R v Ahola (No 8)
[2013] NSWSC 1128
•16 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Ahola (No 8) [2013] NSWSC 1128 Hearing dates: 2 August 2013 Decision date: 16 August 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: Sentenced to imprisonment for 24 years to date from 19 October 2011 and expire on 18 October 2035, comprising a non-parole period of 18 years, followed by a balance of the term of sentence of 6 years. The first date upon which the offender will be eligible for release to parole is 18 October 2029.
Catchwords: CRIMINAL LAW - murder - plea not guilty - assault on deceased with wooden baton -19 injuries to head of deceased - offender in a relationship with deceased - offender longstanding problems with alcohol - guarded optimism about prospects of rehabilitation - sentence imposed Legislation Cited: Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999Cases Cited: R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
R v Previtera (1997) 94 A Crim R 76
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270Category: Sentence Parties: Regina
Jouni Risto Ahola (offender)Representation: Counsel:
K Alder (Regina)
G Scragg (offender)
Solicitors:
Solicitor for Public Prosecutions (Regina)
Legal Aid NSW (offender)
File Number(s): 2011/333607
Judgment
On 29 April 2013, Jouni Risto Ahola (to whom I shall usually refer in these remarks as "the offender") was arraigned before a jury panel and me. The single count contained in the indictment alleged that, on 18 October 2011, he murdered Sandra Margaret Thomson (to whom I shall usually refer in these remarks as "the deceased"). The offender pleaded not guilty, a jury was empanelled, and the trial proceeded until 30 May 2013. On that day, the jury returned a verdict of guilty of murder. On 2 August 2013 evidence was taken and submissions received in the proceedings on sentence. As a result of those events, the offender comes before the court for sentence today.
Fact-finding on sentence
A number of facts were not the subject of dispute between the parties at trial. They include matters of background relating to the life of the deceased. Similarly, on sentence, there was no dispute by the Crown with regard to matters of background with regard to the offender.
With regard to matters that have been the subject of dispute, before I could take a matter into account in aggravation against the offender, I would need to be satisfied of it beyond reasonable doubt. In order to take a matter into account in mitigation in favour of the offender, I would need to be satisfied of it on the balance of probabilities. It may be, of course, that I am unable, on the evidence, to make a firm finding about some matters: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.
It is my role to make findings of fact consistent with the elements of the offence of which the jury found the offender guilty. It is not my role to try to determine the facts that I consider that the jury must or may have accepted: R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587.
Aspects of the offence
On 18 October 2011, the deceased was living in a rented flat in the coastal village of Malua Bay, several kilometres south of Batemans Bay on the south coast of New South Wales. Staying with her in those premises was the offender.
The circumstances that had led them to be in that flat together were as follows. The deceased had grown up on the south coast of New South Wales, but had lived for many years in Queensland. There she had married and raised a family. A decade or so before the day in question she had separated from her husband. Unfortunately, in middle age the deceased had developed a serious drinking problem. It substantially affected her health and her relationships. As a result of that problem, she gradually became estranged from her siblings and her children. For a while in the middle of 2011 she lived with her brother and his family on the Central Coast of New South Wales. Eventually it was decided that it would be better for all concerned if she were to live on her own. The deceased wished to return to the area in which she had grown up, and obtained a lease over the premises at Malua Bay in July 2011.
Whilst she was living with her brother, she had met the offender one rainy evening in a hotel at Gosford. They quickly formed a romantic relationship, even though the offender lived in Tarcutta, on the edge of the Snowy Mountains region. They stayed in close contact by phone calls and text messages.
The offender had visited the deceased at her flat in Malua Bay for a separate stay some weeks before. That visit had gone well. Indeed, by 18 October the couple had announced to some friends and family members that they were to be married, and arrangements had been made for the wedding to occur later in the year.
Despite everything appearing rosy on the surface, things were not as positive as they seemed. The offender shared the deceased's commitment to alcohol, and, in short, they were both heavy and problematic drinkers. Neither was working at the time, and they were short of money. Life together in Malua Bay was circumscribed, not least by the fact that they did not have access to a car.
More ominously, even on the version of events that the offender later gave to the police, he and the deceased were bickering about trivial things. A tradesman who attended the flat the day before gave evidence in the trial that, during the hour he was there, the two of them were arguing more or less continually.
