R v Archer

[2015] NSWSC 1487

Supreme Court

New South Wales

Medium Neutral Citation:

R v Archer [2015] NSWSC 1487

Hearing dates:

17 September 2015

Date of orders:

08 October 2015

Decision date:

08 October 2015

Jurisdiction:

Common Law - Criminal

Before:

Wilson J

Decision:

1. For the offence of the contravention of an apprehended violence order the offender is sentenced to a term of 21 months imprisonment commencing on 21 September 2014. That sentence will expire on 20 June 2016. In view of the sentences to follow there is no practical utility in specifying a non-parole period.
2. For the offence of wounding Natasha Mason with intent to cause grievous bodily harm to her, the offender is sentenced to a term of imprisonment of eight years to date from 21 January 2016. I specify a non-parole period of six years which will expire on 20 January 2022. The overall sentence will expire on 20 January 2024.
3. For the offence of the murder of Anne Marie Pearson the offender is sentenced to a term of imprisonment of 24 years. That sentence will commence on 21 January 2017. I specify a non-parole period of 18 years which will expire on 20 January 2035.
The overall sentence expires on 20 January 2041. The overall effective sentence with respect to the three crimes consists of a non-parole period of 20 years and four months commencing on 21 September 2014 and a head sentence of 26 years and four months. The earliest date upon which the offender will become eligible for release to parole is 20 January 2035.

Catchwords:

CRIMINAL LAW – sentence – murder – guilty plea – murder of de facto partner – stabbing in deceased’s home – offender on bail – victim impact statement – evidence of the offender’s depression – offender intoxicated – domestic violence

 

CRIMINAL LAW – sentence – wound person with intent to cause grievous bodily harm – guilty plea

  CRIMINAL LAW – sentence – breach AVO

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986

Cases Cited:

Aytugrul v R [2015] NSWCCA 139
Frigiani v R [2007] NSWCCA 81
McLaren v R [2012] NSWCCA 284
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38
Ngati v R [2014] NSWCCA 125
Osborne v R [2015] NSWCCA 257
Porter v R [2008] NSWCCA 145
R v Cayhadi (2007) 168 A Crim R 41
R v Dodd (1991) 57 A Crim R 349
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Shepherd [2003] NSWCCA 351
R v Smith (1837) 8 Carrington & Payne 173
R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Tran, Hoai Vinh v R [2011] NSWCCA 116

Category:

Sentence

Parties:

Regina
Wayne Edward Archer

Representation:

Counsel:
B Campbell (Crown)
E Wilson SC (Offender)

  Solicitors:
Solicitor for Public Prosecutions
Legal Aid Commission NSW (Offender)

File Number(s):

2014/277471

Publication restriction:

None

Judgment

1. On 21 September 2014 Anne Marie Pearson lost her life in a savage attack upon her by the offender, Wayne Edward Archer. On the same day, and in a related incident, Natasha Mason was seriously wounded by him.

2. The offender entered pleas of guilty to each of those crimes, and to a related summary offence, and he appears before the Court to be sentenced

3. The offence of murder is one contrary to s 18(1)(a) of the Crimes Act 1900; it carries a maximum sentence of life imprisonment. A standard non-parole period (“NPP”) of 20 years imprisonment is specified by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (“the CSPA”).

4. Wounding with Intent to Cause Grievous Bodily Harm is an offence contrary to s 33(1)(a) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment. A standard NPP also applies to that offence, and is fixed at 7 years imprisonment.

5. The offender additionally stands for sentence in relation to an offence of Contravening an Apprehended Violence Order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. Such an offence, before this Court to be dealt with pursuant to s 167(2)(b) of the Criminal Procedure Act 1986, carries a maximum sentence of 2 years imprisonment, or a monetary penalty represented by 50 penalty units, or both.

6. The maximum penalties and the relevant standard NPPs operate as legislative guideposts that inform the exercise of the Court’s sentencing discretion: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The other features to which the Court must have regard when determining the sentences to be imposed are the objective gravity of the crimes, the personal circumstances of the offender, and the relevant principles of sentencing.

7. The offences of which the offender has been convicted are very serious, but where on the continuum of gravity the individual offences may fall is dictated by the facts of the particular crime and the offender’s moral culpability.

Agreed Facts of the Offences

8. Tendered to the Court as Exhibit A on sentence was a Statement of Agreed Facts, signed by both the Crown Prosecutor and the offender. I have found the facts of the offender’s crimes in accordance with that evidence, which I accept beyond reasonable doubt.

9. During the course of 2010, Anne Marie Pearson was living at an address in Stevenson Street at Taree and working in the bar of the Exchange Hotel in the town.

10. Ms Pearson was a close friend of Natasha Mason, who also lived in the Taree area. The two women had known each other for a number of years, and they had shared accommodation from time to time.

11. The offender was also a resident of the Taree area. He was working in the abattoirs in Wingham at this time, employment he had had for some time.

12. In 2010 a long term relationship in which the offender had been involved ended.

13. The offender was a patron of the Exchange Hotel and he met Ms Pearson there. The two became friends and, after some time, a more intimate relationship developed. In the first couple of years of that relationship both appeared contented and happy to friends.

