R v Shepherd

The offence 14 It is not known what happened after the deceased and the offender arrived at 18 Harcourt Street. A neighbour, Andre Wegner, gave evidence that he was woken up at about 3am by a female and a male shouting. He could not hear what was being said. He lived at 22 Harcourt Street. It is not clear whether these voices were those of the deceased and the offender, or persons from the hotel in the park, which was near to both houses. 15 All that is known is that something occurred between the deceased and the offender which caused the offender to become enraged and attack the deceased. Both were intoxicated at the time. The injuries sustained by the deceased indicate that the offender lost control after becoming enraged. 16 The offender struck the deceased on the back of the head while she was in the laundry using a steam iron located on the ironing board in that laundry. It is not clear whether there were one or two blows struck, although one of the blows resulted in a laceration to the back of the head. The steam iron was broken at its point and the base of it was dislodged. Part of the plastic belonging to the point remained in the deceased's hair. 17 After the iron broke, the offender used a hammer also located in the laundry, to strike the deceased a number of blows to the right side of the head, resulting in lacerations and some skull fractures. It is not clear where the deceased was when she was struck by the hammer. Blood spatter on the toilet lid on the floor and the side of the laundry suggest that the hammer struck the deceased's head when it was already covered in blood, most likely when her head was already on the floor. 18 I find that the offender struck the deceased one or two blows on the head with the iron and that when the iron broke, he then struck the deceased a number of blows to the right side of the head with the hammer. There is insufficient evidence to enable me to make any more detailed findings as to where the deceased was when these blows were struck and what the precise sequence of movements was. 19 I also find that the offender dragged the deceased to the middle of the laundry and placed the lower half of her body which was naked into a laundry bag. The deceased had lost a considerable amount of blood from her head. Dr Duflou, the pathologist, found a total of five injuries to the head with fractures under three of them. This was consistent with the administering of at least three blows to the head and probably a fourth. The cause of death was blood loss and not the fractures. There was no brain damage and the fractures themselves were not life threatening. 20 I find that following the attack the offender cleaned himself up and went to bed. Subsequently none of the deceased's blood was found on the offender's hands or in his bed. None of the deceased's blood was found outside the laundry. Inside the laundry there were a number of blood droplets and smears of her blood found in addition to large pools of blood on the floor and the blood on the deceased. Her blood was found on the offender's shirt worn at the time of his arrest and on a pair of his shorts located with his underpants and sandals outside the laundry on the paving bricks.

