R v Barrett

[2009] NSWSC 338

CITATION:	R v Barrett [2009] NSWSC 338
HEARING DATE(S):	12 March 2009, 26 March 2009
JUDGMENT DATE :	30 April 2009
JUDGMENT OF:	Mathews AJ
DECISION:	Imprisonment to be served by way of a non-parole period of 16 years, commencing on 17 July 2007 and expiring on 16 July 2023, with an additional term of six years, commencing on 17 July 2023 and expiring on 16 July 2029.
CATCHWORDS:	CRIMINAL LAW - sentence - murder - plea of guilty - carefully planned murder perpetrated through co-offender - misguided belief that deceased posed threat to offender and children - good prospects of rehabilitation
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
PARTIES:	Regina (Crown) Emma Barrett (Offender)
FILE NUMBER(S):	SC 12475/08
COUNSEL:	H Wilson (Crown) M Ramage QC (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) Advance Legal (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Mathews AJ

Thursday 30 April 2009

2008/12475 R v Emma Barrett

SENTENCE

1 HER HONOUR: On 10 March 2009 Emma Barrett pleaded guilty on indictment to a charge that on 23 June 2007 she murdered David Harrison.

2 The story leading up to this killing is quite a lengthy one. It started in rural South Australia in about 2004, when the offender first met the deceased, David Harrison. He was working as a supervisor at the Kooyong Dairy, where relatives of the offender were also working. The offender was aged 18 at the time, and already had two young children.

3 The offender and the deceased commenced a relationship, which was interrupted the following year when the offender was abducted by Mr Moslan, the father of her children. He forcibly detained her at gun point, and assaulted her, which in due course led to his being convicted and imprisoned for a number of criminal offences. The deceased in the meantime had moved back to his home in Victoria. His relationship with the offender resumed in 2006 when he returned to South Australia in order to give evidence in Mr Moslan’s trial.

4 Later in 2006 the offender moved to New South Wales where she lived for a time with the deceased at Curlewis, near Gunnedah. It was here that she first met her co-offender, Dean Fordham. Mr Fordham became extremely attached to the offender and her children. Probably for this reason, his relationship with the deceased was always an uneasy one, marked by considerable jealousy on both sides.

5 It was during this time at Curlewis that the offender took a document out of the deceased’s trouser pocket and showed it to Mr Fordham. She told him that it was the deceased’s hit list. This document was tendered in evidence on sentence. To any objective observer it is clearly a list of telephone numbers. It included the names and the telephone numbers of the offender and Mr Fordham. This document, and the emotions it engendered in both the offender and Mr Fordham, were central to the events which followed, and I shall be returning to it later. Suffice it to say here that Mr Fordham, an impressionable man of limited education and intelligence, totally accepted that this list was indeed the deceased’s hit list, and that the deceased was planning to harm him.

6 It is appropriate here to say a little more about the background of the deceased. He was 24 years old when he met his death. Over the years he had undertaken a number of jobs, mainly in a rural setting. He was a licensed firearms holder, as he sometimes had to put down sick animals. The evidence indicated that he had, from time to time, held himself out as a “hit man” who did contract jobs. I accept that, if he did say this he was, in effect, big noting himself. There is no acceptable evidence whatsoever, in my view, to support the proposition that he was in fact a contract killer, or a hit man, as the offender said she believed.

7 It is clear that the deceased was extremely fond of the offender, and wanted a full-time relationship with her. This became a source of conflict between them, as she did not want one with him, but she was not prepared to tell him so directly.

8 It is unnecessary for present purposes to chart the movements of the deceased and the offender through the end of 2006 and the beginning of 2007. Suffice it to say that they had something of an on and off relationship during this period, some of which was spent in Victoria and some in New South Wales.

9 In March or April of 2007 the deceased returned to Victoria, after spending some time in New South Wales with the offender. He told his mother that he needed to get a job so that he could support the offender and her two children.