14. In the middle of 2013 the offender left his job at the Wingham abattoirs and moved to Tamworth to work in the abattoir there. Ms Pearson initially accompanied the offender and lived with him in Tamworth, but returned to Taree after some months. She moved back to her Stevenson Street residence. Ms Mason shared the Stevenson Street house with her.

15. Ms Pearson told her friend that she had missed her children when in Tamworth, and also that the offender had been secretly gambling his income there. She told Ms Mason that he had lied to her about his gambling, and also seemed to become jealous and controlling in his behavior towards her.

16. The offender remained in Tamworth to work but he came to Taree each weekend to see Ms Pearson. The couple began to argue over the offender’s gambling. Each was drinking more. The offender was seen to become jealous and possessive of Ms Pearson, and physically aggressive towards her.

17. Ms Pearson endeavored to deal with the offender’s behaviour herself. She did not involve the police.

18. On 19 March 2014, while living in Tamworth, the offender engaged in an act of self-harm at a time when he had been drinking. He cut his chest with a knife when in a public park and was taken by ambulance to Tamworth Hospital where he was treated overnight for superficial injuries. Hospital Notes record the offender as saying that “it all got too much.” He was living in a hotel, gambling excessively, drinking alcohol, and not paying his rent. He was also concerned about his 19 year old son who had lost his apprenticeships and his employment.

19. The offender was discharged from hospital the day after his admission. He was to see a psychiatrist a week later but did not attend the appointment. He declined a voluntary admission to the Banksia Mental Health Unit.

20. On 4 April 2014 the offender made an apparent suicide attempt in Tamworth by trying to hang himself. He was reported to have lost consciousness and the attempt was regarded as near-lethal. He was left with strangulation marks around his neck that were noted on admission to hospital.

21. Hospital notes record that the offender referred to having had an argument with his partner, and having gambled the whole of his fortnightly salary. He reported an ongoing depressed mood, feelings of hopelessness, a lack of enjoyment of life, and poor sleep over some months.

22. The offender was transferred from the emergency department at Tamworth Hospital to the Banksia Mental Health Unit, where he remained until he was discharged on 9 April 2014. He was visited by Ms Pearson and Ms Mason the day after the suicide attempt.

23. The offender started on the anti-depressant Escitalopram (Lexapro) at a daily dosage of 10 milligrams. His principal diagnosis on presentation was recorded as mild to moderate depression, secondary to pathological gambling, alcohol abuse, financial, and relationship problems.

24. In May 2014 the offender moved back to Taree from Tamworth, moving in with Ms Pearson and Ms Mason. He told a friend that he had lost his job in Tamworth after a run in with the manager. His friend observed that the offender, always a physically fit man, appeared to have lost weight.

25. After a period looking for work the offender secured employment at the abattoir in Wingham, although in a different capacity to that of his previous employment there. He was drinking more than he previously had.

26. Friends reported seeing arguments between the offender and Ms Pearson after the offender returned to Taree, and Ms Pearson’s neighbours heard arguments between them, which seemed to escalate in seriousness. The offender was warned by some about his behaviour towards Ms Pearson.

27. Ms Pearson was concerned by the offender’s gambling, drinking, and his behaviour towards her when he was drinking. The relationship between the two deteriorated, and Ms Pearson ended it. The offender moved from their shared bedroom to the front bedroom of the Stevenson Street house. Ms Pearson did not force the offender to move out of the house altogether because she was worried that he would have nowhere to go.

28. On 21 June 2014 the offender was charged by police after he assaulted both Ms Pearson and a man who came to her assistance.

29. The offender and Ms Pearson had been together at the Manning River Hotel at Taree. Although the evidence of what happened there is scant, in a signed statement to police Ms Pearson said that the offender grabbed her and pushed her into a door. The incident was apparently recorded on security cameras operating in the hotel. An employee of the hotel who tried to help Ms Pearson was also assaulted by the offender. The offender left the hotel.

30. Ms Pearson told police who attended the hotel that she had no fears of the offender when he was sober, but that he became aggressive and assaulted her if he was intoxicated, or losing heavily at gambling. She suggested that the offender was probably at her house and investigating police located him there that night. The arresting officer noted the offender’s high level of intoxication.

31. In addition to the two counts of assault the offender was also charged with an offence of driving under the influence of alcohol.

32. After being charged by police and released on bail, the offender returned to Ms Pearson’s house in the early hours of the following morning, but he was not allowed to enter.

33. On 6 and 7 September 2014 there were further arguments between the offender and Ms Pearson and episodes of violence. The offender visited a friend that weekend. He was intoxicated. He told his friend about having assaulted Ms Pearson and a hotel employee in June at the Manning River Hotel. He said that he had hit Ms Pearson and a man who tried to assist her.

34. The charges against the offender relevant to the June assaults were mentioned in the Taree Local Court on 12 September 2014. Final Orders were made that day subjecting the offender to an Apprehended Violence Order for two years for Ms Pearson’s protection. It contained the statutory orders mandated by s 36 of the Crimes (Domestic and Personal Violence) Act 2007, together with an additional order prohibiting the offender from approaching Ms Pearson or her home within 12 hours of consuming alcohol.

35. The three criminal charges were adjourned until 4 November 2014. The offender’s bail was continued, and he remained at conditional liberty.