Returning to 18 October 2011, the offender completed some gardening chores throughout the day. In the afternoon, he and the deceased walked to the small local shopping centre of Malua Bay, arriving there at about 3pm. There they purchased some foodstuffs, some tobacco, and a bottle of rum. The CCTV of that visit suggests that they were happy to be in each other's company, and that nothing was amiss.
By early evening, the bottle of rum had been consumed. The offender returned alone on foot to the shops, and purchased a large cask of wine. He was seen by neighbours making his way back to the flat through the streets of Malua Bay shortly before 9pm. During that journey he spoke by telephone to a female friend and asked her to be a bridesmaid at the wedding. Again, that conversation suggests that nothing was wrong.
By 9:13pm the offender was back at the flat. At that time he rang the switchboard of the Queensland Police. He was seeking a Detective Ron Wanklin, who was a police officer with whom the deceased had had some dealings in the past. The call was recorded, and the deceased can be heard in the background. Careful listening to the recording demonstrates that she was not in physical or emotional distress, and that she and the offender were on affectionate terms.
It is not clear to me why the call to Queensland Police was made. The position of the offender at trial was that he called because he had seen some persons who it was felt might have wished to do the deceased harm, as a result of ill feeling arising from events in Queensland. In light of the fact that that assertion of the offender was part of the general attempt on his part to deflect implication in the murder away from himself, I do not accept it. But the fact remains that something must have happened that prompted the phone call to Queensland. Whether that precipitating event has anything to do with the tragedy that occurred very shortly afterwards is impossible to determine.
Soon after that phone call was completed, the offender and the deceased were in the small kitchen of the flat. The deceased was most probably in the process of cooking dinner. It was then that the offender struck the deceased a number of very forceful blows to the head. In all likelihood the first blow was from behind. From a very early stage, and perhaps at the time of the very first blow, the offender used a wooden baton that the deceased kept in the flat for her own protection. At some stage, the deceased sought to escape from the kitchen into the front yard via the glass sliding door, but she was unable to do so. No neighbours heard what was happening, because Malua Bay is sparsely populated in the holiday off-season.
The motive for this vicious assault is not clear. I mean no disrespect to the deceased when I say that I infer that she could on occasion be a difficult woman, and especially when she had been drinking. In seeking to work out what happened, it is worth noting that the offender had not shown himself to be a violent man in the past, a topic to which I shall return.
It may be that an argument about a trivial matter escalated; perhaps the subject matter was as banal as the meal that was about to be served. It may be that the deceased made some sort of disparaging remark about the offender. Perhaps she called into question the wedding, thereby enraging him. Of course, if it was the deceased who said or did something that led to the infliction of murderous violence upon her, it goes without saying that her actions did not provide the slightest justification for it.
At the time of the attack in the kitchen, I am prepared to accept that the offender had lost self-control to a substantial degree. But there was a pause, as the blood pattern demonstrates to my satisfaction beyond reasonable doubt. For a period that cannot be precisely quantified but that was certainly not momentary, the deceased was stationary near the stove, and blood from her wounds dripped onto the kitchen floor and formed a substantial pool. Satellite spatters demonstrate that blood was falling into blood. I am satisfied to the criminal standard that the attack had abated at that stage. Furthermore, it is very hard to imagine that the deceased, having been struck a number of times, badly injured, and bleeding, was stationary and standing or leaning over the sink. After consideration, I am satisfied that she was lying with her head on the floor in or very near the pool of blood. At that stage, the offender had regained his composure, at least to a sufficient degree to stop attacking the deceased.
Later, the deceased moved or was moved from the kitchen to the bathroom. It is not clear whether that was of her own motion, or whether the offender moved her there, perhaps in an effort to clean her wounds. Whichever it was, shortly after arriving at the bathroom the deceased tried to stop the offender from entering the bathroom by forcibly shutting the door against him. She failed; he entered; and, armed with the baton, he beat her to death in that location.
