R v Stanley Edward Fernando

Supreme Court of NSW|2002-06-11|Before: Barr J, Graham Barr J

CITATION : R .v. MARTIN [2002] NSWSC 577 FILE NUMBER(S) : SC 70100/01 HEARING DATE(S) : 11 June 2002, 12 June 2002, 13 June 2002 & 17 June 2002 JUDGMENT DATE : 18 June 2002

PARTIES : Regina Gerard Thomas MARTIN JUDGMENT OF : Barr J at 1

COUNSEL : Mr M.A. Macadam QC for the Crown Ms L.M. McSpedden for the Offender SOLICITORS : S.E. O'Connor for the Crown Legal Aid Commission of NSW for the Offender CATCHWORDS : Criminal law - sentencing - murder CASES CITED : R v Stanley Edward Fernando (1992) 76 A Crim R 58 DECISION : See Judgment at Paragraph 43

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: On the second day of his trial the offender Gerard Thomas Martin pleaded guilty of the murder on 6 February 2001 at Adelaide of Kerry Jane Johnson.

2 The offender and the deceased knew each other as children and began to live in a de facto relationship in March 2000. They were both addicted to alcohol. On 12 April 2000 a fight erupted between them and there was an exchange of blows. The deceased lost a tooth. No action was taken. On the following day, while the offender and the deceased were drinking together, a man approached the offender and said that he wanted to have sex with the deceased. The offender reacted by repeatedly punching the deceased in the face. The police were called and arrested the offender. The deceased was taken to hospital and treated for injuries to her mouth. On 11 May 2000 the offender pushed the deceased to the ground and kicked her in the head, then jumped on her head with both feet. She bled from the mouth and the nose. The offender was charged with assault occasioning actual bodily harm and an apprehended domestic violence order was issued.

3 The relationship between the two came to an end and the deceased took up a relationship with Mr Kevin Mackay. On 3 August 2000 the offender and the deceased were living in adjoining houses and as the deceased was walking home she had to pass the offender's residence. He came out as she did so and an argument began. He pushed her onto the roadway and punched and kicked her a number of times. She was taken to hospital and kept in intensive care. She was bleeding from the mouth and her nose was swollen. Again the offender was arrested and charged.

4 As a result of the assaults of 13 April, 11 May and 3 August the offender was sentenced to serve three concurrent gaol terms of six months. Those terms expired on 4 February 2001. The offender was released from custody at 8.20am on that day.

5 At the time of the fatal attack Mr Mackay and the deceased were camping together at a location near the old railway station in Broken Hill called the Pepper Trees. Other people camped there as well and alcohol was consumed. At about 7am on 5 February 2001 Mr Mackay found the deceased badly hurt. She was alive but unconscious. She was naked. Marks on the ground showed that her body had been dragged towards the place where it was found. A bloodstained rock was found near the deceased's head.

6 The relationship between the deceased and Mr Mackay continued until the time of her death and the offender knew about it. The Crown tendered evidence to show that while he was serving his sentence the offender threatened to kill the deceased. It is necessary to deal with the evidence in detail because it was submitted on behalf of the offender that the evidence should be rejected as unreliable.

7 Within a few hours after finding the deceased injured, Mr Mackay took part in an interview with investigating police officers. A video-tape was made of the interview and a transcript taken. The transcript sets out the following questions and answers - Q34. Where were you yesterday when you last saw Kerry? A. Pepper-tree. Q35. Was anyone else there? A. Rexy, Rexy Johnson, he was there with us and another fella walked up. I think he just come out of gaol. That's the bloke that nearly killed her. He told her, he told her straight to his face, "I'm going to kill you". Q36. Can you tell us about that? A. When he was in gaol out here and he found out that Kerry was livin' with me he said, "I'm going to kill you". When he come out of gaol he come down to pepper-trees down there an she's in hospital now. That's what he did and I was too drunk to help her. But I catch him. Q37. And how do you know he said that to her, how do you know he said to her "I'll kill you"? A. I was there, when she was there. I think her sister was there too, I think, I'm not too sure. Q38. Who's Kerry's sister? A. What's her name, she live, gee, well, anyway, I forget her name, but I know her anyway. Q39. And when did he say this to Kerry? A. Last week. About a week before he come out of gaol. Q40. I'm sorry. A week -? A. Mm. Before he come out of gaol. Q41. When did he come out of gaol? A. He must have come out this week some times. Yeah. Q42. And who is he? A. Her ex boyfriend. She finished with him, that's why he went to gaol 'cause he nearly killed her. Q43. What's his name? A. Mm? Q44. What's his name? A. Gerard Martin. Q45. Gerard Martin? A. Mm. Q46. How do you know Gerard Martin? A. She told me. Q47. She told you, or he told you? A. No, she did. She said, he's in gaol 'cause he, he nearly killed her, that's why he went to gaol. I think I know him, I think, yeah."

