REGINA v HILLSLEY

Court of Criminal Appeal (NSW)|2006-05-10|Before: Hodgson JA, Adams J, Johnson J, Hidden J

Introduction 1 The respondent, Jeffrey John Hillsley, pleaded guilty in this Court to an indictment containing six counts, the first five of which arose from a course of events occurring between 31 December 2003 and 1 January 2004. These events involved the murder of the deceased and the aggravated sexual assault of his ten year old stepdaughter, the circumstances of aggravation being her age and threats to inflict actual bodily harm with a knife (counts 2 and 3), the kidnapping of the same child with the intention of having sexual intercourse with her (count 4) and a further aggravated sexual assault upon the child, the circumstance of aggravation being her age. A week or two before these offences, the respondent had committed aggravated sexual assault upon the same child, the circumstance of aggravation being her age (count 6). The offence of murder carries a maximum sentence of imprisonment for life; those of aggravated sexual assault carry maximum sentences of twenty years' imprisonment whilst the kidnapping charge carries a maximum sentence of fourteen years' imprisonment. 2 The respondent was sentenced on 4 July 2005 as follows: on count 6, imprisonment for eight years with a non-parole period of six years to date from 1 January 2004 (the date upon which he was taken into custody); on each of counts 2 and 3, imprisonment for twelve years with a non-parole period of nine years to date from 1 January 2008; on count 4 imprisonment for seven and a half years with no non-parole period set, to date from 1 January 2009; on count 5 imprisonment for twelve years with a non-parole period of nine years to date from 1 January 2010 and on count 1 imprisonment for sixteen years with a non-parole period of eleven years to date from 1 January 2018. This resulted in an overall sentence of imprisonment for thirty years with a non-parole period of twenty-five years so that the respondent is eligible for release on parole on 31 December 2028 and, if not released, his sentence expires on 31 December 2034. 3 The respondent is now almost fifty-five years of age. The effect of the current sentences is that he will be seventy-seven years of age before being eligible to be considered for parole and, if not released on parole, must stay in prison until he is eighty-two years of age. This is virtually a life sentence. It is not unlikely that, if not released to parole, the respondent would not live to see the end of the overall sentence. 4 The structure of the overall sentence was very much a product of the requirement to have regard to the principle of totality, particularly in respect of the sentence for murder. Assuming, for the purposes of explanation, that the overall sentence appropriately reflects the criminality of the offences considered as a whole, an increase in the sentence for murder would have required adjustment of one or more of the other sentences by reducing their length or increasing the proportion to be served concurrently, in order to maintain the overall sentence thought to be proper. 5 On 24 August 2005 the Director of Public Prosecutions gave notice of appeal against the inadequacy of the sentences imposed on the respondent. In submissions, the appeal was refined by senior counsel on behalf of the Director to contentions that the individual sentence for murder was manifestly inadequate and should have been life imprisonment or, if life imprisonment was not necessitated by virtue of the provisions of s61(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence should be significantly increased. In connection with the aggravated sexual assault offences committed on the stepdaughter of the deceased, it was submitted that the sentences for counts 2 and 3 ought not to have been entirely concurrent, whilst the accumulation of the sentence for the subsequent aggravated sexual assault (count 5) did not reflect the significant additional criminality represented by that crime. It was also submitted that the sentence for the kidnapping offence (count 4) ought not to have been entirely subsumed by the sentences for counts 2 and 3 but should have been accumulated so as to mark an additional substantial punishment for this offence. During argument, however, the Crown prosecutor conceded, in substance, that if the Court allowed the appeal in respect of the murder sentence and increased it to life imprisonment (so that he could not be considered for release on parole) the argument that the sentences for the other offences should be varied was much weakened.

