R v Biddle
[2011] NSWSC 1262
•28 October 2011
Supreme Court
New South Wales
Medium Neutral Citation: R v Biddle [2011] NSWSC 1262 Hearing dates: 12/09/2011 - 15/09/11, 19/09/11 - 23/09/2011, 10/10/11 Decision date: 28 October 2011 Jurisdiction: Criminal Before: Garling J Decision: (a) A non-parole period of 18 years commencing on 21 February 2009 and finishing on 20 February 2027.
(b) A balance of term of nine years commencing on 21 February 2027 and finishing on 20 February 2036.
(c) The first day upon which you will be eligible to be released is 20 February 2027
Catchwords: CRIMINAL LAW - Sentence - Murder - Jury rejected partial defences at trial - No provocation - Capacity to control himself substantially impaired by brain damage subsequent to meningoencephalitis and depression - Impairment not sufficient to reduce liability to manslaughter consistent with jury's verdict
CRIMINAL LAW - Sentence - Murder - Aggravating factors - Use of iron bar - Offence committed in victim's home - Mitigating factors - Not part of any planned or organised criminal activity - Little weight given to victim's conduct and associated relationship tension and general enmity - No prior convictions - Good character - Unlikely to reoffend - Good prospects of rehabilitation - No genuine remorse - Objective seriousness above middle of the range - Importance of deterrence - Special circumstances for varying statutory ratio for non-parole periodLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Cheung v The Queen (2001) 209 CLR 1
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39
Pearce v The Queen (1988) 194 CLR 610
R v Blacklidge (NSWCCA, 12 December 1995, unreported)
R v Edwards (1996) 90 A Crim R 510
R v Isaacs (1997) 41 NSWLR 374
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Previtera (1997) 94 A Crim R 76
R v Way (2004) 60 NSWLR 168
Shaw v R [2008] NSWCCA 58
Veen v The Queen (No 2) (1988) 164 CLR 465Category: Sentence Parties: The Crown
Clenton Ronald BiddleRepresentation: W Creasey (Crown)
P Bodor QC (Offender)
Director of Public Prosecutions (Crown)
Gregory J Goold Solicitor (Offender)
File Number(s): SC 2009/137577 Publication restriction: Nil
Judgment
On 20 February 2009, Clenton Biddle viciously attacked Christine Biddle, his wife, at their family property near Kempsey in New South Wales.
He did so by taking an iron bar, surreptitiously entering the family home, coming up behind his wife and striking her with a forceful blow on the head. He then continued to strike her on a number of occasions, including whilst she was lying prone on the ground and completely helpless.
The blows caused multiple fractures of Mrs Biddle's skull, multiple lacerations and serious brain injury. She did not recover and on 21 February 2009, she died without regaining consciousness.
Mr Biddle was arrested in the early hours of 21 February 2009 and has been in custody ever since. He was charged with murder.
On 24 June 2010, Mr Biddle offered to plead guilty to manslaughter. That plea was not accepted by the Crown, and Mr Biddle was committed by the Local Court at Port Macquarie to stand trial for murder in the Supreme Court.
On Monday 12 September 2011 when arraigned in front of the jury, Mr Biddle pleaded not guilty to the charge of murder, but guilty of the offence of manslaughter. The Crown declined to accept this plea in full discharge of the indictment.
The trial proceeded. On Friday 23 September 2011, the jury returned a verdict of guilty of murder.
It is now time for Mr Biddle to be sentenced for his crime.
The Crimes Act 1900 provides a maximum term of imprisonment for the offence of murder of imprisonment for life. The Crimes (Sentencing Procedure) Act 1999 provides for a standard non-parole period of 20 years.
Judicial Task on Sentencing
In the circumstances of this present case, it is appropriate that I remind myself of the judicial task on sentencing.
In the present system of criminal justice, I must exercise a discretion as to what sentence should be imposed upon Mr Biddle by applying well identified principles of law to the facts which I find: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at 1-2.
The principles of law are well established and are conveniently summarised in the following way:
"1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury...;
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings ...;
3. The primary constraint upon the power and duty of decision-making ... is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ...;
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt ...;
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender.... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender ...".
