R v Bunce

[2007] NSWSC 469

CITATION:	Regina v Bunce [2007] NSWSC 469
HEARING DATE(S):	26 March 2007 2 April 2007
JUDGMENT DATE :	11 May 2007
JUDGMENT OF:	Price J at 1
DECISION:	Sentenced to a term of imprisonment of 24 years which is to commence on 23 May 2005 and is to expire on 22 May 2029. Non-parole period of 18 years which is to commence on 23 May 2005 and expire on 22 May 2023. Eligible to be released on parole on 22 May 2023.
CATCHWORDS:	Criminal Practice and Procedure - sentencing - murder - guilty plea - lack of contrition - voluntary disclosure - utilitarian discount - sentencing practice as at the date of commission of offence.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s3A, s21A, s21A(2)(n), s21(1), s44 Crimes Act 1900 s 19A, s19A(2), s19A(3),
CASES CITED:	R v Harrison (1997) 93 A Crim R 314 R v Palinko [2005] NSWCCA 46 R v SLD (2003) 58 NSWLR 589 R v Thomson and Houlton (2000) 49 NSWLR 383 The Queen v Olbrich (1999) 199 CLR 270
PARTIES:	Regina Gareth John Bunce
FILE NUMBER(S):	SC 1215 of 2006
COUNSEL:	Mr J Kiely SC - Crown My P Young SC - Public Defender on 26.3.07, 2.4.07 Mr Bunce in person 11. 5.07

- 23 -

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

PRICE J

FRIDAY 11 MAY 2007

1215 OF 2006 REGINA V GARETH JOHN BUNCE

REMARKS ON SENTENCE

1 HIS HONOUR: Gareth John Bunce pleads guilty to the murder of Margaret Elizabeth Wagner on 18 March 1997.

2 At the time of her death the deceased lived with her husband, Shane Andrew Metcalfe, and their two children, Jason then aged 7 and Samantha aged 2, at 88 Richard Street, Warrimoo. It was in Jason’s bedroom in the home that the deceased died as a result of the prisoner placing both his hands on her neck and strangling her. She was 27 years old when she was murdered.

3 During the prisoner’s evidence on sentence it became apparent that the extent of the prisoner’s pre meditation to kill the deceased was in dispute. The Crown contends that the prisoner travelled to Warrimoo on the day of the murder with the intention of killing the deceased whereas the prisoner gave evidence that the intention was formed when guns were placed in his hands whilst he was in the deceased’s home.

4 The onus is on the Crown to prove beyond reasonable doubt that the intent to kill had been formed by the prisoner prior to his attendance at the home on 18 March 1997.

5 The authorship of an undated letter addressed to the deceased in 1993 and whether the prisoner had sexual intercourse with the deceased on the day of her death are further matters of fact which are in dispute and are for the Crown to prove beyond reasonable doubt as findings adverse to the prisoner may increase the objective seriousness of the offence: see The Queen v Olbrich (1999) 199 CLR 270.

6 Before considering these issues, I propose to detail those facts which are not controversial. They are taken largely from the Statement of Facts tendered by the Crown.

The facts not in dispute

7 The deceased was the daughter of William Wagner and step sister of Kelly Van Der Schoot. She left home in 1985 when she was 15 years of age and commenced to work for a man known as Arthur Mafoi. She became a user of cocaine, heroin and practised prostitution. After marrying Mr Metcalfe in 1990, she appeared to get her life back together. Jason was born in 1990 and Samantha in 1995.

8 The prisoner married Kelly Van Der Schoot in 1985 and lived with her in Leopold Street Merrylands. The deceased lived with them for a short time. Whilst living with them the deceased participated in a pornographic film with the prisoner which portrayed them having sexual intercourse at the Merrylands address. The deceased was then aged 15. The film was discovered by Helen Wagner, mother of the deceased, who viewed it. Some years later Kelly, the prisoner’s wife, discovered the video and spoke to the prisoner about it threatening to leave him. She decided to continue living with him at that time. Mrs Wagner destroyed the film in 1990.

9 In 1988 the prisoner was sentenced to a term of imprisonment for 9 months for an offence of larceny as a servant. He had been employed by the railways. In April 1991 the prisoner gave evidence during a sentencing hearing in the District Court for a charge of assault and robbery with an offensive weapon committed on 1 May 1989 that he had been blackmailed into carrying out the armed robbery of the railway station by his wife Kelly who was assisted by her two sisters one of whom was the deceased. He told the Court that the deceased “……said that she would use a videotape that she and I made together and say that I had forced her to make it”. He was sentenced to a minimum term of imprisonment of two years with an additional term of eight months.

10 In 1997 the deceased received an anonymous letter indicating that she was eligible to claim a portion of $876,954.89. On 23 April 1993, she approached Simon Patterson, an accountant, and discussed the letter with him. Mr Patterson was of the opinion the letter was a hoax.

