Solicitors:
Crown: S.E. O'Connor
Prisoner: Peter Ash & Associates
File Number(s): SC No. 70026 of 2000
[2]
SENTENCE
HIS HONOUR: The offender has pleaded guilty to the murder of his partner.
The facts may be stated in short compass. They had been involved in a domestic relationship for over two years. She was a drug addict. He was a bricklayer. They had a relationship which the psychiatric reports provided to me described, and which I accept, was a relationship of co-dependency.
It was a highly volatile relationship. She was dependent upon him for support, for money, for drugs. He was dependent upon her, a woman he described as "beautiful" and whom he clearly loved. She took money from him. He provided money to her. She resorted to prostitution. It was a relationship fraught with volatile exchanges.
He had tried, by resort to hospitalisation, rehabilitation and medical practitioners, to wean her from the drugs she refused to give up.
She had followed him to work, and when they had attempted to separate had resumed the relationship; she had come to his premises; she had taken goods of his and sold or pawned them. He says she had stolen money from him, from his pockets, destroyed his car in an accident. The relationship also appears to have been characterised by a degree of physical violence.
He sought to take her to Albury, from which country area he had originally come, to see his family at Christmas. He provided her with the money and the ticket but she did not come. On his return he, having left Albury, believing something awful had happened to her, went to King Cross where he met up with her again. He became agitated on learning that she had continued to use illicit drugs and work as a prostitute.
He had resorted to alcohol during the relationship and he had attempted to drink himself insensible.
On this occasion he checked his motor bike, which he had garaged some considerable distance away from where they lived, returned to their home, drank some small quantity of alcohol, obtained a boning knife and went looking for her.
The events that I just described in such terse manner are set forth in very great detail in the recorded interview he provided to the police immediately after the killing by him of the deceased.
In a paroxysm of frustration and rage he stabbed her to death in the presence of other persons while she was apologising to him and asking him not to do it. He apparently was concerned at that point to cut her throat having determined prior to catching up with her to do exactly that.
His reasoning was disordered and confused at the time. He had taken the knife, I find, thinking he would use it to kill her, contemplating possible self-harm and contemplating some acting out display followed by his own running away, all in the context of what he described as a life of hell or misery, he was suffering because of his association with her and her association with drugs and prostitution.
He described his motive for the killing as arising from his very great frustration and anger at his inability to have her conform to the course he wished her to take with her life. He said he was scared and still does not know why he did it.
The objective evidence certainly is that a major motivating factor in why he did it was because she did not accord with what he wanted her to be like.
In the Regina v. Cheung (CCA, unreported 11 December 1995), Allen, J. added a passage to the remarks made by the other judges in the Court of Criminal Appeal, which is apposite to this case. He said:-
"There are those within the community whose approach to the relationship between a man and a woman is that if the man has what might be called a grand passion for the woman, which completely overwhelms him, there is somehow a degree of respectability in him giving vent to that grand passion by seeking to control the life of the woman against her will - indeed, even in an extreme case, taking her life if he believes that is what ought to be done.
There is no respectability in that at all. It is arrogance. I do accept that having such a grand passion, if it can be so called, can diminish, for sentencing, the importance of the element of personal deterrence. But it certainly does not diminish the importance of the element of general deterrence. Indeed, the very misconception that such a grand passion affords a degree of respectability to what otherwise is abhorrent makes it all the more important that, for the purpose of general deterrence, it be made perfectly clear that such an approach will not be tolerated in this civilised society."
After the events, the offender expressed a view to the police he had achieved his purpose. He was satisfied with what he had done and on a number of occasions said words to the effect that:-
"I have solved my problem. I am not ashamed of what I have done".
Before me he has given evidence. He has emphasised what he had done to get her off drugs. He has emphasised what he regarded as his responsibility to provide what she should do in her life. His evidence impressed me as being entirely egocentric. It did not reflect contrition in the sense of him being sorry for what he did to her. It did reflect contrition in the sense that he was sorry he had broken the law, but he obviously feels he was driven to take that course so as to relieve himself of what he felt was the hell of associating with her and her drug problem.