The photos of the blood patterns in that small room speak eloquently of the violence inflicted upon the person of the deceased. It is noteworthy that the blood spatter extends to the ceiling of the bathroom. It is also indicative of the ferocity of the attack that there were later found to be defensive bruises to a forearm of the deceased. Even more telling is the fact that the deceased was found on post-mortem to have 19 separate injuries, almost all of them to the head, and they included a fractured skull. Considering the severity of the assault upon the deceased more generally, it is enough to say that the blows were of sufficient force for the wooden baton to have broken in two.
The deceased ended up lying face down on the bathroom tiles. At a late stage of the attack, a very powerful blow was inflicted to the back of her head, resulting in a significant blood pattern at a low point on the bathroom wall.
I accept that the offender lost self-control to a degree and was, at the time of the attack in both rooms, in something of a frenzy. However, as I have indicated, the offence was not one explosion of violence that quickly subsided. There was a not insubstantial pause before the offender recommenced the attack. It is true that there was some loss of self-control on the part of the offender. However, the number of injuries; the infliction of violence in two separate locations, punctuated by a pause; the use of a weapon; the defensive injuries; and finally the location of the vast majority of blows, namely to the head and neck of the deceased, establish in combination beyond reasonable doubt an intention to kill. Counsel for the offender has not sought to argue otherwise.
At the end of the attack, the offender recovered his composure. He realised that he had inflicted very serious injuries on the deceased, and that she was either dead or in grave danger of dying. I accept on the balance of probabilities that he rolled the deceased over and, using his first aid training, performed CPR upon her in a futile effort to save her life. And I regret to say that, shortly thereafter, the offender callously smoked a cigarette over the deceased and permitted ash to fall on to her body as he pondered what to do.
Thereafter, the offender retreated to the backyard with the cask of wine and a packet of cigarettes. It took quite some time for him to phone 000. I accept that that delay is partly accounted for by the shock of the offender at the terrible consequences of what he had done. But the delay is also accounted for by the offender carefully considering what he could do or say in order to avoid punishment for his actions.
Eventually, he rang the police and they attended at the scene. Although somewhat drunk, he gave them a version of events that was a considered mixture of truth and lies. He did the same when he was formally interviewed very early next morning at Batemans Bay Police Station. Regrettably, he did the same in the witness box before the jury and me.
In particular, the offender told the police that he rang the Queensland Police because, after he had returned from the trip to the shops in the evening, he had found his fiancée brutally murdered by an unknown assailant. That was undoubtedly a lie: when he told it, the offender was not to know that the telephone call had been recorded, and that the recording would subsequently prove that at the time the call was made the deceased was alive and well.
The offender was arrested on 19 October 2011, and he has been held in custody ever since.
Objective seriousness of the offence
The offence of murder carries a maximum penalty of imprisonment for life without parole, and, in the circumstances of this case, a standard non-parole period of imprisonment for 20 years. I regard each of those matters as important guideposts in my approach to sentencing. It has not been submitted by the Crown Prosecutor that this is a matter that calls for the imposition of the maximum penalty.
All murders are profoundly serious, involving as they do the criminal taking of the life of a fellow human being in the worst circumstances known to law. But it is possible, even accepting that characterisation of all murders, to construct a general range of seriousness of the offence. For example, a murder committed with an intention to kill may very often be more serious than a murder committed with only an intention to inflict grievous bodily harm. A murder committed by a cold-blooded contract killer for money may very often be more serious than a murder committed spontaneously and without premeditation.
If this murder had been premeditated, the offender would have committed the offence in such a way that he could cover his tracks far more effectively than he did. I am satisfied that the murder was unplanned and spontaneous, and that it was the product of a highly emotional state on the part of the offender.
On the other hand, there was an intention to kill. As I have discussed, there was also a period when the violence stopped and the offender composed himself, only to recommence the attack in a different location. A weapon was used with great force. The final ordeal of the deceased was extended, merciless and excruciating. Ultimately, she was left to die on the bathroom tiles.
In all of the circumstances, this murder cannot be characterised as anything other than very grave.
Aspects of the offender
As I have indicated, these sentencing proceedings arise after a trial. Neither the offender nor his counsel has said anything since the verdict of the jury was delivered to indicate that the offender takes responsibility for the death of the deceased in the slightest. Whilst the offender is not, of course, to be punished for pleading not guilty and the maintenance of his position, there can be no reflection in the sentence of any utilitarian benefit to the criminal justice system. Nor can the sentence reflect remorse on the part of the offender, or even an acceptance of responsibility.