11 A few days prior to the murder the deceased met the prisoner at the Mt Druitt Pizza Hut where a birthday party was being held for one of the prisoner’s children. They discussed the 1993 letter, agreed to make another video and to meet at Warrimoo railway station on 18 March 1997.

12 The deceased collected the prisoner from Warrimoo railway station at around midday on 18 March 1997 and drove him to her home. The prisoner had brought with him a video camera and some nylon rope but did not bring a video tape for the camera.

13 Having arrived at the home, they decided to make a pornographic video. The deceased went into the bathroom, disrobed and then laid on the bed in Jason’s room. Her ankles and wrists were then tightly secured by the prisoner to the legs of the bed by the nylon rope he had brought with him. Heavy duty electrical tape was placed over her mouth.

14 The prisoner then sat on her abdomen and applied pressure with both hands to her neck high up under the chin until she was dead. It took about two to three minutes for the deceased to die.

15 When he strangled the deceased, the deceased used a technique that would not leave any bruising or indication that she had been strangled. The prisoner had learned of this technique from other prisoners when he was in gaol on an earlier occasion and from his own reading.

16 After ascertaining the deceased was dead, he untied the body leaving it uncovered on the bed. He left the home taking the rope and tape with which he had secured and gagged the deceased. A Daily Telegraph newspaper dated 18 March 1997 was left by him in the lounge room which had two of his finger prints on the front page.

17 The deceased’s son, Jason, arrived home from school at about 3.20pm and was unable to wake his mother who he found lying uncovered on the bed in his room. An ambulance was not called until later that afternoon. The time of death was fixed between 2pm and 3pm.

18 The prisoner was charged with the deceased’s murder on 29 December 1999 and was remanded in custody. He was released on 28 September 2000 when the Office of Director of Public Prosecutions directed that the charge proceed no further at that stage.

19 After emailing the television program, A Current Affair, the prisoner met with Andrew Byrne, the supervising journalist for that program, on 12 September 2005. He confessed to killing the deceased which he elaborated upon at a meeting on 20 September 2005. The prisoner travelled with Mr Byrne to Brisbane where Mr Byrne and another A Current Affair journalist, Amanda Paterson, spoke to him. A conversation with the journalists in Brisbane on 21 September 2005 was covertly recorded. Interviews in Brisbane on the same day and on the next day in Sydney were recorded on sound and by video with the prisoner’s knowledge and consent. Excerpts of what was said during these conversations and interviews are detailed at pages 9 to 14 of the Statement of Facts.

20 The prisoner does not dispute what is recorded as being said to the television reporters but denied in evidence that he told the truth to them about when he formed the intention to kill the deceased (T18).

When did the prisoner form the intention to kill?

21 The Crown relies on statements made to the journalists to prove beyond reasonable doubt that the prisoner had formed the intention to kill the deceased prior to going to her home on 18 March 1997. Other circumstances relied upon include confessional statements made to friends and the fact that a video tape was not one of the items taken by the prisoner to the deceased’s home.

22 As proof is required beyond reasonable doubt, a finding is not to be made that the intention to kill had been formed prior to the attendance at the home unless it is the only rational finding to be made in the circumstances beyond reasonable doubt.

23 Mr Byrne recalled the prisoner informing him on 12 September 2005 that “he did it because Margaret had ruined his life for 15 years and had waited for revenge”. During the flight to Brisbane on 20 September 2005, the prisoner told Mr Byrne that the took the rope so he could tie the deceased up and kill her. He took grey tape to gag her with and also took a video camera but did not take a video tape with him. He said that it was the deceased’s idea to “……make a sex video and his idea to make a bondage video. This was to give him a reason to tie Margaret to the bed……” The prisoner further told him, Mr Byrne recalls, that “he was going to kill Margaret that day as ‘all the pieces had fallen into place’” and “Margaret wanted him to do an armed hold-up with her at a petrol station and that he did not want to do it and that was the reason he killed her”.

24 During the covert recording, the prisoner said on the day of the killing, he was aware that the deceased’s husband would be away, and the children would be at school. He intended to kill her at this point. He stated that he did not want to meet her in public and that he wanted to meet at her place. He took the rope with him and was setting the stage. He also brought the video camera with him and told her that a bloke wanted a “porno” movie with bondage and they would get “two hundred grand” for it.

25 The prisoner remembered killing Margaret and said:

“She wanted me to hold up a service station. I wasn’t gonna hold up no service station……If I, I did it again, she would want me to do it to another. I wanted it to stop, end of story. And I had been to the police…..She’s got a video tape with her under 17, under 18, saying well he molested me.”

26 When the prisoner was asked did he have sex with the deceased, he replied “No. My intention wasn’t to have sex with her my intention was to knock her. Simple.” In response to a question of how long had he been waiting for his moment to murder her said:

“I don’t know. As long as it took, I suppose.”