Facts 6 The facts were not in dispute although several potentially important inferences that were drawn from the facts by the learned sentencing judge were contended by the Crown to be wrong. The following account of the facts is largely taken from the learned sentencing judge's reasons for sentence together with some added non-controversial material from the evidence that was tendered before him. (For ease of reading, most quotation marks and other ancillary editorial indications have been omitted). His Honour said - "The basic facts are not in dispute, although the offender's state of mind at the time of the killing is an important issue which I must determine. Before me is an agreed statement of facts, which I should set out in its entirety (referring to the child as "J" and her mother as "Ms H"): 1. The deceased…operated a small cleaning business. During 2003, he made the acquaintance of, and befriended, the accused, Jeffrey John Hillsley. The accused resided at unit 505/71-75 Regent Street, Chippendale; the deceased had the cleaning contract for this building. 2. The deceased resided…with his wife, their two small children, and [a] daughter by a previous marriage, J (aged 10 years). 3. On about 23 December, 2003, the accused, at the invitation of the deceased, arrived at…[the deceased's home] to spend the Christmas period with the deceased and his family. The accused stayed there until 27 December, when, following an argument with the deceased, he left. 4. On 31 December, 2003, the accused armed himself with a hammer and a knife and set out on foot from his home at Chippendale for the deceased's home... At about 10.30 pm on that date, he entered the deceased's home via an unlocked window. At this time the deceased and the three children were asleep in their beds; the deceased's wife was at work. 5. The accused entered the bedroom where the deceased was sleeping. He struck the deceased about the head with the hammer, inflicting fatal injuries. 6. The accused then went to the bedroom where J was sleeping. He awoke her. He threatened her with the knife, threatening to kill her if she did not obey him. He then took her to the rear shed/garage of the premises, where he sexually assaulted her (orally and vaginally). 7. The accused then forced J to accompany him on foot on a journey through the streets of several suburbs. At about 7.00 am on 1 January, 2004, in an area in the vicinity of the Chullora Railway Yards, he again sexually assaulted her (anally). He then continued to lead her through the streets until about 3.00 pm on the same day, by which time they had returned to the Campsie area. At this time, J escaped from the accused, and ran home in a distressed state, where she met police engaged in the search for her. 8. At about 8.30pm, police searching for the accused were informed of the presence of a man in the storm water drain at Campsie. Upon investigating they discovered the accused, and arrested him. 9. The accused participated in an electronically recorded interview with investigating police on 1 January, 2004. The accused made detailed admissions in relation to the offences with which he was charged. He admitted going to the deceased's home on the evening of 31 December, 2003, armed with a knife and a hammer. He admitted that his purpose in so doing was firstly to assault the deceased; and secondly, to obtain sexual gratification from the deceased's 10 year old daughter. He admitted entering the deceased's house through a window. He admitted striking the deceased's head with the hammer, as the deceased lay in his bed. He admitted to then rousing J from her bed, threatening to kill her with the knife, taking her to the shed/garage at the rear of the premises, and sexually assaulting her (orally) and attempting anal and vaginal sexual intercourse with her. He admitted to then forcing J to accompany him on foot on a journey from the deceased's home, through several suburbs, and lasting through the night and into the next day. He admitted that during this period, whilst in the vicinity of the Chullora Railway Yards, he again sexually assaulted J (anally). 10. The accused also admitted that he had sexually assaulted J (orally) whilst staying in the deceased's home earlier in December. 11. J told police that she was sexually assaulted (orally, vaginally) by the accused in the garage of her home; taken from her home by the accused; again sexually assaulted (anally) by the accused, and later she escaped from him. She also disclosed that she had a few days earlier been sexually assaulted by the accused in her home. 12. DNA from a blood-stained hammer found in the deceased's garage was matched with that of the deceased, and of the accused. A knife was also found in the garage. 13. A post-mortem examination of the deceased concluded that the cause of his death was "multiple blunt force injuries to the head". Thirteen injuries were identified by Dr Duflou externally on the head of the deceased. Internal examination of the head revealed what Dr Duflou describes as "very extensive injury" and "massive skull fracturing". The brain "showed very extensive injury".

