autopsy, a mid-range concentration of alcohol for a driver of a motor car. It is unlikely that post-mortem decompositional change contributed to that level significantly or at all, and it is open to infer that Mr Beverstock was affected by the alcohol he had consumed, and was even more vulnerable to physical attack as a consequence.
The offence occurred in Mr Beverstock's home, where he should have been safe and secure. The offender, as someone known to Mr Beverstock, had been invited or allowed entry by him to his home, on the unstated but no less clear basis that she posed no risk to him. In attacking Mr Beverstock as she did in his home, the offender breached the trust that reposed in her in the most terrible way imaginable.
I note specifically that, in light of the current debate as to the application of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act to a person other than an intruder, [1] I have not treated the commission of the offence in the victim's home as an aggravating feature. However, the breach of trust inherent in the offender, as a trusted guest in Mr Beverstock's home, murdering him there, elevates the seriousness of the offence.
Although the evidence does not establish how or why, the offender chose to arm herself with a weapon, a knife, with which to attack Mr Beverstock. The use of a weapon does not necessarily make a murder any worse in terms of its factual seriousness, since most offences of murder involve the use of a weapon. However, the use of a knife in the context of this case does elevate the seriousness of the offence to some extent, and even more so in the context of Mr Beverstock's disability. With his lack of coordination it can be safely concluded that he would have struggled to fight off a physical assault; his chances of doing so when a knife was used as the instrument of attack would have been further reduced.
The circumstances of the infliction of the many stab wounds upon Mr Beverstock also make it a gravely serious offence. How or why Mr Beverstock was tied by the offender to a bed is nowhere satisfactorily explained on the evidence. That he was so tied made him even more vulnerable to an attack of the nature mounted on him than would otherwise have been the case, particularly where the attack was made with a weapon with immediate lethal capacity.
The crime scene photographs and forensic pathologists' report taken together make it clear that both of Mr Beverstock's wrists were initially secured by cloth ligatures to the bedhead, whilst at least his right ankle was also secured, at the base of the bed. Photographs 31 and 98 of Exhibit F suggest that his left ankle was also tied at some point, by a piece of blue cloth or clothing that can be seen in those images. It appears to be tied to the bottom of the bed frame on the left hand side in the same way as the other three ligatures.
With four limbs secured, Mr Beverstock would have been wholly unable to defend himself during the initial onslaught of knife blows. It is clear that he could have offered no real resistance to the attack upon him until such time as he was able to free his left arm from its binding. Even then, however, he remained tied to the bedframe, and all he could do in his own defence was to attempt to shield his body from the knife with his left arm, receiving knife blows to that arm in the process.
Despite the fact that Mr Beverstock posed no threat to the offender, and could have offered no meaningful resistance to her attack upon him, the offender's assault was merciless. The existence of twenty separate knife wounds is testimony to the savagery of the attack.
That there was time during the course of that attack for Mr Beverstock to free his left arm and use it as a shield to his body shows that the attack was not of fleeting duration. It must have proceeded for sufficient time for Mr Beverstock to perceive his danger, and take what steps he could to defend himself. He must have been, over that period of time, sensible of the pain that would have accompanied the many knife blows, aware that he was struggling for his life, and terrified. The horror of that situation is palpable even at a distance.
Given the use of a knife, the number of wounds inflicted, the fact that most of them were directed to Mr Beverstock's left chest and abdomen, and the serious nature of many of the wounds, in that many penetrated the body to a dangerous depth, I conclude beyond reasonable doubt that the offender acted with an intention to kill.