10 In May 2007 the offender and her children, together with the co-offender, Mr Fordham, moved into a house rented by Mr Fordham in Maitland Road, Muswellbrook. In the meantime the deceased remained working in Victoria. In the early stages he told his mother how much he loved the offender and her children, and that he wanted to be able to support them. However, over time his attitude soured, almost certainly because the offender was not responding to his messages. He sent a number of unanswered SMS messages to the offender early in June 2007. These expressed increasing frustration at her failure to respond. Finally, on 12 June, he sent four text messages to the offender in a little over two hours. These assumed considerable significance in the sentencing, and three of them bear repetition here. At 12.10 pm the deceased sent a message saying

“Your just like ya mum a using bitch fuck u I will make sure everyone knows where u are I will make life hell 4 u and ya kids r fucked”

At 12.37 the following message was sent:

“Like I say u fuck with my heart u get whats coming to u”

Finally, at 14.12 the following message was sent:

“Everythink I done fur u and us kids and u fucked me over u just an unfaithful bitch like ya family”

11 It is apparent in retrospect that it was these messages which ultimately sealed the deceased’s fate.

12 For some reason the offender did not receive these messages until Monday 18 June. She said that she understood them to be threats to harm herself and her children. I will be saying more about this later. There was then a flurry of telephone calls and SMS messages from her to the deceased in Victoria. That evening the deceased told his mother that he was going to Muswellbrook to help the offender move house. For that purpose he bought a second hand vehicle for $1,200.00.

13 It was at this stage, after receiving the deceased’s text messages, that the offender decided to kill the deceased. She said in evidence that it was Mr Fordham’s idea to kill him. However, for reasons I will give later, I do not accept this. I do accept that Mr Fordham became very angry when he saw these messages and that he readily agreed to go along with the offender’s plan. But it was initially her plan, not his, to invite the deceased to come to Muswellbrook and then to kill him.

14 In preparation for the killing the offender and Mr Fordham went to the central coast where they made a number of purchases. Mr Fordham bought a car for $500.00 which was registered in a fictitious name. The two of them bought a Wiltshire carving knife, which was the murder weapon, garbage bags, bleach and numerous sheets and blankets. The offender wrote a number of notes setting out various methods of committing the murder and disposing of the body. Police were subsequently taken by Mr Fordham to a place where these notes had been buried on his family’s property, together with clothing and footwear worn by the two of them during the killing.

15 The deceased left his home in Victoria after work on Thursday 21 June, telling his parents that he would be back in time for work the following Monday morning. He arrived at the Maitland Road house in the early hours of Friday 22 June. Rather than knock on the door, he climbed in through a window, which made the co-offender, Mr Fordham, very angry.

16 The initial plan for the killing was that some time during that first day the offender and Mr Fordham would lure the deceased into the garage on the property, where Mr Fordham would come up from behind and cut his throat. That plan failed, as the deceased did not want to go into the garage. The alternative plan was for the offender and the deceased to go out that night, and for Mr Fordham to stab the deceased on their return. This is the plan which was eventually followed.

17 The three of them, the offender, Mr Fordham and the deceased, spent most of that day in the Maitland Road house. A close friend of Mr Fordham had been killed in a car accident the previous day, and he spent much of the day on his own, consuming large quantities of alcohol. That night, well after the offender’s children had been put to bed, the offender and the deceased went out in his car, in accordance with the previously devised plan. The offender said that they sat in the car and talked. They were away from the home for about two hours. Shortly before their return, at about 2.00 am, while the deceased was out buying some food, the offender telephoned Mr Fordham to tell him that they would be arriving home very shortly. The offender said in evidence that she pleaded with him during this conversation not to proceed with their plan to kill the deceased. For reasons I will discuss later, I do not accept this.

18 When the car arrived back outside the Maitland Road property, Mr Fordham came out of the house carrying a knife concealed up his sleeve. When the deceased got out of the driver’s seat of the car, Mr Fordham stabbed him in the face. The deceased ran around the car towards the offender. He then started to run away towards the end of the street. The offender ordered Mr Fordham to go after him and bring him back. This he did. He caught up with the deceased, not far away, and walked him back to the house. The deceased was then taken to the back of the house and made to sit on a chair immediately outside a shed. It was there that Mr Fordham proceeded to inflict multiple stab wounds upon him. While this was happening the offender was, I accept, inside the house and was unable to see what was happening. In due course Mr Fordham joined her and they smoked some marijuana. Later she went outside and ran back in saying, according to Mr Fordham, “He’s still alive”. According to the offender, she said, “He’s hurt”. The precise words matter little. The two of them then ran out to where the deceased was lying and each of them inflicted a further stab wound. The offender said in evidence that she “felt forced” to do so because of the actions of Mr Fordham. However, I do not accept this. I believe that her action was entirely voluntary.