36. Some days later, on 18 September 2014, the offender was out jogging when a friend saw him and stopped to speak to him. The offender told his friend, "I've just had enough.”

37. On 20 September 2014 the offender and Ms Pearson attended a football grand final. After the match, they went on to the Royal Hotel at Kew. Staff of the hotel saw the pair at the hotel at around 5pm. Ms Pearson was noted to be moderately affected by alcohol. They bought a carton of beer and left the hotel at 5.45pm.

38. The following day Ms Pearson and the offender went to the home of Wayne Whittaker for a barbeque. They arrived together there at about 10am.

39. The offender was drinking during the two or so hours he and Ms Pearson spent at the barbeque.

40. On leaving the lunch the offender and Ms Pearson went to the Laurieton Hotel with some other friends. Ms Mason was one of the party, as was Mr Whittaker and Ben Whittaker. The group spent about an hour at the Laurieton Hotel, before moving on to the Royal Hotel at Kew, where they spent about another hour.

41. Both the offender and Ms Pearson were drinking beer during this time. The offender was placing bets through a TAB.

42. Whilst at the Royal Hotel the offender telephoned his friend, Gay Finlayson. Ms Finlayson could tell that the offender had been drinking, and he himself told her that he was “pissed”.

43. At around 2.30pm the group drove back to Mr Whittaker's house. There was some dispute between Ben Whittaker and the offender, with Mr. Whittaker unsuccessfully trying to provoke the offender to fight him.

44. A neighbour spoke to Ms Pearson at around 4 o’clock that afternoon after her return home. Ms Pearson was speaking from the bedroom window of her house. They discussed the neighbour’s dogs briefly. Ms Pearson was observed to slur her words as if she had been drinking. She seemed cheerful and relaxed.

45. The offender fell asleep at a table inside the Stevenson Street house. Ms Mason thought he was "really drunk". Ms Pearson suggested he go and lie down. The offender went into his bedroom.

46. He could be heard apparently making telephone calls.

47. Telephone records establish that the offender made a number of calls that afternoon and evening to Ms Finlayson. Seven calls were placed between 1.50pm and 6.45pm that day from the offender’s mobile telephone, as follows:

1:50 - 12 seconds;

1:50 - 39 seconds;

5:21 - 37 seconds;

6:27 - 172 seconds;

6:34 - 185 seconds;

6:41 - 20 seconds;

6:43 - unsuccessful attempt to call; and

6:45 - 328 seconds (and concluding at 6.51 that evening).

48. In the evening calls, Ms Mason heard the offender saying things like, "I love you, I miss you." Ms Pearson asked him who he was calling and the offender responded with his son’s name.

49. Ms Mason saw Ms Pearson go into the offender’s bedroom, returning soon afterwards to the lounge room with the offender’s mobile telephone. Ms Pearson put the handset on loudspeaker so that Ms Mason could hear the call and rang the last number called. The number was that of Ms Finlayson, and Ms Pearson spoke to her briefly. That was likely to be the call placed at 6.41pm.

50. On the other end of the call, Ms Finlayson could hear the offender calling out in the background asking who Ms Pearson was ringing.

51. Ms Mason heard Ms Pearson tell the offender, whilst still on the call to Ms Finlayson, "Tell her what you're really like, tell her you stole money off me". Ms Finlayson ended the call.

52. Ms Pearson went into the offender’s bedroom. Ms Mason did not see what happened in the bedroom and there is no satisfactory evidence of what occurred there between the offender and Ms Pearson.

53. Ms Pearson emerged soon after from the bedroom and sat down in a reclining chair in the lounge room. The chair was adjacent to the entrance to the kitchen.

54. The offender also came out of the bedroom. He went directly to the kitchen and took up a white handled boning knife. He held it in his right hand.

55. He approached Ms Pearson where she sat in the recliner. Ms Mason, who was also in the lounge room, saw him appear to punch Ms Pearson with his left hand to the right side of Ms Pearson’s chest. His hand thereafter remained in position, forcing the reclining chair backwards and keeping Ms Pearson in it.

56. The offender next appeared to punch Ms Pearson with his right hand, directing the blow or blows into the left side of her chest.

57. Ms Mason got up and tried to stop the offender. She then saw that he was holding a white handled knife. She moved to try to pull the offender away from Ms Pearson. Ms Mason saw blood and also noticed that the offender was naked from the waist downwards.

58. The offender stabbed the knife at Ms Pearson’s chest and neck a number of times. She raised her hands above her head in an attempt to ward off the blows, receiving defensive injuries to her right hand.

59. Ms Mason went out to the front of the house to get help from neighbours. She was trying to ring for help using her mobile telephone at the same time. The offender followed her, demanding to know whom she was calling. She told him no one, but he said she was lying.

60. The offender struck out at Ms Mason with the knife in a backhanded motion, stabbing her in the upper abdomen on the left side of her body. This caused a laceration some eight centimetres in length which immediately began to bleed.

61. Ms Mason fled across the road. The offender stood watching her briefly, before returning to the house. He went in and slammed the door.

62. Ms Mason could not get into a neighbouring house for refuge so she rang Triple 0 from the verandah of the house. The call was logged at 6.52pm and lasted for 10 minutes and 52 seconds.