7 When he was arrested the respondent said about the deceased, "He was harassing me, I wanted to shut him up, so I belted him". In the course of a long electronically recorded interview with police, the respondent said that he had gone to the deceased's home to "bash him" because he had not paid him for work which he had done. In connection with the argument which caused him to leave the home on 27 December, the respondent said of the deceased, "[M] likes to get into your personal life" adding that he had told the deceased "about a friend of mine who had three strokes before it actually killed him and [M] started joking about three strokes last night, you know, and I thought that was a bit of um, no respect for my friend, no respect for my personal life and that's what really pushed me over the edge". The respondent added, "Well, I'm afraid after that day…[M] was heading for it, because he was going to go upstairs [in the building where he was doing some work] and going to bring down a plant - he's got big pots up there. I already put [the hammer] upstairs and [intended to] give it to him up there and so it was going to happen … nothing would calm me down to the point where I wasn't going to give it to him…" This intended attack was to take place on 31 December but, as it happened, the deceased did not go to the top floor of the building as the respondent had expected. The respondent said that, when he realized that the deceased had left without going up to the roof, "As most people do when they want to bash someone, they lose their chance, they want another one", so he collected the hammer and some clothes in the bag and eventually finished up at the deceased's home. 8 The respondent told police that he walked from his home to the deceased's and that this had taken him the best part of three hours and he wandered around for some "five hours" before he entered the home, wondering whether he could carry out his planned attack because he had "never bashed anyone before". Having decided to go through with it, the respondent removed the family dog from the front yard so that it would not bark and alert the occupants of the house to his presence. The respondent said that he intended to sexually assault the child as "further payback to [M]" adding that he knew that the deceased thought a lot of the girl and that his sexually assaulting her would "really piss him off… so I was going to use it as a double bunger". The respondent was also sexually attracted towards the child and wanted to have sexual intercourse with her. The respondent denied that his purpose in attacking the deceased was to ensure that he did not protect the girl from sexual interference. 9 The respondent said that he took the knife to defend himself if the deceased got the better of him, noting that the deceased was a substantially bigger man. He added that he thought that attacking him while he was in bed was "the best opportunity". He explained that he wielded the hammer, holding it "right down to the base" because he knew that that was "where the power is". That, he said, was how he had learned to use a hammer. He maintained that he struck the deceased only three times and not with "full force". He consistently denied throughout the interview that he intended to kill the deceased. He said that he expected that the deceased would be taken to hospital and treated, whereupon he could say to him, "…That's what you get for being an arsehole". 10 The respondent also felt aggrieved by his belief that the deceased had failed to pay him for work he had done and his feeling that he was "being used". 11 The autopsy report showed four major injuries associated with lacerations and fractures of the skull. These were - 1. There was a 50 x 40 mm stellate area of laceration of the skin on the right side of the head, extending from the right eyebrow at the level of the mid capillary line interiorly to a position 60 mm anterior to and 45 mm superior to the external auditory meatus of the right ear. There was a minor abrasion of the edges of this wound. Multiple bone fragments were identifiable within the depths of this wound. 2. There was a 52 x 20 mm complex area of laceration at the right temple with minimal abrasion of the wound edges. The wound was located within 70 mm superior to and 44 mm anterior to the external auditory meatus of the right ear. Bone fragments could be identified with the depths of this wound. 3. There was a 27 mm crescentic laceration with an 11 mm inferior extension of the laceration on the left forehead, 25 mm to the left of the midline and 40 mm above the glabella. The wound was concaved laterally. Bone fragments were identified within the depths of this wound. 4. There was a large periorbital haematoma on the right with associated deformity of the orbit and obvious fracturing of the bones of the orbit. Otherwise, there were a number of relatively trivial lacerations and bruises to the head.