The intensity of his feelings is not to be understated. He said, "I have killed the woman I love". He plainly did, in an egocentric way, love her, going to the extent of having his back tattooed with a large sign describing him as "The property of K. A. Church", the deceased, which sign he later had amended, showing the depth of his feeling, to provide "If found return dead". She too had been tattooed to evidence her association with him.
Objectively, this was an appalling and abominable crime. This is a crime of vicious violence arising out of what I have described as a paroxysm of rage. It is the deliberate taking, albeit while under the influence of emotion and confused thought, of the life of another human being.
The courts have always set their face against those who claim some higher law or higher emotional desire compels them to kill others in order to impose their will.
Subjectively, he has some prior record but has obviously been an obsessively conscientious workman of considerable diligence.
His antecedents show minor offences of, in particular, dishonesty and in relation to motor vehicles. There are matters of firearms which appear not inconsistent with those that might have been committed by many in country areas at that time.
There have been tendered two psychiatric reports, the first being the assessment of Dr. Susan Hayes, the second that of Dr. Olav Nielssen. Those reports indicate the offender suffers from some deficits and they indicate also that he had had considerable problems with alcohol as he has himself referred to in his record of interview and in his evidence before me. They point out that on the basis of a future abstinence from alcohol this is a man whom, bearing in mind previous stable relationships and previous stable employment, with the benefit of counselling has some hope for rehabilitation. That accords well with his crime having occurred in the context of his focus on one particular woman. I find no basis to conclude that the offender might more generally be dangerous.
The report from the Manager of Industries, Metropolitan Remand and Reception Centre, Exhibit 4, confirms his industry and enthusiasm at his work tasks in gaol.
He has been in custody since his arrest on 29 December 1999. He pleaded guilty when arraigned to the alternative charge of manslaughter pending investigation by his legal advisers of whether any mental state defence should properly be asserted. The psychiatric reports to which I have referred make it clear there was an entirely reasonable basis to investigate that very matter.
Following the investigation of that matter, he pleaded guilty to murder as charged.
When he gave his interview to the Police he admitted fully the necessary intellectual states and what he had done. Having regard to what was said by the Chief Justice in Regina v. Thomson & Houlton [2000] NSWCCA 309 there seems no reason he should not be accorded the full benefit of an early plea, and that having regard to the utilitarian basis for providing a discount for early plea, as expressed in that case, he should receive the full benefit of the discount referred to in that case, ie., 25%. However, having regard to what I have earlier said concerning the nature of his contrition, it is not possible properly to accord him a discount such that full contrition might have attracted.
On examination of a number of cases that might provide guidance on a range of sentence particular, reference has been made to the Regina v. Nixon (CCA, unreported 31 October 1995) and to the Cheung (supra). In Nixon (supra), in the judgment of Badgery-Parker, J., some examination was made of a number of cases to consider any relevant tariff, as it was there referred to, for what is there termed "relationship murders" and a bench mark was noted in the Regina v. MacDonald (CCA unreported 18 August 1994). The examination of those relationship cases show an average length minimum term of 13.94 years with an average length additional term of 5.33 years.
The court there also looked particularly at the purpose of sentencing and the various criteria in regard to minimum and additional terms as they had existed under the Sentencing Acts by reference to what the High Court said in the Queen v. Buckley (1990) 169 CLR 425. These criteria are applicable also to sentencing under the present regime, notwithstanding the differences and the requirement of the present legislation that I impose a total sentence which includes a non-parole period.
Having regard to the discounts to which I have referred and all the circumstances, I am of the view that an appropriate total sentence of 15 years to date from the date of arrest, 29 December 1999 with a non-parole period of 12 years to date from that day should be imposed.
Mr. Elphick, would you please rise.
Mr. Elphick, you are sentenced to imprisonment for 15 years to date from 29 December 1999. The term of that sentence is to include a non-parole period of 12 years to expire on 28 December 2011. The earliest date at which you will be eligible for release is 28 December 2011.
[3]
Amendments
17 June 2015 - changed "28 December 2111" to "28 December 2011" in paragraph 31
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Decision last updated: 17 June 2015