63. As she spoke to the emergency operator Ms Mason heard the front door of her house open, followed by the sound of footsteps. She could hear the offender, who had emerged from the house, mumbling something like, "Where is the fucking bitch?"

64. Ms Mason hid on the verandah, whispering to the emergency operator. The offender went back to the house, again slamming the door behind him.

65. At 6:56 that evening, telephone records establish that another call was placed by the offender to Ms Finlayson. It lasted for 91 seconds.

66. Emergency authorities alerted by Ms Mason’s call for help arrived in the street soon after, by about 7pm. Ms Mason was conveyed by ambulance to Manning Base Hospital. She was found to have an eight centimetre oblique wound to the left upper quadrant of her abdomen which extended some five centimetres laterally. The wound was actively bleeding. She underwent surgery that evening where the wound was explored and cleaned. The wound had not penetrated into the peritoneum. There was blood loss of approximately 500ml in theatre. The wound was sutured following the evacuation of a large haematoma in the abdominal wall.

67. Ms Mason was discharged on the 22nd of September 2014 in a satisfactory condition. Her physical injuries were described as “moderate”, the other choices available to the relevant doctor being “mild” and “severe”.

68. In Stevenson Street, after Ms Mason was removed from the area, police officers forced the front door of Ms Pearson’s house and arrested the offender. He was recorded as saying, "I fucked up, sorry."

69. The officers saw an obviously wounded Ms Pearson sitting in the recliner chair in the lounge room. The offender told them that she was dead. This was confirmed by an ambulance officer, who examined her.

70. The police officer who arrested the offender saw a white handled knife tangled in Ms Pearson’s hair, across her left shoulder.

71. This knife has been scientifically examined and the DNA of both Ms Pearson and Ms Mason was located on it. This establishes that, after initially stabbing Ms Pearson, and pursuing and stabbing Ms Mason, the offender returned to Ms Pearson. Whatever he did at that time, something not established on the evidence, left the knife entangled in her hair.

48. A brief interview with the offender was conducted by police at the scene and recorded on a mobile telephone. He was told that he was under arrest for the assault on Ms Mason and in relation to the death of the woman in the house. He denied killing Ms Pearson.

49. The offender was taken to the local police station where he was entered into custody at 7.53pm. He was given an opportunity to speak to a legal representative and did so.

50. At about 2 o’clock the next morning the offender was interviewed. On the advice of his lawyer he refused to answer questions, although he denied that there had been an argument between he and Ms Pearson about a phone call to "Gai."

51. He referred to his suicide attempt in April 2014, and noted that he had cut his throat and stabbed himself previously. He said that on the day of the offences he felt as he had when he had attempted suicide. He said that he felt like he wanted to hurt himself because he and the deceased were not going right.

52. By reference to a scale of one to ten the offender estimated his level of intoxication at the time of the offences as “about a 5 out of 10”.

53. On arrest and at the police station the offender was noted to have some facial injuries. There was swelling and a cut in the area of his right eye, some swelling to his right cheek, and what appeared to be blood around the bridge of his nose.

54. In the interview the offender was asked about his injuries but he declined to say anything about them. Photographs of the injuries were taken by police and form part of the evidence before the Court on sentence.

55. The body of Ms Pearson was removed from the Stevenson Street house.

56. A post mortem examination was conducted on 24 September 2014. The forensic pathologist who examined Ms Pearson’s body, Dr Jane Vuletic, concluded that Ms Pearson had died from blood loss from a deep stab wound to the left side of the front of the chest. The wound had penetrated the chest wall, the lung, and the pericardial sac, and had transected part of the aorta. This injury was such that Ms Pearson could not have survived it, and death would have occurred within minutes of its infliction.

57. Dr Vuletic observed other significant injuries during the post mortem.

58. There were a number of incised wounds to the deceased’s right hand that were consistent with defence wounds.

59. There was a severe injury on the right side of the scalp in the parietal area which extended over 14.5 centimetres in length to the right angle of the mouth, entering into subcutaneous fat and muscle. The wound was so severe that the right frontal bone was exposed. The wound continued on from the right angle of the mouth to the right side of the chin for a further 4.5 centimetres.

60. An incised wound was present extending 12 centimetres from the base of the neck to the tip of the left shoulder.

61. An L-shaped wound on the right upper front of the chest had penetrated the major muscle in that area. A smaller wound was noted in the middle of the front of the chest which entered through the chest wall and continued into the intercostal space near the sternum.

62. Two less serious wounds were noted on the chest.

63. There were some areas of bruising and abrasion to the right leg and foot.

64. The wounds were both incised wounds and stab wounds, and were consistent with having been inflicted by the boning knife the offender had taken up in the kitchen.

65. Toxicology results recorded a blood alcohol level in Ms Pearson’s blood of 0.232 g/100ml.

66. The offender was charged on 22 September 2014. He entered pleas of guilty to the charges against him before the Taree Local Court on 16 June 2015 and was committed to this Court for sentence. He adhered to his pleas on 7 August 2015.

67. At the time of her death Ms Pearson was aged 49 years. Ms Mason was 39 years old when the offender attacked her.

The Objective Gravity of the Offences

92. In determining the sentences to be passed on the offender for his crimes the Court is obliged to make an assessment of the objective gravity of the offences. At [354] of R v Dodd (1991) 57 A Crim R 349 it was noted that,

“Each crime […] has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category.”

