R v Bolt
[2013] NSWSC 895
•05 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Jermaine BOLT [2013] NSWSC 895 Hearing dates: 07/06/2013 Decision date: 05 July 2013 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Sentenced to a non-parole period of 12 years' imprisonment, commencing 15 October 2011 and concluding 14 October 2023, with a remainder of term of a further 6 years' imprisonment, concluding on 14 October 2029. First eligible for release on 14 October 2023.
Catchwords: CRIMINAL LAW - sentence - murder - domestic violence - intention to inflict grievous bodily harm - momentary and spontaneous intention - a degree of provocation - principles in Fernando applied - sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
R v Fernando (1992) 76 A Crim R 58
R v Millwood [2012] NSWCCA 2Category: Sentence Parties: Regina (Crown)
Jermaine BOLT (Offender)Representation: Counsel:
J McLennan (Crown)
C Bruce SC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)
File Number(s): 2011/328884 Publication restriction: None
REMARKS ON SENTENCE
On 15 October 2011, Jermaine Bolt was arrested and charged with murder. He has been in custody since that date. Mr Bolt was charged that, on the day of his arrest, namely, 15 October 2011, at Ballina in the State of New South Wales, he murdered Tanya Murray. The offence arose out of an incident of domestic violence. The deceased, Tanya Murray, was Mr Bolt's partner.
Circumstances of the Offence
Jermaine Bolt was born on 25 November 1984 and was 26 at the time of the offence. The deceased, Tanya Murray, was born on 14 October 1982 and was 29 at the time of her death.
The offender and the deceased had been in a de facto relationship and lived in the Armidale area until they moved, approximately 12 months before the incident, to Ballina. During the course of their relationship, the deceased had complained to members of her family, on more than one occasion, that she had been assaulted by Mr Bolt. The deceased had been observed with injuries consistent with her complaints. On the other hand, on a number of occasions, Mr Bolt had called the police to the Ballina address to remove the deceased, who was intoxicated and abusive towards Mr Bolt.
On 14 October 2011, Mr Bolt and Ms Murray were celebrating Ms Murray's birthday at home. They both drank large quantities of alcohol and smoked cannabis. At the time that Ms Murray died, each of them were intoxicated. The deceased's blood alcohol reading at post-mortem was 0.148g/100ml and the vitreous humor alcohol reading was 0.182g/100ml. The anti-psychotic drug, quetiapine was also present within the therapeutic range. A number of people attended during the afternoon each of whom has provided a witness statement that is in evidence before the Court. The summary of facts for sentence is agreed between the parties and reflects those statements.
The deceased was upset and jealous. It is not absolutely clear what the reason was for those feelings. A number of possible reasons have been given relating, amongst other things, to the manner in which Mr Bolt was celebrating her birthday and the misreading by the deceased of a message on Mr Bolt's phone. It matters not what the reason was. The deceased became aggressive and started to argue with Mr Bolt. The deceased started pushing Mr Bolt around and pushed him in the face. She also slapped another person a number of times. The argument between the deceased and Mr Bolt escalated from time-to-time and sometimes died down only to escalate again.
Mr Bolt contacted 000 at approximately 1.39am on 15 October stating that the deceased was "going to die" and that he was "resuscitating her". He admitted that he had "hit her". The emergency call has been heard by the Court and the transcript is before me.
Before that call the incidents, briefly summarised, involved both the deceased and Mr Bolt drinking heavily: both beer and spirits. They were also smoking cannabis. During the course of the afternoon, Mr Bolt and another went for more alcohol and on their return, the deceased started to get wild and argued with Mr Bolt. The deceased pushed Mr Bolt around and, as earlier stated, pushed him in the face. Two of the people left shortly thereafter. During the next part of this altercation Mr Bolt was defensive and seeking to parry the assault from the deceased.
During the course of the argument things turned. At one stage the deceased went into her room, seemingly to calm down.
