R v David Maxwell Shepherd

[2007] NSWSC 1416

CITATION:	R v David Maxwell Shepherd [2007] NSWSC 1416
HEARING DATE(S):	24 -26 September 2007
JUDGMENT DATE :	14 December 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hidden J at 1
DECISION:	The offender is sentenced to imprisonment for a non-parole period of 15 years, commencing on 3 July 2006 and expiring on 2 July 2021, and a balance of term of 4 years, commencing on 3 July 2021 and expiring on 2 July 2025.
CATCHWORDS:	CRIMINAL LAW: sentence - murder - plea of guilty - spontaneous killing - strangulation - circumstances unclear - offender 36 years old - no relevant criminal history
CASES CITED:	R v Previtera (1997) 94 A Crim R 76 R v Lewis [2001] NSWCCA 448 R v Tzanis [2005] NSWCCA 274
PARTIES:	Regina (Crown) David Maxwell Shepherd (offender)
FILE NUMBER(S):	SC 2007/2456 (formerly 2007/1050)
COUNSEL:	T R Hoyle SC (Crown) B J Rigg (offender)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission (offender)

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

HIDDEN J

Friday 14 December 2007

2007/2456 (formerly 2007/1050)

REGINA v David Maxwell Shepherd

SUPPRESSION ORDER – Revoked 14/01/08 by Grove J (Made 14/12/07 by Hidden J: There was to be no publication of the evidence or remarks in these sentence proceedings until the completion of the trial of the co-accused and the further order of this Court.)

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, David Maxwell Shepherd, pleaded guilty in the Local Court to the murder of Malissa Mayfield at Bossley Park on 15 June 2006. He was committed to this Court for sentence and has adhered to that plea. His partner, Angela Wells, has been charged with complicity in the murder and is to face her trial in January 2008. For that reason, I have ordered that there be no publication of the evidence in these proceedings and that order, of course, extends to these remarks on sentence.

2 Although he has pleaded guilty, it is necessary that I resolve a significant dispute about the measure of his culpability for this crime. Before doing so, however, I should set out the facts which are not in dispute. It will be necessary later to examine some aspects of this outline in greater detail.

Facts

3 At the relevant time, the offender and Ms Wells had been in a relationship for about eighteen months and were living at Blacktown. The deceased, Ms Mayfield, was living at Bossley Park. She and Ms Wells had been friends for some years and, indeed, Ms Wells was godmother to her youngest daughter. It was through his relationship with Ms Wells that the offender came to know the deceased.

4 On an occasion when the offender and Ms Wells were visiting the deceased, the offender told the deceased that he had psychic powers and that he could remove her bad demons by sleeping with her. Ms Wells had also told her that the offender could give her pleasure, and that if she had sex with him all the evil spirits would go. Ms Wells had told a friend of hers that she was interested in having sexual relations with the offender and the deceased at the same time. In the event, the offender had intercourse with the deceased on three or four occasions, as I understand it, at the Blacktown home. Ms Wells was present in the house on those occasions.

5 At other times, the offender would phone the deceased and say to her such things as, “Don’t go to work, you’re going to get killed”, and “Something bad’s going to happen”, and “Someone’s watching you from outside the house”. In January 2006 she told friends of hers that she was trying to avoid the offender and Ms Wells and that she was scared of the offender. She later told one of those friends that she had lost contact with the two of them between February and May of that year.

6 At about 5.30am on Thursday, 15 June 2006, the offender contacted the 000 emergency service to report that he had found the deceased unconscious at her Bossley Park home. He requested an ambulance and said that he was performing CPR on her. Ambulance officers arrived at the house, to find the deceased apparently in cardiac arrest. They noted some bruising around her neck and her eyes. They performed CPR and administered adrenalin, resulting in the output of a heartbeat and pulse.

7 Both the offender and Ms Wells were at the house. They told the ambulance officers that they had gone there out of concern for the deceased, because she had earlier phoned them to say that she was scared as she thought she heard someone outside the house. When they arrived, they were eventually admitted to the house by the deceased’s 12 year old daughter, who told them that her mother was asleep on the lounge room floor. It was obvious to them that the deceased was not asleep. Hence the 000 call. Later that morning, the offender gave the same account to a police officer.

8 The deceased was taken to hospital, where she remained on life support for several days. However, on 19 June the life support machinery was switched off and her life was pronounced extinct a short time later. Bruising and other injuries consistent with manual strangulation had been observed at the hospital, and a subsequent post mortem examination confirmed that that had been the cause of death.

