Regina v David Eric Ballangarry

Supreme Court of NSW|2001-07-18|Before: Sully J, Barr J

CITATION : Regina v David Eric Ballangarry [2001] NSWSC 642 FILE NUMBER(S) : SC 70015/01 HEARING DATE(S) : 18 July 2001 JUDGMENT DATE : 27 July 2001

PARTIES : Regina David Eric Ballangarry JUDGMENT OF : Sully J at 1

COUNSEL : P. Dare - Crown P. Rosser - Accused SOLICITORS : S. E. O'Connor - Crown Many Rivers Aboriginal Legal Service Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477 CASES CITED : Regina v Dargin [2000] NSWSC 710 Regina v Thomson (2000) 49 NSWLR 383 DECISION : Imprisonment for 17 years with a non-prole period of 11 years. The sentence and the non-prole period will commence on 22 December 2000. The non-prole period will expire on 21 December 2011.

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 1 June 2001 Mr. David Eric Ballangarry, ("the prisoner"), pleaded guilty before Barr J of this Court to the murder, on or about 22 December 2000, of Faye Ruth Caldwell. It is accepted by the Crown that the plea was entered at what was, in the circumstances of the particular case, the first real opportunity for the entering of the plea. 2 On Wednesday 18 July instant, I heard submissions on sentence; thereafter remanding the prisoner in custody until today for the passing of sentence. 3 The prisoner and the deceased were, at the relevant time, members of the Aboriginal community in Bowraville. They were not in a stable de facto relationship; but for some years they had been intermittently in such a relationship. The relationship was a volatile one; and it was not infrequently a violent one. In December 2000 the prisoner was living in Bowraville with his sister Cynthia, and his uncle, Mr. Lawrence Ballangarry. On 21 December the prisoner visited a cousin, Mrs. Rita Chapman, who lived at an address in the same street as, and very near to, the prisoner's home. In the early afternoon, and at about 1 p.m., the prisoner and Mrs. Chapman went to the Royal Hotel in Bowraville. There, by chance, they met the deceased. 4 The prisoner and the two women drank together until it was dark. They then returned to the prisoner's home; and, in company with Mr. Lawrence Ballangarry, they continued drinking alcohol. 5 Presently, an argument broke out between the prisoner and the deceased. The argument began with accusations made by the prisoner to the deceased that she was having some kind of an affair with a certain man. The deceased denied the accusations. What then happened is described as follows in paragraphs 7, 8 and 9 of the statement given by Mrs. Chapman to the police: "7. She was sitting on the concrete verandah, Laurie was on the mattress in the carport, Davo was standing, and he just punched Faye in the face where she sat. I jumped up and said, "Don't go fucking hitting her, leave her alone". Davo pushed me in the chest, I said, "Don't go fucking hitting me". Uncle Laurie got up and hit him in the face, saying words like, "Don't go hitting women". 8. Davo kept yelling about old Donny, and Faye was sitting there crying, trying to tell him there was nothing going on with Donny. I remember him just kicking Faye in the head, he was stomping and kicking her in the head as she was laying there. I saw him grab her by the hair, and just start banging her head on the concrete. She was crying and trying to get his hands off her. She was laying on her belly, and he was banging her face into the concrete. 9. I got up and I went to his cousin Dallas and my aunty Florence Ballangarry's places which are near. No one was home at either of the places, so I went to 33 Carbin St. Uncle Laurie was with me, and I thought Dave and Faye just settled down so I went to bed. Faye didn't do anything to provoke Davo. I have seen them row, and him punch her before, but nothing like that." 6 This description is supplemented by the following version excerpted from Mr. Lawrence Ballangarry's statement to the police: "9. That's when David ran outside to the driveway and I saw him punch Fay to the face on the side of the head with a closed fist, he punched her pretty hard and knocked her to the tiles on the verandah, he then bent over her and grabbed her on the hair on the back of the head and slammed her head into the tiles on the verandah, he did this about 3 to 4 times, by bashing her head onto the tiles picking it up and slamming back down again, Fay's head was making a loud noise as it was slammed into the tiles, Fay was just groaning real bad as he did this, there was nothing she could do. 10. David then stood up and stood beside her and jumped on her head with his right foot while her head was on the tiles, he was raising his right leg up and stamping it down on the back of her head, Fay wasn't moving and still making groaning noises on the tiles. David had no shoes on, just bare feet while he was jumping on her head. 11. Rio (Rita) tried to pull David off her by grabbing his shirt, David pushed her backwards and she fell backwards onto the bed, I got up and grabbed his hair and turned his head towards me and punched him to the head. Me and Rio then decided to leave and go back home. When we left Fay was lying on the tiles face down not moving, just groaning, David was still near her at this time. Rio and I then went to her house number 33 Carbin Street. 12. I could not help Fay any more as David was going crazy, he is younger and stronger than me, ………………." 7 Mrs. Lisa McKay, a neighbour living next door to the prisoner, heard the prisoner say to the deceased on a number of occasions: "You want to go home or I'll kill you" or "similar things". Mrs. McKay goes on in her statement to the police: "9. I woke up, and again I don't know how long I was asleep for, and I heard Davo saying, "You want to go home or I'll kill you". He said that a couple of times. He was calling her 'dark' which is what the aboriginal people call each other here. I heard him come in and out of the house at 23 (by his footsteps) about four times, and say similar things. He was also saying, "Who was you fucking" and I could hear the thumping sound again, after each word he said. There was no doubt in my mind, by the sound, that he was hitting her after he spoke each word slowly. 