8 Then Mr Mackay described a man who might have been the offender. He also gave evidence about things said by the deceased herself. There were these questions and answers -

A193. But she told me about him. She told me what he was going to do to her. I don't know how he did it, but he sent a message out from gaol that he was going to kill her. Mm. Q194. And how did you find out about that? A. She told me. Q195. She told you? A. Mm. Q196. Do you know how she found out? A. People comin' out of gaol. He give someone a message-- Q197. Right. A. -- I don't know who it was, but someone had a message. He said, "I'm going to kill Narny. Narny was the deceased's nickname.

9 At the request of counsel for the offender I looked at part of the video-tape taken on the occasion of Mr Mackay's interview and at a transcript of evidence he gave before the magistrate. It was submitted that Mr Mackay appeared during the interview to be drunk and that consequently his recollection of events was likely to be unreliable. I noticed a distinct slurring of Mr Mackay's speech, but that of itself does not indicate to me that he was affected by alcohol at the time. It is apparent from the interview that, like the offender and the deceased, he was used to drinking substantial quantities of methylated spirits. I would not expect the sober speech of such a person to be above criticism. I thought that he answered questions promptly and appropriately and obviously understood as soon as asked what the interrogator was asking. He was asked at committal whether he was affected by alcohol when interviewed and replied that the smell of metho was on him but that he was not affected. I think that that answer was true. 10 It was submitted that his evidence at committal fell short of what he said in his interview and that I should deal with his evidence as though he would not have given evidence at trial consistent with the account he had given in his interview. I have read the transcript of his examination and cross-examination before the magistrate. He was never asked about the offender's threat to kill the deceased. He confirmed the deceased's report that the offender would kill her. I am unable to accept the submissions. 11 I accept the evidence of Mr Mackay that the offender threatened in his presence to kill the deceased. I also accept his evidence that the deceased told him that she had received from the offender, directly or indirectly, threats to the same effect.

12 I also accept the evidence of Mr Eric Russell that the deceased told him that the offender was going to kill her.

13 I am satisfied that the offender was jealous of the deceased's relations with men and that his resentment led him to wish to do her harm. His resentment was probably made stronger because of the gaol term he had had to serve for assaulting and hurting her.

14 Immediately after his release from Broken Hill Gaol the offender went to the house of the Dutton family, relatives of his, in Broken Hill. The occupants and the offender purchased alcohol and went to Menindee where they spent the rest of the day. They arrived back in Broken Hill during the evening. More alcohol was purchased and they continued drinking. During the evening the occupants noticed that the offender had left the house. 15 On the same day Mr Mackay, the deceased, Mr Rex Johnson, a relative of the deceased, and Douglas Hele were at the Pepper Trees camp. Mr Johnson went to sleep while it was still light and was not woken until after Mr Mackay had found the deceased injured. Mr Hele said that before he went to sleep a young man he did not know came up and asked for a drink of water, then walked away. I accept that evidence and that the man described by Mr Hele was the offender. Mr Mackay says that the offender came to the camp during the night and that he and the deceased walked off together.

16 When a member of the Dutton family arose on the following morning he noticed that the offender had returned to the house and was asleep. He saw blood on his face. Photographs of the offender later taken by the police show blood on both sides of his face and on his ears. A number of people saw the offender with blood on him.