It is not possible on the evidence to determine whether Mr Beverstock was living or dead when the offender pushed a pillow across his face and barricaded him alone inside the bedroom. It does appear, however, that she herself believed him to be alive. That she would leave him wounded and tied to a bed, without aid or the means of summoning it, contributes to the gravity of the crime. It was a heartless act, shocking in its callousness.
Finally, the offender's considered and deliberate choice to return to Mr Beverstock's home after leaving it to steal his bag and wallet, knowing he could not resist the theft, and then to drain his account of all but some cents over the ensuing days, can only heighten the objective criminality of her act.
Without any satisfactory evidence as to why this crime happened, it is difficult to assess the spontaneity or otherwise of it. Despite the theft that followed the murder, the Crown does not suggest that robbery was the motivation, and that suggestion was not put to the offender when she gave evidence. The Court must therefore set it entirely aside.
Probably, the crime was largely spontaneous, although there was planning at least to the extent that the offender determined to arm herself with a knife and use it. Whilst the offender may have tied Mr Beverstock up to facilitate the commission of her crime, I am not able to conclude that such was the case beyond reasonable doubt. It may be that Mr Beverstock was tied up for some other, not unlawful, purpose.
In considering the nature and gravity of the offending I have considered those matters which might aid in assessment of the offender's moral culpability for her crime, but have found making that assessment a singularly difficult task. Although the offender gave evidence she said nothing to the Court that might have explained why she killed Mr Beverstock in the brutal way in which she did, or what could have motivated that crime.
In her evidence the offender asserted the truth of what she had said to Dr Jurek, but the account that she gave the doctor does not greatly aid in determining what motivation may have operated upon the offender to act as she did. Some parts of her account do not sit well with objective evidence, or are inconsistent with other comments by her, such as her account of drug use on the morning, or her assertion to Dr Jurek that the gates to the property were not locked, and that to her father-in-law that she took the keys to the gate on leaving the flat. The offender's account of events cannot be embraced without question.
Drug use on the morning of the murder may have played a role, however, there is a difference between what the offender told A/Professor Samuels about her consumption of drugs, and what she told Dr Jurek, that leads me to treat her assertions in that regard with caution. There is, in any event, no evidence of intoxication, and self-induced intoxication cannot mitigate crime.
The offender gave Dr Jurek an account of an argument with Mr Beverstock about the locking of the carport gate, with her fearing that he had locked it, and feeling trapped. Her anxiety about being locked in was heightened because of her experiences as the victim of domestic violence, and the PTSD Dr Jurek opines that the offender suffers. Dr Jurek notes: "Ms Pratsch was seeking refuge from a domestic violence situation but found herself in a similar situation where she felt she was confined as she had been with Peter in the hostage situation."
I interpose that there is no evidence that the offender was in a "similar situation", or was confined in a "hostage situation". Dr Jurek continues, Not only did she have to deal with that situation but she was uncertain whether her partner would find out and how he would react as he was "insanely jealous"." (Ex. 1, p.20)
There is no suggestion that the offender thought that she was to be taken hostage at Mr Beverstock's hands, or harmed in some way by him. Indeed, his physical and cognitive deficits would surely have made escape by the offender readily possible, should she have needed to flee for some reason.