R v Isaacs (1997) 41 NSWLR 374 at 377-378; see also Cheung v The Queen (2001) 209 CLR 1.
The appropriate approach to sentencing is to identify all of the factors that are relevant to sentencing, identify their significance with the particular circumstances of the offence and then to make a value judgment as to what is the appropriate sentence having regard to the purpose for which a sentence is to be imposed: Markarian v The Queen (2005) 228 CLR 357 at [51] per McHugh J; Muldrock v The Queen [2011] HCA 39 at [26].
I will apply these principles in the course of this sentence.
The Relevant Legislation
The Parliament of NSW has determined the purposes for which a court may impose a sentence on an offender. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that those purposes are:
"(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
Part 3 of the Crimes (Sentencing Procedure) Act sets out the relevant provisions that deal with sentencing procedures generally. Of particular importance are the terms of s 21A, which relevantly are as follows:
" 21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) ...
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
...
(eb) the offence was committed in the home of the victim or any other person,
(f) ...
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
...
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) ...
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) ...
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
...
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
..."
As well, the provisions of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act , are also applicable when considering the sentence in this matter because the crime of murder is specified as Item 1 in the Standard Non-Parole Period Table incorporated into that Division. The standard non-parole period applicable to this offence is 20 years.
The relevant statutory provisions are:
" 54A What is the standard non-parole period?
(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.
(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.
54B Sentencing procedure
(1) ....
(2) When determining the sentence for the offence (not being an aggregate sentence), the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
(4A) ...
(4B) ...
(5) ...
54C Court to give reasons if non-custodial sentence imposed
(1) If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.
(2) ...
(3) ..."
Principles of Sentencing
The courts have developed clear guidance for the exercise of the sentencing discretion by every judge. These common law principles are to be found in decided cases.
In summary, the common law principles include:
(a) proportionality - namely that the sentence should be proportionate to the gravity of the offences: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ;
(b) parity - namely, that any difference between sentences imposed upon co-offenders for the same offence, ought not be such as to give rise to a justifiable sense of grievance, and to give the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 617 per Dawson J, Gibbs CJ and Wilson J agreeing;
(c) totality - namely, that when a person stands for sentence for a number of offences, the Court must look at the totality of the criminal behaviour and determine what the appropriate sentence is for all of the offences: Mill v The Queen (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ;
(d) avoidance of double punishment - namely that a person should not be punished twice for the same conduct: Pearce v The Queen (1988) 194 CLR 610.
The importance of these principles is that s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: R v Way (2004) 60 NSWLR 168 at [56]-[57]; Muldrock at [18].
As well, factors established by the common law as affecting sentence, such as whether prison may be particularly burdensome, are also to be taken into account in accordance with s 21A: Muldrock at [19].
In considering the imposition of a sentence under s 54B, the following considerations are appropriate:
(a) The effect of the s 54B(2), despite its apparently mandatory terms, is to preserve the full scope of judicial discretion to impose a non-parole period longer or shorter than a standard non-parole period: Muldrock at [25];
(b) When read with s 21A, s 54B requires an approach to sentencing which is consistent with the judgment of McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]: Muldrock at [26];
(c) In considering all factors relevant to sentencing the Court must keep in mind the two legislative guideposts: the maximum sentence and the standard non-parole period: Muldrock at [27];
(d) In giving content in a specific case to the statutory phrase "... an offence in the middle of the range of objective seriousness ...", the assessment is made without reference to matters personal to an offender or class of offenders, and is made by reference wholly to the nature of the offending: Muldrock at [27];
(e) The standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction: Muldrock at [31], nor does it have determinative significance in sentencing an offender: Muldrock at [32].
I will need to bear in mind the legislation by which I am bound and the principles which the Courts have determined, when proceeding on this exercise of sentencing Mr Biddle.
The Facts
I find the facts of the matter to be as follows.
Mr Biddle was born in March 1948 and was, accordingly, 60 at the time he killed his wife. They had known each for a very long time and had been married for approximately 41 years.
Their marriage had produced four children: Jennifer, Jody, Natasha and Dean. They were all adults in February 2009.
Their marriage was described as a reasonable one. That is not to say it was without its difficulties, but on the whole, the children regarded the marriage as being a typical ordinary marriage.