93. The murder of Ms Pearson was a barbarously savage crime marked by the severity of the injuries inflicted upon her. The facial wound in particular is demonstrative of what must have been a ferocious and particularly violent attack.

94. It is not possible to determine what led to the commission of this terrible crime.

95. Plainly, there was a degree of disharmony between Ms Pearson and the offender that had its origins in the offender’s gambling and abuse of alcohol. That pervasive unhappiness between them seems to have been exacerbated immediately before the offender went into the kitchen to take up a knife by whatever occurred in the bedroom. What occurred in the bedroom is not established on the credible evidence.

96. Ms Mason did not see or hear what occurred there. The offender in his interview with police denied that there had been an argument connected with Ms Finlayson but said nothing else about what had occurred. To Dr Olav Nielssen in April 2015 the offender asserted that Ms Pearson had grabbed his mobile telephone and “slammed” it in his face (p.3, Ex. 1). To a forensic psychologist, Anna Robilliard, the offender gave a slightly different account in July 2015, claiming that Ms Pearson “threw the phone at him” and it struck him in the face (p.8, Ex. 2).

97. The objective evidence is that the offender had an injury to his face when arrested by police. He had not had that injury when he went into his bedroom to lie down after returning from the social events. There is no evidence that Ms Mason observed the injury at any stage, although it is possible that she simply failed to notice it because of the terrible events that unfolded after the offender followed Ms Pearson from the bedroom.

98. It may be, as the offender asserts in his unsworn and untested statements to forensic practitioners, that Ms Pearson struck him with his mobile telephone, but the credible evidence does not establish that, even on the balance of probabilities. I am unable to accept the offender’s belated and self-serving hearsay assertion to a doctor as credible evidence.

99. It is reasonable to conclude that there was an unpleasant exchange between Ms Pearson and the offender after Ms Pearson went into the offender’s bedroom to confront him about the telephone calls that he had been making. That she was upset and angry with the offender is readily suggested by her comment during the telephone call to Ms Finlayson about money having been stolen. I am unable to accept however that, as the offender submits, Ms Pearson assaulted him, and he was thus provoked by her conduct to the violence that followed.

100. Even had I concluded that Ms Pearson had assaulted the offender in some way with a mobile phone, that act of relatively low level violence could never serve as some sort of answer for the barbarity that followed.

101. Having rejected the offender’s hearsay account, I do accept that the offence was not planned, but occurred as a spontaneous eruption of vicious rage.

102. After the angry exchange in the bedroom, Ms Pearson walked away from the offender and sat down in the lounge room with Ms Mason. The offender, who was probably intoxicated to at least some extent, and enraged, went to the kitchen and deliberately armed himself with a particularly lethal weapon, a boning knife. It is of some significance that he did not simply pursue Ms Pearson and strike her; he went first to the kitchen and selected a boning knife to take up and confront Ms Pearson with. This is purposeful behavior.

103. Whilst the use of a weapon is a feature in many murders, it is not an inherent feature of such a crime, and aggravates the offence to some small degree.

104. The use of the weapon is of greater significance however when considering the offender’s intention in attacking Ms Pearson as he did, and in assessing the degree of violence that the attack involved.

105. The offender chose to take up a knife. What then followed was a particularly brutal attack with the offender striking repeatedly at Ms Pearson with the knife as she sat, in effect trapped, in the recliner chair. The level of violence used against Ms Pearson was considerable and the injuries inflicted terrible as well as fatal.

106. The determination and force with which Ms Pearson was attacked, together with the repeated blows struck, dictate a finding that the offender acted with an intention to kill. Killing with that intention is ordinarily, although not definitively, regarded as more serious than killing without such an intention: Tran, Hoai Vinh v R [2011] NSWCCA 116 at [39]; Aytugrul v R [2015] NSWCCA 139 at [23]. In this matter, the intention to kill operates in the ordinary way, and makes the crime more serious.

107. The offender’s vicious assault was made against a woman who was particularly vulnerable at the time. Ms Pearson’s level of intoxication, which the offender must have been aware of, would have compromised her ability to effectively respond to the attack upon her. She was seated in a chair at a lower level than that of the offender when he attacked, and was trapped by him in the chair without means of retreat. She was physically of lesser strength and stature than the offender, who was a large and physically fit man. Although not relevant in the context of a feature of aggravation as provided by the CSPA, these are factual matters which heighten the gravity of the offence.

108. The defensive injuries that Ms Pearson sustained indicate that she struggled against the offender’s onslaught upon her to the extent that she could. She must have known that she was fighting for her life and been terrified. Her last moments were spent in fear and pain.

109. All of this occurred in Ms Pearson’s home, a place where she was entitled to be safe, and at the hands of someone she loved and should have been able to trust.

110. The breach of trust is absolute.

111. A final feature of the offence that heightens its gravity is the fact that the offender murdered Ms Pearson when he was subject to conditional liberty, being on bail for the earlier assault upon her together with the related offences, and when subject to a court order which restrained his conduct towards Ms Pearson. This is a matter of serious aggravation: Porter v R [2008] NSWCCA 145; Frigiani v R [2007] NSWCCA 81.

