REGINA v EBNER

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J TUESDAY 29 MAY 2001 70071/99 REGINA v ROBERT JOHN EBNER JUDGMENT

1 HIS HONOUR: The offender has pleaded guilty on an indictment charging him with the murder of Paula Margaret Bonacina on 3 April 1999 at Unanderra. 2 Paula Bonacina was a heroin addict. The offender and his girlfriend, Elizabeth Redmond, who were also heroin addicts, were living in Paula's house. Shortly before she was killed, Paula had bought some heroin. She refused to give any to the offender. He killed her for it. Paula's body was found in an unnamed laneway off Nolan Street, Unanderra at about 9:15am on 4 April 1999. These simple facts cover a well of tragedy. 3 Paula left home when she was sixteen years of age to live with a young man (Andrew, who was a heroin user) in a shared house. She had already been using illicit drugs of various kinds but started to take heroin within a few months of moving out of home. What led her to take drugs and leave home at such an early age is not clear, but it seems likely that her father's death (apparently by suicide) when she was eight years old was very traumatic for her. No doubt there were other family stresses which, together with her personality and decisions, contributed to her problems. In June 1990 she had a daughter to Andrew. Their relationship was not a good one. He assaulted and abused her frequently and also threatened her life. In about 1993 they separated and Paula moved into a unit in Dapto. To support her heroin addiction, Paula worked as a prostitute. Shortly after she moved to her unit at Dapto, Paula started a relationship with Darren, who was also a heroin addict. Again, not surprisingly, this relationship was a difficult one. Darren was violent. In about September 1997 he held her at gunpoint in what her mother described as a siege situation that ended after ten hours with police assistance. He had obviously beaten her up very severely. Following the birth of her son in June 1996, Paula went into a rehabilitation centre in an attempt to deal with her drug addiction. She went into a methadone program with some success. However, when she moved into another home in Albert Street, Unanderra, in about November 1997 she started to use drugs more heavily. Her habit was financed by prostitution. She told her mother, "Some people use heroin for kicks but I use it to try and be normal and get out of bed". Paula's children have been cared for by their grandmother since February 1998. She had been looking after them one weekend and took them back to Paula's house with her son Daniel. He went into the house and returned with a note asking her to keep the children and care for them. From that time onwards she has done so, although Paula spent time with them from time to time and her mother would bring them to her house regularly. Her mother said, "Paula loved her children very much and she found it extremely stressing when she could not see them or had to leave them". 4 I have taken some of these facts from statements tendered in the proceedings and others from the Victim Impact Statement provided by Paula's mother. In that statement, Mrs Bonacina said - "Paula was so disillusioned and so emotionally hurt by these experiences. Her wants and needs from life seemed so unreachable to her, so she looked for an escape which was to be heroin - YES Paula's escape from life and her troubles was heroin. This was her poison, not alcohol, nicotine, prescribed drugs, pain killers or the many other escapes people use, but Paula's load to carry was to be the heroin. This was far from being a choice for Paula as the grip was so tight, nobody more than Paula hated what this was doing to her life. After three times in "rehab" and finishing a methadone program she would relapse deeper as a result of these failed attempts. Her self esteem plummeted along with this, but still determined to be free from this poison, she once again packed her bags and her house up to try "Rehab" again more determined than ever before. She had lost everything to the heroin except her children and her family's undying and supporting love for her, so she knew for herself and her children that this attempt had to be the one to preserve what she had left. Paula had done a lot of things I did not like nor was I proud of but nobody was more remorseful than Paula herself was." 5 According to the law, Paula was a criminal and had been one for many years, starting long before she was capable of making mature decisions about her life. Because supply to her of the drugs she used was also a serious crime, it was profitable for someone to do it. It was entirely predictable, therefore, that someone did. Whether the drug laws do any good is not for me to say. But they exact a high price, which is paid, in part, by addicts, their families and their victims. The black market created by the law means that the only way that most addicts (excepting, of course, the rich) can support their addiction is by illegal depredations on the community. Some, like Paula, become prostitutes. Many die before their time. One of Paula's neighbours noted that a few months after she moved into the street a number of houses in the street were broken into. A young woman bearing the same description as Paula was known to be walking around knocking on people's doors and asking for a cup of sugar and the like and, when she gained entry, would