The deceased came out of her room and joined Mr Bolt and others in the lounge room. At that stage, the deceased seemed all right and was not fighting with Mr Bolt. Later, the deceased slapped Mr Bolt again, during which time Mr Bolt was trying to cover his face with his hands.
At one stage Mr Bolt pushed the deceased in the chest with two open hands. She fell over, got to her feet and walked towards Mr Bolt.
Mr Bolt punched the deceased in the jaw with a closed right fist as a result of which the deceased fell backwards and hit her head on the lino floor. A witness suggests that the deceased's head hit the ground hard. She did not move for about 30 seconds. After that she started to move; seemingly started to wake up and sat up. Blood was coming from her mouth and the back of her head. There was blood on the floor in the hallway. Her hair at the back of her head was covered in blood and the blood was dripping down the back of her shirt. The deceased and Mr Bolt were yelling at each other.
The Crown describes the evidence of the altercations as in three phases, with which description I agree. The first phase seemed to occur sometime between 6.00pm and 8.00pm and involved the argument over the text message, to which reference has been made. The second phase occurred between 8.00pm and prior to the arrival of two female guests. The third phase occurred after the arrival of those guests.
The deceased was the aggressor in the first and second phase, the offender, Mr Bolt, was the aggressor in the third phase. There was a rising level of violence.
Later in the evening there was more violence, seemingly at a time when there was no one else present. A number of explanations have been given. Some of those explanations are plainly wrong.
At a very early stage, Mr Bolt suggested that the injuries were occasioned during the course of "rough sex". I reject that explanation.
The injuries sustained by the deceased were extensive.
As earlier stated, Mr Bolt rang emergency services. He was plainly distraught. He requested someone to come quickly and not to let her die. He told the operator that he had hit the deceased, when asked how she was hurt.
When the police arrived, Mr Bolt was plainly panicked. He ran to the police vehicle and opened the passenger door before the vehicle had come to a standstill. Mr Bolt was dressed only in a pair of shorts and had blood over his hands, arms, torso and face. He said to the police officer: "I've done it, I've flogged her, I'll do the time just bring her back please. Quick hurry."
Inside the deceased was lying on the floor next to the bed. Her legs were covered in small bruises and her stomach swollen. There was bruising along her sides from around her lower back. Her face was extremely swollen. Her right and left eyes were swollen shut with swelling around her left eye that was bright red in colour. She had blood over her head and face and coming from her mouth. The walls of the room were covered in smeared blood and there was a hole in the southern wall.
Mr Bolt offered his hands for arrest, which invitation was not, at that stage, accepted. The officer checked the deceased, who was not breathing and had no pulse. The officer commenced chest compressions. Mr Bolt offered to assist. Some of those words are significant. He said: "Just bring her back; I know I've done the wrong thing. I flogged her but I love her. I'm going away for a long time; just save her."
Mr Bolt assisted the police by retrieving a facemask from the police car and, on the material before the Court, there can be no doubt that, whatever was the intention of Mr Bolt at the time that the injuries were occasioned, he genuinely wanted the deceased to live and was genuinely remorseful as to what he had done, even at that early stage.
Other police officers arrived. Mr Bolt offered similar help and pleaded for them to save the deceased. He made similar comments as to his guilt and his responsibility in the occasioning of the damage. The police officers advised Mr Bolt of his rights. He continued to make admissions.
Mr Bolt was taken to the police station and again advised of his rights. It was at this stage that Mr Bolt suggested that they had an argument and were having sex. Part of his statement was: "She likes it rough. I was hitting her around a bit and we fell off the bed. She has then hit her head on the floor. I called the police."
Notwithstanding this momentary attempt at diverting responsibility, Mr Bolt continued to make statements as to his responsibility and was continuing to desire, genuinely, for the deceased to survive and be well. He also continued to take general responsibility for the conduct.
The deceased passed away at the hospital at approximately 4.51am. At 6.15am police officers advised Mr Bolt that the deceased had passed away whereupon Mr Bolt became extremely upset and commenced banging his head against the dock wall.