27 In the overt recording in Brisbane on the same day, the prisoner said he set the scene using a video camera, to make a “kinky video” so he could get the rope around her. “I went there to kill her, end of story”. “I went there to kill her.” During the overt recording the next day in Sydney, the prisoner said:

“I didn’t want to do the armed robbery, and to solve the problem I killed her. End of story.”

He also stated:

“Well it was either go [do] the armed robbery or kill her, or go to gaol for a child molester.”

He said he wasn’t sure whether he would be able to kill her on that day because he had never been to her home before. He stated:

“It was only when, till I got to her place, found out that she was gunna be alone for at least two hours, that I have the opportunity.”

28 The prisoner told this Court that after he and the deceased arrived at her home, they went into the lounge room and the deceased told him to sit. She went into another room and came back carrying a towel. The deceased unfolded the towel, put two guns in his hand and told him [they] were the guns [with which] she wanted him to hold up a service station with her. He said:

“She had mentioned an armed robbery. She started talking about an armed robbery when she placed the guns in my hand and kept on saying that she wanted me to do the armed robbery and she wanted me to shoot the owner of the service station and shoot the bloke behind the cash register and me leave the money and give her the money. I was not going to do any of that at all.” (T17 26/3/07)

29 He understood that the sum of money at the service station was [to be] “anywhere up to a hundred grand” as “the bloke in the service station knew [the deceased] and he was going to ring [her] when the boss had come in from collecting money from the other stations that he owned”. The prisoner said that he at first told the deceased he did not agree but she said:

“I can do to your kids what I’ve just done to you.” (T17 26/3/07).

To which he responded:

“What do you mean by that?

The deceased replied:

“You know your flat mate and her daughter that she got charged?” and……“That girl is my friend and we arranged to have that charge brought against you.” (T17-18)

30 He agreed she was referring to a charge of sexual assault on a young girl for which he had been convicted and sentenced some years previously. The prisoner said that he understood the deceased had something to do with the conviction and he had not been guilty of the offence. It appears that the prisoner was referring to his conviction for an offence of committing an act of indecency with a person under the age of 16 years.

He understood that the deceased, if he did not carry out the armed robbery, would do the same to his children and have them “gaoled for this sexual harassment, or whatever”. (T18)

31 The prisoner testified that he formed the intention to kill “when she put the guns in my hands and told me I was going to shoot a bloke in the service station and the bloke who was giving her information and she was going to sit in the service station and shoot anyone who came on the driveway”. The allegations against his children just made him angrier. (T18-19)

32 After she told him she was prepared to put his two children through the same thing, he said “Okay, let’s go and do it.” The deceased, he said, decided to do the video and the prisoner described how he then strangled her.

33 The last time he had seen the deceased before the birthday party, the prisoner deposed, was the armed robbery in 1989. The deceased had tried to ring him many times since he got out of gaol in 1994 – in late 1996 and early 1997 but he responded to her requests to contact her by pressing “delete”.

34 The prisoner’s evidence as to the formation of the intent to kill stands in contraposition to some of the statements he made to the journalists.

35 It is the prisoner’s testimony that he did not take a video tape to the deceased’s home as she did not say anything about taking a video tape. Her request was confined to a video camera and rope. It was her idea to do the bondage movie. This evidence contradicts the statement to Mr Byrne that it was the deceased’s idea to make a sex video and his idea to make a bondage video.

36 The prisoner told this Court that his evidence was the truth and not what he said to the reporters, who were told what they wanted to know.

37 In assessing the veracity of the varying accounts given by the prisoner, I have taken into account the assessment by Barbara Liddle, senior clinical psychologist, of the prisoner’s idiosyncratic personality and grandiose history giving and the oral evidence of Dr Westmore which I will expand upon later in these remarks.

38 Although he told the journalists that the deceased wanted him to do an armed robbery he did not divulge to them that the deceased had placed two guns in his hands. In closely scrutinising the prisoner’s account, Mr Crown asked him (T26):

“Q. And when you spoke to the reporters, the accounts you gave of what happened on that day were quite exhaustive …you were there telling them everything you knew of what happened on that day?
A. I was there telling them what they wanted to know. I was not going to tell people on the television, especially people that I associate with now, that I had two guns in my hand.
Q. That is the point I want to make, sir. You never at any stage mentioned to…….Paterson or Byrne, anything about guns?
A. That’s right, because I knew I was going to gaol and if I went to gaol, what am I going to tell the blokes in gaol about these two guns. Everybody would be on my back.

Q. What are you going to tell them now?

A. It’s all over and done with now. I’ve gone through the first 12 months. I’m just one of them at the moment.”

I find the prisoner’s explanation for the lack of mention to the journalists of the guns to be less than credible.