The respondent's intention and the connexion between the offences 12 Two significant questions were in controversy before his Honour. The first of these was whether the respondent intended to kill the deceased or cause him grievous bodily harm. The second was the extent to which the intention to sexually assault the deceased's stepdaughter and the associated kidnapping should be regarded as independent crimes or, on the other hand, so closely linked with the killing of the deceased that they rendered that offence more heinous. 13 The serious injuries described above were, as one would expect, also associated with major brain damage. It is self evident that these injuries were inflicted with considerable force. However one characterizes the respondent's description of what he wanted to do, it is inescapable from what he did do that he intended to inflict very serious injuries of the kind which were in fact inflicted. 14 The learned sentencing judge thought that it was reasonably possible that the offender attacked the deceased for the reasons he gave, namely, by way of retaliation for perceived wrongs and that part of his desire was to punish him with the knowledge that his daughter had been sexually assaulted. His Honour was struck, as indeed we were, by the extraordinary candour of the respondent's interview with police. It indicated such a complete lack of remorse for what had occurred both in respect of the father and the child as to destroy any possible claim for mitigation but, at the same time, strongly suggesting that what he said about his intentions was truthful. Accordingly, his Honour found, in effect, that he could not be satisfied beyond reasonable doubt that the applicant intended to kill the deceased as distinct from causing him grievous bodily harm. 15 The issue of the respondent's intention is a difficult one to determine, given the nature of the respondent's reasoning, which was bizarre on any account. The overwhelmingly most significant objective fact tending to prove that the respondent intended to kill the deceased is, of course, the injuries that he in fact inflicted. At the same time, there is good reason for accepting that he saw it as part of his revenge on the deceased that he would know that his daughter had been sexually assaulted. 16 Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. In R v Nelson (unreported, NSWCCA 25 June 1996) McInerney J said (Gleeson CJ and Studdert J agreeing) that "there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill"; see also R v Wilson [2005] NSWCCA [112]. 17 In our view, the finding that the respondent intended only to cause grievous bodily harm does not in the circumstances here significantly reduce his culpability. Put another way, the culpability involved in the premeditated vicious attack of extreme violence on the victim in his own home is so grave that the mere fact that the respondent might not have intended to kill does not significantly mitigate the gravity of the offence. For this reason, it is unnecessary to determine whether the learned trial judge's conclusion about whether the respondent intended to kill the deceased is incorrect and we decline to do so. 18 More difficult is the relationship between the sexual assaults and the kidnapping and the murder, which were committed to gratify the respondent's desire both for revenge and sexual gratification. The learned sentencing judge said - "I think it reasonably possible that the offender attacked the deceased for the reasons he gave and that his abduction and sexual assault on the child although planned before he entered the house, were independent of that attack. That he attacked the deceased by way of retaliation for perceived wrongs was something that he asserted at the outset and which he maintained, together with his denial of an intent to kill, throughout his lengthy and detailed police interview. [12] The offender admitted that he woke the deceased before he struck him and the Crown prosecutor relied upon this as demonstrating the callousness of his behaviour. That may be so, but it is not consistent with the actions of a man who wished to dispatch the deceased so as to gain unimpeded access to his stepdaughter. The end would have been achieved more efficiently by striking him while he was asleep. The desire for the deceased to be awake, so as to be aware of his assailant's violence, is more consistent with retaliatory motives. It is generally conformable with the offender's account that, far from wanting the deceased dead, he wanted him to live and endure the pain and anguish which the attack upon him and the abduction and sexual assault of the little girl were meant to engender. "

