Facts
29The facts of the matter, based upon the evidence given in the trial and, in respect of critical matters of which I am satisfied beyond reasonable doubt, are as follows.
30I have mentioned that the offender had been in a relationship with Ms Shantell Dargan from sometime in 2009 until he committed the last of the offences mentioned above and went to gaol. For some reason she agreed to resume the relationship after he was released from gaol in February 2011, notwithstanding the currency of the ADVO.
31Ms Dargan and Ms Perry had met in 2010 and they became friends. In about February 2011 they decided to lease and move into a two-bedroom apartment at The Entrance. The offender moved in and shared one of the bedrooms with Ms Dargan.
32On 8 April 2011, there was an informal social gathering at the unit. By about 10.00pm some other people had left and there was just the offender, Ms Dargan, Ms Perry and another young woman, Catherine Wills present. All were drinking, although the offender claimed that, in contrast to the others, he was only drinking in moderation. There was loud conversation and music and also, albeit it seems relatively briefly, some physical violence involving the women. A neighbour was driven to get out of bed in the middle of the night and go to the unit to tell the occupants to quieten down.
33Ms Perry and Ms Wills seem to have become significantly intoxicated. The three women went to sleep at around 3.00 or 4.00am. The offender said in his evidence in the trial that he stayed up and cleaned the house. He said that he laid down for about half an hour but did not go to sleep. The fact that he had been using the drug known as "Ice" might explain that. He said that he got up at around 6.00am and cooked breakfast for everyone.
34There was an argument between Ms Dargan and the offender. She said that he slapped her in the mouth and threw food in her face. According to Ms Wills he grabbed Ms Dargan by the hair and flung her to the ground. (The difference in the two accounts is immaterial). Ms Wills told him to stop fighting and to leave Ms Dargan alone. Ms Dargan hurriedly fled the unit and ran towards a nearby service station. The offender chased after her and pleaded with her to return but she did not. According to the statement that Ms Dargan made on 10 April 2011, he threatened to "flog Priscilla" and that he would "smash the house up" if she did not return. When she got to the service station, which according to CCTV material was at about 10.30am, she asked the attendant to call her a taxi. The attendant saw she was in some distress and inquired about her health. She told him that her boyfriend had been hitting her. She then went to her mother's home in a nearby town on the Central Coast.
35Meanwhile, Ms Perry had spoken by telephone with a friend who lived in a suburb of Gosford at about 9.30am. She then went to this friend's home at about 10.30am and gave her a lift to a shopping centre at Tuggerah and then returned to the unit at The Entrance.
36Ms Perry, Ms Wills and the offender remained in the unit for the balance of the day. The offender spent considerable time calling and texting Ms Dargan. Much of these conversations related to how they loved each other but she also expressed exasperation about arguments and fighting between them. Ms Dargan said that in one of those calls he said he was going to drive Ms Perry's car over (presumably to Ms Dargan's mother's home) and that "Priscilla's going in the boot". She also said that the offender spoke of "wigging out" (which seems to be an expression he used to indicate that he was stressed) and that Ms Perry was arguing with him.
37A neighbour in the unit block said that at about 11.30am she heard sounds of arguing in the unit and that a male voice said in a forceful, aggressive tone, "Just do it now".
38The same neighbour said that at about 4.00pm she passed by the unit and she heard more arguing. She heard a female voice (I am satisfied this was Ms Perry) saying, "I've had enough. You don't pay rent, you don't pay for anything. I'm sick of it. I just want you to get out".
39At about 4.30pm, another neighbour heard noises from the unit which included a female crying and whimpering.
40At around this time the offender had a telephone conversation with Ms Dargan. Ms Dargan said that she could hear Ms Perry in the background. According to Ms Dargan, what the offender said included:
You'd better get here. I'm going to wig out. Priscilla is carrying on. I can't handle it.
41Ms Dargan told him to stop arguing with Ms Perry and to "just go".
42Soon after this the offender sent a series of text messages to Ms Dargan and others, including her sister Angelene. The content indicates that he was in a distressed state. I am satisfied that this was after he had seriously assaulted Ms Perry. For example, in a message split over two texts sent at 5.21pm he said:
I lost it ange prescilla carry on I tie her up n dnt know what 2 do she carry on bout shanny [a reference to Shantell Dargan] bash her n Katie [Ms Wills] last nite n try call cops plz get shanny asap im wiggn n dnt know what 2 do
43Various calls and texts which followed involved the offender presenting a false picture of what had occurred and minimising his culpability. Later communications included reference to him wanting to kill himself.