17 The deceased was taken to Broken Hill Base Hospital but because her injuries were so severe she was transferred to the Royal Adelaide Hospital. She died there on 6 February 2001. A post mortem examination showed significant facial and head injuries and also swelling and bruising of the vulva and lacerations to the genitalia. Injuries included lacerations to the scalp, the bridge of the nose, the lips and the tongue. There was bruising to the scalp, eyes, mouth and shoulders. There were abrasions to the back, buttocks and arm. Seven adjoining ribs on the left side were fractured, those injuries being consistent with a heavy fall or stomping.

18 The injuries to the genitalia involved marked swelling to the vulva, lacerations respectively 7.5 centimetres, 5 centimetres, 4.5 centimetres, 4 centimetres, and 2 centimetres long to the labia majora and labia minora as well as other lacerations. The forensic pathologist expressed the opinion that the state of the genitalia was more likely to have resulted from forcible blows to the vulva from a blunt object such as a fist, rock, stick or bottle. Those injuries did not exclude penile penetration before or after the infliction of the injuries. Death resulted from an acute subdural haematoma resulting from blunt head trauma.

19 The offender was arrested and a tee-shirt and track pants that he was wearing were taken and examined. Blood spots were noticed and swabs taken for DNA testing. The resulting profile matched the DNA profile of the deceased. The probability of its being a chance match with the DNA of anyone else in the community was less than one in ten billion.

20 Debris resembling decayed plant material was recovered from the deceased's vagina. Debris of a similar appearance was found on the offender's penis. DNA was extracted from semen found on the debris recovered from the deceased and proved on examination to be a mixture originating from at least one male and one female. Neither the deceased nor the offender could be excluded as contributors. On the assumption that the female DNA was contributed by the deceased and that only two people contributed to the mixture, it was estimated to be 350 million times more likely that the male DNA originated from the offender than from any other member of the general population.

21 The offender decided not to give evidence on sentence. He gave accounts to Mr Bembrick, a social worker, whose report was received into evidence, and to Mr Jeff Wangmann, the author of the pre-sentence report. He also gave an account to Dr Stephen Allnutt, psychiatrist, whose report was received. He told Mr Bembrick that he became jealous when the deceased spoke of other men and that he would flog her. I can accept that account because it is consistent with all the other evidence. However, I cannot accept as truthful his claim to Mr Bembrick that he wanted only to hurt the deceased, not kill her. That statement was unable to be tested and was inconsistent with the threats the offender made from gaol to kill the deceased. It is significant in this respect that the offender attacked the deceased within twenty-four hours, and perhaps as little as sixteen hours, after his release.

22 The offender told Mr Wangmann that he went to the Pepper Trees to drink with Mr Mackay and was surprised to see the deceased there. He said that sexual intercourse was had by consent and that at that time or shortly afterwards he became upset about alleged sexual relations between the deceased and his father and started flogging her. The offender also told Mr Bembrick that a cause of his anger was an account he had heard about a sexual relationship between his father and the deceased. He told Dr Allnutt that after spending time drinking with the Dutton family he went to the Pepper Trees to see if anyone was drinking there. He saw the deceased. He was surprised to see her. He woke her and they had consensual sexual intercourse. She told him to leave. He lost his temper and attacked her. He thought that the deceased would be all right next morning. He did not intend to kill her.

23 Some parts of this account may be true but whether they are and which parts it is impossible to say. The offender knew that the deceased and Mr Mackay were in a relationship. If he expected to find Mr Mackay at the Pepper Trees he must have expected to find the deceased there as well. I think it unlikely that he was surprised to see her there. I think it unlikely in view of their history and the offender's knowledge of her relationship with Mr Mackay that he would have asked for sex. I think it unlikely for those reasons and because of the deceased's fear of him that she would consent to sexual relations.