19 Accordingly, his Honour concluded that the respondent's "desire to cause the deceased distress by the abduction and sexual assault of his stepdaughter bears upon the gravity of those offences, not the murder." 20 With respect, we are unable to accept the correctness of this reasoning. The respondent himself regarded both his intended attack upon the deceased and the sexual assault of his child as inextricably linked elements of his revenge. We agree that the fact that the respondent awakened the deceased before attacking him suggests that preventing him from protecting his child from the intended assaults was not the primary reason for attacking him. But, accepting that the respondent had another reason for waking the deceased and attacking him, it is nevertheless clear beyond reasonable doubt that, having done so, the respondent intended that the blows he inflicted would be sufficient to prevent the deceased from protecting his child, as in fact they were. 21 Furthermore, the offences were each parts of a single act of terrible vengeance although, as it happened, the respondent also had the desire for sexual gratification. They occurred on what, for practical purposes, should be regarded as the same, though continuing, occasion. It is obviously not possible to state in any meaningful way the extent to which the culpability for the sexual assaults overlapped the culpability for the killing but it was substantial. 22 It follows that, with all due respect, we are unable to accept the learned trial judge's conclusion that the respondent's desire to punish the deceased by abducting and sexually assaulting his child bears only upon the gravity of those offences and not upon the heinousness of the murder. We are of the view that those assaults do indeed bear upon the culpability of the respondent for the murder and that, with the other associated facts to which we have referred, they place that murder in the worst class. 23 It is necessary, therefore, to consider the provisions of s61(1) of the Crimes (Sentencing Procedure) Act 1999 - "A court is to impose a sentence of imprisonment for life upon a person who is convicted of murder if the court is satisfied that the level of culpability in the committing of the crime is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 24 The learned sentencing judge observed that a life sentence for the murder could not be justified on the basis that the respondent represented a danger to the community. That danger, his Honour considered, arises "because of his propensity for pedophilia not violence". Again, with respect, we do not think this reasoning is right. The circumstances of the murder itself showed that the respondent is an extremely dangerous man. The motivation for the extraordinary level of violence arose from essentially trivial slights, perhaps exacerbated by a longer standing resentment for not being paid enough for the work he did for the victim. That the slights described by the respondent were sufficient for him to seek vengeance in the way that he did is compelling evidence of his dangerousness as a murderer, not merely as a pedophile and (to use an old fashioned term) rapist. Dangerousness alone, of course, is not sufficient to bring an offender within s61(1), since the extent of an offender's culpability for the crime marks the outer limit of any appropriate punishment. Nevertheless, it is clearly a highly relevant factor, indeed, one to which the sub-section itself directs attention.

Subjective features 25 There was nothing in the respondent's subjective case that gives rise to any mitigation. He was fifty-three years of age at the time of sentence with a criminal history for pedophile offences, some committed in this State and some committed in the Australian Capital Territory. His earlier offences included two offences on separate occasions of kidnapping or abduction and sexual assault of five-year-old girls. In 1992, the respondent was dealt with on a Crown appeal in the Federal Court of Australia (R v Hillsley unreported, FCA 11 February 1992). Part of the evidence in the proceedings included reports of two Probation and Parole officers and a psychiatrist whose opinion, in short, was that the respondent represented a risk to the community and the psychiatrist thought that there was a considerable likelihood of repetition of the offences unless the respondent underwent treatment. The respondent did not do so, though perhaps he was not entirely at fault in this respect. Regrettably, the psychiatrist's prediction proved correct. There is no evidence of remorse and the plea of guilty takes this matter no further.

Discussion: the sentence for murder 26 In many cases it will be appropriate to consider whether the prospects of rehabilitation (even remote) permit a sentence to be imposed which adequately reflects the retributive and denunciatory functions of sentencing and at the same time permits the Parole Authority to consider whether an offender can safely be released on parole after having served a term of imprisonment that is the minimum sufficient to reflect the seriousness of the crime. In many cases, even of murder, it may be possible to be reasonably assured that the offender will pose no substantial risk to the community when he or she is released. The notions of retribution, punishment, community protection and deterrence are not, of course, entirely independent of each other. However, there are some crimes which are so wicked that a sentence less than a life sentence cannot adequately reflect the community interest in retribution and punishment, quite apart from the potential for rehabilitation or any need to protect the community. In our view, this murder is a crime of this kind. 27 We have not thought it necessary to discuss other cases in this Court where life sentences have been imposed. Each is a reflection of its own facts. However, in so far as any pattern can be discerned, the circumstances of this case place it well within the boundary which, it might be thought, those cases circumscribe. 28 In these cases, as with all Crown appeals, the Court must consider whether the principle against double jeopardy should lead the Court to exercise its discretion to dismiss the appeal even though the sentence under appeal is inadequate: see, eg, R v Harris (2000) 50 NSWLR 409 at 431. In this case, the most powerful consideration suggesting that the Court should exercise its discretion in this way is that the sentence imposed, as a matter of practical reality, amounted to a life sentence, albeit with the possibility of release on parole, if the Parole Authority thought it proper, when the respondent reaches the age of seventy-seven years. 29 However, with respect, a crucial aspect of the respondent's culpability for the crime of murder was, as we have said, left out of account, as was also the danger to the community he represented with regard to very serious violence (as well as pedophilia). When those matters are accorded appropriate significance, the protection of the community requires and the heinousness of the crime is such that the intervention of this Court is required.