19 The two of them later put the deceased’s body into the boot of his car. Mr Fordham drove the deceased’s car, and the offender followed in the car they had purchased a few days earlier. They went to a remote location outside Greta, where they took the body out of the car and partially buried it. Later, they returned and completed the burial, pouring cement over the body. Later that day, while they were driving through Mayfield, a suburb of Newcastle, the deceased’s car ran out of petrol. They abandoned it there, breaking a window and removing the sound system in order to make it appear as if it had been stolen.

20 The deceased’s parents became concerned when he failed to arrive home, as planned, the following Monday, 25 June. On 28 June they reported him missing. On 30 June a police officer telephoned the offender asking about the whereabouts of the deceased. She said that he had left her home in the early hours of Saturday 23 June, saying that he was going to Newcastle. By that time, 30 June, the offender had made a number of concerted attempts to cover her tracks. Between 23 and 27 June she made no less than 28 voice calls and sent 14 SMS messages to the deceased’s mobile telephone. Moreover, in an undated letter, postmarked 28 June, she wrote to the deceased’s mother asking her to get the deceased to telephone her, saying that she had been trying to ring him but that he would not respond to her messages. On 2 July, in a telephone conversation with the deceased’s mother, the offender said, “David really loved me and I loved David very much”.

21 Late in June the offender and Mr Fordham moved out of the Maitland Road property. The offender and her two children moved into a refuge in Gosford. There the offender befriended a woman whom I shall call LS. On the evening of 16 July 2007 the offender told LS about the killing of the deceased. The next day LS reported the matter to the police. On the same day, 17 July 2007, the police interviewed the offender at Gosford Police Station. Her first reaction, when asked about the killing of the deceased, was, “I didn’t do anything, it was Dean. I told him not to do it, and I am not the sort of person who would do something like that”. She proceeded to describe the killing in a manner which placed all responsibility upon Mr Fordham. She said that he, Mr Fordham, was furious because the deceased had put him on his hit list. However, later in the interview she denied that she knew what was meant by a hit list, or that the deceased was capable of harming anyone. She did not call the ambulance or the police, she said, because she was scared of Mr Fordham. She described disposing of the body and returning to the Muswellbrook house where she said Mr Fordham forced her to clean the bloodstains. He, Mr Fordham, then proceeded to dispose of the bag containing the clothing they were wearing during the killing.

22 A further interview took place the next day, 18 July 2007. In this interview the police asked the offender about the account she had given to LS two days earlier, which was significantly more incriminatory than the account she had given to the police. She continued to downplay her role in the killing, saying that it was entirely Mr Fordham’s fault. She did not want to have anything to do with the killing, she said, but he made her play a role in it. She conceded that she stabbed the deceased once when she believed he was already dead. Later in the interview she said that she had become extremely angry because the deceased had threatened to harm herself and her children and tell the children’s father, Mr Moslan, where they were living.

23 After this interview the offender took police to the location near Greta where the deceased’s body was found.

24 The offender was then charged with murder. She pleaded not guilty, and the trial was due to commence at Newcastle on 9 March 2009. In the meantime, Mr Fordham had pleaded guilty to murder and agreed to give evidence against the offender in her forthcoming trial. After some negotiations between the Crown and the defence, the offender pleaded guilty to murder. This took place in Sydney the day after the trial had been due to commence, namely on 10 March 2009. The offender will obviously get the benefit of this plea in reduction of sentence. It hardly qualifies as an early plea, and must therefore be at the lower end of the range. However, as Mr Ramage QC, who appeared for the offender, pointed out, a lengthy trial involving a large number of witnesses was thereby averted. It was therefore of real utilitarian value.

25 This takes me to a consideration of the objective seriousness of this offence, which is the starting point in assessing the complex series of factors to be taken into account on sentence. I turn first to the aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, as they relate to the offence as opposed to the offender. The aggravating features which are not inherent in the offence of murder are, pursuant to s 21A(2)(c), that the offence involved the actual use of a weapon; pursuant to paragraph (2)(e), that the offence was committed in company; and, pursuant to paragraph (2)(n), that it was part of a planned criminal activity. There are no mitigating factors in relation to the offence as opposed to the offender.

26 By far the most significant aggravating factor is the fact that the killing was deliberately and meticulously planned.

