The Offender's Circumstances, Remorse and Prospects of Rehabilitation
- I have referred to that part of Dr Furst's report which sets out the offender's account of the offences. The offender is 45 years old. Dr Furst set out the offender's personal history including his upbringing and education in the Philippines, his work on a US naval base, his move to New Zealand in 2003 to study nursing and his relationship with Ms Pilapil. Based on the reports of his "episodic mood-swings and anger issues over a lengthy period" prior to committing the offences, Dr Furst diagnosed the offender as suffering from a major depressive disorder with psychotic features. Dr Furst found that he was fit to be tried and did not have a mental illness or defence. Dr Furst found no indication that the offender was suffering from a major mental illness at the time of the offences which would have affected his ability to perceive events, understand right from wrong or control his actions. Dr Furst also found that given the offender's depression and rigid personality he is at a "greater risk over the long term" of becoming "demoralised, self-harming and/or suicide[al]". Dr Furst concluded the offender was "likely to find a lengthy prison sentence demoralizing and detrimental to his longer term mental health" such that a custodial sentence is likely to be "more onerous for [the offender] than the average inmate".
- The offender's second oldest sister, Ms Ada Villaluna-Eriksson, gave evidence on his behalf. She works as a nurse in California where she has resided for 35 years. Ms Villaluna-Eriksson confirmed much of the family history given on the offender's behalf to Dr Furst. She stated that the offender is the youngest child of a family of nine whom she describes as "dirt poor". Both the offender's parents died before he was 15. Ms Villaluna-Eriksson stated that since he has been in custody, the offender had revealed that he was sexually assaulted when he was seven [7] . Ms Villaluna-Eriksson said that four of the nine children have now passed away and that her brother has already had a "heart attack and a stroke" [8] . Ms Villaluna-Eriksson stated that the offender had not had any "trouble" with the police in the Philippines [9] . She noted that at one point her brother worked at a US navy facility and received a character reference from the commanding officer that supported an application he made to become a US citizen. She stated that her brother retains the "full support" of his family members. Ms Villaluna-Eriksson offered her family's apologies and condolences to Mr Collins's family.
- In cross examination Ms Villaluna-Eriksson stated that she left the Philippines when she was 24 years old and her brother was ten. She did not see him again until she travelled to Australia around the time he was arrested [10] . Ms Villaluna-Eriksson now speaks to the offender once or twice a week on the phone [11] . Ms Villaluna-Eriksson said that the offender expressed how "he was sorry for everything that happened" and that he said he "blacked out". She could not remember discussing with the offender the reason why he attacked Mr Collins or Ms Pilapil [12] .
- Mr Robert Dundas also gave brief oral evidence. Mr Dundas assists an Anglican pastor in conducting services for inmates at Long Bay which the offender attends [13] . Mr Dundas has observed the offender to have a demeanour that is "solemn" and "down". Mr Dundas said that the offender "always impressed me as someone in deep anguish" [14] . Mr Dundas has not discussed the offences with him.
- The difficulties in the offender's upbringing including the possibility that he may have been sexually assaulted in his childhood are matters to note but they do not weigh much in an overall assessment of the appropriate sentence for murdering Mr Collins and wounding Ms Pilapil. Those matters provide little insight much less any possible justification for his sustained abuse of Ms Pilapil and his actions on the evening of 30 March 2016. Dr Furst's conclusion that the offender suffered from a depressive disorder can be accepted but that does not diminish the criminality of his actions to any substantial degree. His mental illness did not contribute to his commission of the offence and it does not operate to reduce the need for general or specific deterrence (Director of Public Prosecutions (Cth) v De La Rosa 79 NSWLR 1; [2010] NSWCCA 194 at [177]). I accept that a custodial sentence will weigh heavily upon the offender (De La Rosa id). That said prisoners facing long sentences of the kind under consideration in this case are almost invariably depressed. This is especially the case for those prisoners who have perpetrated extreme acts of domestic violence and destroyed or nearly destroyed the very family that they thought they wanted to preserve (see for example R v Maglovski (No 2) [2013] NSWSC 16 at [92]).
- Six potential matters of mitigation are raised by the material tendered on behalf of the offender.
