R v Ballantyne

[2014] NSWSC 1381

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court

New South Wales

Case Title:	R v Ballantyne
Medium Neutral Citation:	[2014] NSWSC 1381
Hearing Date(s):	29 August 2014
Decision Date:	09 October 2014
Before:	R A Hulme J
Decision:	Imprisonment for 19 years with a non-parole period of 14 years 3 months
Catchwords:	CRIMINAL LAW - sentence - murder - early plea of guilty - no genuine remorse - middle range of objective seriousness - reasonable prospects of rehabilitation
Category:	Sentence
Parties:	Regina George Robert Ballantyne
Representation
- Counsel:	Counsel: Mr L Carr (Crown) Mr P Rosser QC (Offender)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions Sally Rostron
File Number(s):	2013/72945

JUDGMENT

1. R A HULME J: George Robert Ballantyne has pleaded guilty to the murder on 10 March 2013 at Aberglasslyn of Ms Clare Weston.

2. Clare Weston was 23 years old. She was an active, happy, outgoing and sporty person. She had two children: a daughter aged 6 and a son aged 4. She had 6 sisters and 4 brothers. Victim impact statements provided by Christine, Robert, Katrina, Tamica and Christopher eloquently describe the loving family from which she was taken and the extreme grief that has been caused by this terrible crime. Again, I extend my sincere condolences to all who knew and loved Ms Weston.

Facts

1. There is no dispute about the facts of the crime.

2. The offender and Ms Weston had been in a relationship for about three months. They met when she was down from Queensland visiting her family in Rutherford. A couple of weeks before Christmas 2012 she moved with her two children into the offender's family home at Greta. They became engaged in February. However it was noticed that they argued on a daily basis and on a couple of occasions he was seen to raise his hand towards her, although without striking her.

3. The offender has a problem with anger. In January 2008 he was convicted of a number of offences including assault occasioning actual bodily harm that emanated from an incident involving a woman with whom he was then in a relationship. It involved him threatening her with a knife and forcing a pillow down over her face causing her to struggle to breathe.

4. The living arrangement at the offender's family home was temporary. In late February his father told him that he had two weeks to find alternative accommodation. On 8 March they moved to live at Ms Weston's mother's home at Rutherford. The relationship was shaky by this stage. Ms Weston told her stepsister that she was considering leaving him because he was moody and abusive towards her and the children. An incident occurred while they were camping at the foot of the Barrington Tops on Saturday 9 March which resulted in the offender becoming angry with her. He packed up the camp site and they returned to her mother's home.

5. The statement of facts recounts a series of conversations and text messages with various people during the evening of 9 March in which both the offender and Ms Weston spoke about the relationship ending. She mentioned that she was concerned about the possibility that she was pregnant. She also said that he was not happy about the fact that she had two children. However, he told a former boyfriend of Ms Weston that he loved the children. He was advised to talk with her and try and resolve their differences.

6. There was a series of text messages exchanged between the offender and Ms Weston between about 11.00pm and 2.00am. Ultimately it was arranged that he would come to her mother's home. He arrived at about 2.20am. She sat in his car and they talked for about an hour. He then drove her to Aberglasslyn, about 20 km away and stopped beside the Hunter River. They continued talking about their relationship and her children. She indicated she wanted to go home. There was a "scuffle" outside the car. He later told a friend, Matthew Blackler, that she was trying to get out of the car and he held her with both arms.

7. The offender put Ms Weston over his shoulder and carried her about 200m down to the river. There was another "scuffle". He later told Mr Blackler that he killed her by choking her.

8. The body of Ms Weston was found the following morning by a couple who were out walking their dogs. It was almost naked, face down in a pool of water in a shallow indentation between two sandbanks by the side of the river. DNA material consistent with being the offender's was found beneath her fingernails. It was established that he had engaged in intercourse.

9. The offender confessed to Mr Blackler late in the afternoon of 10 March to having killed Ms Weston. He said, "I just lost it" and "I fucken snapped and killed her". Mr Blackler encouraged him to turn himself in and agreed to give him a lift to the police station. During the journey, the offender said:

   "We went for a drive, we were at the river. I was trying to work stuff out and she got angry."

   "I grabbed hold of her around her body because she was trying to get out." (And he demonstrated holding her with both arms.)

   "She started biting me, and then I lost it. ... I choked her."

   "I am not a bad guy. I just made a fuckin terrible mistake."

10. Mr Blackler said that the offender was crying. When detectives came to speak with him at the police station they found him with his head in his hands, crying. He told them the identity of the body that had been found earlier that day by the river and described her as his "ex". He was asked whether he had killed her and he replied, "out of rage, yes".

11. The offender agreed to return to the scene and answer police questions there. However, in relation to a number of significant matters he exercised his right to silence. For example, he declined to respond to questions about having intercourse with her and the state in which he had left her body.

12. An autopsy performed by Professor Timothy Lyons revealed that Ms Weston had sustained a number of bruises and abrasions. She had a bruise and laceration to the back of the head with an underlying skull fracture suggestive of blunt force trauma. Injuries in and around her mouth indicated she was choked in some fashion.

