R v Purtill

[2012] NSWSC 1475

Supreme Court of NSW|2012-11-23|Before: Harrison J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-11-23

Before

Harrison J

Catchwords

(2006) 164 A Crim R 126 Markarian v R [2005] HCA 25
(2005) 228 CLR 357 Muldrock v R [2011] HCA 39
R v Patsalis [2001] NSWCCA 476 R v Yeo [2003] NSWSC 315

Source

Original judgment source is linked above.

Catchwords

(2006) 164 A Crim R 126 Markarian v R [2005] HCA 25(2005) 228 CLR 357 Muldrock v R [2011] HCA 39R v Patsalis [2001] NSWCCA 476 R v Yeo [2003] NSWSC 315

Judgment (17 paragraphs)

[1]

REMARKS ON SENTENCE 1HIS HONOUR: The offender was found guilty after trial on 15 June 2012 of the murder of John Garda on 8 February 2010 at Lennox Head on the north coast of New South Wales. The offender killed the deceased by cutting his throat with a knife. The murder took place at the offender's home, which the deceased had visited alone that afternoon. He was 60 years old at the time of his death. He died at the scene from the wound to his neck and his body was later taken from the premises and buried in a bush grave by the offender and his brother. The offender was arrested on 26 February 2010 and has remained in custody since that time. 2The offence of murder carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period of 20 years. Similarly, I am not required to make an assessment of whether or not the offence is within the mid range of objective seriousness (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions generally, and the provisions of ss 55B(2), 54B(3) and 21A of the Crimes (Sentencing Procedure) Act 1999 in particular, require an approach to sentencing in which all of the relevant factors are identified, and a judgment is reached as to the appropriate sentence having regard to such factors (see Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]). The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27] and [31]). 3I acknowledge that my fact-finding role is that described in R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587. I am required to find the facts material to the sentence. To the extent that my findings are based on facts led at the trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. A judge's finding of facts upon which the sentence is based is "both what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196].

[2]