9 Later still on 15 June, the offender and Ms Wells went to a police station to provide written statements. Yet again, the offender maintained the account he had given to the ambulance officers, as he did on the following day in a walk through interview at the deceased’s home. During the evening of 15 June, pursuant to a warrant, police installed listening devices in the Blacktown home. Some conversations between the offender and Ms Wells were recorded in which he made statements of an incriminating nature. Police enquiries continued, including a search of the Blacktown home, and on 3 July 2006 he was arrested.

10 That night he took part in an electronically recorded interview with police, in which his account of the events of 15 June changed dramatically. This was the first of three interviews. All of them were very lengthy but a brief summary of each of them will suffice.

11 In the first interview, he told police that for many years he had heard “voices” inside his head. Strangely, he claimed that one of those voices was also heard by Ms Wells, who called it “Johnny”. He said that over a period of time he grew close to the deceased and confided in her. He told her that his estranged wife had previously accused him of sexual interference with their teenage daughter. He also said that he was expecting to come into a significant amount of money. The deceased was pressuring him to provide her with the money to buy a new car, suggesting that, if he did not, she would tell Ms Wells that he was showing a sexual interest in her 12 year old daughter. This upset him and he told her that he did not want to see her again.

12 He went on to say that he thought that Ms Wells was aware that the deceased intended to make up a story about her daughter to get money out of him, although she did not say so. However that may be, on the night of 14 to 15 June Ms Wells told him that she had heard the voice of “Johnny” speaking about the deceased, and that he had to “sort her out” so that she did not interfere with them again. She said that he had to “fix up” the deceased and her daughter. He understood that to mean that the deceased was to be “bashed or hurt in some way”. He said that he could not hurt her, but that he would talk to her and make sure that she was not in their life again.

13 He described their driving to the vicinity of the deceased’s home, and his ringing her from a public phone on the way to let her know he was coming. He said that he entered the home alone, and that he told the deceased that Ms Wells knew about her demanding money from him and that she wanted him to stop her. The deceased emerged from the kitchen with a knife and said, “You won’t stop me”. The effect of what he told police was that he had no clear memory of what happened then. He said:

I didn’t know what to do. I just went blank. I heard her on the ground. At first I saw my hand on her hand, the knife was on the ground, it had come out, but I had my hand on her neck and I wasn’t looking at her, I was looking at me like it was outside.

14 He said that he told her he was sorry but that she shouldn’t have come at him with the knife. He put the knife into a kitchen drawer. She kept looking at him and moving her head. He panicked and left the house. He said that he did not want to hurt her. He said to her that “Johnny” had told Ms Wells that she needed fixing up but that he did not want to do that. He just wanted her to leave him and Ms Wells alone.

15 Finally, he said that after he left the deceased’s home Ms Wells picked him up. He told her that he did not know what he had done but that the deceased was moving when he left. They repaired to their home but he said that they would have to go back. They returned to the deceased’s home, and he maintained his earlier account of what happened thereafter. He said that he “genuinely tried” to help the deceased.

16 Following that interview, the offender was charged with murder and he has been in custody since that day. On 23 July 2006, at his own request, he took part in a further interview. On this occasion, he said that Ms Wells had woken him in the small hours of 15 June to say that his voices had spoken to her, telling her that they had to “deal with” Malissa and her daughter because they were sending demons to hurt them. He told Ms Wells that he didn’t want to do this, but she was insistent. In the course of the journey to the deceased’s home, she said that “Johnny” had told her that both the deceased and her daughter had to be raped and murdered. This, he said, made him feel sick and he wanted to warn the deceased.

17 According to him, it was Ms Wells who drove him to a public telephone box to call the deceased, so that the call could not be traced to her mobile phone. He was to tell the deceased that he and Ms Wells had fought and that he needed somewhere to stay. He rang the deceased, saying that he needed to tell her something urgently and asking if he could come round to her place. She agreed and the phone cut out. Ms Wells drove him to the vicinity of the deceased’s home, where he got out. Before he did so, Ms Wells received a call from the deceased on her mobile phone. She told the deceased that she and the offender had fought and asked her to put him up if he came around. He also said that he was wearing a football jersey, which Ms Wells told him to take off before he went to the house. She put it in a plastic bag and later threw it into scrubland.