They lived on a property of about 130 acres to the east of Kempsey. The property had a substantial homestead, and a number of outbuildings. In one of those outbuildings there was a second accommodation area, in which their daughter Jennifer and her family were living in February 2009.
In the last few months of 2008, Mr Biddle had an extra-marital affair. Mrs Biddle discovered this in late December 2008.
On 1 January 2009, in the presence of some of her children, Mrs Biddle accused Mr Biddle of being engaged in the extra-marital affair. Although he initially denied it, when pressed and confronted with evidence he admitted to the affair. He then gave a description of what was involved in an attempt to minimise the impact of the affair on his wife and children.
There were angry scenes about his behaviour, which led to his wife telling him to leave the property. Mr Biddle grabbed a knife and threatened to commit suicide. He then drove off in his motorcar.
Later that afternoon, he was discovered at his service station in West Kempsey in circumstances where it was clear that he was contemplating, and perhaps had made some early steps toward, committing suicide. He had left a note which said, amongst other things:
"I fucked up big time but I can't turn it back ... It is very
hard to be thrown out of your own home by the people I love. I fucked up."
He was prevented from committing suicide by the intervention of the police and was taken to the Kempsey District Hospital. There he was assessed and then released into the custody of his daughter, Natasha, who together with her family, then lived at Kundabung.
He remained living with Natasha and her family initially in her house and then in a family owned caravan on her property for some weeks.
During this time, as he told Professor Greenberg, although he felt saddened and upset about what had happened he nevertheless, after the first few days, was able to return to work and he continued to operate the service station reasonably successfully.
After some weeks, it appears that there was contact between Mrs Biddle and her husband. She suggested that he return to live on the property. However, he would only be allowed to live in the caravan which was to be moved to the property and parked in a shed near the house. He would be allowed into the house to shower and use the facilities to wash his clothes and his wife would cook for him, but otherwise they would conduct separate lives. This apparently had a good effect upon Mr Biddle and he returned willingly to live in those circumstances.
Towards the end of that period, conversations between he and his wife seemed to hold out hope that in due course, he might be able to return to live in the house, although his wife did not hold out the prospect of any marital reconciliation.
On 20 February 2009, Mr Biddle spent the day at work. He returned home via one of his children's houses where he spoke to and had a drink with, his son-in-law Mark Brady. Mr Brady's evidence was, and I am satisfied, that at that stage Mr Biddle was physically well and in a good mental state.
On the evening of 20 February 2009, there was a gathering on the back veranda of the homestead at Verges Creek. Present were Mr Biddle and his wife Christine, their children Jennifer and Dean, Jennifer's son, Jessie, and Dean's fiancee, Sharon.
The gathering seemed, at least initially, congenial. An argument then developed between Dean and his father, which led to a heated exchange of words and resulted in Dean pushing his father to the ground. Dean and his fiancee then left the property.
Jessie returned to the granny flat in which he lived with his mother and father. Mr and Mrs Biddle and Jennifer entered the house. A verbal exchange took place. It is adequate to reproduce a part of Jennifer's evidence which, I am satisfied, contained the substance of what occurred. She said at T61:
"Mum just said [to Dad] 'You've just wrecked our whole life, our whole family, what we've worked for' and that 'I can't believe you just had three head jobs that she wouldn't give - you wouldn't give anything back in return to - to her' and then Dad put his hands up and said 'Yeah, I know, I've done the wrong thing.' "
Mr Biddle went and had a shower. After having his shower, Mr Biddle helped himself to a beer and then sat down at a table at which his wife and Jennifer were also seated. There was a conversation, the substance of which was:
Mr Biddle: I've done wrong, I know that but what do I need to do to rectify this problem?
Mrs Biddle: You cannot fix it, Clenton. You've destroyed our lives, as we are finished. A couple that will never get back together. My life is my life, your life is your life. You do not ask me where I'm going, who I see and I will do the same to you. You are treading on thin ice and you are so close to getting kicked off this property.
He then returned to the caravan in which he was sleeping after being told so to do by his wife.
Jennifer stayed with her mother for about an hour and a half. She then retired to the granny flat in which she lived and made preparations for retiring for the evening. This took about half an hour.