Background facts 4The deceased was a businessman with interests in the Byron Bay area. On the afternoon of 8 February 2010 he went missing. This was not reported to the police until two days later. One of the last people to have seen him before his disappearance was a local real estate agent in Byron Bay with whom the deceased had met at about 4.00pm. 5The offender lived at that time with his partner Tanya Barbaro and their young child in a house owned by the offender in Blue Seas Parade, Lennox Head. He was then almost 39 years of age. Sometime on 8 February 2010 Ms Barbaro left the family home with their son and checked into accommodation at the Byron at Byron resort at nearby Suffolk Park. They spent the night of 8 February 2010 at that resort. Later during the afternoon of 8 February 2010 the deceased visited the offender's home. A car similar to one owned by the deceased was seen parked on the lawn outside the house. 6Lily Richardson was a young woman who lived in a flat downstairs at the same address. She rented the premises from the offender. She arrived home at approximately 2.15pm on the afternoon of 8 February 2010. She saw a man fitting the description of the deceased in the kitchen of the offender's house as she walked from the street to the lower rear of the premises where she lived. She entered her flat and watched a DVD. 7Lily Richardson knew Warren Purtill, who is the offender's older brother. He visited Ms Richardson's flat at about 3.30pm and they watched a DVD together. Not long after this Ms Richardson heard raised voices coming from the offender's house upstairs. She heard the offender yelling "you fucking cunt" a few times and then a thud like something hitting the floor. She heard similar sounds after that and then the sound of another male voice screaming out apparently in pain. Ms Richardson continued to hear the offender yelling. 8At this point Warren Purtill got up and ran up the back stairs at the outside rear of the premises and knocked on the offender's kitchen door. He asked to be let in. At this point all the noise coming from the upstairs premises stopped. Warren Purtill then came back down the stairs and told Ms Richardson to keep all of her doors and windows closed. He told her to stay inside. Shortly thereafter the offender's kitchen door slid open. Ms Richardson then overheard a conversation between the brothers taking place upstairs but she could not discern what was being said. A short time after this Ms Richardson noticed blood coming through the ceiling of her flat from upstairs. She immediately rang a friend and asked to be picked up. 9Ms Richardson returned to the flat the following day and spoke to Warren Purtill. He did not tell her the truth about what had occurred the previous day. In due course Warren Purtill was charged with, and later pleaded guilty to, being an accessory after the fact to the murder of the deceased. That occurred after Warren Purtill gave an undertaking to give evidence in proceedings against the offender. Warren Purtill was later sentenced to a term of imprisonment, and received a discount in return for his undertaking. He gave evidence at the trial of the offender. His evidence was the only independent account of what took place from the point when he was let into the offender's premises following the commotion about which Ms Richardson gave evidence. 10Warren Purtill said he heard banging and crashing coming from upstairs and someone screaming at the top of his voice saying, "I'll kill you, you fucking cunt". He went upstairs and banged on the kitchen door and said, "It's me, Wozza, open up". All went quiet inside the house, except Warren Purtill said that he could hear the sound of someone rummaging around. As he started to walk away the offender called out, "Is that you Warren?" Warren replied, "Yeah". The offender said, "Are you there alone?" Warren said, "Yeah", and then the offender opened the door. 11When Warren entered the kitchen he saw blood everywhere. The offender told him to have a look around the corner. When he did so he saw the deceased lying on the floor up against a white counter. His eyes were open but he was dead. Warren asked the offender what had happened. The offender said that the deceased had tried to kill him. Warren said that they had to call the police. The offender replied, "We can't call the cops, this guy hangs around with heavy hitters." 12The offender had cuts to both of his hands, one of which was severe. Warren said that blood was spurting from the wound. He bandaged the offender's hand. Warren went to the bathroom to use the toilet but the toilet bowl was smashed. There was blood everywhere in the bathroom as well. 13The offender and Warren Purtill talked over the next few hours. The deceased's car was parked nearby. Warren Purtill took the deceased's car keys from his shorts and drove his car to South Ballina where he parked it beside a hotel. He also took a number of the deceased's credit cards from inside the vehicle. He caught a taxi to the offender's home, stopping on the way to collect his canvas swag. Upon his return the offender and Warren Purtill placed the deceased inside the canvas swag and loaded it into the rear of Warren's utility. Warren then drove the body to a remote location approximately three kilometres south of Broadwater. The offender travelled in the vehicle with him and directed him where to go. Warren dug a shallow grave and placed the wrapped body of the deceased in the grave and covered it with sandy soil. 14Warren Purtill and the offender returned to the offender's home in the early hours of 9 February 2010. The offender left for Brisbane later that day to stay with his family. Warren Purtill stayed at the premises for several days and cleaned it. He used chemicals and water to clean up blood and broken household items. He purchased a new toilet to replace the one that had been broken when the deceased had been killed. He installed the new toilet and disposed of the old one. 15On 10 February 2010 Warren Purtill returned to the deceased's vehicle and drove it to another location in South Ballina. He left it there with the keys in the ignition. On 12 February 2010 he returned to the car and drove it to the Pacific Fair shopping centre in Broadbeach, Queensland, where he left it in the car park. In the days that followed Warren Purtill made a series of purchases using the deceased's credit cards. Suspicions were raised concerning these transactions and the police were contacted. 16On 16 February 2010 Warren Purtill was arrested and charged with fraud and larceny offences arising from the taking and use of the credit cards. He was interviewed and told police that he had found the cards in a rubbish bin in Lennox Head. He denied knowing the deceased. He was refused bail. On 17 February 2010 police executed a search warrant at the offender's home. Some of the items purchased by Warren using the deceased's credit cards were located there. Warren's utility was examined the following day and returned a positive test for the presence of blood. 17On 19 February 2010 Warren Purtill pleaded guilty in the Local Court to larceny and seven counts of obtaining a benefit by deception. He was sentenced to 6 months imprisonment commencing on 16 February 2010. 18On 26 February 2010 the offender attended Lismore Police station and handed investigators a map depicting the location of the body of the deceased. He declined to participate in an interview with the police. The deceased's body was located at the place indicated on the map. The deceased was dressed in underpants and shorts and socks but was not wearing a shirt. A surgical glove was on his right hand. An autopsy revealed that a wound to the neck caused the death of the deceased. The wound was relatively superficial at the front and much deeper on the right side and back. The wound was consistent with having been inflicted by a knife using moderate force. There was also a wound on the cheek but there were no injuries consistent with a struggle having occurred. There were no defensive wounds on the deceased. Death occurred on or around 8 February 2010. 19A later search of the offender's home located blood with the deceased's DNA profile. 20On 2 February 2011 Warren Purtill pleaded guilty in the Local Court to one count of being an accessory after the fact to the murder of the deceased, contrary to ss 18 and 349 of the Crimes Act 1900. He was sentenced by me on 21 May 2012: see R v Purtill [2012] NSWSC 566. He agreed to give evidence for the Crown at his brother's trial for the murder of the deceased.