27 At this point it is appropriate to go back to the two significant factual matters which were disputed on sentence. These were: first, whether it was the offender or Mr Fordham who first conceived of the killing and directed its planning; and second, whether the offender sought to dissuade Mr Fordham from proceeding with the killing shortly before it was to take place.

28 I have already indicated my finding on the first matter, namely, that it was the offender who conceived the idea of killing the deceased. This is consistent with what she told LS, with the evidence of Mr Fordham and with virtually all the surrounding facts. It was she, not Mr Fordham, who received the so-called threats in the deceased’s SMS messages. It was she, not Mr Fordham, who wrote the various notes setting out the methods of executing the killing and disposing of the body afterwards. Mr Fordham, as I have said, is a person of very limited education and intelligence and I have no doubt that he was a follower rather than an initiator in this plan; a willing follower no doubt, but a follower nonetheless.

29 I also do not accept that the offender had a last minute change of heart and tried to persuade Mr Fordham to desist from the planned enterprise. Again, this was never mentioned to LS and is inconsistent with other evidence in the case. The telephone call from the offender to Mr Fordham shortly before returning home in the early hours of 23 June lasted only 21 seconds. Had she been genuinely trying to persuade him to desist from their planned venture, one would expect it to have been a longer call. Moreover, the offender admitted that, after the deceased had started to run away down the road, she urged Mr Fordham to go after him and bring him back. In her evidence she sought to give explanations for this which were both inconsistent and unconvincing. Indeed, there were many unsatisfactory aspects of her evidence. It is unnecessary for present purposes to detail them here, but there were numerous inconsistencies, on matters of substance, between the various versions that she gave to LS, to the police and to the court. There were also some matters on which her evidence was inherently implausible.

30 The killing was a particularly brutal one, involving no less than 35 stab wounds. Certainly the offender physically inflicted only one of these and was not present when most of the others were inflicted. Nevertheless, it was she who conceived the killing and planned its execution. It was she who did a great deal afterwards to dispose of any signs of the killing, and to deflect suspicion away from herself, particularly through making the various communications to the deceased’s mobile phone and to his mother.

31 What, then, motivated this bizarre series of events? To any objective observer the document which the offender described as the deceased’s hit list was clearly a list of telephone numbers. Certainly there were some veiled threats in the SMS messages sent by the deceased. The statement “I will make sure everyone knows where you are” was particularly disturbing for the offender, as Mr Moslan was due out of gaol at about that time and she was very concerned that he should not be able to locate her and the children. Nevertheless, on any objective basis, it was a totally disproportionate response to these veiled threats, for the author to be lured to Muswellbrook and brutally murdered.

32 The answer, in my opinion, must lie in the offender’s massive ingestion of drugs, particularly marijuana, as part of the substance abuse disorder suffered by the offender. I shall be talking about her background shortly. It is, on any view, an extremely sad one. For quite some time before the killing of the deceased she had been smoking between 20 and 30 cones of cannabis each day. As Mr Watson-Munro, psychologist, commented, this had a significant and deleterious impact upon her judgment. Mr Watson-Munro noted that she had suffered a significant substance abuse disorder dating back to her early teenage years. He considered that the offender’s drug intake had aggravated her underlying symptoms, which included symptoms of depression, anxiety and low self-esteem.

33 It is well established that drug addiction is not in itself a mitigating factor in sentencing for serious offences. The court cannot be seen as in effect condoning drug use by imposing lesser penalties for drug-related crimes. Those who choose to embark on drugs in the first place, and then maintain their addiction, must, the authorities say, accept the consequences. On the other hand, it has also been said that where the original addiction is not a willed act, that might be taken into account in mitigation.

34 The present case is, on any way of looking at it, a most unusual one. The large amounts of marijuana taken by the offender had so distorted and affected her judgment that she actually believed that the deceased posed some sort of a threat to herself and her children. This belief had no factual foundation, and was essentially the product of the offender’s defective judgment, which was in turn caused by her drug abuse.

35 In this most unusual situation I propose to treat the offender’s misguided belief that the deceased posed some sort of threat to herself and her children as a mitigating factor in assessing the objective seriousness of this offence. Given the overall circumstances, it cannot be taken as a major mitigating factor, but it is not an insignificant one.