The offender was affected to some degree by alcohol when he murdered the deceased. Indeed, I consider that he was affected to some degree by alcohol for much of the time he was at Malua Bay. I shall return to the subject of the relationship of the offender with alcohol, but it is enough to say at this stage that the offender was a very experienced drinker who certainly was not unusually or unexpectedly intoxicated on the evening in question.
On the other hand, I consider that his intoxication at the time played some role in the commission of the offence, because the well-known disinhibiting effects of alcohol made him more liable to lose control. It is not the case that the offender well knew from past events that intoxication would lead him to become violent. I have reminded myself of the decisions of the Court of Criminal Appeal to the effect that drunkenness can "cut both ways" with regard to offences in general, and offences of violence in particular. In the circumstances of this case, I have reduced the sentence to a small degree to reflect the fact that the offender was not completely sober at the time he lost self-control and inflicted a violent death upon the deceased.
The offender was born in August 1961, and was accordingly aged 50 years on 18 October 2011, and is now aged 52. He is of Finnish background. An only child, he arrived in this country with his parents at the age of 9 years. After a short period in a migrant hostel, the family moved to the Snowy Mountains area, and the offender has lived there throughout his adult life. There is nothing to suggest that he suffered the deprived or unsatisfactory background of so many offenders who come before the criminal courts, but I am prepared to infer that his upbringing was not one of privilege or indulgence.
The offender left school at the age of fifteen. Since that time he has worked as a carpenter. Although he was not working at the time of the offence, the evidence suggests that that was because he was between jobs. I accept that he has been a diligent, skilled and steady worker throughout his adult life.
Many years ago the offender was married, and he has three adult daughters from that union. The written evidence on sentence speaks highly of him as a son and a father. There is also evidence from family members and friends that the offender is not a violent or even an angry man, whether drunk or sober. Many persons have expressed their inability to understand the actions of the offender that evening. They assert that this murder was an out of character aberration in the life of the offender.
On the other hand, when the offender was in the witness box and in the early stages of cross-examination by the Crown Prosecutor, he almost immediately came across as an angry, even aggressive, person. That was at a time when the offender must have known that it was essential that he impress the jury as being mild-mannered. I record that the trial transcript goes no way to reflecting the atmosphere in court at that stage.
At first I thought that that passage of the evidence provided a more accurate picture of the personality of the offender, a decidedly adverse picture. But, on reflection, I accept the submission of his counsel that the demeanour of the offender on that occasion was the result of the enormous stress he was under, along with the inevitable restrictions arising from his conditions of custody. In short, I am prepared to accept the evidence that the offender has not in the past been a person prone to violence.
The criminal record of the offender is lengthy, but it is not of the greatest seriousness. It is noteworthy that it began when the offender was aged 22 years, when he was convicted of drink driving. Shortly after that he was convicted of a crime of violence, namely assaulting a female, although it was disposed of in the Local Court by a small fine and a short bond. I infer from those facts that it was a less serious matter. Since then, his criminal record suggests that he has on occasions been nothing more than a nuisance. For example, his convictions include offences founded on kicking over a garbage bin, throwing an object at a ferry, and failing to leave licensed premises.
On the other hand, firearms offences committed in 2006 and dealt with in the District Court at Parramatta have a more serious flavour. So does the fact that, having been gaoled for a short period in 2010 for repeated driving offences and released to parole, the offender committed the offence of murder only months after his conditional liberty expired.
Speaking more generally about the criminal record of the offender, his counsel did not seek to dissuade me from my original impression that all of those convictions could well be related to alcohol.
On that topic, whether the offender cares to accept it or not, he certainly has an issue with alcohol. He has been convicted of driving whilst under the influence many, many times. Indeed, he was seen some months ago by Dr Nielssen. Although that eminent forensic psychiatrist found no sign of mental illness or intellectual disability, he diagnosed the offender as suffering from an alcohol abuse disorder. Alcohol has brought the offender before the courts repeatedly over the years; it led him to be living in Malua Bay with another person with the same issue; and it has played a role in him being found guilty of murder.