24 Mr Mackay said that the offender came to the Pepper Trees during the afternoon and that the deceased went with him to have sex. When asked how he knew, he said that he knew the deceased and had seen a flattened place where they had lain. Later in his interview there were these questions and answers - Q 248. So, how, how did Kerry seem when, when he turned up at the pepper-trees? A. I don't know, she was, I suppose, I don't know, she must have been happy 'cause she went with him. He made her go with him anyway. Q 249. You said he made her go with him? A. No. He could have, she could have said, I'll go with you. Yeah, she must have said, because she went with him. He might have, I don't know what he, what he did, but she went with him anyway. Q 250. And did he force her to go with him? A. He said, "Come with me". She said, "No, I'm living with Kevin". Q 251. But she went with him? A. Yeah. Yeah. Q 252. Did she go with him of her own free will? A. I, I don't know. Q 253. Did he in some way force her to go with him? A. He could have. I think he could have. Q 254. O.K. How, how did he do that? A. Well, he could have said, I'll punch the daylights out of you. Q 255. Did you hear him say that? A. He could have said that. Q 256. But you didn't hear him say that? A. No. But she went with him. I know for a fact that she don't like him ... I'm, I'm fearful of you, I live with Kevin. She told me he was going to kill her. That was two weeks ago. Q 257. When, when Gerard said, "come and have a drink (sic) with me, Narny", what was he like? A. He was a bit charged up. Q 258. A bit charged up, what --? A. Mm. Q 259. -- Do you mean by that? A. A little bit drunk. Q 260. Did he seem happy or sad or something else? A. He's happy to see Narny. That's why she followed him.

25 It is not clear from these statements whether Mr Mackay knew that the deceased was unwilling or whether he assumed it and whether the words he said he heard spoken were said or whether he only thought they might or must have been said. 26 Counsel for the offender pointed to evidence that the offender was near the Pepper Trees on the morning of 5 February 2001. It was submitted that that was consistent with a belief that he had not killed the deceased and that he had some concern for her welfare, both of which, it was submitted, spoke against an intention to kill. I am invited to conclude this from the evidence of where the offender was when he was arrested. The evidence does not suggest to me that the offender had the resources to leave Broken Hill. It seems that he was probably bound to stay in the vicinity. I do not accept the submission.

27 There is no evidence of any contrition on the part of the offender for the welfare of the deceased. I am satisfied beyond reasonable doubt, because of the offender's threats to kill the deceased, because he attacked her during the first evening or night after his release from prison and because of the savage nature of the attack that at the time of the attack the offender intended to kill the deceased. 28 None of the evidence shows precisely how much the offender had to drink between the time of his release and the attack. I assume that it was a substantial amount, as he was accustomed to drinking. Alcohol was part of the offender's life and his consumption of it on 4 and 5 February 2001 was neither an aggravating nor mitigating feature, except in the sense which I shall explain.

29 Alcohol is not irrelevant to the Court's consideration, for it needs to be considered as part of the circumstances of cruelty, violence, deprivation and hopelessness that surrounded the offender during his formative and adult years. He is 23 years old. In view of his problematic childhood, his criminal history is surprisingly good. There are no convictions for assault other than those that I have mentioned. He has committed a handful of other offences, all comprising malicious damage to property or offensive language and all dealt with by the imposition of small fines or dismissal without conviction. They are of no significance for present purposes.

30 Both the maternal and paternal sides of the offender's family have strong tribal links in far western New South Wales. He grew up in Wilcannia. His parents drank heavily. They separated when he was three years old. As a result, he did not see his father for the next fourteen years. His mother and a new partner moved to Menindee, leaving the offender in the care of his maternal grandmother. A strong bond grew up between them.

31 When he was seven years old the offender was sexually abused over several months by a health worker. He was unable to tell anyone about it and still has difficulty doing so. He began to behave badly at school and his grandmother sent him to live with his mother and her partner. The offender, who loved and trusted his grandmother, was badly affected by their separation. His mother's partner and his mother drank a lot and the partner used to hit his mother and destroy things in the house. Both mother and partner fought regularly. The children were beaten with anything that came to hand; jug cord, broomstick, hose.

32 The offender was expelled from school in Year 10 for swearing at a teacher and failed as a result to get his School Certificate. He has no formal qualification. He began to carry out unskilled work for the scheme by which Aboriginal people worked for the dole. As a child he had begun to drink alcohol and he remembers his mother getting him drunk on his fifteenth birthday. After that, he was drunk regularly each week. He used to draw his pay and spend most of it on drink. He also took up cannabis in his teenage years and abused it.