steal items. Another neighbour reported letting Paula into her house to use the telephone and then asking to use the toilet but then she found her in a bedroom looking round. The neighbour said - "When she saw me she jumped. She said 'Oh, I'm sorry, I haven't touched anything. Honest I haven't. I wouldn't do that sort of thing.' I said, 'I'll have to ask you to leave. You asked to use the toilet and you went into my bedroom.' She apologised again and said, 'I'm sorry'. She just went then." 6 Another neighbour said - "I would usually see Paula every day or every second day out the front of the house just to say hullo to and that. Every second day she would come over and ask for coffee or milk or something else. I used to make sure I locked the screen door so she couldn't come in while I got whatever she wanted. On three occasions I didn't lock the door and she invited herself in and I found her looking through my home...Another thing Paula and I would talk about was money. She was always asking me for $30 or $40 at a time. I think it was to buy drugs with but I am not sure." 7 Another of the witnesses, who was associated with Paula's drug supplier, said - "Over the last twelve months I have been injecting heroin which has affected my whole life. I have lost employment and have been kicked out of the family home. As a result of my using heroin I was stealing from everybody, including my family, to support my habit, which at the height was me using five to six caps a day which in monetary terms is about $200 a day."

He was nineteen years old. He also was a criminal. 8 It appears that Paula had adopted the practice of inviting clients home for the purposes of prostitution. In these circumstances, it is not surprising that she might have felt that it was better that her children be looked after by their grandmother, although, according to Mrs Bonacina, her daughter loved her children very much and was anxious about their welfare. 9 The Victim Impact Statement made by Paula's mother expresses the extreme pain and deep felt grief that she and other members of her family, including especially her grandchildren, have suffered as a result of Paula's murder. Not surprisingly, and entirely understandably, the Statement also expresses Mrs Bonacina's great anger towards the offender. 10 It is important, I think, to point out that, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. As mentioned above, I have used Mrs Bonacina's statement as a source for some of the details of Paula's life that do not otherwise appear in the tendered statements. These matters have not been used by me to determine the offender's sentence, but simply to provide some additional context for the narrative of events. 11 The taking of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more or less valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous, brave, loved and surrounded by friends and family who suffered greatly from his or her death. If this were not so, counsel for an offender whose actions caused the death might rationally submit that, as the deceased was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. 12 I wish to emphasise, in the circumstances of this case, that the fact that the deceased was a drug addict and a prostitute does not by the slightest degree reduce or qualify the heinousness of her murder. Nor was her life worth one whit less in the eyes of the law, itself not a little inculpated in its tragedy. 13 In Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ said (at 476) - "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..." 14 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. 15 The considerations which moderate the measure of punishment, whilst keeping at the forefront the policy objectives of sentencing, do not arise primarily from what is due to the offender but what is due to ourselves as a civilized and humane society. They reflect not so much respect for the criminal but the self respect of the community. The principles of reason and humanity which ascribe unqualified value to the life that has been lost require the law also to value the life of the person who comes to be sentenced. 16 With these principles in mind, I now move to deal with the personal history of the offender. Most of this information comes from the report prepared for the purpose of these proceedings by a psychologist, Ms Anita Duffy, who was consulted by the offender. This report was tendered without objection by the prosecution and, although it is not confirmed by evidence of the offender and is, in some respects, contradictory, in the circumstances I think it reasonable to rely on it so far as his personal history is concerned. For reasons which will become clear, I consider, however, that the offender was not candid to Ms Duffy about the circumstances of the offence. 