39 No mention was made to the journalists by the prisoner of the deceased’s threat to his children who were at that time aged between 7 and 12. Before this Court, the prisoner had difficulties articulating what he understood by the threat. It seems that he comprehended the threat to mean that the deceased would make false allegations against his children. The assertion that such a threat was made, is in my view, implausible.

40 The alteration in the prisoner’s account as to whose idea it was to do the bondage video underpins the veracity of his evidence. On the version given to Mr Byrne, it would have otherwise been difficult to explain why he attended the home without the video tape unless he had a prior intention to kill. The prisoner’s explanation that he did not take the video tape as the deceased’s request was confined to a video camera and rope was transparently dishonest.

41 Various statements confessing to the murder were made by the prisoner to friends. Whilst in hospital in 1998, he told Fiona Wallwork:

“My ex sister-in-law got what she deserved. I can say what I like now because I am mental and I can’t get done for it”.

42 The prisoner when asked by Ms Wallwork:

“Why, what did she get?

Replied:

“I got what I wanted, strangled her and tied her up. But I didn’t leave any evidence for them to know it was me.”

43 On 4 January 1999, he told Kylie Hearn that he killed the deceased. When asked:

“Why did you?”

He replied:

“Because she was in the way”.

He explained to Ms Hearn that “she [the deceased] was sticking her nose in where it wasn’t wanted”.

44 During the intercepted telephone conversation with Karen Bugeja on 23 December 1999, the prisoner told Ms Bugeja that he put his hands around the deceased’s neck and said……… “it was fun” and he “enjoyed it”. No mention was made during these conversations by the prisoner that the deceased had placed guns in his hands and had threatened his children.

45 The prisoner’s assertion that the deceased had blackmailed him by the threat of disclosing the pornographic film of sexual intercourse between them when she was aged 15 to police is not of recent invention. As mentioned previously, evidence was given of the blackmail at the sentencing hearing in 1991. The journalists, Mr Byrne and Ms Paterson, were also given accounts of the blackmail.

46 It appears, however, that the prisoner’s focus upon the deceased’s asserted misconduct has enlarged over the years.

47 During the sentencing proceedings in the District Court, the deceased’s blackmail was not his sole complaint. He testified that his former wife and stepsister Marea had also blackmailed him. His wife was saying that she would take the children from him and he would never see them again. Marea suggested that she would have him up on a rape charge claiming that he had raped her. He told the Court that he had no quarrel with his stepsisters but was disappointed they had helped his wife.

48 It is appropriate to observe that in a statement dated 24 March 1997, Kelly Van Der Schoot recalled the prisoner being involved in an armed robbery at Granville Railway Station. She said she had nothing at all to do with [the robbery] and the prisoner never told her anything about it. She recounts (at para 15):

“However, when he got out of gaol after doing the 9 months, he tried to blackmail me by coming around to our house in St Marys and showing me a letter in which he said he was going to tell the police that me, Margaret and Marea were all involved in the armed robbery. I never took Gareth back and he ended up going back into gaol on that charge.”

49 Ms Van Der Schoot said that whilst the prisoner was in gaol, she was interviewed by Blacktown Detectives at the police station about the armed robbery in, it appears, 1992. The detectives rang her back later and told her she had been cleared. She was not aware if the deceased or Marea were interviewed.

50 During the recorded conversations in Brisbane with the journalists the prisoner related that the deceased had “blown the whistle” on him and his brother for the offence of larceny by a servant for which he served nine months in prison. He told this Court that the deceased, he understood, had something to do with concocting the evidence that led to his conviction for a charge of sexual assault upon a young girl.

51 As was said by Dr Westmore, the prisoner’s personality included an obsessiveness and an inability to move on. He had, it seems, a pre-occupation about what he understood to be the deceased’s misconduct towards him and an inability to resolve the conflict by lawful means.

52 The prisoner had a motive to kill the deceased before the day of the murder. He had, I am satisfied, the belief that the deceased had ruined his life. He related to Mr Byrne he “had waited for revenge”, and to Ms Paterson that he “….got a ……needle out of my bum that was annoying the shit out of me for many years, and I pulled it out.”

53 The statements made to the journalists of his prior intent to kill were not exaggerations but were the truth. I do not accept the prisoner’s evidence that he formed the intent to kill after he arrived at the home. Without dilating further on the evidence, I reject the prisoner’s assertions that the deceased placed guns in his hands and threatened his children. I do not accept that the deceased wanted him to do an armed robbery and to commit murder. These assertions, I conclude, were made by the prisoner in order to justify his criminality.

54 I am satisfied beyond reasonable doubt that the only rational inference to be drawn from the prisoner’s motive, his attendance at the deceased’s home with the video camera and the rope without the video tape, the statements made to the journalists, to Ms Hearn, Ms Wallwork and Ms Bugeja is that the prisoner had formed the intent to kill the deceased before he travelled to Warrimoo on the day of the murder.