44I am satisfied that what occurred was this. Ms Perry and the offender did not get on. It seems that she was annoyed at him for living in the unit that she and Ms Dargan had rented. On 9 April 2011, Ms Perry (and Ms Wills for that matter) were drinking heavily as they had done the night before. The offender's evidence was to the effect that whilst he consumed some alcohol, his intake was relatively minimal.
45As early as the morning to that day the offender was expressing displeasure and a contemplation of assaulting Ms Perry. Later in the day, in her disinhibited state, Ms Perry gave vent to her displeasure about the offender's presence in the unit. This was the argument overheard by a neighbour at about 4.00pm.
46At this point the offender completely lost his temper and savagely assaulted Ms Perry. He kicked her more than once to the mouth, causing the complete dislodgement of both of her upper front teeth. Given the number of injuries she sustained it is highly likely he punched her a number of times. I am satisfied that he also stomped on her head given the severe injuries to the same areas on both sides of her head. The assault was likely over by about 4.30pm when the neighbour heard a female in the unit crying and whimpering.
47The offender may have tied Ms Perry up, but of this I cannot be certain. He made reference to doing so in subsequent statements that he made. Rope was present with blood on it, but there were no rope marks on the body.
48After Ms Perry had died, the offender rolled her up in a doona in her bedroom, placed pillows or cushions on top, and then positioned a mattress over her. As a further indignity he stuffed toilet paper in her mouth. He then set about an amateurish effort to clean up all the blood stains in the unit.
49Police came to the unit at about 9.30pm. It was locked and in darkness. They pressed the intercom button and the offender saw on a video screen that it was the police. When the officers tried to access the unit via a bedroom window, the offender fled via the front door. He made his way on foot to Ms Dargan's mother's home where he hid in the garage. He endeavoured to avoid being located by the police by taking the battery out of his mobile phone. He claimed in his evidence in the trial that he simply wanted to see Shantell before turning himself in or being arrested. That was nonsense; hiding in the garage was not going to achieve that aim. Ultimately the police found him there and he was taken into custody.
50The offender's defence at trial was that the injuries to Ms Perry that caused her death were sustained by her through a combination of having been assaulted by Ms Dargan the night before and by various falls that Ms Perry experienced because of the extent of her inebriation. He reluctantly acknowledged some involvement in her death but this was limited to a single kick and a push in reaction to her assaulting him.
51The Crown called Professor Lyons, a most experienced forensic pathologist. He noted "thirty plus injuries" to Ms Perry's head, neck, torso and upper and lower limbs. It was the combination of injuries to the head which caused death. The most significant of the injuries included a prominent area of blue-black bruising to the left eye orbit; significant bruising and injury to and around both ears; boggy swelling and oedema around the right ear; minor injuries in the nature of abrasions to the right ear lobe; a laceration and bruising to the upper lip; a laceration and blue-black bruising to the lower lip; avulsion of both upper front teeth, including the loss of the root structure of these teeth; and a discoloured abrasion underneath the chin.
52These injuries resulted in significant brain injuries. Professor Lyons found a marked sub-scalp haemorrhage around the swelling of both the left and right ear areas, spreading to the parietal and occipital areas; extensive sub-dural and sub-arachnoid haemorrhage; cerebral oedema and transtentorial herniation; and bruising and shearing within the tissue to the brain at the inferior temporal lobes. It was his view that the head and brain injuries were consistent with there having been a severe beating. The avulsion of the two upper teeth was consistent with being caused by forceful kicking to the mouth. I am satisfied that there were at least two forceful kicks, given the two wounds on the offender's left ankle which were at right angles to each other. The injuries to the ears were typical of what is seen if an individual's head is on its side on the ground and is stomped upon. The combination of injuries were inconsistent with Ms Perry having fallen.
53The defence called Dr Byron Collins who spoke in general terms about how blunt force trauma can cause injuries to the head, and how victims of such trauma can experience a "lucid interval" of up to 24 hours or more before succumbing to death as a result of injuries to the brain. The inference being advanced in the defence case was this was consistent with the fatal injuries having been sustained the previous night.
54The significant distinction between the evidence of the two pathologists was that Professor Lyons related his opinions to the specific injuries sustained by Ms Perry, whereas Dr Collins spoke about general concepts and general propositions. He did not explain how it was that a person could suffer the specific injuries Ms Perry sustained by the mechanisms suggested by the defence case theory. The jury obviously preferred the evidence of Professor Lyons.