17 The offender was born in Mackay, Queensland on 7 November 1971 and accordingly is now twenty-nine years of age. He has had no contact at all with his father and was told that his mother left him when she found him pouring whisky down the offender's throat when he was a baby. This seems to be inconsistent with a statement later made in the report that his father was an alcoholic and the offender saw him bashing his mother up and otherwise mistreating her and recalled that he once threw her through a plate glass window. However, this may be a reference to a subsequent relationship of his mother's. The offender attended a number of schools, leaving part of the way through Year 7 when the family moved to Orange. Lying about his age in order to help support the family, he worked in Orange as a nursery hand on a property growing fruit trees and he did not return to school. When he was fourteen he was convicted of a number of stealing offences and was sent to Mount Penang Detention Centre for a time. When he was fifteen or sixteen his mother moved to Victoria and he joined her upon his release. He got a job sorting scrap metal. When the offender was about seventeen years of age he had a daughter by his then girlfriend and started to work as a wool classer. After two years or so he and his girlfriend separated. He got a new job as boss of a shed, classing skins and wool. He found work for his younger brother and sister and was supervising ten employees. After a time he moved to New South Wales and found work wool classing in Sydney. The offender told Ms Duffy that he used amphetamines whilst he was working as a wool classer as it helped with the long hours and the travel. 18 In about 1997 the offender started to work in the building industry as a builder's labourer. It was that this time that he met Elizabeth Redmond and they formed a de facto relationship. He said that she was already a heavy user of amphetamines. 19 The offender told Ms Duffy that he was injured in a fight at Wollongong, sustaining a severe infection in his upper left arm after being stabbed. Complications developed and he was hospitalised for five or six weeks. Surgery to his arm has left him with extensive scarring. He still cannot feel the top part of his forearm and has pins and needles in his fingers. Whilst in hospital the offender was on a morphine drip. The offender told Ms Duffy (and repeated in his evidence before me) that he took pain killers such as pethidine and morphine which he obtained from Ms Redmond, who worked for a doctor in Wollongong. However, she lost her job and the offender began to use heroin and other drugs such as Rivotril and Rohypnol, to which he became addicted. Ms Redmond was also addicted to heroin. 20 The offender lost his job in 1998 because his substance dependence had adversely affected his work. The offender said that he and Ms Redmond each had a habit of one gram day which could be supported through his employment but it increased after he had lost his job and he committed crimes to support their habits. According to Ms Redmond, his habit was costing him $100 to $150 a day. Indeed, he had been arrested in January 1999 for breaking and entering. It was whilst on bail for this offence that the offender murdered Paula Bonacina. 21 The psychological tests undertaken by the offender show that his verbal and non-verbal skills both lie at the top of the average range. The personality test results, although they must be interpreted with caution, display a more troubling picture. Ms Duffy's report states - "Across the Personality scales, he revealed significant negativistic (passive aggressive), masochistic (self-defeating) characteristics as well as Anti-social traits. On measures of more severe personality pathology, he was highly significant on the Paranoid scale, indicative of a personality disorder. Such a constellation of results reflects a person who is suspicious, defensive, constantly vigilant to other's criticism or deception. He may perceive innocuous events as insults and distort events to fit into his idiosyncratic views. He is likely to feel bitter, and be abrasive, hostile and irritable in manner. "He may need to feel in control and if he perceives that other people are trying to control or influence him he may consider this a personal encroachment on his independence and attack the encroacher. Although he would like to see himself as independent, and free from entanglements and obligations, behind this is a fear of losing control and sense of autonomy. He may deny shortcomings and instead attribute them to others. Thus he may have little insight into how his own behaviour and attitudes affect the way others see him. He regards himself as a victim of circumstances, but generally manages to suppress his resentment and anger. However, his intense contrary feelings occasionally surface as impulsive and angry outbursts towards those he feels have wronged him. "Clinical scales show significant elevations on measures of anxiety, drug dependence and above average results of measures of dysthemia or depression and post-traumatic stress disorder. They suggest that he is apprehensive, anxious, vigilant to threat or harm. He may have experienced a traumatic event which still distresses and produces periods of anxiety. He may have dealt with his problems in the past with alcohol and drug dependence. These have the effect of ameliorating problems temporarily and help him avoid dwelling on events that have caused him pain and emotional suffering. He is currently somewhat depressed at his circumstances with feelings of hopelessness, pessimism, low self-esteem and guilt. He shows a fear of the future, and a sense of futility." 