112. The murder of Ms Pearson was a very grave example of such a crime.

113. The breach of the apprehended violence order – the breach being the offender’s presence in the house with Ms Pearson a short time after having drunk alcohol to intoxication - is also a very grave example of a crime of this nature.

114. Orders such as this are made by courts to regulate the conduct of persons who pose a risk to others. If the orders of a court are ignored, the court’s authority is undermined and the rule of law is compromised. Those intended to be protected are left without that protection.

115. Whilst the breach here is made out by the offender’s presence in Ms Pearson’s home in an intoxicated state, rather than by the violence that led to her death, it is nevertheless very serious. That is so because of the flagrant disregard of the court’s order, and because of the breach of the precise condition crafted by the court to provide protection to Ms Pearson in the most particularly dangerous of times, that is, when the offender was drinking.

116. Ms Pearson herself had expressed tragically prophetic fear of what the offender may do when he was drunk or gambling in June 2015. Had the offender obeyed the court’s order, her fears would not have been realized in this terrible way.

117. The wounding of Ms Mason is also a serious offence.

118. It too was largely spontaneous, although the offender pursued Ms Mason, and attacked her in the context of his recognition that she was telephoning for help. This also was purposeful conduct rather than a product of a lack of control. The only threat posed by Ms Mason to the offender was that she would secure help for Ms Pearson by the intervention of the authorities. He acted to counteract that threat. This heightens the objective gravity of the crime in my view.

119. The wound inflicted by the offender, in the course of endeavoring to prevent Ms Mason from summonsing help, was a very serious one, particularly in the context of what is required for proof of that element of the offence.

120. A wound is established upon proof of a breach of the sub-cutaneous or interior layer of the skin: R v Smith (1837) 8 Carrington & Payne 173. A laceration of no great severity is a “wound” for the purposes of a s 33 offence. In R v Shepherd [2003] NSWCCA 351 for example, it was held that a “split lip” from a punch to the mouth is a wound, albeit one of a technical nature. See Osborne v R [2015] NSWCCA 257.

121. Fortunately, although serious, the physical injury Ms Mason sustained in this terrifying episode was readily capable of surgical repair and there is no evidence of ongoing or permanent disability.

122. The consequences of the offender’s crimes are grave.

123. Murder is regarded as such a serious offence because of the loss of the life of a member of the community.

124. The Court heard and read victim impact statements from Ms Pearson’s sister, and from her daughter and son (Ex. F). Each provides direct and very personal and moving evidence of the harm done to the community when one of its members is murdered. This harm is the reason that the offence of murder is regarded with such abhorrence by the community. Children have lost a parent; grandchildren a grandparent; siblings have lost a sister; parents have lost a child; friends have lost a friend. We, as a community, have all lost something precious.

125. Ms Mason also provided the Court with a victim impact statement, which was read by her close friend. It too is a deeply moving account of the pain and grief that the offender’s crimes have caused.

126. Ms Mason experienced the horror of seeing her friend fatally attacked, and the fear and pain of the offender’s assault upon her.

127. I am sure that those who have most directly suffered from these terrible offences understand that no sentence that this Court can impose can make good the loss of a loved one and the injury of another. The process of sentencing is not intended, and nor can it be, the measure of the value of a life, or of the depth of suffering. It can, and I hope does, recognise the loss and harm consistent with principles of sentencing.

128. The offender’s moral culpability for the murder must also be assessed as part of the consideration of the overall gravity of the crime: McLaren v R [2012] NSWCCA 284 at [29]; Ngati v R [2014] NSWCCA 125 at [40] - [46].

129. The offender relies upon the reports of Dr Nielssen and Ms Robilliard in submitting that his moral culpability should be regarded as diminished by his particular psychological make-up, with his resort to alcohol to deal with depression being an inherent part of his impaired functioning.

130. He relies on the same evidence in submitting that there was a degree of provocation leading to the commission of the crimes which should also mitigate his moral culpability somewhat.

131. I have already indicated that I do not regard the credible evidence as capable of establishing that Ms Pearson provoked the offender. I am not prepared to give weight to the offender’s assertions to Dr Nielssen and Ms Robilliard in circumstances where the offender did not give evidence of the matters raised with the authors of Exhibits 1 and 2 (the forensic reports), and was not subjected to cross-examination.

132. Evidence of an offender’s hearsay assertions to others should be treated with considerable circumspection, particularly in the absence of independent evidence which might provide some support for those assertions: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369.

133. The offender’s account of the events surrounding the stabbing may be accepted where it corresponds with the account of Ms Mason and Ms Finlayson, or where it is supported by telephone records.

134. There is evidence that, at some point after arriving home on 21 September 2014 and prior to his arrest later that day, the offender received an injury to his face that is consistent with the application of blunt force trauma. How that injury was received I cannot determine.

135. Some aspects of the offender’s account to others have an air of unreality that must lead to a degree of circumspection about his claims. His purported memory of inflicting no more than one stab wound upon Ms Pearson (p.3, Ex. 1), for example, seems unlikely given the multiplicity of blows. The difference in the offender’s claims to Dr Nielssen as to his level of intoxication and those made contemporaneously to the events to police points to unreliability.

136. There is independent evidence of the depression from which the offender suffered in the months leading up to the offences.