Subsequent events 21 Just before 8am on 21 November 2003 Jed Best, then aged 12, went to the back of 18 Harcourt Street to go to the toilet. He found the deceased lying on the floor with pools of blood on the floor and blood all over her. He went inside and woke the offender who lay apparently asleep in their bed. In the house at the time were Jed's brother, Sam, then aged seven and the couple's children, Jean Paul aged two and a half and Sebastian aged one. 22 The offender followed Jed to the back of the house and saw the deceased. Instead of responding to the boy's requests to call an ambulance or go to get Leonie (the deceased's sister who lived nearby), he told Jed to wait while he was trying to think. By this time the other children were moving around and the offender sent Jed with the children to Leonie Patterson's house at 14 Harcourt Street. 23 Shortly afterwards Ms Patterson came to 18 Harcourt Street and entered the front door. The offender appeared and she demanded to see the deceased asking him where she was and what he had done to her. She asked whether there was a need for an ambulance to which the offender responded by shrugging and holding out his hands. He told her to go home to the children and ring the police. The offender turned and walked down the hallway. As he did so Ms Patterson noticed the handle of a knife sticking out the back of his shorts. 24 Ms Patterson contacted the police. The police arrived followed by two ambulances at about 8.20am. Ambulance officers confirmed that the deceased was dead. 25 As the police arrived, the offender left the house and climbed the back fence. He ran barefooted through the yard of a nearby house and through a quarry area at the rear of a council depot. He hid for a day in an old open-cut mine. He cut his wrists and neck with a knife which was subsequently found there. 26 At 5am on Saturday, 22 November 2003 the offender walked to 5 Mitchell Street and entered an empty, unfurnished house where he stayed until 10.20am on Sunday, 23 November. In that house he made a hole in the ceiling and attached a rope with a noose through the hole and the manhole. He wrote a note on a notepad which said "I have done the worst thing ever". 27 At 10.25am on Sunday, 23 November he arrived at his mother's house in Elizabeth Crescent just around the corner from Mitchell Street. His mother Pauline and his brother Scott were present. There was some conversation. His mother asked him where he had been and he said "hiding". The offender asked if the deceased was dead and told them that he could not even remember leaving the Occidental Hotel. He told his mother and his brother that he and the deceased had been getting on well and he could not recall any argument. The police were called and he was arrested. 28 Scott Shepherd heard the accused say in relation to his children "How can they love me I killed their mother". This was included in his first statement. In a subsequent statement he amended this to "How can they love me if I've killed their mother". Scott Shepherd's evidence at trial was in accordance with the second statement. He was cross-examined by the Crown pursuant to s38 of the Evidence Act on this issue. Having seen and heard him give that evidence I find that what the offender told Scott Shepherd was that which was recorded in the first statement. 29 The offender did not give evidence at trial or in the sentence proceedings. At trial he relied upon his ERISP which was conducted by the police on 23 November. The offender said he could not remember leaving the hotel and said that he had had a lot to drink. The offender told the police in the ERISP and in a video taped walk-through at 18 Harcourt Street, that he could not believe it when he saw the deceased in the laundry and was trying to think what had happened. He said that he grabbed a knife from the drawer in the kitchen and then spoke to Leonie Patterson at the front door. He looked back in the laundry and freaked out and ran from the scene carrying the knife with the intention of killing himself. He hid at the open-cut mine where within the first few minutes he inflicted some minor cuts with the knife on his neck and wrist. At the house he made a noose as a last option. 30 When asked in the ERISP if he had killed Gabrielle Best he said: "No I did not". However, in earlier answers he said that he tried to take his own life because he was scared seeing what was in the laundry and not remembering. He said he had no idea who killed her. When asked whether he had struck her, his reply was: "Not that I remember, no." When asked if he killed her he said: "Not as far as I remember". When asked about why he had harmed himself he said it was because of the bad thing that had happened and because he didn't know. He said "What if it was me?" One specific answer given by the offender in the ERISP (Q.245) was: "A. Just waking up, not being able to remember what had happened and going out the back and seeing Gabrielle like she was, to drink and black out, it's a pretty awful feeling to wake up with and for that." 31 In recent examinations by a psychologist, Mr Taylor, (14 June 2006) and by Dr Allnutt, psychiatrist, (18 June 2006) the offender has maintained that he has no recollection of what happened early in the morning of 21 November 2003 after he and the deceased left the Occidental Hotel. 32 While in gaol, the offender sent a card to his mother which contained a poem which he had written and which he wished to be read by his children. Included in the poem was the line "One big night out, what a terrible cost." 33 The deceased was found to have a blood alcohol reading of .14. The evidence suggests that the deceased had less to drink than the offender and that she was less affected by alcohol than he was when they left the hotel. I am satisfied that the offender was well affected by alcohol at the time when the offence occurred and that his level of affectation was significantly higher than that of the deceased. That is not only consistent with his fragmentary recollection of the night, but also with observations made of him at the hotel before he left and shortly after he left the hotel.