[3]

The trial 21The offender gave evidence at his trial. He denied that he killed the deceased but said instead that it was his brother who had done so. It is apparent from the jury's verdict that they rejected the version of what occurred given by the offender. Although not a complete record, the following extracts from the offender's evidence at the trial give a fair representation of what he said: "Q. 5.30 or 6pm. What happened? From the time Jack arrives, if you could just take us through what happened? A. He just came in, sat down and we had a beer and we were just chatting for a few minutes about different things. And then I sort of had I was little bit annoyed that I asked him about meeting my brother and that and he sort of brushed it off. And then, I don't know, we sat there for a couple of minutes and then he went into the bathroom, went into the toilet, and he was in there for a long time. And I thought it was a bit weird and I sort of went up to the I went sort of near the bathroom and I could hear him shuffling around in there. And I said, "Hey bro, what are you doing?" He goes, "Oh nothing mate, nothing." And then I thought he was up to something and I went and grabbed a key. There's this little slot in the door and you can just pop the, pop the door open. He had it locked because I did try and I popped it open... ... Q. What if anything to do with the bathroom on the outside? A. I just opened it, opened it, unlocked it so I could get in, opened the door. Q. Did you get in? A. Yes, I did. Q. What did you see inside the bathroom? A. I walked in and Jack was standing there with a pair of gloves on, shuffling around with a bum bag. And I just knew he was doing something dodgy. I just sort of spun out. I said, "What are you fucking doing here cunt?" I said that a couple of times and, yeah, I just went off my head at him. Q. Do you remember anything else you said to him? A. Just. I just went, I just went off at him. I was swearing abuse at him. I said, "What are you fucking doing, you must be doing something with my fucking brother." You know, "You're getting in the shit" because I didn't want any drugs allowed in my house. And then, yeah, then I sort of went towards him. I went for his bum bag. He was sort of messing around with that as I came in the door. I went towards his bum bag and he was sort of pushing me, pushing me out of the way and I slipped and hit the dunny toilet bowl. I sort of hurt my rib a bit. And I was, yeah, I sort of got really I was, you know, I sort of screamed a bit. I hurt my rib. And then I sort of got up, sat on the edge of the bath and I was in quite a bit of pain. Still cursing at Jack and then, yeah. Q. So you are still in the bathroom? A. Yeah, yeah. I was sitting on the edge. I was sort of looking, I was sitting on I was sitting on the edge of the bath next to the bathroom cabinets and stuff. I sort of was looking in there because I thought he might have stashed something in the drawers. I was sort of going through that and having a look to see if he was stashing anything in there. Q. Did you find anything in those drawers? A. No, there was nothing there. Then I heard a knock at the door. Q. Which door was that? A. I just assumed that it was the front, the front door and opened the door and there was no one there and then I heard a knock at the back door. I just heard a knock again and it have been the glass doors, the glass sliding door at the back of the house. So I went to that. I could hear Warren saying, "Kev, Kev" you know. To me Wozza I sort of as I was coming towards the back door the door slid open and Wozza goes, "Are you all right, are you all right". I said, "Yeah, yeah, yeah" and DENNIS Q. How would you describe Warren's mood at that time? A. He was a bit it seemed he was worried about I don't know, he was just sort of, "Are you all right?" He must have heard me he must have heard us having a bit of an argument there, yeah. Q. What, if anything, did you say in response to Warren asking you if you were all right? A. Yeah, I said, "yeah", I said I was all right. Q. Was there any other conversation between the two of you? A. He was asking me, "Where's Tanya?", you know, "Where's Tanya?" I said, "Staying down at Byron tonight" and, yeah, and then he sort of I sort of I knew