At 11.05am on that day Mr Bolt participated in an ERISP (Electronically Recorded Interview of Suspected Person), the terms of which are before the Court. The deceased was subject to a post-mortem exam, the reports of which are before the Court.
The direct cause of death was multiple injuries to the head, thorax and abdomen. The photographs of the deceased, also before the Court, disclose injuries to the right hand above the right little knuckle area; injury above the right wrist; right inner arm injuries; injury to the right elbow; injuries to the right side of the neck (scratches); injury above the left eye; injuries to the chest; injuries to the left side of the neck; injuries to the left hand above the middle knuckle; injury to the left upper back area; injuries to the left shoulder blade; injuries to the right buttock and injury of the left upper thigh. The photographs of the crime scene show significant smearing of blood in a number of rooms and beyond the bedroom.
Mr Bolt pleaded guilty at the earliest possible opportunity and has accepted responsibility for his conduct and the death of Ms Murray.
The pathologist expresses the opinion that there has been a severe degree of force applied, undoubtedly from a combination of factors, and seemingly from punching, kicking or stomping, and possibly being thrown against angled surfaces of furniture or walls. It seems that the hole in the wall in the bedroom has been caused by Mr Bolt throwing the deceased through the wall.
Mr Bolt had consumed large amounts of alcohol and cannabis during the afternoon, evening and night of 14 and 15 October 2011. He appeared to be drunk to witnesses and was intoxicated late in the morning of 15 October. The alcohol and cannabis were consumed voluntarily.
Personal Circumstances of the Offender
Mr Bolt gave evidence in the sentence proceedings. There is also a psychologist's report. It is important to deal with some of the matters that have been disclosed in the psychologist's report.
Mr Bolt was born in Lismore, New South Wales. His mother abused alcohol and he had a series of stepfathers who, while providing some stability in his life, also occasioned domestic violence against his mother. He lived often or primarily with his maternal grandmother during his very early years, up to the age of five. He has a number of stepsiblings.
Mr Bolt's grandmother was a stable influence in his life, but he had a difficult relationship with his mother. She was an alcoholic. She was neglectful and abusive and often his relatives were required to care for him and his sister. His mother was murdered by her partner in 2008, when Mr Bolt was away, for which Mr Bolt felt and feels responsible in that he feels he could have prevented the incident, if he were to have been there.
Mr Bolt has little recollection of his biological father, who left when Mr Bolt was very young and Mr Bolt believes his father is now in gaol for attempting to murder a girlfriend. Further, Mr Bolt had a conflicted relationship with his various stepfathers, all of whom were abusive to his mother.
The psychologist opined in the following terms:
"It is my professional opinion that Mr. Bolt is experiencing significant psychological turmoil at this time and was not malingering for secondary gain.
... Mr. Bolt's profile indicates a person with a tendency to avoid social connections fearing judgment, rejection or conflict, but who also craves the support. Their outlook on life tends to be self sacrificing, gloomy and preoccupied with negative events. Five of the eleven scales [in the testing] were elevated.
... All three scales [Severe Personality Scales] were elevated to clinical significance, highlighting Mr. Bolt's essential dialectic between suspicion and social detachment, and his desire for positive attachment.
... Six scales [for measuring transient symptomatology] were elevated to clinical significance relating to symptoms of anxiety, bodily concerns, lability of emotions, alcohol and drug abuse and a significant reaction to trauma.
... All three scales [Severe Clinical Syndromes] were elevated to clinical significance and relate to depressed, fragmented and persecutory thinking style.
In sum, Mr. Bolt's profile is consistent with his clinical interview in that it showed numerous clinical elevations relating to the dialectics of his life; namely, his desire for closeness and support versus the expectation of abuse or neglect."