Subjective matters 34 The offender was born on 26 April 1971 and was 32 when the offence occurred. He was the youngest of three children. He has two older brothers. He was born and raised in Cobar. His parents separated when he was a baby and he was effectively raised by his mother. The offender has always had a close relationship with his mother, as well as with his siblings. 35 His schooling was relatively uneventful. He was not particularly interested in study. He completed his Higher School Certificate at Cobar. He gained an aggregate mark of 264/500. During his schooling he did not have any significant disciplinary problems although when he was in years 11 and 12 he had been suspended on a couple of occasions for "clowning around". He performed farm work and worked in the mines at Cobar until he went to Sydney. He married in Sydney at the age of 23. That marriage lasted about four years and produced two daughters. The circumstances surrounding the marriage breakdown were very difficult and the offender was subjected to considerable strain. Thereafter he experienced difficulty in obtaining regular access to his daughters. 36 He returned to Cobar in about 1998 and resumed working in the mines. 37 The offender commenced consuming alcohol at the age of 17/18 years. He told Mr Taylor and Dr Allnutt that he tended to drink on weekends and it was "a binge drinking type of atmosphere in a mining town". Despite episodes of heavy drinking of that type from time to time, he was not regarded as a heavy drinker. From the age of 18 the offender had used cannabis. At the time of the offence he was using it only on an intermittent basis. Its use had nothing to do with the offence. 38 The offender was convicted of some minor offences when he was 18 and 19 years of age. One of those offences was alcohol related. Thereafter the offender had not engaged in any criminal activity until the time of the offence. I consider him to be a person of good character. 39 Neither Mr Taylor nor Dr Allnutt found any propensity for aggression in the offender. He did not have a history of aggressive behaviour or fighting. There was no background of violence against women, other than the pushing and shoving incident with the deceased previously referred to. There was no evidence of any personality or significant emotional disturbance. 40 Both Mr Taylor and Dr Allnutt thought that there was a low likelihood of the offender re-offending, particularly if re-offending involved aggression. Both considered that the prospects of rehabilitation were good despite the fact that he was in denial about having committed the offence. I agree with those conclusions and I find that the offender has very good prospects of rehabilitation with a low risk of re-offending. 41 In relation to remorse Mr Taylor observed: "Mr Shepherd continues to be unaccepting of his guilt in relation to the murder of his partner. He has no memory for having committed the crime and finds it impossible to believe that he could have killed her. Whilst he is unable therefore to express any remorse for his offending behaviour he has expressed very considerable feelings of grief that his partner has died." 42 That assessment by Mr Taylor conforms with my own impression of the offender. Although he has not been prepared to accept full responsibility for what he has done, it is clear from the poem which he sent to his children, from his attempts at self-harm and the entry in the pad found in the house at Mitchell Street that he is genuinely remorseful and sorry for what has occurred even if he cannot squarely face the fact that he committed the offence.

Victim Impact Statements 43 Victim Impact Statements from the deceased's mother and from the deceased's brother, Christopher Best, were tendered. That from Christopher Best, which was read out in court by his wife, was particularly poignant since it referred to the deceased's four children whom Christopher and his wife have now taken into their family. Both statements evidence the very special place which the deceased had in their lives and in the lives of others with whom she came in contact. These statements afford eloquent evidence of the value of the life of the deceased and the grief her death has occasioned to all her loved ones. It is appropriate that the loss and its consequences for the family of the deceased and the community is here acknowledged. 44 Nevertheless I must heed the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions in R v Previtera (1997) 94 A Crim R 76, R v Berg [2004] NSWCCA 300 at [43] and R v King [2004] NSWCCA 444 at [171], and approach my sentencing task objectively and dispassionately. It is not appropriate, following the authorities mentioned, that I take those Victim Impact Statements into account in determining an appropriate sentence.

Objective Seriousness 45 The maximum penalty for the crime of murder under s19A of the Crimes Act is imprisonment for life. The maximum penalty is intended for cases falling within the worst category for which that penalty has been prescribed. (S61 Crimes (Sentencing Procedure) Act 199.) It was submitted on behalf of the Crown and the offender that this offence did not fall within the worst category. I agree. Accordingly a specified term of imprisonment in accordance with s21(1) of the Act should be imposed. 46 That does not end the matter. The offence was committed after 1 February 2003. Accordingly the provisions of ss54A and 54B of the Act apply. The standard non-parole period for the offence of murder is 20 years. 47 Those sections relevantly provide: "54A(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set a standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account …" 48 There are difficulties in interpreting those sections. These were identified by Studdert J in R v White [2005] NSWSC 667 where his Honour said: "32 What then is an offence of murder in the middle range of objective seriousness, to which the standard non parole period relates? 33 There is no statutory definition to assist in determining this. Whilst all murders are, of course, to be regarded as extremely serious, the range of circumstances which may bear upon the objective gravity of this category of crime is widely variable. 34 I find it extremely difficult to determine where the boundaries of the middle range of objective seriousness of the crime of murder are to be set, but proper consideration of the significance of s 54A and s 54B requires that I endeavour to assess where the offender's crime would lie in relation to the middle of the range, heeding what was said in Way , particularly at paras 72-102. How else can I use the middle of the range as a guidepost as I endeavour to arrive at an appropriate sentence? 35 Section 54B(2) requires the Court to set the standard non parole sentence in a case to which the section applies "unless the court determines that there are reasons for setting a non parole period that is longer or shorter" than that standard period.