that they were doing I said to him, "What are you fucking cunts doing?" And Warren just went, "Oh" you know, he sort of shrugged it off and then I sort of said, "Whatever you cunts are doing, fucking do it, fuck off out of my house". I went out towards the front door and I thought Warren must have come with someone, some guy or whatever, because he'd been hanging around with this bloke up the top of the road. I went out the front to see if he was there, there was no one there. The way Warren was, like he was going he was quite aggressive towards Jack and that and then I just sort of didn't want to know about it. Q. You went outside; how long were you outside for? A. Only a few minutes, a couple of minutes. I just let them do whatever they were doing. I'd sort of been out there I sort of went to do the rubbish. Tanya was always hassling me about anyway, I went to pull the rubbish bin, it was rubbish day the next day. I didn't really get to do it and then I came back inside and I saw Warren and Jack standing there and I saw Jack with blood coming from his neck." 22The offender had previously given evidence that he had expected the deceased to come to his house on the day of the murder in order to pay Tanya for some cleaning work that she had done for the deceased. Instead of a mundane visit, the deceased was to meet a violent death. According to the version given by the offender, that occurred when his brother Warren entered the house without warning coincidentally while the offender had gone outside to attend to the garbage. When he returned he was confronted with the deceased in an apparently mortally wounded condition standing beside his brother. He said this: "Q. Could you just describe in some more detail where Warren and Jack were? You say you had seen them when you came back inside? A. There's like a little hallway in my house where the kitchen is. I came in and then you come into the lounge room, got the lounge room there and the kitchen, and I sort of came around into the kitchen area, sort of at the end of the island bench, and they were standing there, sort of facing sort of towards the back door, back sliding door. Q. And who was facing in what direction? A. Warren they were sort of both facing the back. Q. How were they positioned relative to each other? A. Well they were side by side. Jack. Warren was facing directly towards the back door and Jack was sort of facing the back but on the side a bit. I think he was closest to me on this side and Warren was on the other side. Q. If you were to look at them, who was on the left, who was on the right, what was the position? A. If you're facing the back door, Jack was on the left I think and Warren was on the right, if you're facing the back. Not facing north, south. Q. You saw them in that position; what, if anything, were they doing? A. Warren had a pair of two knives in his I looked down, I just saw a couple of knives in his hand. Q. You're doing something with your hands, can you just describe that in words? A. He had hold of knives. Like he had two knives in his hand like that. Q. You're indicating your right hand wrapped around. A. I don't know which way, whatever, but he just had hold of knives. Q. You're indicating two hands together? A. Yes. Q. Are you able to further describe how Warren had his two hands together? A. Not really, no. All I could notice, there was two knives in his hand, holding a pair of knives. Q. What was Jack doing? A. Jack was sort of standing there, sort of holding his wrists. HIS HONOUR Q. Holding whose wrists? A. Warren's wrists. DENNIS Q. What happened next? A. I just sort of. I was in a bit. I just saw the knives, I grabbed hold of the knives and they were actually facing. All I could see was just basically I could see blood and I just spun out and I just saw the knives, I grabbed the knives and actually they were facing upwards, I didn't notice at the time, and I grabbed on to them pretty tight and that's how I got the wound." 23That evidence contained the offender's explanation for the severe wound to one of his hands. It conveyed the notion that he grabbed the upturned and exposed blade of a large knife with the palm of his unprotected hand. It is unsurprising that the jury would appear clearly to have rejected that explanation.