55Aside from the forensic pathology evidence, two other matters brought about the offender's undoing at trial. The first was that his evidence was completely incredible. I say this not only because of what he said and but also because of the manner in which he presented in the witness box. His account gave the distinct impression that it was well rehearsed and tailored to meet the evidence given in the prosecution case. For example, where he had occasion to repeat his evidence on a particular topic, he often did so in almost verbatim terms. There were many features of his account that were implausible; one example which was quite absurd was that after kicking Ms Perry in the mouth, once, she complained of having a chipped tooth and said, "Look what you done to me you fucking cunt". A short time later he apologised, cuddled her and tried to comfort her by telling her a lie that his cousin was a dentist.
56A number of statements made by the offender after the killing were also his undoing. One was a telephone call to Ms Dargan that, unbeknown to him, was recorded by a police officer. During the course of this conversation he told Ms Dargan:
I was trying to drink a glass of fuckin wine, trying to drink a fuckin bit of port today. And she fuckin, I grabbed her by the hair babe and fuckin, I kicked her teeth out, like I kicked her and fuckin I got her tooth stuck in me foot, me foots all sore and that.
57Another was in a telephone conversation just after midnight with Detective Sergeant Vanderwolf who was trying to encourage the offender to turn himself in. The offender told him:
It wasn't fuckin like meant to happen or anything, it was just a split second fuckin, she's screaming her fuckin head off ... Goin, 'Ah I'm gonna ring the cops you scum bag', and that, 'Fuck you', in me face and fuckin carrying on. Talke to me girl [i.e. Ms Dargan], she's been doin it fuckin like a lot lately ... and getting on the wine and we've been good and we haven't been drinking and that cause we've had drinking problems. And, and fuckin trying to do the right thing and she's been drinking in the house every day and fuckin, just fuckin doing me head in like, I'm fuckin.
It was like, fuckin, I know how easily like you can fuckin like someone can hit their head and die and things like that but I never fuckin planned it or thought of anything it just went bang, fuckin, next minute I think she's alright, I was talking to her too, and like cause I chipped her tooth".
58Another was a telephone conversation he had with a former girlfriend, Ms Tyla Singleton, in a call he made at about 1.00am. In it he referred to having "kicked" and "stomped" upon the deceased. When he called Ms Singleton from gaol after his arrest (Exhibit X), what he said included:
This chick's just drunk carrying on and that and that and fuckin' I couldn't handle it ... I got a bad temper at times so I could only take so much of it.
59The offender is not to be punished more for the fact that he has been dishonest in his account of the circumstances of Ms Perry's death. The significance of his evidence being so incredible is that claims that he made, such as that Ms Perry assaulted him, and that he only kicked her once and otherwise did not assault her, must be rejected out of hand. It is also significant in that is indicative of a lack of insight into the extent of his violent propensities and that in turn bodes unfavourably in terms of his rehabilitation prospects.
60Various statements by the accused in the hours and days following Ms Perry's death included that, "it was an accident". I am satisfied that all he meant by this, although he does not truthfully acknowledge it, was that it was not planned. He just lost his temper; he snapped and exploded in a fit of rage and extreme violence.
61It would seem likely that his temper was developing over a period of time; he told Ms Singleton and his brothers Korri and Dayn in telephone calls from gaol that his assault upon Ms Perry was a result of "a big build-up of things". And he acknowledged his bad temper not only in the excerpt from the call to Ms Singleton I have just referred to but also in a call to his brother Dayn when he said:
I've got a fuckin' anger problem anyway and fuckin' people should've helped me fuckin' more to start with.
62That there was this "build up" is further indicated by his statement earlier in the day to Ms Dargan that he would "flog Priscilla" if Ms Dargan did not come back to the unit.
63I accept the Crown submission that another matter relevant to the objectivity gravity of the offence is Ms Perry's extreme vulnerability. She was a woman well affected by alcohol and the drug quetiapine to an extent that her cognitive function and motor skills would have been substantially impaired. Her ability to physically defend herself against a fit and strong man would have been virtually negligible. This, and all of the other matters I have mentioned which are relevant to the objective seriousness of the offence leads me to accept the submission by the Crown that it is one that is "gravely serious and requires the imposition of a significant custodial sentence".
64I will mention shortly some evidence given this morning by Dr Wayne Reid, clinical neuropsychologist. It was his opinion that the offender possibly suffered from a brain injury and this was the subject of a submission that this rendered the offence less seriousness than it otherwise might be. I will say something more about this later but for the moment I simply record that, having regard to his criminal history, any reduction of the offender's moral culpability for the offence is minimal.