In her summary and recommendations, Dr McGregor, the registered forensic psychologist, summarised some of the foregoing as having been
"raised in an unstable home life, marred by domestic violence towards his mother, as well as his mother's alcoholism. He recalled her [his mother's] behaviour as vacillating between neglect and abuse; her behaviour could alternate from kicking Mr. Bolt and his younger step sister out of the home to standing over them with a knife in an alcohol induced rage. For Mr. Bolt, this resulted in his belief that he had to protect the women in his life, both his sister as well as his mother, not only to protect her from herself, but from the violent men in her life. Mr. Bolt identified that he came from an environment where violence towards women was not only common, but extreme; he stated his biological father was serving a gaol sentence for attempted murder of his partner, and his stepfather murdered his mother. Domestic violence was present in each of Mr. Bolt's relationships.
...
Mr. Bolt would benefit from further evaluation in two areas. A psychiatric assessment to explore his assertions that he has had a long history of hearing voices, the potential trauma reaction from his traumatic upbringing and his current suicidal ideations is recommended to formulate a consistent and effective treatment regimen. As well, a treatment plan should be identified that recites any learning deficits and program needs; domestic violence and drug/alcohol intervention should form the basis of that treating plan." (Emphasis added.)
I agree with the assessment of the psychologist.
There can be little doubt that Mr Bolt had a dysfunctional childhood and upbringing. Mr Bolt displays high levels of remorse, but, because of his dysfunctional background and the effect of alcohol and drugs, would not offer good prospects of rehabilitation, unless each of these issues was dealt with by him both in a prison environment and in a longer than usual period of supervision of probation and parole. Notwithstanding that a long prison sentence must be imposed, I find there are special circumstances that warrant a longer period of supervision in the community so that these issues can be dealt with in an environment which exposes Mr Bolt to the real world.
Consideration
As already stated, Mr Bolt is entitled to a discount at the highest end for his plea of guilty at the earliest opportunity. Mr Bolt was almost 27 at the time that he killed his partner. His criminal record is not as significant as one could imagine for a person with Mr Bolt's background. It includes acts of violence (assault occasioning), possession of prohibited drugs, driving whilst disqualified, one offence of break and enter, some offences of common assault and stalk and intimidate. Previously, his offences have resulted in fines, a bond, or suspended sentences. Apart from short periods on remand or pending an appeal, this will be the first significant time Mr Bolt will have spent in prison.
Mr Bolt has had a number of casual jobs. When he was working on a fishing boat he saved a person from drowning after the person fell out of another boat for which Mr Bolt was given an award.
He commenced abusing alcohol at the age of 15 and commenced smoking cannabis when he was 12. He now understands that he has a real problem with both alcohol and drugs. His affidavit warrants, in part, repeating:
"I understand I will be serving a lengthy sentence. I want to use that time as usefully as I can. I want to work while I am in gaol, and learn a trade like carpentry if a course is available. I would also like to finish my Higher School Certificate. I know I have to do all the rehabilitation courses I can so that I can deal with my alcohol and drug use, and not turn to violence. I want to learn from my mistakes. I want to be a father to my nine year old daughter. ... I have not seen [her] since I came into custody. ... I would like to have a normal life of work, family and home. While I say this, I understand these are all the things I have taken away from Tanya [the deceased].
...
I know I have brought terrible sadness into the lives of Tanya's family. I know how much they loved her. If I could swap places with Tanya, I would. I would do anything to stop their heart ache and pain."
The injuries that were sustained by the deceased were significant. There was a significant degree of violence exhibited. That is disturbing. Nevertheless, I do not consider that Mr Bolt intended to kill the deceased or wanted her to die, even at the height of the attack.
This is a domestic violence situation in which, throughout the afternoon and evening, violence was perpetrated on each side of the relationship. In some senses, although not of the kind that ameliorates the offence, there was a degree of provocation.
I have no doubt that Mr Bolt intended to occasion grievous bodily harm or very serious injury. I do not find, beyond a reasonable doubt, that he intended to kill the deceased. Indeed, I find that he did not intend so to do.
At the time of the offence, Mr Bolt was subject to conditional liberty and was subject to four s 9 Bonds imposed by the Local Court. He has previously been convicted of offences of violence in a domestic setting.