33 The offender has been attended to by medical staff at Broken Hill Base Hospital a number of times in recent years for injuries received in fights including facial trauma in 1998, and in 1999 persistent headache, facial injuries, paranoia, acute psychosis and hallucinations, headache and hearing voices. Dr Perdices, a neuropsychologist, considers the symptoms of psychosis episodic and related to drug use. Dr Allnutt, who considers that the offender is not suffering from any psychiatric illness, has tested the offender and considers that he ranks in the low-average range of intellectual capacity. 34 These things combine to attract to the sentencing of the offender the considerations explained by Wood CJ at CL in R v Stanley Edward Fernando (1992) 76 A Crim R 58. At 62 and 63 his Honour said this - (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities ar4e very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. (G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality. (H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

35 The offender pleaded guilty on the second day of his trial after argument about the admissibility of evidence of a prior assault by him on the deceased, his service of the gaol sentence and his threats to kill the deceased. As soon as I announced my decision to allow the evidence to be adduced the offender changed his plea to guilty. In those circumstances the plea does not imply contrition. It was submitted on the offender's behalf that he is contrite. His expressions to Dr Allnutt that he was "sorry" and "felt bad" were relied on. However, the reporter who knows the offender best is the author of the pre-sentence reports dated 24 July, 4 September 2000 and 14 June 2002, Mr Wangmann. In the latest report Mr Wangmann said this - In attempting to gain an indication as to the degree of remorse Mr Martin may have, he was asked to consider the reality that a life has been lost and that he is facing an uncertain future that will probably include a lengthy custodial sentence. His reply that "there is nothing I can do about that" doesn't indicate any significant level of contrition.

36 In the absence of any opportunity for the Court itself to assess the offender's attitude, I am bound, I think, to prefer the evidence of Mr Wangmann. I think that the offender pleaded guilty because the case he faced was overwhelming. I do not think that his plea was born of any desire to facilitate the administration of justice. The plea of guilty came so late that nothing was saved in the preparation of the case for hearing. It has, however, resulted in a saving of some court time and has made it unnecessary for the Crown witnesses to attend court and give evidence. I shall allow the offender a 10 per cent reduction from his sentence on that account.

37 I accept the reports from the Corrective Services officers that the offender fears retribution from members of the deceased's family, some of whom are in the Corrective Services system, and that it has been considered appropriate to keep him in protection. I assume that that state of affairs will continue indefinitely and make the service of his sentence harder. I have made allowance for this in the sentence that I shall impose.

38 Mr Bembrick considers that notwithstanding the offender's poor self-esteem and his feelings of insecurity and inadequacy he appears to have some insight into his past and possesses the cognitive capacity to learn new ways of learning. Speaking of programmes and developmental opportunities in gaol, Mr Wangmann notes that little has been achieved so far. However, it seems to me that the future of the offender will be very different from his past; he will not be able to get his hands readily on alcohol, there will be a great incentive for him to take a constructive approach to life, he will have the opportunity and I believe he has the capacity to learn a trade. I think that on this evidence there are prospects of rehabilitation.

39 The offender has family in the Broken Hill area. His mother attended the sentence hearing. He will have the support of her and their family. It was submitted that these circumstances all combine to produce the need for a longer parole period than would otherwise be appropriate. 40 I have some sympathy for that submission but there are reasons why I cannot accept it. First, the non-parole period I have chosen is the least that can be imposed for such a serious offence. Secondly, such are the offender's social and psychological disadvantages that his ultimate rehabilitation may take many more years than it would be proper to incorporate into his sentence. 41 In fixing a sentence I have taken into account the circumstances of the deceased herself. She, like the offender, grew up in a community deprived of facilities of the type that most Australians take for granted. She suffered violence at the hands of the offender. Like him, and many of her community, she abused alcohol. Yet she was a gentle person with a sense of humour. It is important that her family and friends understand that the circumstances of herself and the offender do not lead the Court to conclude that her death is a matter of less importance.

42 I was invited by counsel for the offender to specify conditions of parole but in view of the substantial non-parole period the offender will have to serve I consider it appropriate for such conditions to be determined by those who will have the supervision of him when the time arrives.

43 Gerard Thomas Martin, I sentence you to imprisonment for 16 years. Your term of imprisonment will be taken to have commenced on 5 February 2001 and will expire on 4 February 2017. I fix a non-parole period of 12 years. You will be eligible for release to parole on 4 February 2013. **********

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