[7]

Subjective features 35Mr Sam Borenstein examined the offender on 10 August 2012 and he reported in writing the following day. The offender was born in Brisbane, the youngest of three children. His parents separated when he was about 12. The offender described his father as "a violent alcoholic". The offender and his mother left the family home at the time of the separation and the other two children stayed with their father. Ultimately the offender's brother joined them but his sister remained with her father. 36The offender described his childhood as "pretty tough". His father was particularly violent towards Warren Purtill although the offender himself also experienced some of this. He returned to live with his father when he was about 14 and then began smoking marijuana with his father who was a heavy user. Warren moved out at this time. 37The offender attended between four and five different schools and was described by Mr Borenstein as "academically challenged". The offender recalls being told that he was dyslexic and suffered from attention deficit disorder. He had difficulty reading and writing. He read his first books in gaol. He completed Year 10 in Brisbane. 38The offender said that his sister was a lesbian and that he used to go out with her frequently to gay bars. He experimented with his own sexuality and moved in with a gay bouncer who brutally raped him. The offender was apparently then taking Rohypnol between the ages of 16 and 17 and eventually left the man who sexually abused him. The offender was again later bashed and sexually abused by the same man when confronted on the street. The offender described the man as "very violent". 39The offender sought refuge on Hamilton Island at the age of 17 where he became an apprentice chef. While there he met an older woman with whom he remained in a relationship for five years. They moved to Sydney and he took on a variety of jobs in the food and hospitality industry. They then moved to Byron Bay where he opened a restaurant. His partner met someone else and he continued to run the restaurant for about four years. He developed a dependence on alcohol and illicit substances. 40The offender developed a heavy addiction to cocaine. He travelled to Austria at the age of 26 for treatment where he stayed for some three months. He told Mr Borenstein that his treatment in Austria saved his life. 41Upon his return to Australia the offender worked as a chef in bars and clubs in the Sydney area and lived off the proceeds of a successful sale of his Byron Bay restaurant. He continued with his recreational use of drugs. He confesses to always having had a problem with alcohol. He conceded that he was an alcoholic. During this time he had only occasional contact with his family although he remained quite close to his sister. 42The offender has not been the subject of any formal psychological counselling or therapy. He has, however, participated over the years in self-development and self-improvement courses, including meditation. Meditation and his therapy in Austria helped him successfully to overcome his cocaine habit. 43The offender said that he had had "a lot of relationships". He has had three long-term relationships. The offender told Mr Borenstein that he had a seven-year-old son from a relationship with a violent and aggressive alcoholic. He also has a son aged two and half years from his relationship with Tanya Barbaro. 44The offender described suffering from anxiety, particularly in gaol. He has completed a computer course since his incarceration and plans to complete his Higher School Certificate. He maintains hope concerning his future. His hobbies include woodwork, furniture restoration and home renovation. 45According to Mr Borenstein, the offender did not display any serious symptoms of psychiatric disorder such as psychosis. His thought processes and content appeared to be normal. There was no evidence of perceptual disturbance such as delusions or hallucinations. The offender presented as cognitively intact. 46Mr Borenstein expressed the opinion that there was nothing in the offender's criminal or personal history to indicate violence or aggression. He requires in-depth psychological therapy.