137. He had made at least one serious attempt at taking his life, and had self-harmed on another occasion. He had been hospitalized for his condition, and prescribed appropriate medication. Friends had noticed the offender’s deteriorating mental state.

138. I accept that the offender’s depressed state led him to take a bleak view of events and to feel pessimistic about his life and circumstances. I do not, however, regard the evidence as to his depressive state as being capable of significantly mitigating the offender’s moral culpability.

139. Depression is a relatively common illness. The offender, in common with many other Australians, suffered and continues to suffer from it. It cannot however, in the circumstances of this case, provide some answer for the offender’s crimes. It provides context, but can do little to mitigate these offences.

140. The offender had been diagnosed with depression at least by March or April 2014. He had been offered treatment and had chosen not to accept the treatment offered. He had been placed on an appropriate regime of medication, which he did not comply with. Instead, he chose to self-medicate with alcohol.

141. I am not able to accept that the offender’s self-induced intoxication at the time of the commission of these crimes should be regarded as a feature of his depressive state and capable in that way of mitigating his crimes.

142. The offender had at least one prior warning of the dangers inherent in his intoxication; he had previously in June 2014 assaulted Ms Pearson and another person – significantly, a person who tried to assist Ms Pearson, as Ms Mason did months later. He committed those crimes in the context of alcohol consumption. That experience should have alerted the offender to the dangers of alcohol consumption for him. He ignored that warning and chose to drink alcohol to some level of intoxication on the day of the offences.

143. I note the operation of s 21A(5AA) of the CSPA which provides that a court is not to take an offender’s self-induced intoxication into account as a mitigating factor. Nor can it mitigate the offender’s moral culpability to any extent in my view.

144. These were offences borne of intoxication and sparked by an explosion of anger, together with, in relation to Ms Mason, a realization that she was calling for help and a not irrational intention of preventing her from doing so.

145. Nothing in the offender’s circumstances can diminish his moral culpability for his crimes to any real extent.

146. I regard these as very serious crimes that call for the imposition of a heavy penalty.

The Offender’s Subjective Case

147. The offender is aged 54 years, having been born on 28 February 1961. He was 53 years of age at the time of the offences.

148. His health is generally good.

149. The offender tendered and relied upon the reports of Dr Nielssen and Ms Robilliard already referred to, together with the hospital notes and discharge summary from his admission following the April 2014 suicide attempt (Ex. 3).

147. The offender is the only child to his parents, although he has half-siblings from his parents’ previous relationships.

148. He was brought up in the Armidale area and his childhood was a happy one. He completed his high school studies at Guyra High School and de La Salle College at Armidale and, after leaving school, took up apprenticeships in painting and later boilermaking.

149. He left his second apprenticeship to work in the abattoir at Wingham, where he held steady employment for almost a quarter of a century. He worked on the abattoir floor and later as a supervisor and, following that, at Tamworth, as a trainer.

150. The offender had one other significant long term relationship other than his relationship with Ms Pearson, and he has an adult son as a result of his former relationship. His son was close to Ms Pearson and her death has affected the offender’s relationship with his son. This loss of contact and closeness has greatly saddened the offender.

151. The offender has been actively involved in sport for much of his life as both player and referee, principally in rugby league, but also cricket.

152. His employment history bespeaks an individual who is capable of a constructive and positive contribution to the community, as does his involvement in team sport at a local community level.

153. The offender’s criminal record (Ex. B) is not extensive and, other than the assaults of June 2014, it can be largely set aside.

154. The offender was regarded by Dr Nielssen as falling within the normal range of intelligence, whilst Ms Robilliard concluded that the offender fell within the “lower end of the below average range” for intelligence, with 96% of his age cohort functioning at a level above him (p.12, Ex. 2).

155. Although Ms Robilliard’s conclusions use a more graded approach to the assessment of the offender’s intellectual function, both assessments place him in the below average to normal range of function; with Ms Robilliard’s assessment falling at the bottom of that scale.

156. That is consistent with the evidence concerning the offender’s capacity to function in the community. It is noted that the offender has been employed in a supervisory capacity, and as an educator, training other abattoir employees. Employment of that nature, and recreational activity as a referee in community sporting matches, would generally indicate an individual functioning at an ordinary level.

157. The offender reported drinking alcohol since about the age of 16 years although he denied that this was problematic until recent years when his consumption level was such that he was occasionally amnesiac after drinking. He has never abused drugs.

158. Gambling has also been a problem for the offender and caused him to descend into debt in 2014, as well as leading to tensions in his relationship with Ms Pearson.

159. Since his incarceration on 21 September 2014 the offender has worked when possible, and currently works as a wing sweeper. He continues to pursue activities directed to maintaining his physical fitness.

160. The offender has been appropriately medicated for his depression since incarceration and Dr Nielssen considered him in remission.

161. The offender has expressed remorse for the murder of Ms Pearson, telling Ms Robilliard that he intended to “do the time and show remorse”, to pay a price for what he had done. Although his expressions of remorse are untested in evidence, they are consistent with his early entry of a plea of guilty, and I accept that the offender is remorseful for the murder of a woman he still professes to love.