The offender's anxiety about the gate being locked sits uncomfortably with her own acknowledgement that, on leaving the premises after having murdered Mr Beverstock she found that the gate was not locked, and additionally with the openness of the layout of the premises overall. It is clear from the crime scene photographs that, even had the carport gates been padlocked, egress from the premises was by no means prevented. Photograph 16 of Exhibit F shows that the rear of the property was bounded by a waist height fence, which could have been readily scaled. Further, the deceased's keys were in plain sight, and the offender could presumably have taken them to unlock the gate, as she told her father-in-law she did.
Even accepting the offender's anxiety at what she believed to be a padlocked gate, as Dr Jurek says in the paragraph following that extracted at [121] above, "It is not clear when the knife was produced" (Ex. 1, p.20). Nor is it clear why a knife was taken up. It is even less clear to me why the offender used the knife in the way that she did.
She specifically resiled in her evidence from some assertions that she made to interviewing police on or about 28 October 2014 that it was the deceased who obtained the knife, holding it against her cheek. There could be no question about a struggle for a knife, since there is no evidence that Mr Beverstock ever had the knife, and he was in any event, tied to a bed and incapable of offering threat when the offender stabbed him.
Dr Jurek speculated - and it is no more than speculation - that previous trauma and drug use had a role to play: "Her past history of sexual assaults may have been triggered/re experienced by this event as was the terror of being held captive in a life threatening situation some few months previously. Depending on the time frame, she may also have been also withdrawing from the drugs she had used earlier as well as being fatigued." (Ex.1, p.21)
Even to the lower standard of proof applicable to matters in mitigation, that opinion is sufficiently speculative as to fail to constitute proof on the balance of probabilities. I do not accept it.
I find myself quite unable to determine why the offender armed herself on this day, or why she stabbed Mr Beverstock with such lethal violence. Although it is unsatisfactory, and must be so to those who cared for Mr Beverstock and would no doubt wish to know why he died as he did, I have approached the determination of sentence on the basis referred to by the High Court in Filippou v The Queen [2015] HCA 29, at [70]: "Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard."
On the evidence presented to the Court by the parties, I am simply unable to determine what caused the offender to act in the murderously violent way she did.
I am prepared to accept that the offender was in a state of heightened emotional arousal as a consequence of her own domestic situation. Her drug use no doubt led to some disinhibition. I accept that the offender's capacity to exercise appropriate powers of self-control was likely to have been lessened by the Post Traumatic Stress and other disorders from which she suffered, and her condition thus had a bearing on the circumstances of the commission of the offence. No matter how irrational, she may have felt trapped to a degree, not because of any act of Mr Beverstock's or because of any objective circumstance present on the day, but because of her own history of abuse at the hands of violent men, exacerbated by her own drug use.
The reduction in the offender's moral culpability cannot, however, be great in the circumstances of this case because of its complete failure to explain the act of murder itself. Once Mr Beverstock had been tied to the bed, nothing in the evidence as to the offender's mental state explains why she took up a knife and stabbed him in the frenzied way she did. If she was labouring under fears of being trapped, it should have been apparent at that stage that she was able to leave the property without fear of being stopped or detained. That she stabbed Mr Beverstock with the violence she did, and then stole from him in a way A/Professor Samuels suggested was "vengeful", was not in my view causally connected to her mental state to any significant degree, on the limited evidence available. Disinhibition through drug use is likely to have had a greater role to play in the commission of the crime.
I do not consider that the offender's mental condition was so causally connected to the commission of the crime as to diminish or obviate the need for the sentence imposed upon her to denounce the crime she committed, particularly having regard to the role of illicit drug use.