At that stage she and her husband, Mr Peter Bowell, heard a commotion. They looked back up towards the house where Mr Biddle was seen to be walking up and down the back veranda of the homestead and holding a knife. During this time he called out to Jennifer that he had just killed her mother.
The various children were summoned, as were the police and the ambulance services. Mr Biddle left the vicinity of the house and went out towards a back paddock. There he engaged in a stand off with police. He was in possession of a knife with which he was threatening to kill himself. The police attempted to persuade him to surrender. The stand off continued for many hours until at about 6.15am Mr Biddle was subdued and arrested.
I am satisfied, and so find, both from what Mr Biddle said to the police during the stand off and what police found when they entered the house, that Mr Biddle left the caravan, and then proceeded to an open-sided work shed on the property where he retrieved an iron bar that was ordinarily used as a handle to raise and lower a hydraulic jack.
He then walked from the shed to the homestead where his wife was. He first attempted to enter the front door, but then decided to go to the rear of the homestead and enter there quietly so as not to warn his wife of his presence. He came up behind her while she was standing in the lounge room and struck her on the head with the iron bar. It then appears that she moved slowly from the lounge room along the hallway to an area between two bedrooms where she slumped to the floor bleeding heavily. There, Mr Biddle subjected her to another five or six blows of significant force. She was entirely helpless, and in vain made attempts to shield her head from the blows.
I can only conclude from these events that Mr Biddle struck his wife intending to kill her.
Mrs Biddle's injuries were horrific. The blows fractured her skull in a number of places, caused significant lacerations to the top and side of her scalp and a very serious brain injury.
Mr Biddle has no memory of the offence or a period of approximately six hours following it. Mental health professionals who testified at trial attribute this to psychogenic amnesia or repressed memory, a quite common, or at least not uncommon, phenomenon in homicide cases. I accept this as the cause of his lack of memory, rather than Mr Biddle pretending conveniently that he does not remember what occurred.
The only source of evidence pertaining directly to Mr Biddle's motivation for the killing is obtained from the police recording of a two-hour portion of the standoff. In recalling the event to the police during that stand-off, Mr Biddle attributed his wrongful behaviour, of going 'off his brain' and killing Mrs Biddle, to a loss of temper.
He described the loss of temper as triggered by events subsequent to his wife's discovery of his affair, which centred on his disenfranchisement from the family and family home. This includes being forced to leave the family home, initially to Kundabung and later to a caravan on the property. Of more immediate history on the night, he described the verbal altercations between he and his wife and her direction to return to his caravan mentioned above, coupled with allegations of loud music being played by his wife to annoy him.
Mrs Biddle was taken to the Kempsey District Hospital by ambulance. She had very serious head injuries as a consequence of the blows struck by her husband.
She was transferred by air ambulance to the Royal North Shore Hospital. She did not ever recover consciousness and on the following day, 21 February 2009, her life support system was turned off and she died.
Police Investigation
Mr Biddle was taken first to the Kempsey District Hospital where some minor wounds were attended to and dressed. He was then returned to the police station.
He declined to undergo any form of interview with police.
Mr Biddle has been in custody since 21 February 2009.
Partial Defences
At trial, Mr Biddle pleaded not guilty to murder, but guilty to manslaughter on the basis of either or both of the partial defences I discuss below.
At trial Mr Biddle submitted, on the evidence, that the jury would find that he was provoked and therefore guilty of manslaughter. However, consistent with the jury's verdict, I am satisfied that, provocation having been negatived beyond reasonable doubt by the Crown, Mr Biddle was not provoked into killing his wife.
Mr Biddle also submitted that the jury ought to find, on the balance of probabilities, in his favour the partial defence of substantial impairment by abnormality of mind. At issue at trial was whether substantial impairment to Mr Biddle's capacity to control himself existed, and if so, whether it was sufficient to reduce liability from murder to manslaughter. In finding the prisoner guilty of murder, the jury must have answered no to either the former or the latter, of these elements of the partial defence.
In order to make a finding on this issue, evidence of Mr Biddle's mental health history should be briefly reviewed.
In seeking to understand the effect of this evidence, it is important to bear in mind that Mr Biddle, through his senior counsel, did not seek to elevate the fact of his mental health issues too highly. He conceded to the jury, that at the time of the murder, Mr Biddle fully knew what he was doing and knew that it was wrong: T394. This concession was properly made.