10. During this I kept putting the pillow over my head, as I didn't want to hear it. I have heard them fight before, and I know that sometimes they hurt each other badly. However, after each time I heard him talking to her and hitting her, I could still hear the heavy breathing. The breathing continued as I heard Davo walk in and out of the house, so I believe it was Faye. I didn't hear Faye say a word. 11. Throughout all this, I was dozing on and off, and the next thing I heard was a dragging sound. I sat up and looked out through the front window. I could see Davo dragging someone, it looked like Faye by the size and shape, up the driveway. I saw him drag her right out onto the road. There was some light from a streetlight, and I could see them. He was saying something to her, but I can't recall what. I saw him standing over her, and then punch her in the belly. It was the exact same thumping sound I had heard before. I think he then walked back down towards the house, but I am not completely sure about that. ……………..." 8 Mr. Noel Smith, another near neighbour, heard someone calling for help. He describes as follows what he saw when he went outside in response to that call: "6. When I got to the front yard with the torch light I could see someone sitting in the gutter, with another person laying there. The person sitting looked like they were trying to do CPR, holding the other person's head and trying to breathe into the mouth. I went over and when I got closer I saw that it was an aboriginal woman lying in the roadway. She was naked, with a pair of jeans that appeared to be wrapped around one foot. She was laying on her back, in the man's arms with her feet towards the gutter. I could see in the torchlight a large amount of blood on her, and I could see that it looked like her head had been split open. There was a large wound running vertically down her forehead." 9 The injuries caused to the person of the deceased were horrific. They are summarised as follows in the autopsy report: "Postmortem examination showed the cause of her death to be multiple injuries. There were "tram-line" bruises on the body consistent with having been caused by the broom handle found at the scene. She had a severe laceration to her liver and two broken ribs consistent with having been caused by someone jumping on her body. There was also evidence of injury to the mucosal surface of her rectum which was consistent with some object such as a hard erect penis, a broom handle or a dildo having been inserted into her rectum through her anus." 10 The report contains the following additional information about the multiple physical injuries thus summarised: "(i) Multiple external bruises, abrasions and lacerations including "tram-line" bruises on the skin of the abdomen and medial left thigh; (ii) Head injury, including scalp and facial abrasions, lacerations and bruises, loose teeth in the right side of the jaws, recent loss of one tooth, a fracture of the neck of the left side of the mandible, a large amount of underscalp and periosteal haemorrhage, no skull fracture, a small amount of fluid left subdural blood over the left cerebral hemisphere and patchy subarachnoid haemorrhage over the cerebral hemispheres; (iii) Fractured larynx; (iv) Severe abdominal injury with fractured 9th and 10th right ribs laterally and a severe large gaping laceration of the right lobe of the liver causing a 700 ml haemoperitoneum with the blood containing three fragments of lacerated liver; (v) Some bruising and superficial laceration of the mucosal surface of the anterior wall of the rectum, 70 mm from the ano-rectal junction." 11 It is beyond any reasonable doubt that the deceased's death was the result of an attack upon her by the prisoner, the attack being a sustained, brutal and frenzied assault. It was submitted by the Crown that the assault was of such a kind as invited and permitted the drawing of an inference that the prisoner had, at the time of the assault, an intent to kill. It was submitted by the solicitor appearing for the prisoner that the permissible inference was, rather, that of an intent to inflict upon the deceased grievous bodily harm. 12 The prisoner himself was interviewed on 22 December 2000 by the investigating police, and that interview was recorded electronically. The interview was brief, commencing at 9.44 a.m. and concluding at 10.05 a.m. The prisoner responded to all the significant questions by saying either that he had no relevant recollection, or that he had no comment. It is not possible to draw from this material any inference as to the prisoner's attitude at the time of the attack, or thereafter. 13 Some light, although not a great deal of it, is shed upon the prisoner's attitude and perceptions by some other pieces of evidence. 14 First, the prisoner when arrested was thought by the arresting police to be well affected by alcohol; unsteady on his feet; and slurring his speech. His immediate reaction upon being told that Miss Caldwell was dead was to say: "She was bleeding. Are you going to charge me with murder. I just hit her". 15 Secondly, the prisoner was heard by Mr. Smith to say "a few times": "I'll be doing time for murder", or words to that effect. 16 Thirdly, there is the contemporaneous impression made upon Mrs. Chapman: "I have seen them row, and him punch her before, but nothing like that". 17 I do not see that it matters in a practical sense which of the suggested intents is preferred by the Court. There could be no sensible disputing of an inference that the prisoner had, at the very least, an intent to inflict grievous bodily harm. The appalling ferocity of the attack was such that it can be, in my opinion, properly inferred that if the prisoner did not carry out that attack with a precisely formulated intent to kill, he intended, nevertheless, to inflict really grievous bodily harm, uncaring of the objectively obvious risk of death to his victim. 18 I think similarly that there is no practical point to a discursive inquiry into the question whether this particular murder comes within the category that is described conventionally as "the worst kind of case". It seems to me to be more useful to say, rather, that on any sensible objective view, the culpability of this particular killing must be well towards the top of a sound notional range of culpability. 19 As to the relevant subjective matters, they can be summarised as follows:

[1] The prisoner is a young Aboriginal man who was born on 28 May 1972. He is aged, therefore, 29 years and about 2 months. He was aged 28 years and about 7 months at the time of the killing earlier herein described.

[2] The prisoner has relevant criminal antecedents, although the evidence suggests a need to be careful in matching particular entries in his printed record with Miss Caldwell. It seems clear that on 5 April 2000, or about 9 months before the killing of Miss Caldwell, the prisoner was sentenced to a fixed term of imprisonment of 6 months for an assault upon her; and to a concurrent fixed term of 6 months for having contravened a domestic violence order intended to protect her from violence at his hands. Those fixed terms expired on 4 October 2000, or not quite 3 months prior to the fatal attack. When those particular matters are looked at in the context of the whole of the antecedents as recorded officially, the present case seems to me to fit squarely within the following principles, taken from the joint majority judgment in Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

[3] The prisoner's personal history is canvassed in the two reports, - one from Miss Anna Robilliard, a Psychologist; the other from Dr. Olav Nielssen, a Forensic Psychiatrist, - that are Exhibit 2. It makes sad reading.

The prisoner has a diagnosed mild developmental disability, exacerbated by the effects of head injuries and alcohol-induced brain damage; and a diagnosed alcohol dependence syndrome. He is practically illiterate. At the age of 29 he has never had any form of lawful and gainful employment. The detail of his alcohol problem aside, - it needs separate and later consideration, - the prisoner has almost no ordinary social and vocational skills. His adult life seems to have passed by as a progression of uneasy swings between periods of relative sobriety which have petered out aimlessly; and periods of alcoholism which have been marked by episodes of violent anti-social behaviour. Nobody seems to have taken any sustained interest in trying to get him to absorb at least a decent minimum of functional education; or to help him to make use of whatever employability he could achieve with patient professional assistance; or to do anything else to give him some dignity and self-respect.

That any 29 year old Australian should have come to such a pass is a tragedy for him individually; but it is also a shaming reproach to those who are charged with ensuring that an extensive, and expensive, public welfare system is properly active and effective to deal with such individuals before, rather than after, that tragedy, wholly predictable I would suggest, has occurred.

[4] That alcohol abuse had a real role in the prisoner's attack on Miss Caldwell is beyond sensible questioning. That alcohol abuse has been a real problem for the prisoner since his teen-age years is, in my opinion, similarly beyond doubt. What is not so easily assessed is the weight that should be given to that subjective feature of the prisoner's case.

The plea of guilty must be understood as acknowledging that the prisoner's condition at the relevant time was not so impaired by the effects of alcohol as to have prevented him from having formed in fact some one of the kinds of intent essential to the crime of murder.