- The first matter is whether the offender does not have a record or any significant record of prior convictions and the second matter is whether the offender was, prior to the offences, a person of a good character (the Sentencing Act, s 21A(3)(e); s 21A(3)(f)). I accept the first matter but not the second. The offender does not have any convictions in New South Wales and there is no evidence that he has previously been convicted of an offence elsewhere. In relation to his character, Mr Webb submitted that he had a good work record and had made a substantial contribution to the community [15] . However, given that it is agreed that he perpetrated acts of domestic violence and abuse towards Ms Pilapil over a sustained period prior to committing the offences, he cannot be sentenced on the basis that he was of prior good character.
- The third matter is whether the offender is remorseful for the offences. Subsection 21A(3)(i) of the Sentencing Act provides that the remorse shown by an offender is a mitigating factor, but only if:
"(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) ..."
- The evidence of Ms Villaluna-Eriksson and Mr Dundas might be construed as supporting a contention that the offender is remorseful. However understandably neither of them probed the offender to ascertain the nature of his apparent regret. The author of the pre-sentence report interviewed the offender sometime between June and September 2017. The report includes the following:
"Attitude to offending
[The offender's] account of the offence suggests he does not take responsibility for his offending behaviour. He attributed blame to [Mr Collins], stating his offending behaviour was an act of self-defence. He attributed blame to his ex-partner for meeting with [Mr Collins] and leaving the children at home. Despite prompting, [the offender] appeared unable to express any empathy for either of the victims or their families. He expresses self-concern when discussing the offences stating that his life, rather than the victims, had been adversely affected as he is now in custody. He likened the effect on [Mr Collins] as being 'just like me' stating that 'I've lost my life too' regarding being unable to see his family."
- Tendered on behalf of the offender was a two-page typed statement signed by him which recorded that on 5 April 2017 he was asked by his Counsel to "write a letter of apology" for his crimes. He commences by stating that "[a]t first I said to myself that I could never do it because I am still angry at what happen[ed] to me". He then states that he drew inspiration from certain biblical passages and that he was "blinded" by his love for Ms Pilapil and his "strong desire to protect my kid and my family". He asks for "forgiveness" and "compassionate grace" from the Court and the "orphans of Keith Collins", stating "[h]is life; my life is over". He refers to the loneliness of his prison life before expressing "deepest sympathy and condolence" for the "family of the slain". He concludes by stating that "I am really sorry for what I've done". This is the only express statement of sorrow or regret for his own actions. His letter makes no reference to regret for stabbing Ms Pilapil.
- Even when his Counsel sought to focus the offender's mind on the issue of remorse, the offender only produced an expression of self-pity rather than any real acknowledgement of the loss and suffering he has caused. I have no doubt that the offender regrets his own circumstances. However, that is qualitatively different to remorse for his actions and the hurt they inflicted. The pre-sentence report indicates that he still blames Ms Pilapil and even Mr Collins for creating that outcome. Even allowing for the offender's plea of guilty, I am not satisfied that he is remorseful for his actions in any relevant sense. Instead he is awash with self-pity and anger borne of his sense of entitlement to control Ms Pilapil and kill anyone who came close to her.
- The fourth and fifth mitigating factors are whether the offender is unlikely to reoffend and whether the offender has good prospects of rehabilitation whether by reason of his age or otherwise (the Sentencing Act, s 21A(3)(g); s 21A(3)(h)). Given the length of the likely sentence and thus the likely age that the offender will be upon his release an assessment of his prospects of reoffending at that time is a difficult task. Mr Webb's submissions on these issues referred to some of the statements made by the offender which it was contended suggest that he acknowledges the wrongfulness of his actions. I have already addressed that topic. It suffices to state that, given the offender's conduct and his attitude to his offending, I am not satisfied that these mitigating circumstances have been established. To the contrary, the offender presents as having significant prospects of reoffending in the unlikely event that he ever forms another relationship.
- The sixth matter concerned the offender's health. Justice Health records were tendered which referred to the offender suffering from hypertension. Ms Villaluna-Eriksson's evidence suggests there is a family history of heart attacks and strokes. However, there is nothing to suggest that his condition cannot be adequately managed by Justice Health.