Dr Hatton, a general practitioner with over 30 years' clinical experience, including many patients with mental health issues, gave evidence. He was Mr Biddle's general practitioner for more than 16 years.
He reported that Mr Biddle presented with neurological symptoms in May 1993, and was subsequently hospitalised and diagnosed with lymphocytic choriomeningitis, which included some features of encephalitis.
In June 2005, Mr Biddle reported symptoms of memory loss and irritability to Dr Hatton. Mr Biddle expressed concern as both his parents had been diagnosed with dementia in later life. Dr Hatton performed a mini mental state examination test, a relatively crude test, in which Mr Biddle scored 30 out of a possible 30. Results of blood tests and a brain CT scan reported no detectable abnormalities, and no further investigation was pursued.
On 14 January 2009, following a visit and a request from Mr Biddle, Dr Hatton completed a report to the Firearms Registry at the New South Wales Police. The report was required to enable an assessment of Mr Biddle's suitability to hold a firearms licence. This reassessment was in response to the attempted self-harm episode two weeks earlier. Dr Hatton did not suggest he was making a detailed psychiatric assessment, but concluded that Mr Biddle " does not suffer from any psychiatric disorder ... [and Mr Biddle] does in my judgment have the ability to form a rational judgment or to exercise will power to control physical acts in accordance with rational judgment ". I accept this assessment of Dr Hatton. It is consistent with Mr Biddle's working capacity and ability at the time.
I also find it to be particularly persuasive because it is, in time, the closest opinion of a medical practitioner to the killing of Mrs Biddle. As well, it is entirely uninfluenced by any suggestion or hint of hindsight bias arising unconsciously in later opinions, because the killing had occurred.
It is also free of any of the effects on the character and mental state of Mr Biddle consequent upon the murder of Mrs Biddle, and the later, and increasing, effect of Mr Biddle being in custody.
I recognise that Dr Hatton is not a specialist psychiatrist, but he is not without a good deal of clinical and practical experience in patients suffering from mental health issues.
Further information about Mr Biddle comes from the various expert mental health professionals who examined him after the offence. The majority of these examinations occurred over one to two years later. The experts had different fields of speciality, and I will briefly summarise those parts of their evidence, which I accept.
Evidence of Mr Biddle's brain function was provided by Dr Pulman, a neuropsychologist. Mr Biddle was examined and tested two years after the offence. That testing placed him in the lowest first to fifth percentiles in five out of six separate areas of testing, which included verbal comprehension, working memory, processing speed and general ability index. He scored an extremely low full scale IQ of 69. Dr Pulman concluded that Mr Biddle was in the range of someone who was mildly intellectually impaired.
Dr Pulman said that the IQ score of 69, was less than she anticipated, having regard to her assessment of Mr Biddle's likely capacity to function before the murder. The other mental health experts broadly agreed with this assessment. The score stands in contrast to Mr Biddle's work history and his capacity to manage the farming activities that took place on the family property, albeit on a low scale.
I am satisfied that the most likely reason to explain the discrepancy between the anticipated, and the actual IQ score, is that the testing occurred at a time when, as a consequence of the offence, his continued incarceration, and the loss of regular contact with his family, Mr Biddle was suffering depression. Depression was, as I was told by Dr Pulman, one cause of low IQ scores on the tests undertaken by Dr Pulman.
Evidence of Mr Biddle's psychiatric state (his mind) was provided by Professor Greenberg, Dr Allnutt, Dr Nielssen and Dr Furst. All experts were in agreement that Mr Biddle suffered from an abnormality of mind, emanating from brain damage subsequent to meningoencephalitis in 1993, with concurrent depression. Two experts assessed the resulting impairment of capacity to control himself as substantial, one expert assessed it as mild and the remaining psychiatrist was not asked to make an assessment.
Expert evidence of any disease or injury of Mr Biddle's brain was provided by Dr Rosen, a neurologist. He concluded the prisoner suffered from a significant brain injury subsequent to meningoencephalitis.
Four letters written by Mr Biddle to his family after his arrest were admitted as evidence, and available to the above experts to assist in forming their conclusions, and also the jury.