55 The murder had been carefully planned. The bondage video was to be used as a ruse to place the deceased in a vulnerable position when she could be strangled by the technique which decreased the possibility of detection.

56 I have taken into account the prisoner’s careful planning of the killing as an objective factor increasing the seriousness of the offence and not as an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (the Crimes (SP) Act).

Did the prisoner write the letter?

57 As previously mentioned the deceased received an anonymous letter which advised that her “joint investment is due to be realised on Friday 23 April 1993”. The value of the investment was stated to be $876,954.89. The money could not be retrieved unless the author had “all five passwords”. The letter was typed.

58 The Crown contends that the prisoner wrote the letter. As the authorship of the letter is relevant to the issue of the murder being planned rather than as a reaction to threats made by the deceased on the day of the murder, the onus of proof is on the Crown beyond reasonable doubt.

59 During his testimony, the prisoner denied he was the author of the letter. He said it was typewritten and he had not used a typewriter since he was 16. He said he had a recollection of the letter but had not read it. The deceased at a birthday party had shown it to him and said “we can make some money from this, you come to my place and make another video” to which he said “yeah”.

60 The Crown relies upon the following circumstances to prove that the prisoner wrote the letter:

(i) the conversation between the prisoner and Mr Byrne on 4 October 2005;
(ii) the contextual similarity between the letter received by the deceased and a letter he wrote to Kelly Van Der Schoot whilst he was in prison in 1989, 1990;
(iii) the conversation between the prisoner and Mr Andrew Byrne on 11 October 2005;
(iv) the conversation between the deceased and Corrina Ann Aitken which was overheard by Cheryl Wade.

61 During the conversation on 4 October 2005, Mr Byrne said to the prisoner:

“Come on Gareth no secrets now. Who else but you would have sent this letter, there was no one else to gain from it. It was you wasn’t it”. To which the prisoner replied, “Yes”.


Mr Byrne asked “This was four years before you murdered Margaret, what were you doing, playing mind games?”

The prisoner, Mr Byrne recalled, smiled and shrugged and said something like “you can never do too much planning, you never know when you need that piece of the jigsaw”.

62 On 11 October 2005, the prisoner told Mr Byrne that he and the deceased had spoken on the day of his son’s birthday party at Mt Druitt Pizza Hut. They had made arrangements to meet and talk about the money from the letter. The prisoner indicated to Mr Byrne that this was the time when he arranged to meet the deceased so if the opportunity presented itself he could go through with what he had planned and kill her.

63 In her statement dated 24 March 1997 Ms Van Der Schoot recalls that whilst the prisoner was in gaol (although she was not sure about the timing) for the 9 months for larceny and trying to get her back, receiving a letter handwritten and signed by him. The letter said that he had opened a bank account which had two passwords on it. One was “George” and the other was “X-ray”. He said that the account contained eighty thousand dollars from selling the video he had made of him and the deceased having sex. She could not recall the exact wording of the letter but the idea was to give her one password if something happened to him in gaol. He also mentioned that the deceased had the other password. She said she never spoke to the prisoner about the contents of the letter which she did not believe. Whilst there are similarities in the references to passwords and the prospect of obtaining money, the letter which the deceased received was typed whereas the letter to his former wife was handwritten.

64 Ms Van Der Schoot recalled having a conversation with the deceased about the contents of a letter saying there was money invested in an account for her. She told her that she had no idea who the letter was from. They were at Ms Van Der Schoot’s home in Oakhurst sometime around Christmas or New Year in 1996. Sometime later the same evening she saw the deceased speaking to the prisoner on the front lawn. When the deceased came back inside, the deceased told her that the money was real and that she believed him. She stated that the prisoner said he would look into it and let her know. Ms Van Der Schoot told the deceased she was stupid for listening to the prisoner but the deceased still believed him. The deceased rang her about the end of January to see if she had heard anything from the prisoner about the money. Ms Van Der Schoot replied that she hadn’t. The deceased asked her to ring the prisoner and give him her number which Ms Van Der Schoot never did.

65 On the morning of the day she was murdered, the deceased told Corrina Aitken “I’ve got to meet someone later on this morning. I might be coming into some money…………eight hundred and seventy five thousand…I want to find out what the story is. I’ve been making some phone calls and got onto a guy. That’s who I’m meeting today. Hopefully he will be able to give me some more information so I invited him over for coffee so I could find out. He’s due at the house about ten o’clock”.

66 Cheryl Wade heard this conversation and her account of it is substantially the same as that related by Ms Aitken except that Ms Wade recalls that the time of the meeting was one or two o’clock.