22 Evidence about Paula's murder comes principally from two sources: statements made by Ms Redmond, who initially denied any involvement in the crime, but later gave a detailed but not altogether frank account to investigating police; and a secretly tape-recorded conversation between the offender and a prisoner with whom he shared a cell whilst on remand following his arrest. For obvious reasons, the latter source is likely to be more candid than the former, although some allowance must be made against the possibility of exaggeration. In my view, Ms Redmond understated not only her own involvement but also the extent of the offender's culpability. 23 It appears that the offender and Ms Redmond had moved into the deceased's home a week or two before she was killed. At about midday on the day of her death, Paula had contacted her dealer to purchase some heroin. The offender and Ms Redmond were present in the house at the time. The dealer came to the house a short time later and sold Paula a small quantity of heroin. The offender, who was "hanging out", asked Paula for a hit. Paula, who had gone into her bedroom after obtaining the drug, told him that she did not have any. After perhaps two hours, Paula went into the kitchen where the offender again demanded that she give him some heroin. She again refused. The offender became increasingly angry and, at some stage, obtained a cord from a dressing gown. He told Ms Redmond that he intended to use it on Paula, according to her, "to knock her out" so that he could steal her heroin. Shortly afterwards, he strangled Paula from behind with the cord. According to Ms Redmond, when the offender checked for a pulse and discovered that Paula was dead he was shocked. He started to cry and said that he "shouldn't have done it" adding, "It was an accident, I didn't mean to kill her". The first of these statements is true, the second and third are not. 24 The offender dragged Paula's body into the bedroom. He found the heroin which Paula had hidden in her bra. It was enough for two shots. He and Ms Redmond each had one. The offender told Ms Redmond that they would have to get rid of the body and threatened that if she told anybody about what happened he would kill her. The offender burnt the dressing gown cord in the backyard. He and Ms Redmond stayed in the house for a while. Some time later, the offender attempted to break into the house next-door but could not gain entry. The offender and his partner attempted to sell the furniture in the house to a second-hand dealer, who arrived to inspect it at about 5 o'clock that afternoon. At that time, Paula's body was concealed in the wardrobe of the bedroom. (Having regard to the distinct probability that the dealer had been contacted by Ms Redmond before Paula was murdered, there is a grave suspicion that her murder was motivated also by an intention to steal her property. However, this was not suggested by the Crown and, at all events, I cannot be certain beyond a reasonable doubt of the precise sequence of events. Accordingly, I disregard this possibility for present purposes.) 25 When it was dark, the offender broke into the neighbour's car, which was parked in the driveway. He and Ms Redmond attempted unsuccessfully to steal the radio. Sometime later, perhaps about midnight, the offender clutch-started the car and, putting Paula's body in the boot, took it to the laneway where it was discovered the following morning. He left the car a short distance away. The offender and Ms Redmond spent the night in Paula's house and left the following day, taking with them a suitcase and some of Paula's clothing. They swapped these items for heroin, which they shared. 26 The offender was arrested on the afternoon of 12 April 1999. He was interviewed by police on the following morning. In effect, he denied killing Paula. He obtained legal advice and declined to answer any further questions. In due course, the offender became aware that Ms Redmond had made a statement about the circumstances of the murder, in particular, identifying him as having killed Paula. Whilst on remand and something over a month after his arrest, the offender gave, at least, serious consideration to attempting to arrange for Ms Redmond to be murdered in order to prevent her from giving evidence against him. He discussed this plan with a fellow inmate. He also discussed the circumstances of Paula's murder in callous terms devoid of the slightest hint of remorse. 27 There is no doubt that, when he strangled Paula, the offender intended to kill her. I do not accept his statement to Ms Duffy that, at the time, he was affected by drugs and remembered only sketchily what occurred. He also told Ms Duffy that he had given Paula $800 towards buying heroin in bulk and that she had told him that she had been defrauded by the dealer and had neither drugs nor money. He said that he had become increasingly angry and finally snapped because he thought she had "ripped him off". He claimed that Ms Redmond had encouraged him to attack Paula and suggested that, because of the state he was in, he had been unable to resist. It may well be that, contrary to her account to police, Ms Redmond had encouraged him to kill Paula and that she significantly minimised her own role, but I do not accept that the offender's actions were committed in a fit of uncontrollable anger provoked by Paula's refusal to hand over drugs that she had purchased with his money or that, in any important sense, he was under the influence of Ms Redmond or acted at her instigation. The principal sources of evidence upon which I rely for these conclusions are the statements of Ms Redmond to the police and the offender in the recorded conversations, together with the statement of facts tendered by the Crown without objection. 