162. His attitude to his offence against Ms Mason is less straightforward. The offender expressed a degree of resentment against her to both Dr Nielssen and Ms Robilliard, appearing to blame her for coming between he and Ms Pearson. Indeed, he told Ms Robilliard (p.9, Ex. 2) that Ms Mason was responsible for a lot of the trouble between he and Ms Pearson, and claimed that her presence on 21 September 2014 inflamed the situation. That is an ironic claim to make against a woman who endeavoured to save her friend.

163. The blame that the offender lays at Ms Mason’s feet for problems between he and Ms Pearson is not consistent with true remorse, although I accept that he has by his plea of guilty acknowledged responsibility for what he did to her.

164. Ms Robilliard concluded that the offender has symptoms consistent with a Borderline Personality Disorder, although I note that Ms Robilliard is not qualified to render any diagnosis in this regard.

165. Although it is almost impossible to make any meaningful prediction of the offender’s future prospects, given the lengthy period he must spend in prison, there is some reason for optimism, given his solid employment history and limited criminal history prior to 2014. His rehabilitation, particularly in relation to his abuse of alcohol and associated resort to violence, is likely to be in his own hands.

166. The offender raised the issue of special circumstances in submission. I do not find that the offender’s circumstances require any variation in the ordinary ratio of sentence. The usual proportion of sentence will result in a lengthy parole period, simply because the overall sentence must be a lengthy one. That parole period will be adequate to assist the offender in his reintegration to the community.

167. Whilst the offender suffers from depression, the evidence does not establish that his condition will cause his time in prison to be more onerous for him than it is for other prisoners. Indeed, it appears that the offender has adjusted relatively well to the custodial environment and, in taking his medication and abstaining from alcohol abuse, his health has improved.

168. I do, however, propose to make a finding of special circumstances pursuant to s 44(2) of the CSPA, insofar as it is necessary to adjust the statutory ratio of individual sentences to attain an overall sentencing outcome which, in broad, complies with the usual regime. There will be some slight adjustment to the usual overall ratio, which is a considered and intended adjustment, necessary to ensure that the NPP properly reflects the criminality of the offences.

Other Features Relevant to Sentence

172. Section 3A of the CSPA sets out the purposes for which sentence is imposed on an offender. I have had regard to each of the seven purposes there specified for criminal punishment.

173. An important feature of the sentences to be imposed upon the offender is that of general deterrence.

174. Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. Violent and non-fatal attacks by persons known to the victim are also common. That is something of which we as a community should be ashamed, and which the courts must seek to address when sentencing offenders such as Mr Archer.

175. It is incumbent upon this Court to clearly signal the community’s intolerance of domestic violence. The High Court has recently given powerful expression to the need for the courts to denounce domestic violence at [55] in Munda v Western Australia [2013] HCA 38,

“A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.” (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ)

176. This court must be guided by that principle.

177. There is clearly also a need for specific deterrence to figure in the sentences to be imposed, particularly having regard to the earlier assault upon Ms Pearson by the offender, and the clear warnings from others about his conduct towards her that the offender ignored.

178. The principle of totality must also be considered. The sentences here must be significant. That, in turn, dictates a level of concurrency of sentence, to observe the requirements of the totality principle.

179. I have considered the degree to which the criminality of one offence may be reflected by sentence imposed for another of the offences consistent with the principles espoused in R v Cayhadi (2007) 168 A Crim R 41. Whilst that commonality is not great, it will be reflected by some concurrency of sentence.

180. By operation of s 45(1) of the CSPA the court is obliged to fix a NPP for both indictable offences.

181. The offender entered a plea of guilty to the offences on indictment at an early stage, and he also entered a plea of guilty to the summary offence before this Court. There is considerable utilitarian value in the offender’s pleas and that value attracts a discount of 25% on the sentences that would otherwise have been imposed: R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.

182. Counsel very helpfully directed the Court to earlier cases dealt with in this Court or which came before the Court of Criminal Appeal, both for assistance with principle, and as to a range of sentences imposed in other matters. I have considered those authorities and taken into account matters discussed in them, but note that each case turns on its own facts and particular circumstances. No other case is truly like this case, nor could it be.

Sentence

183. Wayne Edward Archer, having been convicted of the offences of murder, wounding with intent to cause grievous bodily harm, and contravening an apprehended violence order, you are sentenced to imprisonment as follows.

1. For the offence of the contravention of an apprehended violence order I sentence you to a term of 21 months imprisonment commencing on 21 September 2014. That sentence will expire on 20 June 2016. In view of the sentences to follow there is no practical utility in specifying a NPP and I do not do so.

2. For the offence of wounding Natasha Mason with intent to cause grievous bodily harm to her, I sentence you to a term of imprisonment of eight years to date from 21 January 2016. I specify a NPP of six years which will expire on 20 January 2022. The overall sentence will expire on 20 January 2024.

3. For the offence of the murder of Anne Marie Pearson I sentence you to a term of imprisonment of 24 years. That sentence will commence on 21 January 2017. I specify a NPP of 18 years which will expire on 20 January 2035.

184. The overall sentence expires on 20 January 2041. The overall effective sentence with respect to the three crimes consists of a NPP of 20 years and four months commencing on 21 September 2014 and a head sentence of 26 years and four months. The earliest date upon which the offender will become eligible for release to parole is 20 January 2035.

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Decision last updated: 09 October 2015