36 It was determined in Way (see para 118) that whether there are reasons for departing from the standard period will depend upon consideration of: "(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1)."" 49 As a start point in the process of reasoning recommended in R v Way (2004) 60 NSWLR 168, it needs to be remembered that murder is a crime which can be committed under a wide range of circumstances. There are always significant differences in the subjective circumstances. Generally an offence involving an intent to kill is more serious than one where the intention is to inflict grievous bodily harm (R v Hearne (2001) 124 A Crim R 451 at [34]. Similarly, a murder which is not premeditated is usually regarded as less serious than one which involves planning. 50 Quite clearly the attack on the deceased was not premeditated. Until 2am on the morning of 21 November 2003 relations between the offender and the deceased were not only cordial, they were affectionate. What happened after that time to change the situation will never be known but whatever occurred to cause the offender to attack the deceased, it was not premeditated and was not planned. 51 On behalf of the Crown it was submitted that the ferocity of the attack, the weapons used and the number of blows involved compel a finding that the offender must have had an intent to kill. In order for me to make such a finding, I need to be satisfied as to that issue beyond reasonable doubt. 52 There is simply not enough evidence to enable me to make a finding to that standard that there was an intention to kill. In addition there are other considerations which suggest a lesser intent, ie to inflict grievous bodily harm. 53 The offence appears to have been committed as a result of some disagreement between the offender and the deceased leading to a loss of control by the offender. The weapons used were opportunistic. His advanced state of intoxication needs to be taken into account on the question of intent. The evidence of Dr Duflou was that although a number of blows were struck to the deceased's head, they were delivered with moderate force and not a force sufficiently severe to cause brain damage. That is an important finding because the offender is a very big man and the deceased was quite small in comparison. Had the offender used anything like his full strength in delivering any of the blows to the head of the deceased, it is most likely that brain damage would have been caused. 54 Another matter of some significance is the behaviour of the offender after the attack on the deceased. He did not attempt to escape but went to bed. That would seem to be inconsistent with the actions of a person who had intended to kill the deceased and who believed he had successfully carried out that intention. 55 For those reasons I have concluded that there was no intention to kill on the part of the offender, but rather an intention to inflict grievous bodily harm upon the deceased. 56 I have referred to the offender's advanced state of intoxication. Clearly, as the jury found, it was not sufficient to prevent the offender forming the necessary intent to commit murder, but it is a matter to be properly taken into account as part of the background circumstances. From all of the evidence this offence appears to have been entirely out of character. Apart from one incident, there was no suggestion of any violence in the relationship between the offender and the deceased. There was no suggestion of any violent propensities in the deceased. Accordingly, it is relevant to take into account that alcohol played a significant part in causing the offender to lose control and act in such a violent way. 57 As required by s54B of the Act, I need to take into account the aggravating and mitigating factors referred to in s21A. 58 In relation to aggravating factors, the offence involved the use of a weapon. The use of a weapon is not unusual in this kind of offence. Otherwise the aggravating factors in s21A(2) do not apply or refer to matters which are elements of the offence. For example s21A(2)(g) refers to "the injury, emotional harm, loss or damage caused by the offence was substantial". These features were present but they are inevitable elements in any offence of murder, it being the most serious offence in the criminal calendar. 59 In relation to mitigating factors under s21A(3), the offence was not part of a planned or organised criminal activity, the offender was a person of previous good character without any significant previous convictions, the offender is unlikely to re-offend, the offender has good prospects of rehabilitation and the offender has shown a measure of remorse. 60 All of the above matters are relevant in considering the relative seriousness of the offence for the purposes of ss54A and 54B of the Act. As was said in R v Way: "86. Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, insofar as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. … 88. In an assessment of the objective seriousness of the subject offence, it seems to us that attention must accordingly be given to the factors mentioned above. Some of these relevant factors will be elements of the offence itself. Others will fall within the list of aggravating and mitigating factors referred to in s21A(2) and (3) of the Act, so far as they relate to purely objective considerations." 61 Taking those matters into account, I am satisfied that this offence is not a matter which should be properly characterised as coming within the midrange of objective seriousness for offences of this kind. I see the offence as being close to that standard but below it. Accordingly I find that the standard non-parole period ought not apply to this offence. That is not to say that I propose to ignore the standard non-parole period of 20 years. It remains, as the authorities have pointed out, an important guidepost in the sentencing process - R v AJP (2004) 150 A Crim R 575 at [122].