It is appropriate to note that the word "substantial" in the partial defence carries its ordinary meaning of being of substance, and not trivial, slight or insignificant. It does not indicate that the impairment of mind must necessarily have of itself, overborne Mr Biddle's capacity to control himself.
On the basis of the entirety of the evidence regarding the prisoner's mental health status and nature of the offence, I find, consistently with the jury's verdict, that the prisoner's capacity to control himself was substantially impaired by brain damage subsequent to earlier meningoencephalitis, and concurrent depression. However, that impairment was not sufficient to warrant reducing his liability from murder to manslaughter, because I find that it played no causal role in the events which occurred.
In summary I reach the following factual conclusions:
(a) As his counsel told the jury, Mr Biddle fully knew what he was doing to his wife, and fully knew that what he was doing was wrong;
(b) Mr Biddle acted rationally and deliberately. He left his accommodation, went to collect the murder weapon, an iron bar, surreptitiously entered the homestead by a rear door, surprised his wife and bludgeoned her to death, in a most vicious attack;
(c) Mrs Biddle, was aware of what was happening, tried to defend herself, but was helpless to do so as the attack persisted;
(d) At the time of the attack, Mr Biddle was not provoked. However, the breakdown of his marriage, for which his conduct had been the precipitatory cause, together with his inability to accept that his wife was entitled to an independent life and the fact that he could not reside in the homestead, all combined to bring him to decide to kill his wife;
(e) The killing of Mrs Biddle was the product of his selfish, perhaps narcissistic, personality, his determination to have control over his wife's behaviour and the way in which his family lived their lives.
Simply put, he was jealous of his wife, and her newly found independence. He could not accept that his previously comfortable life had irretrievably changed. He felt threatened by the loss of his dominant position in the family.
(f) It is clear that he lost proper control of his behaviour, and attacked his wife, intending to kill her and succeeded in so doing.
Specific Statutory Considerations
Section 21A of the Crimes (Sentencing Procedure) Act identifies a number of matters as aggravating factors to which regard must be had in determining the appropriate sentence to be imposed. The first which is relevant to this matter is that the offence involved the actual use of violence: see s 21A(2)(b). However, given the nature of the crime, I am satisfied that this aggravating factor is accounted for as being an element of the offence and that I should not have additional regard to it.
The second aggravating factor applicable to this case is that Mr Biddle actually used a weapon, namely, the iron bar. The iron bar was, I am satisfied, a substantial weapon the use of which would obviously have been likely to cause death or serious injury to his wife. That is an aggravating factor to which I have regard: s 21A(2)(c).
A further aggravating factor was that the offence was committed in Mrs Biddle's home. This is an aggravating factor because all people are entitled to feel safe in their home and safe from being attacked in their home: see s 21A(2)(eb). I am satisfied that Mrs Biddle was feeling safe. Her home was not locked. It was an aggravating feature of Mr Biddle's conduct that he chose to commit it in Mrs Biddle's home where she was entitled to feel safe.
Other aggravating factors include that the injury caused by the offence was substantial: s 21A(2)(g). But given the nature of the offence, and the elements of it, this is not a matter to which I ought have additional regard.
There are a number of mitigating factors to which I am required to have regard, and to which I do. They are:
(a) That the offence was not part of a planned or organised criminal activity: s 21A(3)(b). Although the offence had a degree of planning about it, it was not, I am satisfied, part of any planned or organised criminal activity. This has some small mitigatory effect.
(b) That the offender was provoked by the victim: s 21A(3)(c). Although the jury has rejected provocation as a partial defence in the proceedings, the conduct upon which Mr Biddle relied may nevertheless be taken into account in mitigation of any penalty which is to be imposed. But the conduct here relied upon, being the interaction between Mr Biddle and his wife about the state of their marriage, and domestic arrangements falls within the description "... relationship tension and general enmity ... leading up to the offence " as this phrase is used in Shaw v R [2008] NSWCCA 58 at [26]. Whilst I have regard to it, it carries little weight in terms of mitigation in this case. Mr Biddle's senior counsel accepted in the course of his sentencing submission, that provocation was not available to ameliorate Mr Biddle's conduct (T43.9, 10 October 2011).