28 Although I accept that, at the time he strangled Paula, the offender was desperate for heroin, this factor does not significantly reduce his culpability. It merely describes his motive. I consider that the offender, probably angry with the deceased because of her refusal to comply with his request for some of her heroin, decided to kill her so that he could take it. The offender's account to Ms Duffy of what happened is a calculating and dishonest rationalisation, tinged with not a little self justification. His expression of remorse to Ms Duffy cannot be accepted as genuine. The offender told me that he was genuinely sorry for what he had done and commented "because of the drugs, I was a different person, a totally different person". I am very sceptical that the personal attribute that enabled him to commit murder had anything to do with drugs, although I accept that his desperate need for drugs motivated the killing. 29 The aspects of the offender's personality demonstrated on the psychological testing (which are set out above) do not augur well for rehabilitation. However, Ms Duffy considered that the offender would benefit from extensive individual counselling, programs of anger management and assertiveness training and undertaking further education. The offender was arrested on 12 April 1999 and has been in custody since that date. Certificates have been tendered showing that the offender has attended courses related to drug and alcohol abuse, concerning personal relationships, communication, emotional awareness and aggression. Whilst any such program is useful, it is ludicrous to think that ten hours spent on these subjects will significantly affect either attitudes or personality traits. Regrettably, the drug and alcohol counselling and education programs available to prisoners on remand are even more limited than those, anyway grossly inadequate, available once the prisoner is sentenced. It is greatly to the offender's credit that, with the help of the methadone program for several months whilst on remand, he has managed to be drug free since June 2000. Hopefully, some further assistance will be available to the offender directed to his rehabilitation. However, he will have to rely largely on his own resources. 30 If the offender manages to remain drug free after his release, it is reasonable to predict that he will not offend or offend seriously again. In this sense, I accept that the prospects of rehabilitation are good. However, in light of what the offender himself said about the murder in the conversation to which I have already referred, and despite his evidence before me, I do not accept that he presently has a substantial degree of remorse for the appalling crime which he committed, despite his plea of guilty. The Crown case was overwhelming and the plea cannot be regarded as being much more than recognition that conviction was inevitable. It may be, of course, that the offender's appreciation of the gravity of his offence will grow over time and that he has already moved on somewhat from the callous indifference demonstrated in the recorded conversation. To this extent, I am prepared to give the offender the benefit of the doubt and take this matter into account. 31 I have been informed, and accept, that the offender has spent almost all of the period on remand in protective custody. This form of detention is markedly more harsh than ordinary detention. Accordingly, in addition to backdating the sentence to the date of arrest, some additional adjustment should be made. 32 The offender also asks the Court to take into account nine offences committed in January and April 1999. Two of these offences, breaking and entering a private dwelling house and assault with intent to rob, using a syringe apparently filled with blood, are quite serious offences, although they pale to insignificance in comparison with the crime for which he has pleaded guilty. In all the circumstances, I consider that it is appropriate to take these offences into account. 33 The offender was arraigned in this Court on 3 November 2000 and pleaded not guilty. At his request, however, and well before trial, the offender pleaded guilty before me on 21 December 2000. He is therefore entitled to a discount on his sentence arising from the utilitarian considerations to which the Court of Criminal Appeal adverted in Thomson & Houlton (2000) 115 ACrimR 104. In the circumstances, I consider that a discount of the order of 15 percent should be given. 34 That the offender was addicted to illicit drugs at the time of the offence and this was a substantial contributing factor in its commission gives rise to the desirability of permitting a lengthy period of parole. However, in light of the sentence I intend to impose, the non-parole period provided for by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 is adequate for this purpose. Of course, whether the offender is released on the expiration of the non-parole period will be for the Parole Board to determine. 35 Robert John Ebner you are sentenced to imprisonment for a term of eighteen years, commencing on 12 April 1999 and ending on 11 April 2017. I fix a non-parole period such that the earliest date upon which you will become eligible to be released on parole is 11 October 2012. ****************

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