The Offender's Subjective Case

In addition to tendering Dr Jurek's report the offender gave brief evidence in her case.
In her evidence the offender disavowed some things she said about her crime to her partner's father and to police, but otherwise acknowledged the correctness of the contents of Exhibit A, the Statement of Facts. She also asserted that the account she had given to Dr Jurek of her life was truthful.
As to her crime, the offender said that she was sorry for what she had done.
She was not cross-examined.
The offender was born on 3 April 1970 and is now aged 46 years. To Dr Jurek she described a childhood marked by physical and emotional abuse and neglect, with inattentive parents and frequent changes in her accommodation and schooling.
The offender's education was much disrupted, and she left school at 14 years of age. She trained in nursing and apparently worked as an Assistant Nurse until she was aged 24, when she left work to have a child. In later years she worked briefly and intermittently in unskilled positions. At the time of Mr Beverstock's murder the offender was not employed, receiving a disability pension.

Other Considerations Relevant to Sentence

The offender's disordered mental state is relevant in other ways to the question of sentence, principally as to whether she is a suitable vehicle for the application of the principle of general deterrence. In the circumstances of this case, where the offender's disordered thinking had some, albeit minimal, role to play, general deterrence has a lesser role to play in the determination of sentence. The diminution must be relatively slight however, because of the conclusions I have reached as to the limited role her condition had in the commission of the crime.
There remains a need for general deterrence to figure in the sentence imposed on the offender, if to a lesser degree than would otherwise be the case.
There is also a need for the sentence to reflect the requirement of specific deterrence, although not to any great extent. The offender had never before committed a violent crime, and the risk of the commission of a crime of a similar nature in the future must be slight. It cannot be removed completely however, in circumstances where the offender continues to use illicit drugs, on the evidence of Dr Jurek's report, even when incarcerated, and even with some likely insight into the destructive role that drugs have played in her life, and in the crime she committed.
The offender's prospects of rehabilitation must be viewed with some circumspection in light of her continuing drug use. If she takes advantage of the drug and alcohol counselling services available to her within the prison system, the offender will considerably improve her prospects. Whether she does can only be a matter of speculation, informed by her continuing use of illicit drugs to date, and by her earlier failure to rehabilitate when offered that opportunity through the Drug Court.
There is no reason to conclude that the offender's PTSD and other disorders will lead to the offender finding a custodial environment more onerous than she otherwise would. Indeed, it appears that the offender has adjusted well to prison.
The offender entered a plea of guilty to the offence charged against her on what would have been the second day of her trial, had it proceeded as listed on 8 August 2016. Counsel for the offender submitted that there was a significant utilitarian value in the plea, and that may be accepted insofar as it relates to the fact that it was not necessary for a trial to be heard.
It was submitted that the offender's instructions to the legal representatives who appeared at trial were always to plead guilty, but it is not clear when the present representatives were retained. The matter proceeded as a committal for trial and, upon arraignment before this Court on 8 April 2016, the offender entered a plea of not guilty. A trial date was fixed. The prospect of a plea of guilty was first conveyed to the Court on the day fixed for the offender's trial, 8 August 2016.
It would appear that the offender hoped to prevail upon the Crown to proceed on a less serious charge, and accept a plea to manslaughter, but whatever the motivation behind the delay in entering the plea of guilty to the indictment, there was delay. The utilitarian value to the criminal justice system consequent upon the late entry of the plea was in obviating the need to conduct the trial. That benefit is appropriately acknowledged by a reduction of ten per cent in the sentence that would otherwise have been imposed, rounded up in favour of the offender.
There is evidence of remorse, which I accept. The offender told Dr Jurek that she deeply regretted what had happened to Mr Beverstock and, to the Court, she said that she was "incredibly sorry" for what she had done (T6:18 on 7 October 2016). She said that thinking of her crime sickened her. The plea itself is some evidence of the remorse the offender feels.
It was submitted on the offender's behalf that the Court should make a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. There is evidence that would allow such a finding to be made, being the mental disorders from which the offender suffers, and her ongoing need for drug rehabilitation. However, the fact that there is a basis for making such a finding does not mandate that it be made.
The practical point of making a finding pursuant to s 44(2) is to vary the ordinary ratio of sentence by reducing the non-parole period, to allow for an extended period of supervision on parole. Certainly, the offender would benefit from the support and supervision that will be available to her as a consequence of a parole order, particularly having regard to her psychiatric condition, her long-term drug addiction, and her estrangement from family and other persons in the community who might support her upon release from prison.
Her sentence for murder will necessarily be a lengthy one, and the parole period that would ordinarily apply as a consequence of statute will also be a relatively lengthy one. I am not persuaded that the offender requires a parole period which is greater than that which will apply in the usual course. The period that will apply as a consequence of the ordinary ratio should be adequate to assist her to maintain such rehabilitation as she may achieve in custody, and to reintegrate into the community. I therefore decline to make a finding of special circumstances.

Sentence

Having been convicted of the murder of Mark Beverstock, the offender is sentenced to imprisonment for 22 years and 6 months. That sentence comprises a non-parole period of 16 years and 10 months commencing on 28 October 2014 and expiring on 27 August 2031, with a balance of term of 5 years and 8 months, expiring on 27 April 2037.
Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is advised of the existence of the Act and its application to her for this offence.

Endnote

See R v Ingham [2011] NSWCCA 88; Melbom v R [2013] NSWCCA 210; Montero v R [2013] NSWCCA 214; Aktar v R [2015] NSWCCA 214; Erazo v R [2016] NSWCCA 139. The question is currently under consideration by a five judge bench of the Court of Criminal Appeal in a decision under reservation. 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: 14 October 2016

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