36 The Crown Prosecutor submitted that this offence is “well above” the mid-range of seriousness for the crime of murder. Were it not for the offender’s belief that the deceased posed a threat to her and her children, a belief which was fuelled by her drug intake, I would have agreed with that assessment. Even with that mitigating factor, when one takes into account the degree of planning and the brutality of the killing (even though she was not physically present through much of it), I would still place this offence above the mid-range of objective seriousness, although not significantly so.

37 I turn now to discuss the offender’s personal background. She was born on 18 September 1986 and was only 20 years old at the time of this offence. She is now 22. She was born in Adelaide. Before she was born her parents separated and her mother commenced a relationship with another man. Until she was eight years old she believed that this manr was her real father. He used to assault her both physically and sexually and there was a great deal of violence in the home. At the age of 13 she discovered her real father. She went to live with him, but his partner was a woman much younger than him and only a few years older than the offender. The domestic relationships were difficult and, at about the age of 15, she left and went onto the streets where she effectively worked as a prostitute. It was there that she met the father of her children, Mr Moslan, with whom she maintained a relationship, albeit a difficult and not a constant one, for nearly two years. It was he who subsequently kidnapped and threatened the offender, leading to his conviction and imprisonment.

38 The offender did poorly at school and left at the age of 15. Since then she has acquired no training or skills, and has had no productive employment.

39 As I have already mentioned, the offender started to take marijuana or cannabis at the age of 12 and was already a heavy user at the age of 13. To quote Mr Watson-Munro, “in the absence of treatment for her already blossoming psychological problems, this drug offered her significant emotional release and in this setting she rapidly became addicted to it”. She remained addicted until her arrest and incarceration for this offence.

40 The offender’s children are being cared for in Barnardo’s Homes. She has been separated from them since her incarceration. This has undoubtedly imposed a significant additional burden for her.

41 The offender has no prior convictions. This is a significant matter in her favour on sentence.

42 There are a number of mitigating features arising from the offender’s personal history. They are:

· her plea of guilty

· her prior good character

· her prospects of rehabilitation

· her youth

· her expressed remorse.

43 I have already referred to the circumstances in which the plea of guilty was entered. It was a late plea, but nevertheless had some real utilitarian value. I propose to reduce the sentence I would otherwise have imposed by 12.5% on account of this plea.

44 The next three factors, namely, the offender’s prior good character, her prospects of rehabilitation and her youth, are all interrelated. Given the offender’s sad and disjointed upbringing, her time on the streets working as a prostitute, and the extent and duration of her cannabis addiction, it is somewhat of a surprise, even for a person so young, that she has no prior convictions. This must, as Mr Ramage submitted, stand her in good stead so far as her prospects of rehabilitation are concerned. I think I must assume that, if she can remain drug free, her prospects of rehabilitation will be good. She will be a different person when she comes out of prison, approximately twice the age that she was when she first met the deceased. She will, however, require a great deal of assistance and support. It is therefore appropriate that there be a significant period of parole. This constitutes special circumstances which break the statutory nexus between the non-parole period and the total sentence. However, given the length of the overall sentence I am obliged to impose, this factor will not significantly affect the pattern of the sentence.

45 The offender has expressed remorse for this killing. The Crown submitted that I should not accept the genuineness of these statements of remorse, particularly given the concerted attempts the offender made to cover her tracks after the killing. However, as Mr Ramage pointed out, the fact that she attempted to escape detection for this crime is not necessarily inconsistent with remorse. I think I should give her the benefit of the doubt on this matter and treat her expressed remorse as genuine.

46 An extremely moving victim impact statement was read in court by the deceased’s mother, Mrs Jean Harrison. I would like to convey the Court’s and my own sincere condolences to the relatives of the deceased, particularly his parents who are here and who have been devastated by his death.

47 The standard non-parole period for murder is 20 years. This has no direct application following a plea of guilty, but it remains a reference point in the sentencing process.

48 This is one of those cases where the major sentencing considerations point in different directions. Those relating to the offence itself almost all point in one direction, which is towards a heavier sentence. Those relating to the offender personally almost all point in the opposite direction, which is towards a lighter one.

49 The offender has been in custody since 17 July 2007 and her sentence must commence on that date.

50 Emma Barrett, for the murder of David Harrison, I sentence you to imprisonment to be served by way of a non-parole period of 16 years, commencing on 17 July 2007 and expiring on 16 July 2023. That will be the first date on which you will be eligible for release on parole. I specify an additional term of six years, commencing on 17 July 2023 and expiring on 16 July 2029.

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