(c) That the offender had no prior criminal convictions and was a person of good character are matters of mitigation: ss 21A(3)(e) and 21A(3)(f). Here the Crown accepted that there were no prior convictions and the evidence in the trial was that Mr Biddle was not the subject of any complaint to, and report to, the police. I am prepared to accept that he was a man of prior good character. I take this mitigating factor into account.
(d) Mr Biddle's prospect of rehabilitation and likelihood of re-offending: s 21A(3)(g) and s 21A(3)(h). Having regard to all of the circumstances, and in particular Mr Biddle's age and maturity, I am satisfied that it is unlikely that he will re-offend and that he has good prospects of rehabilitation.
(e) Remorse: where an offender has shown remorse that can mitigate any sentence: s 21A(3)(i). I am not satisfied that Mr Biddle has shown any true remorse. I accept that he has acknowledged, during the court process, his actions in killing his wife. He pleaded guilty to manslaughter when first arraigned in this Court. I note that he first offered to plead guilty to manslaughter at the time he was committed by the Local Court. The Court has had the benefit of what he told the police during the stand-off on the morning of his arrest and the benefit of a number of letters which he has written whilst in custody. As well, the Court has the histories which have been provided by Mr Biddle to the various medical professionals who gave evidence.
The totality of that evidence reveals to me a man who feels very sorry for himself and his current predicament, a man who admits he made a " mistake " in killing his wife, but who seems to continue to advance excuses, largely about his wife's conduct towards him, which do not persuade me that he shows any true remorse for what he has done, nor that he readily accepts any moral responsibility for what he has done.
In his evidence on sentence, Mr Biddle said (T9.26, 10 October 2011):
"... I have always said that I'm sorry. ... I cannot express my remorse enough to all sides of the family. I am sorry. I have put in my letters I have posted to my children but they should, I think be able to verify that. That I have always said [sorry] and I have wrote how I felt."
The letters, in evidence written by Mr Biddle to his children, did not support this evidence. A careful reading of them does not suggest to me the expression of any remorse at all, let alone any genuine remorse.
I note the evidence of Mr Biddle's sister, Ms Steinmetz, that Mr Biddle had told her that he was sorry and I also note her lay opinion that " ... he is sorry for what he has done ..." (T18.13, 10 October 2011).
However, having regard to all of her evidence, and the totality of the evidence on this issue, I remain unpersuaded that Mr Biddle has shown any genuine remorse.
(f) The degree of pre-trial direction by the defence: s 21A(3)(a). There is no reason, in this case, to regard the conduct of Mr Biddle prior to trial, and during it, as meriting any lesser sentence because he has facilitated the administration of justice.
Objective Seriousness of the Offence
It is appropriate to make an assessment of the objective seriousness of the offence of Mr Biddle. This is to be assessed without reference to matters personal to Mr Biddle and is to be assessed wholly by reference to the nature of the offending: Muldrock at [27].
I proceed to make an assessment of the objective seriousness of the offence (although at least arguably since Muldrock this is not necessary) because:
(a) The standard non-parole period is a legislative guidepost which is of importance as a factor in sentencing: Muldrock at [27];
(b) In order to give effect to that guidepost, or at least, to understand its significance in the process of determining a sentence for an individual, there needs to be a point of comparison with the legislative discretion, namely, whether the offence is in the middle of the range of objective seriousness for the offences generally: s 54A(2) Crimes (Sentencing Procedure) Act ; and
(c) It is difficult to comply with specific statutory requirements in s 54B(4) of the Crimes (Sentencing Procedure) Act of providing reasons for varying from the standard non-parole period, unless there has been a determination of the degree of objective seriousness of an offence.
In making this assessment, and concordant with my understanding of Muldrock , I will not take into account the facts and circumstances relating to Mr Biddle's mental health, which I am persuaded amounted, within the meaning of the legislation, to " a substantial impairment by reason of abnormality of mind ".
I should add for abundant clarity, that as I have said above at [79], I would not have been satisfied, on the balance of probabilities, that this substantial impairment was in any way causally connected to his conduct on the evening of 20 February 2009.