[12]

Special circumstances 55At the time of his arrest the offender was drinking five to ten schooners, four to five nights a week. Mr Borenstein has referred to recreational drug use and a difficult childhood. There are also some matters of a personal nature and a need for ongoing therapy. This is also the offender's first full time custodial sentence 56The offender is currently housed at the Multi Purpose Unit at the Goulburn Correctional Centre where he has been since 21 October 2012. He is classified as remand bed placement. He has been managed with Special Management Area Placement at his own request, which was submitted upon his original reception on 21 February 2010. The offender's current placement is based upon fears he has expressed for his own safety. Details of these fears are scant, beyond a submission from counsel on his behalf that he fears some form of retribution from his brother, whom he attempted to inculpate at the trial, and Mr Kohavi who allegedly supplied the drugs to the deceased, who remains unpaid, and who is therefore allegedly vulnerable himself to others for their loss and potentially disgruntled and correspondingly vengeful. 57The consequence of his current protected status is that the offender is released from his cell for some hours less than otherwise would be the case if he were free to circulate among the general prison population and his current access to activities is also reduced. This imposes a hardship upon him that means that his imprisonment will be more onerous than if he were not classified in this way. 58It must be noted that the fears said to have been expressed by the offender for his own safety relate only to his brother, who is due for consideration for release on parole on 15 May 2013, and Mr Kohavi, whose current prison term was not clarified, but which I understand is not extensive. In these circumstances it is difficult to structure a sentence for this offender that effectively accommodates any hardship that he is likely to endure in the short term, having regard to the sentence that I am minded to impose. Clearly enough, the concerns that the offender has expressed do not easily translate, if they translate at all, to a factor attracting variation of the statutory ratio of parole to non-parole periods. I propose to take account of the fact that the offender will remain restricted and in protection for a short time. However, I do not consider that this is a matter to which I can give any particularly great weight. 59I find in particular that none of the matters to which I have been referred in this context amounts in my opinion to special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

[13]

Provocation 60There was no evidence of provocation led at the trial and the defence of provocation was not left to the jury. Even though Warren Purtill gave evidence that the offender told him that the deceased had tried to kill him, the offender wholly disavowed that version of events in the way that I have previously described. Counsel for the offender nevertheless sought to rely upon provocation as a factor mitigating the objective criminality of the offence. He did so according to the following principles. 61Section 21A(3)(c) of the Crimes (Sentencing Procedure) Act provides that evidence of provocation may be taken into consideration as a mitigating factor in sentencing. In R v Heffernan [2005] NSWSC 739, Hoeben J stated at [50]: "[50] While provocation in law was not open to the degree that may have reduced murder to manslaughter, that is not to say that the question of provocation is not of relevance for an assessment of the prisoner's objective criminality. There were as I have found circumstances which did amount to provocation, albeit that they did not reach the level required to reduce murder to manslaughter, and accordingly provocation can be taken into account as mitigating the objective severity of the conduct of the prisoner." 62To like effect in R v Borg [2010] NSWSC 951, Studdert AJ considered that, while not amounting to a defence, evidence of provocation in combination with the offender's personality disorders and chronic anxiety had an impact upon his ability to exercise self-control. At [39] his Honour said this: "[39]... I find that what the deceased said, and her decision to replace him as a director and to ask him to leave the business altogether impacted on the self control of the offender and that there was a measure of loss of self control when this crime was committed. In making this finding I have regard to the medical evidence which I accept as to the offender's personality disorder and his chronic anxiety state. Those disorders accounted in part for the impact on the offender's self control." 63A necessary precondition to the offender's reliance upon provocation in this way is evidence of some form of provocation in fact. In the present circumstances, counsel for the offender sought to argue that evidence suggestive of a struggle between the offender and the deceased, in association with the offender's contemporaneous exclamation indicating anger or outrage, was at least consistent with some level of provocation. Rhetorically speaking, why would the offender have killed the deceased as he did if not because of some form of provocative behaviour or words directed at him by the deceased? 64As superficially attractive at one level as that submission appears to be, it must in my view yield to the fact that it cannot be fairly reasoned or inferred from what little supporting material there is about it. On the contrary, any conclusion about the existence or otherwise of some form of provocation favouring the offender exists at no higher than the level of speculation. I am not in the circumstances satisfied on the balance of probabilities that the offender has established that provocation is available as a mitigating factor to be considered for the purposes of his sentence.

R v Purtill

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Judgment (17 paragraphs)

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