67 I have no doubt that the deceased in her conversation with Ms Aitken was referring to meeting the prisoner.

68 I do not consider that the evidence establishes beyond reasonable doubt that it was the prisoner who typed the letter. I find, however, that the prisoner’s statement to Mr Byrne that he sent the letter was truthful and not an exaggeration. I am satisfied beyond reasonable doubt that it was the prisoner who sent the letter in 1993 to the deceased. I do not conclude that he did so at that time as part of a plan to kill her. The prisoner encouraged the deceased in 1997 to believe that the contents of the letter were true and he would help her to obtain the money. He used this interest in the letter to assist the deceased in feeling comfortable with him. It was at that time part of his careful plan to kill her. As he told Mr Byrne “the letter was part of the jigsaw and that you can never do too much planning”.

Did the prisoner have sexual intercourse with the deceased?

69 In answer to questions by Mr Young SC the prisoner said that the had no idea how sperm consistent with his DNA type was located on the swabs taken from the deceased’s body. He did not have sexual intercourse with her (T20).

70 In cross-examination by Mr Crown, the following appears (T24):

“Q. Mr Bunce, I want to suggest to your sir, that on 18 March, when you were at the home of the deceased, that you in fact had sexual intercourse with her on that day. What do you say about that?

A. Could have

Q. Not could have, sir; you did have?

A. I could have. I do not remember, and just because the police officers in 1991 can’t do their jobs when an allegation is made, and the courts can’t do their job when the allegations are made, and put people in the position which I was in. I don’t remember. I have had two heart attacks, so I can’t remember a small, insufficient (sic) thing like that.”

71 While I am mindful of the impact of the hypoxic episode in 1998 upon his memory, the prisoner told the journalists during the covert recording that he did not have sex with the deceased.

72 There are four reports from the analyst Michele Franco. It is for present purposes sufficient to state that Ms Franco opines in the third additional report dated 23 March 2007 that the male fraction of DNA recovered from the vaginal and vulva swabs appeared to originate from two main individuals. Assuming that the deceased’s husband was one of the main contributors to this mixture then the prisoner had the same DNA profile (in the Profiler Plus system) as the second main contributor. The profile of the second main contributor was expected to occur in approximately one in ten billion individuals of the general population.

73 I am satisfied beyond reasonable doubt that the only rational inference to be drawn from all the circumstances is that the prisoner had sexual intercourse with the deceased upon the day that she was murdered. Whether or not the sexual intercourse occurred before or after the deceased was tied up cannot be determined.

74 For the purpose of this sentence, the sexual intercourse must be considered to have been voluntary. Voluntary sexual intercourse would have provided assurance to the deceased that nothing was amiss at a time the prisoner intended to murder her. It was either part of the ruse employed by the prisoner to carry out the murder or a callous act of self gratification (or a combination of both). In any event the sexual intercourse increases the objective seriousness of the offence.

75 Objectively, the killing displays a high degree of criminality. There is little in the way of mitigation. The prisoner’s conversations with the journalists and with Ms Wallwork, Ms Hearn and Ms Bugeja demonstrate callousness for the crime. In a report dated 23 February 2007, Dr Westmore states that the prisoner “did not however freely or spontaneously openly acknowledge the wrongness of his actions and he showed no emotional responses of that type when talking about the deceased or his actions towards her which led to her death”. The psychologist, Ms Liddle, in a report dated 15 August 2006 reports that the prisoner “does not seem to understand the consequences of his actions, or the seriousness of his situation”.

76 Mr Young SC contends that the prisoner’s attitude towards the deceased’s young son appeared to play heavily on his mind and may have been one of the reasons he came forward and entered a plea of guilty. During the interview with Dr Westmore on 21 February 2007, the prisoner told him that he was upset because the deceased’s young son had walked in and found her body. When asked what he hoped to achieve by telling people he had committed the offence the prisoner said:

“Get the book closed. Doesn’t the seven years (sic) old deserve some answers, his mother’s dead. She was going to take him away from his father. I don’t know his father at all so I don’t know what sort of life he would have with or without his father. I wouldn’t let her carry on the way she was, just on her say so.”

The regret that the prisoner expressed to Dr Westmore was not apparent during the interviews with the journalists. When asked by Ms Paterson didn’t [it] bother him that a child found his mother dead, the prisoner replied:

“I couldn’t help what happened afterwards” (exhibit A volume 2 tab 36 at 20).

In Ms Liddle’s report there is no mention of regret for Jason. When Ms Liddle visited him on 14 August 2006, the prisoner told her there were two reasons why he contacted A Current Affair which were to get a nurse from Nepean Hospital to contact him to confirm his story and to prove his innocence. He wanted compensation money. Ms Liddle made reference to Dr Westmore’s assessment of the prisoner on 10 May 2006.

77 I am not satisfied on the balance of probabilities that the prisoner’s expression of remorse for Jason is anything more than of recent origin. It was not a reason for his voluntary disclosure of his offence to the journalists. As I have previously mentioned the prisoner’s lack of repentance for taking the life of the deceased is egregiously evident during those interviews. For whatever reason the prisoner made his voluntary disclosure it was not motivated by remorse or contrition. I conclude that any remorse that the prisoner presently has for the offence is confined to the discovery of the deceased’s body by Jason. The prisoner does not appreciate the enormity of his crime.