18 He went on to say that he entered the deceased’s home and told her what had happened. She became scared but he assured her that he was not there to hurt her. She took a knife from the breakfast bar, apparently convinced that he did intend to harm her. He said, “The next thing I know I’m holding her here and I’ve got my hand on her wrist and the knife’s on the ground”. He then repeated his earlier account of putting the knife in a drawer and leaving the premises. He heard her say something like, “Tell Angela to go to fucking hell”. He told the police that he did not want to hurt the deceased, as he was in love with her and, indeed, had hoped to leave Ms Wells and move in with her.

19 He said that, while driving home, he told Ms Wells that he could not do what she had wanted him to do. He said that he thought the deceased might report his assault to the police, that he wanted to go back to see if she was alright, to talk to her and, if police had arrived, to explain to them what had happened.

20 He sought to cast the blame for the death of the deceased onto Ms Wells. He said that, on their return to the deceased’s house, he noticed that she was lying in a different position on the floor and was wearing different pants. He kept telling Ms Wells that they had to do CPR, but Ms Wells shook her head. He asked Ms Wells to dial 000 but she said that she could not “work the phone”, so he used the mobile phone. He also said that later, after the deceased died, he said to Ms Wells that he could not see how he had done anything to cause her death. To this, he claimed, Ms Wells said, “Don’t worry about it, I did what you couldn’t do”.

21 He also told police that, three or four days after the incident, Ms Wells directed him to a park near the deceased’s home. There he retrieved a black bag, which he thought belonged to Ms Wells. Inside it was a green handbag. The two of them drove to McDonalds at Blacktown, where Ms Wells emptied the contents of the black bag into a rubbish bin. Some bobby pins fell onto the roadway as she did so. He said that, at Ms Wells’ direction, he threw the two bags into a drain.

22 On 27 July, he took police to various locations in the Blacktown area, and the green handbag and wallet belonging to the deceased were located in a drain. The significance of this is that on 15 June ambulance officers wished to locate the deceased’s Medicare card, but her handbag could not be found. I shall refer later to a submission by the Crown prosecutor about this evidence. Police also found some hair clips and bobby pins in the McDonalds’ car park, and CCTV footage showed Ms Wells walking into and out of McDonalds at around the time he said the items had been put into the rubbish bin. At another location police recovered a football jersey which, according to him, was the one disposed of by Ms Wells.

23 The third interview took place on 4 August 2006, again at the offender’s request. It was his account of events in this interview which his counsel advanced as his case for the purpose of sentence. That account was similar to that which he had given in the second interview in broad outline, but there were significant differences. Most importantly, on this occasion he admitted responsibility for the death of the deceased.

24 He said that, for at least a month before the murder, Ms Wells was telling him that his voices demanded that the deceased and her daughter be “dealt with and .. gotten rid of”. She said that they would never be together if they didn’t do this. He said that on the night in question Ms Wells woke him and told him that his voices said that it had to happen “right now”. The deceased and her daughter had to be raped and killed, or they would send more demons to him. He agreed to go to the deceased’s home, but repeated that he had no intention of doing what Ms Wells had asked of him.

25 He said that, after the call to the deceased on the public phone, he said to Ms Wells, “Let’s go home, it’s no good”. Ms Wells’ mobile phone rang but she did not answer it. It rang a second time, and she answered it and spoke to the deceased. She “made up a story” that she had run into an old boyfriend, she and the offender had had a fight, and he had got out of the car. She asked the deceased to put him up for the night if he turned up at her home.

26 After that phone conversation, he said, he got out of the car and walked to the deceased’s home. When he got there the deceased was confused, but she seemed happy to see him and was affectionate towards him. She asked him about the fight which Ms Wells had recounted, and he said that there had not been a fight and that it was a “bullshit story” that she had made up. He started to tell her what Ms Wells really wanted him to do. She became enraged, and came at him with a knife. He pushed her down, seized the knife, and put it back in the drawer. He apologised to her and left.

27 A few minutes later, he said, he went back to the house. The deceased had changed her clothes and she was holding the phone. She told him that she was going to ring Ms Wells and was going “to tell Angie what I think”. He continued:

The next thing I know I’m on top of Malissa and my hands are around her throat. I don’t know why, I just couldn’t let go, I don’t know why, the fear of her ringing Angie and getting into trouble. I don’t know how long I was there. I don’t remember whether she was moving or not when I left. I remember a feeling of numbness. I just didn’t, I didn’t want it to happen. The voices were so loud, the thought of Angie going crook at me. I just left.