The correct way of proceeding from that premise is, in my opinion, to be found in the approach taken by Ireland AJ in Reg v Dargin [2000] NSWSC 710. I was referred to this decision during the submissions on sentence. I am struck by the close similarity of the relevant features of that case to the corresponding features of the present case. It is useful to cite in precise terms those passages of the judgment which I accept as appropriate to be applied in the present case: "Mr. Wilson submits that the offender's intoxication should be considered as a mitigating, rather than an aggravating, feature. Reliance is placed upon Regina v Coleman (1990) 47 A Crim R 306, a decision of the Court of Criminal Appeal. In that case, the appellant was convicted of maliciously inflicting actual bodily harm with intent to have sexual intercourse with that male person. He raised the matter of his long term intoxication during the trial. Hunt J, as the former Chief Judge at Common Law then was, with whom Finlay and Allen JJ agreed, at p 327 said this: 'Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of his offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account; see, generally, Sewell and Walsh (1981) 29 SASR 12 at 14-15; 5 A Crim R 204 at 207). Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate. But that is not this case. The only evidence is that the appellant had been an alcoholic over a long period of time. At the same time, however, it is clear from the appellant's record and from the medical evidence led that the violence which he exhibited on this occasion was sadly not out of character. In all of those circumstances, in reassessing the appropriate sentence to be imposed I would not place much weight upon the appellant's intoxication in mitigation, but I would not take [it] into account in aggravation.' In Regina v Fernando (1992) 76 A Crim R 58, Wood J, as the Chief Judge of the Common Law Division then was, in what is generally considered to be a definitive judgment, commencing at p 62, said this: '(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.' The offender's long criminal history is conceded by him in his interview with the psychologist, Ms Anita Duffy, to be one in which intoxication frequently has led to criminal behaviour at times involving violence, albeit not anything like the degree here present, but violent, lawless conduct nonetheless. The offender's claims to have no recall of the events, during the critical time when the offences took place, are wholly inconsistent with his confessional statements to the two persons with whom he was drinking after the offences had been committed, because of the need he felt to get the matter off his mind. Mindful of the principles above referred to, I conclude that in the present case the offender's intoxication is not a matter to which a great deal of weight can be given either in aggravation or in mitigation of sentence."

[5] There must be, and be seen to be, a proper discount for the prisoner's plea of guilty.

[6] It would be, in my opinion, proper to proceed upon the basis that the prisoner does understand, and in his own way, does have genuine remorse for, the enormity of what he did.

[7] It is impossible, given the present state of the evidence, to say anything more than is piously hopeful about the prisoner's prospects of rehabilitation. It is only possible to say that the Court hopes that he will receive in prison the sensitive and imaginative supervision that he should have received, but did not get, outside prison. It would be proper, in my view, to see the ongoing needs of the prisoner as amounting to such special circumstances as would permit of the setting of a longer than normal parole period. The Court acknowledges that, as matters stand, lengthy parole periods put a special and acute strain upon limited probation and parole resources. The present case is, however, one in which there is, as best the fact can now be judged, a need for a special effort to meet the needs of a special case. 20 In the present case it is no easy task to strike a just balance between the given objective and subjective matters. The usual considerations of retribution and deterrence have, of course, well recognised parts to play. So does the sanctity of human life, the principle above all others which the Court must keep in mind when sentencing for murder. 21 Drawing all of those matters together, I would consider a sentence of imprisonment for 20 years to be a proper starting point. I think that a specific discount of 15 percent would be appropriate to recognise the plea of guilty; preserving in that connection what is in my opinion a fair balancing of the general guidelines indicated in the guideline judgment of Reg v Thomson (2000) 49 NSWLR 383, and of a justified tempering of leniency by reason of the Veen [No. 2] principles earlier cited. Such a discount would reduce the head sentence to one of 17 years. 22 The prisoner has been in custody since 22 December 2000, and the sentence will be back-dated accordingly. 23 A head sentence of 17 years would entail normally a non-parole period of 12 years and 9 months. For the reasons earlier given, I propose to set a non-parole period of 11 years. 24 David Eric Ballangarry: You are convicted on your plea of guilty of the murder of Faye Ruth Caldwell. You are sentenced to imprisonment for 17 years with a non-parole period of 11 years. The sentence and the non-parole period will commence on 22 December 2000. The non-parole period will expire on 21 December 2011. On that day you will become eligible for release on parole. **********

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