78 The Crown case against the prisoner, the admissions having been made, was very strong. The prisoner’s plea of guilty was a recognition of the inevitable and, save to the limited extent to which I have referred, not an expression of remorse. The strength of the Crown case is irrelevant to the determination of the utilitarian value of the plea.

79 During his evidence the prisoner expressed his anger towards the police and the court system because of their failure to do anything when he asked for help. He said that if they had done something about it, he may not have been put in a position [which he faced] in 1997. He described going to Hornsby police in 1985 and to Merrylands police in 1986 complaining about the deceased’s and her family’s blackmail and being told he would need more evidence. Dr Westmore reports that the prisoner told him that he approached the police in 1996 and told them that his wife and her family were trying to blackmail him.

80 Detective Senior Constable Gill, however, told this Court that his inquiries at Hornsby and Merrylands police stations did not reveal any records of complaints being made by the prisoner. It is apparent that police treated the allegations made by the prisoner in 1991 seriously. Kelly Van Der Schoot as previously mentioned was interviewed at Blacktown police station and subsequently cleared. In any event the prisoner’s belief in the inaction of police and the court system does not in any way justify or mitigate his criminality.

81 The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) of the Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (SP) Act (which authorises the passing of a lesser sentence than imprisonment for life).

82 Section 61(1) of the Crimes (SP) Act provides:

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence”.

The primary focus of the section is an assessment of extreme culpability.

83 In the present case, I have found that the prisoner carefully planned the killing and was motivated by revenge. The killing was an act of great cruelty in that the deceased, having voluntarily submitted to being bound and gagged, found that she was being strangled. The murder, however, was not accompanied by violence that was prolonged, gratuitous or wanton.

84 Mr Crown, contrary to the Crown’s written submissions on future dangerousness, in oral argument pointed to various parts of the conversations with the journalists which indicate some degree of dangerousness in the future so far as his ex-wife is concerned. Mr Young SC contends there is no cogent evidence that there are any personality traits which would lead to a conclusion of future dangerousness. A finding of future dangerousness does not need to be established beyond reasonable doubt: R v SLD (2003) 58 NSWLR 589. It is sufficient if the Crown establishes on the balance of probabilities that there is a risk of re-offending: see R v Harrison (1997) 93 A Crim R 314.

85 In the conversation with the journalists in Brisbane, Ms Paterson asked the prisoner (exhibit A vol 2 tab 35 at p85):

“Will you kill again?”

To which he replied:

“Maybe my ex if the time and place comes up.”

When further asked:

“You will kill your ex-wife?”

He responded:

“If everything fell into place like it fell into place with Margaret, I would, I think. I don’t know if I would actually, but thinking about it, yes, I would.”

86 During the “walk through” interview the prisoner told the journalists that he had never thought about murdering anybody else. In response to a question by Mr Byrne if he was capable of doing it again to his ex-wife, the prisoner replied that he had thought about that and said:

“No, I don’t know, it would be nice to do it…….”

87 He went on to say that he was just annoyed with her and her family but if he did that “where does it stop? So you’ve got to draw the line somewhere:” (see exhibit A volume 2 tab 36 page 22)

88 Whilst these statements conflict, they are, to my mind, of significant concern.

89 Dr Westmore opined that it was unlikely that the prisoner represents a risk to the general community. He said (T 02/04/07 at p 9):

“He’s unlikely to go out and commit an offence without some historical link. The fact that the incident occurred in the context of a complicated relationship suggests that if he does have a risk it’s going to be in that context.”

There was no obsessiveness that he could recall in relation to the prisoner’s ex-wife.

90 The prisoner has had a long and unhappy relationship with Ms Van Der Schoot. It was Ms Van Der Schoot that he principally blamed during the sentencing hearing in the District Court. It is evident from his conversations with the journalists that those issues had not resolved. I conclude that, whilst the prisoner is not a risk to the general community, there is a risk that the prisoner could offend again by killing his ex-wife.

91 I do not, however, conclude that the prisoner’s culpability is so extreme that the only sentence that can be passed is one of imprisonment for life. Although I do not characterise the offence as being in the worst case category, it is a very serious offence [of murder].

92 The prisoner’s criminal record includes convictions for assault and robbery, larceny as a servant, and commit an act of indecency with a person under 16. The prisoner’s record does not entitle him to any leniency but it is not such that it is a matter of aggravation.