In my assessment, the criminality was serious. The offence was the subject of some thought, albeit over a relatively short period of time. A weapon was identified, collected and taken to the homestead to be used. Entry was gained in a way to conceal his approach. Mr Biddle's actions were perpetrated on an innocent, unknowing and defenceless woman in her own home. She was a woman who had not done anything which warranted criticism, let alone the brutal attack to which she was subjected.
As well, she tried to escape, was pursued and then bludgeoned whilst she lay helpless on the ground. Mr Biddle attacked Mrs Biddle, intending to kill her.
I would assess the objective seriousness as being above the middle of the range.
Victim Impact Statement
The Court has heard statements read by or on behalf of each of Mr Biddle's four children, Jennifer, Jody, Natasha and Dean. Mrs Judy Byrnes read a statement. She is Mrs Biddle's sister and was obviously very close to her.
As well, Mrs Lyn Steinmetz, the sister of Mr Biddle, who was a close friend of Mrs Biddle from their school days, gave evidence of her feelings of hurt, anger and bereavement.
Clearly this crime has touched the members of both Mr and Mrs Biddle's immediate and extended family, and affected them all deeply.
I will have such regard to this evidence as the law permits: R v Previtera (1997) 94 A Crim R 76; s 28 Crimes (Sentencing Procedure) Act.
Subjective Circumstances of Mr Biddle
Mr Biddle is now 63 years old. He was nearly 61 years old when he murdered his wife.
Mr Biddle had a stable home life. He left school at about 14 years old and then worked with his father for many years in a variety of trades, all of which centred upon motor vehicles and motor mechanics.
In about 1993 and 1994, he ceased working for his father and struck out on his own.
As I have earlier mentioned, he had an episode of viral meningitis in 1993, after which he worked, away from home, in a number of different manual jobs for about 2 years. He then returned to the Kempsey area and commenced work at the West Kempsey Service Station until his arrest.
In 2005, he consulted Dr Hatton because he was concerned that he may have been suffering from the early signs of dementia. Dr Hatton undertook a range of investigations and was unable to establish that he had any diagnosable condition.
Until he engaged in his extra-marital affair, he had been happily married to Christine for approximately 41 years. They had a family of four children and many grandchildren. He said that until February 2009, he had a wonderful life, although it was not without its ups and downs. He described his late wife as the "... best in the world . "
In all respects, he was a man of good character.
He was obviously proud of his family and work successes. He was the proprietor of the service station and as well, he undertook some farming activities, including cattle raising, on the family property. He described what he had developed as " ... an empire ...".
As I have said, with this background, and having regard to the facts and circumstances of what occurred, he is unlikely to offend again and has good prospects of rehabilitation.
Sentence
In considering the appropriate sentence to be imposed on Mr Biddle, I commence with the reminder that murder involves the criminal taking of a human life. It is a violation of the sanctity of human life, which is a concept at the heart of a civilised community.
Ordinarily, a conviction for murder warrants a substantial sentence because the demands of punishment and the deterrence of the broader community against similar conduct are of gross importance.
Here, I am satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act . The special circumstances arise here because of Mr Biddle's age, the present state of his mental health, including possible early signs of dementia, the fact that this is his first episode of imprisonment and his good prospects of rehabilitation. The Crown agreed that special circumstances were established. As a result, the period which will be spent in custody will be such as to enable adequate rehabilitation and supervision upon release.
I have discussed all of the facts which are relevant to this decision and now it is necessary to make a value judgment as to what is the appropriate sentence.
I determine the appropriate sentence be one of 27 years imprisonment, of which Mr Biddle must spend 18 years in gaol before being eligible for parole.
It is necessary for me to make a record of my reasons for imposing a non-parole period which is shorter than the standard non-parole period: s 54B(4) Crimes (Sentencing Procedures) Act . The foregoing reasons contain all of the factors that I have taken into account. I have relied upon all of those factors in making an evaluative judgment as to the appropriate sentence.
Orders
Mr Biddle, I sentence you to the following term of imprisonment:
(a) A non-parole period of 18 years commencing on 21 February 2009 and finishing on 20 February 2027.
(b) A balance of term of nine years commencing on 21 February 2027 and finishing on 20 February 2036.
(c) The first day upon which you will be eligible to be released is 20 February 2027.
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Decision last updated: 29 November 2011
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