Personal circumstances of the offender

1. The offender did not give evidence at the sentence hearing but I heard evidence which I consider to have been genuine and impressive from his father, Mr Gary Ballantyne, and Mr Matthew Blackler, the friend and former work colleague I have mentioned. I also received a report by Dr Jonathon Adams, forensic psychiatrist and a number of testimonials.

2. The offender's personal circumstances are fairly unremarkable. He was born in 1983 and so he was aged 30 at the time of the offence. His parents are in their early 60s and live in Greta. He has a younger sister who is married with children. He enjoys a loving and close relationship with his family.

3. He completed Year 12 and attained the Higher School Certificate. He has a history of employment and what seems to be a strong work ethic.

4. There is no history of abusing alcohol and no indication of any relevant mental condition. He has used prohibited drugs but not to any damaging extent and not in recent years.

5. Aside from driving offences the only entries of note in his criminal history were those associated with the event involving his former girlfriend in 2007 that has been mentioned. The outcome involved fines and good behaviour bonds. The record is one that disentitles the offender to the leniency that could be extended if there were no previous convictions.

6. The testimonials convey the impression of the offender being happy, friendly, well-mannered, even-tempered but somewhat immature for his age.

7. The offender is fortunate to have retained strong support from friends and family which augurs well for his rehabilitation.

8. Dr Adams offered the opinion that "it appears Mr Ballantyne's offending behaviour is inconsistent with his past behaviour and personality structure". This finding was likely influenced by the offender's portrayal of the facts of the 2007 incident involving his former girlfriend which was inconsistent with the statement of facts. He told Dr Adams that it involved some "pushing and shoving"; there was no mention of holding a pillow over her mouth and restricting her breathing. The inconsistency was considered to be "out of character" by the offender's father but it prompted discussion about the offender getting help in relation to anger management.

9. Dr Adams mentioned an account by the offender of having contemplated suicide soon after going into custody. He suggested there be "close monitoring" after sentencing. For this reason I will be asking that a copy of Dr Adams' report accompany the papers forwarded to Corrective Services NSW.

Assessment

1. The starting point in the assessment of sentence is to recognise that murder is the most serious of crimes. In this case it involved the taking of the life of a young woman in quite horrific circumstances and callously leaving her semi-naked body face down by the riverside.

2. Aside from the statements made by the offender that I have mentioned in my account of the facts of the offence, there has not been placed before me any account as to precisely what he did to Ms Weston. The report of Dr Adams includes a version under the heading "Discussion of the Offence" but I was told by Mr Rosser QC that it was not relied upon. I conclude that the offender has not been prepared to give an honest, full and frank account of what he did. He exercised his right to silence in responding to some of the police questions and in electing not to give evidence in the sentence proceedings. No adverse inference may be drawn from the exercise of that right. He should be given credit for turning himself in to the police relatively soon after the event. I accept that he is sad and regretful but in all the circumstances I am not prepared to find that he is genuinely remorseful.

3. The Crown Prosecutor submitted that the offence is within the middle of the range of objective seriousness. It was accepted that the killing of Ms Weston was something that occurred spontaneously but the act(s) causing death were carried out with the very intention of killing, as opposed to just causing serious harm. And there was significant violence over a period of time. She was trying to get away from him but he somehow physically overcame her, carried her 200m to the riverside where he choked her to death. No submission was made that I should reject this assessment of the objective seriousness of the offence. In short, I accept it.

4. It was submitted that I could find that the offender engaged in intercourse that was non-consensual. However, Mr Rosser urged that this was a finding that was adverse to the offender that would require proof beyond reasonable doubt. I have reflected on the submissions on this topic and conclude that I cannot be satisfied of it to the required standard. Having said that, the fact that the offender told police that Ms Weston was fully clothed when he carried her to the river bank and her body was found almost naked indicates that he probably did have non-consensual intercourse but I do not think it adds anything to what is already a killing of significant seriousness and attended by a subsequent callous disregard of her dignity.

5. The offender appears to be a person who is immature for his years and he has issues coping with relationships and anger management in their context. I accept Dr Adams' assessment that he "would benefit from engaging with psychological services to better understand the offending behaviour and aspects such as emotional recognition and ... regulation". I have mentioned the strong support he has in the community. I consider that his prospects of rehabilitation are reasonable.

6. He has been in custody since his arrest on 10 March 2013 and his sentence should be back-dated accordingly.

7. The plea of guilty was entered in the Local Court. In accordance with customary practice I should reduce the sentence I would otherwise have imposed by 25 percent to reflect the utilitarian value of the plea entered at that early stage.

Sentence

1. Convicted.

2. Sentenced to imprisonment comprising a non-parole period of 14 years 3 months with a balance of the term of the sentence of 4 years 9 months.

3. The sentence will date from 10 March 2013 and the offender will become eligible for release on parole upon the expiration of the non-parole period.

4. I direct that a copy of the report of Dr Jonathon Adams accompany the warrant with attention invited to the penultimate paragraph.

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Amendments

10 Oct 2014 Amended catchwords Paragraphs: Coversheet