Discussion: the sexual offences and kidnapping 30 The Crown has also appealed from the sentences imposed for the sexual assaults and kidnapping. The facts of the sexual assaults are sufficiently set out in the agreed statement of facts and it is unnecessary to dilate upon them. It should be noted that the learned sentencing judge's starting point for sentencing the respondent for those offences was (rightly) twenty-five percent higher than the sentences imposed. Furthermore, it was necessary to assess each sentence and the structure of all of them with an eye to totality. The learned sentencing judge noted that the standard non-parole periods specified by the Crimes (Sentencing Procedure) Act 1999 applied to the sexual assaults, prescribing a term of fifteen years. As to those offences, his Honour said that he set shorter non-parole periods because of the respondent's pleas of guilty and cooperation, accepting the place of the standard non-parole periods as reference points or guideposts in accordance with R v Way (2004) 60 NSWLR 168. In this case, the respondent's cooperation was particularly significant, since it occurred when he was first interviewed and hence the victim was from the beginning aware that it would be unnecessary for her to give evidence. In cases of sexual assault this is an important consideration. 31 It was submitted by the Crown that the learned sentencing judge either overlooked or did not give sufficient attention to the age of the child, the threat with the knife and the extended period of the abduction. These matters are all referred to in his Honour's reasons. We reject this submission. It is also submitted, as was mentioned at the outset, that the concurrency of the kidnapping and substantial concurrency of the sixth count meant that the overall criminality of these offences was not reflected in the effective sentence imposed for them. This argument was not strongly pressed. In our view, it lacks merit, especially when the necessity to make allowance for the utilitarian discount is taken into account. 32 One possibly troubling matter concerns the fundamental importance of avoiding a double punishment: Pearce v The Queen (1998) 194 CLR 610. As we have said, the sexual assaults were inextricably linked with the murder, rendering the latter more heinous than otherwise. The sexual assaults were rightly regarded as more culpable because they were part of the respondent's desire to wreak violent vengeance on the child's father. In our view, the sentences for these offences were lenient when, in light of the respondent's record, the need for personal deterrence is given appropriate significance. These factors militate in favour of increasing these sentences or varying their concurrency to increase the effective term. On the other hand, the fact that the life sentence we propose arises in part from the commission of those offences involves an element of double counting. Moreover, a reconsideration of the sentences in accordance with the principle of totality must follow from the increase of the sentence for murder. These factors militate in favour of decreasing the sentences. It is also necessary to bear in mind the principles applying to Crown appeals. Balancing these considerations has led to the conclusion that the sentences for the kidnapping and the sexual assaults should not be varied. 33 Accordingly, Court makes the following orders - 1. The appeal in respect of count 1 is upheld; 2. The sentence in respect of count 1 is quashed and substituted therefor a sentence of life imprisonment to commence on 1 January 2004; 3. The appeal on counts 2 to 6 is dismissed.

Privacy 34 Section 11 of the Children (Criminal Proceedings) Act 1987 has the effect, in the circumstances of this case, of prohibiting the publication of the name of the child victim or any information, picture or other material that identifies her or is likely to lead to her identification. Section 578A of the Crimes Act 1900 prohibits publication of any matter which identifies a complainant (in prescribed sexual assault proceedings such as these) or any matter which is likely to lead to the identification of the complainant. Accordingly, publication is prohibited of the name of the child victim, the deceased, the child's mother or other details that would be likely to lead to the identification of the child victim. The child has been through a harrowing experience which will, no doubt, be with her for a very long time. It is the hope of the Court that her privacy will be respected and, to this end, any publication of the circumstances of the case will not reveal any information which may tend to identify her. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: REGINA v HILLSLEY [2006] NSWCCA 312

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