Sentence 62 The Court was provided by both the Crown and by counsel for the offender with an impressive array of statistics and cases dealing with sentences imposed for the offence of murder in factual circumstances similar to those surrounding this offence. The sub-category was described in submissions as "domestic murders" and the cases referred to involved the murder of wives, girlfriends and partners. In only 22 of those cases were sentences passed after the standard non-parole period regime came into effect. Of those 22 cases, only 16 have relevance to this offence and 10 of those involved pleas of guilty. Accordingly only limited assistance was provided by those cases. 63 The sentence which I propose to pass includes in it a substantial period during which the offender will be eligible for parole. Accordingly I do not propose to alter the statutory ratio between the non-parole period and balance of term in the sentence. To extend the parole period at the expense of the non-parole period would produce a sentence which did not adequately reflect the seriousness of the offence and the purposes of sentencing in s3A of the Act. Accordingly, I decline to find special circumstances despite the fact that this will be the offender's first time in custody. (R v Simpson (2001) 53 NSWLR 704.)

64 As indicated above, the offender has a powerful subjective case. I have found that he is unlikely to re-offend and that he has very good prospects of rehabilitation. He was a person of good character until this offence and the offence itself can be regarded as quite contrary to and out of step with his normal mode of behaviour towards women in general and the deceased in particular. I accept that the offender does have a genuine level of remorse despite his present inability to accept the full consequences of his actions. 65 I have also had regard to the particular circumstances of the offence in that it was not premeditated, that alcohol played a significant part and that there was no intent to kill, but rather an intent to inflict grievous bodily harm. 66 Nevertheless the offence of murder has always attracted the abhorrence of the community and a sentence for murder must reflect the element of personal deterrence. There must be a reasonable proportionality between a sentence and the circumstances of the crime. In this case the crime was one of great violence. 67 The Court in sentencing has to take account of the provisions of s3A of the Act and the purposes therein identified in relation to sentencing, ie to ensure that the offender is adequately punished, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce the conduct of the offender and to recognise the harm done to the victim and the community. 68 In this case the elements of general deterrence and retribution have considerable relevance because of the very serious criminality involved in the unlawful taking of another person's life. I also have regard to the standard non-parole period provided for by s54A of the Act as an important guidepost, even though I have declined to apply it. Accordingly I am satisfied in this case that a lengthy term of imprisonment must necessarily be imposed to give effect to the purposes expressed in s3A of the Act and to properly reflect the circumstances of the offence. 69 In relation to the murder of Gabrielle Best, I sentence you to imprisonment with a non-parole period of 15 years to commence on 23 November 2003 and to expire on 22 November 2018 with a balance of term of 5 years to expire on 22 November 2023. You will be eligible for parole on 22 November 2018. I have backdated the commencement of the sentence to 23 November 2003, being the date upon which you first went into custody. **********

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