93 As the murder was committed in 1997, I am required to sentence the prisoner in accordance with the sentencing practice as at the date of the commission of the offence and not as presently prevails: see MJR 130 A Crim R 481. Although the statutory maximum penalty for the offence of murder has not been altered, it is evident from the Judicial Commission sentencing statistics that sentencing practice has moved adversely to the prisoner since 1997. Division 1A – standard non-parole periods of the Crimes (SP) Act which came into force on 1 February 2003, as a consequence, has no application to the present sentence. Sections 3A and 21A of the Crimes (SP) Act, however, apply.

94 Mr Young SC has provided me with a schedule of sentences imposed, copies of relevant cases and material from the Judicial Commission including a study entitled “Sentenced Homicides in New South Wales 1994 – 2001” by Keane and Poletti. I am satisfied that this material establishes a sentencing range current at the time of the murder which I have taken into account. Each case depends upon it’s own facts and circumstances and I believe the sentence I am about to impose is consistent with the sentencing range.

95 The prisoner pleaded guilty upon arraignment on 7 July 2006, however, the plea was not entered. A plea of guilty made on 16 March 2007 was accepted. The expense of a lengthy trial and the emotional stress likely to be experienced by the deceased’s family and friends in giving evidence has been avoided. The plea has significant utilitarian benefit.

96 Mr Young SC contends that the prisoner’s voluntary disclosure of his crime to the journalists should attract a measure of added leniency. It is common ground that, without the prisoner’s revelations, the cause of death could not be established. Difficulties in establishing cause of death resulted in the charge being no-billed in 2000.

97 Without the prisoner’s disclosure of the technique he used in strangling the deceased, it is unlikely that the offence could have been proven beyond reasonable doubt. Although he has retracted some of his disclosures to the journalists, he has most importantly adhered to his admission of how he killed the deceased. The disclosures adhered to by the prisoner are to be taken into account with respect to the utilitarian benefit of the plea: see R v Thomson and Houlton (2000) 49 NSWLR 383 at para 138; R v Palinko [2005] NSWCCA 46. I assess the utilitarian value of the plea at twenty five per cent.

98 The prisoner was born on 9 October 1959 and is 47 years of age. He was 37 years old at the time of the murder. From the history given to Ms Liddle, it appears that he grew up in Merrylands and attended school until Year 10. On leaving school he joined State Rail. He said when he was 25 he had his own house in Merrylands and was in a relationship which he terminated when she didn’t want children. He then met his ex-wife who became pregnant and they married. He said that he lost his house and job because of her family’s drug and alcohol habits. Ms Liddle notes that the prisoner “was diagnosed with a psychopathic personality after his charges of larceny and armed hold-up”.

He suffered hypoxic brain damage following an out of hospital cardiac arrest on 26 September 1998. He suffered a further cardiac arrest whilst in hospital but was resuscitated successfully. He was demonstrating, after the serious hypoxic episode, “amnestic syndrome and bizarre behaviour”. Ms Liddle concluded “that he has made a remarkable recovery in his performance on tests of memory and executive functioning, although there is suggestion that residual weaknesses remain when asked to recall more abstract information. His memory appears to be intact enough for day-to-day functioning”. Ms Liddle refers to the prisoner presenting “with an unusual personality style which is largely consistent with that commented on prior to the brain injury…His history giving is grandiose”. Ms Liddle opines “that his idiosyncratic personality style is more likely to be a premorbid state”. Dr Westmore expressed the view in evidence that hypoxic brain damage can cause an exaggeration of pre-existing traits.

99 Victim impact statements from Shane and Jason Metcalfe and from the deceased’s sisters and mother have been placed before me. The contents of the statements cannot be used by me to increase the prisoner’s sentence by reason of the pain and loss occasioned to the members of the family by the killing. The statements are important because they allow the members of the family to express their grief to this Court as representing the community. The prisoner’s act is a crime against the community and not just those who mourn the passing of the deceased. The punishment meted out by the Court on the prisoner is for what he has done to the community and to express on the community’s behalf it’s abhorrence of the taking of human life but also to express its sympathy and compassion for the deceased’s husband, her children, her mother and sisters.

100 The prisoner was arrested on 29 December 1999 and remained in custody until 28 September 2000. He was re-arrested on 23 February 2006 and has remained in custody ever since. Accordingly, the date of the commencement of the sentence will be 23 May 2005.

101 The appropriate undiscounted starting point of the overall sentence, I conclude, is 32 years. The overall sentence is reduced by 25 per cent to 24 years. As the offence was committed before 1 February 2003, the repealed section 44 of the Crimes (SP) Act applies. I do not consider that “special circumstances” exist which justify the non-parole period being less than three-quarters of the term of imprisonment.

102 Gareth John Bunce in respect of your conviction for the murder of Margaret Elizabeth Wagner I sentence you to a term of imprisonment of 24 years which is to commence on 23 May 2005 and is to expire on 22 May 2029. I fix a non-parole period of 18 years which is to commence on 23 May 2005 and will expire on 22 May 2023.

103 You will be eligible to be released on parole on 22 May 2023.

**********