I do not consider that the level of violence involved gratuitous cruelty. It was certainly cruel. But it did not suggest that the infliction of pain was an end in itself: see McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [30], per Howie J, with whom McClellan CJ at CL and Simpson J agreed. In the words of the Court of Criminal Appeal, it is completely unnecessary, in order to form a proper assessment of the seriousness of this crime, inflicted upon Mr Bolt's partner by Mr Bolt, to introduce the concept of gratuitous cruelty. It adds nothing to the description of what was, plainly, a prolonged assault upon a vulnerable women in her own home by her partner.
Fundamental in assessing the combination of objective and subjective factors is the dysfunctional childhood suffered by Mr Bolt. I agree with Simpson J in R v Millwood [2012] NSWCCA 2 at [69] that a person who has had the start in life that Mr Bolt has does not bear equal moral responsibility with one who has had a "normal" or "advantaged" upbringing. "Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. ... That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court."
I agree with the assessment contained in the submissions made on behalf of Mr Bolt and, in my view, resulting from the limited emotional resources available to him from his background and the degree to which it was affected by constant abuse of women, that Mr Bolt's actions and the fatal assault "was the result of the inability of the offender to deal with the deceased's emotionally labile state".
The previous personal violence offences are relevant in determining the degree to which specific deterrence and punishment are given a greater preponderance and, in so doing, where, in the range available from the objective circumstances of the offence, the sentence imposed upon Mr Bolt should lie.
Nevertheless, Mr Bolt is now medicated and with proper treatment of the kind to which I have referred, offers some prospect of rehabilitation with a positive socially-acceptable future.
I assess the objective gravity of the offence as slightly below the mid-range of conduct to which the charge of murder applies.
A victim impact statement was read to the Court. Nothing that the Court can do, or that Mr Bolt can do, will bring the deceased back. Her family continues to suffer. This is true of every murder. Indeed, it is true of every killing occasioned by acts of violence.
Murder is the most serious of offences and seen as the most serious offence in the criminal calendar. It has a maximum sentence of life imprisonment and a standard non-parole period of 20 years' imprisonment. A full-time custodial sentence is plainly warranted.
Sentencing involves the resolution of goals that pull in different directions and often conflict. They include the protection of society, the deterrence of the offender, the deterrence of others who might be tempted to offend, retribution or punishment and reform or rehabilitation.
As is often stated, the goals overlap and cannot be considered in isolation. Sometimes even seemingly conflicting goals overlap. The best means of protecting society is to ensure full rehabilitation. Rehabilitation is also the single most effective deterrence of the offender committing offences of the same kind.
Nevertheless, punishment is required, general deterrence is required and, while hope springs eternal, the reality of sentencing is that rehabilitation is not always successful. In some cases, such as this, while personal deterrence is, at first blush, an important element, the spontaneous nature of this offence and its lack of premeditation and planning, suggests that no conscious intention has been brought to bear. The intention to inflict really serious injury was momentary, but fatal. On the other hand, that spontaneity involves a greater need for the protection of society, at least until such time as society can be confident that rehabilitation has occurred.
Sentencing is an intuitive process in which the objective gravity of the offence and the subjective circumstances of the offender are considered together with the guidepost of the maximum sentence and the standard non-parole period in order to arrive at a result that implements the purposes of sentencing to which mention has been made and which are prescribed in s 3A of the Crimes (Sentencing Procedure) Act 1999.
As is expressed above, I have had regard to the aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act, although not by way of checklist.
Sentence
Mr Bolt please rise.
You are convicted of murder in that on 15 October 2011 at Ballina in the State of New South Wales you did murder Tanya Murray.
I sentence you to a non-parole period of 12 years' imprisonment, commencing 15 October 2011 and concluding 14 October 2023, with a remainder of term of a further 6 years' imprisonment, concluding on 14 October 2029. You are first eligible for release on 14 October 2023.
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Decision last updated: 12 July 2013
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