It is true that the evidence is that the offender, like many people, merely gets a little loud when drunk, but does not otherwise misbehave. But it is also true that the evidence to that effect is from the licensee of the Batlow Hotel, where the offender was a regular drinker, and it refers to occasions upon which the licensee has refused to serve the offender more alcohol. Other references refer to the applicant as "a bit of a scoundrel", "foolish", and "no saint", and I consider that alcohol has exacerbated those character traits over the years.
For many years into the future, the offender will not be in a position to drink alcohol. In light of everything that has happened, I consider that the offender should, whilst in custody, seek to address the underlying emotional issues that have led to his relationship with alcohol and that have, at least indirectly, led to him being in the dock today.
As for his prospects of rehabilitation, it seems that the offender will be able to serve his sentence quietly and constructively. I expect that he will be a worker during the years ahead, and that he will maintain a good relationship with his mother and stepfather and daughters, all of whom are supportive of him. When he becomes eligible for release, he will have been free of alcohol for a very long time. By then he will not be a young man, and that will perhaps play a role in making it less likely that he will lose control and inflict violence upon another person again. As I have said, he has certainly not demonstrated in the past an entrenched tendency to be violent. In all the circumstances, I possess a guarded optimism about the rehabilitation of the offender.
Comparable cases
The Crown Prosecutor provided me with statistics to do with sentences for murder generally, a table of cases from the Public Defenders of sentences at first instance and on appeal for killings in a domestic setting, and a number of judgments of the Court of Criminal Appeal with regard to appeals against sentence in the same general circumstances. I do not regard it as necessary to embark upon a detailed analysis of all of that material, though I have found it very helpful and taken it into account.
Of course, each case turns upon its own facts. Here, as I have indicated, the offence featured an intention to kill; there is no remorse or utilitarian discount; a weapon was used over an extended period; and the offence is subject to a standard non-parole period of 20 years. That is in contrast to many of the sentencing decisions to which I was referred.
Section 21A of the Crimes (Sentencing Procedure Act) 1999
I will not mechanistically work my way through the statute or the aggravating and mitigating features in this case. I trust that my discussion of the objective and subjective aspects of the matter will appropriately reflect those features I have found to exist in this case. I have referred myself to the section before delivering these remarks, and taken care to avoid the danger of erroneous double counting that can arise in a matter such as this.
Special circumstances
Counsel for the offender did not submit that I should find special circumstances in this case that would permit a variation of the usual ratio between the non-parole period and the head sentence. I have nevertheless considered that question independently. Although this will be the first time that the offender will be in custody for a lengthy period, I consider that the length of the parole period that will be imposed in accordance with the ratio will provide ample time for the offender to be subject to conditional liberty in the community. Accordingly, there will be no variation.
Crimes (High Risk Offenders) Act 2006
I am required by statute to inform the offender that new legislation gives rise to the possibility that, if his rehabilitation in custody does not proceed satisfactorily, he could be subject to conditional liberty or even held in custody, even despite the complete expiration of his total sentence.
Victim impact statements
A number of victim impact statements were read in court, some by their authors and some on their behalf. They poignantly showed that the physical wounds inflicted that night on the deceased were by no means the only wounds that the offender has inflicted. Deep psychological wounds have been inflicted on her family as well. Those wounds will very slowly heal, but the scars will remain forever. Many members of the family of the deceased have experienced a profound sense of guilt at her death, in light of her isolation from them at the time. That reaction is understandable. But it is misplaced, for there is only one person who is responsible for the death of the deceased. On behalf of the Supreme Court of New South Wales, I extend my condolences to those who have loved and lost Sandra Thomson. Nothing that occurs today can make good that loss, although the end of these proceedings, almost 2 years after the murder, may provide some closure and relief to those who are still suffering. I have dealt with all of the matters in the victim impact statements in accordance with well-established principle: R v Previtera (1997) 94 A Crim R 76.
Imposition of sentence
Stand up please Mr Ahola. Jouni Risto Ahola, you are convicted of the offence of murder. I sentence you to a non-parole period of 18 years to date from 19 October 2011. That will be followed by a balance of term of 6 years that expires on 18 October 2035. The first date upon which you will be eligible for release to parole is 18 October 2029.
To be clear, the head sentence is imprisonment for 24 years with a non-parole period of 18 years, to date from 19 October 2011.
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Decision last updated: 16 August 2013
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