28 He explained that his fear in relation to Ms Wells was of her going “off her head” and leaving him. As to the voices, he said that while he had his hands around the deceased’s neck he could hear voices screaming at him, “Do it, do it”. Questioned about the detail of his actions, he said that he had both hands around the deceased’s neck and that he “couldn’t stop”. He said that he was squeezing “hard”, and that he had his hands around her throat until she stopped moving. He thought that she was dead.

29 He left the house, and walked for a considerable time before Ms Wells picked him up. He continued to hear voices, screaming at him to run. He said that he was seeing demons and ghosts, “bad ones” which were teasing him.

30 He said that, when they got home, he felt that he could not leave the deceased as she was. Both of them panicked and returned to the house. After a time they were admitted by the deceased’s daughter. The deceased had what he could only describe as “the death shakes”. Ms Wells “freaked out” and took the daughter to her bedroom. She came back out and made gestures to convey that he should “finish the job”. He initially said that he put his hands around the deceased’s throat again and squeezed it. He later said that he did not squeeze her throat because “there was no point to it”. As he did this, he said, Ms Wells stood in the hallway, watching, because “there was no point talking ‘cause she was already gone”.

31 It was then, he said, that he “took control”. He phoned the emergency number and spoke to “the ambulance people”. He told the police that he did not know why he had done what he did. He said, “It’s, like, 9 months of my life’s been taken from me and screwed up”. He added that, after the deceased was taken to the hospital, he and Ms Wells made up their initial story about their having gone to the deceased’s home after she had called them about an intruder in her yard. He said that he had no recollection of taking any handbag from the house.

32 The officer in charge of the investigation, Detective Sergeant Hinds, gave evidence in the sentence proceedings. Among other things, he said that the deceased’s daughter had been interviewed. She confirmed that she had not been touched inappropriately by the offender, and she said that the first she saw of him on the morning of 15 June was when she gave him and Ms Wells access to the home on the occasion that the ambulance officers arrived. Detective Hinds said that the deceased had been examined at the hospital by a doctor specialising in examination for sexual assault, that swabs had been taken from her, and that no semen was detected upon them when examined by a forensic biologist. He also said that, when the deceased’s house was searched on 15 June and on subsequent occasions, items were found consistent with an interest by her in the supernatural.

The dispute

33 The offender did not give evidence himself and produced no other evidence. His counsel, Ms Rigg, presented his case through a careful analysis of the material in the Crown case. Of course, much of his account in the three interviews after his arrest is bizarre, conveying a belief in the demonic and referring to the hearing of voices, both before and at the time of the murder. Nevertheless, Ms Rigg acknowledged the absence of any psychiatric evidence dealing with this material. She argued that it was relevant by way of background to the offence, but she disavowed any claim that he suffered from mental illness causally connected to his behaviour or bearing upon considerations of deterrence. Equally, she made no claim that his conditions of custody had been more onerous because of any mental illness. He told police in the third interview that he had had a lot to drink and had smoked marihuana on the night in question, but neither Ms Rigg nor the Crown prosecutor suggested that this had any bearing upon his culpability.

34 Clearly, he pleaded guilty upon the basis that he had strangled the deceased intending to kill her or to inflict grievous bodily harm upon her. The central area of dispute is whether the killing was premeditated. The Crown prosecutor argued that it was, and that the offender’s description of a spontaneous attack should be rejected. He acknowledged that, in large part, the only evidence of what occurred at the deceased’s home was that which fell from the mouth of the offender, but he pointed to the obvious inconsistencies between his various accounts and submitted that none of them, including the third interview, is reliable. It was his case that from the whole of the material the inference of premeditation could, and should, be drawn.

35 Thus, the Crown prosecutor’s primary submission was that the offender had resolved to kill the deceased before he set out for her home. It may well be, he said, that the deceased produced a knife after the offender arrived but, most likely, that was because he had made his intention known and she was trying to protect herself and, perhaps, her daughter. His fallback position was that the offender formed the intention to kill her when he arrived at the house. In either event, he argued, the offender went to the house a second time not to help the deceased but to make sure that she was dead.

36 In support of his primary submission, the Crown prosecutor noted that the offender admitted that there had been discussion with Ms Wells about killing the deceased before they set out for her home. However, he also relied on other evidence which was said to support the inference that the offence was planned. This was the evidence concerning the telephone calls of the morning of 15 June.

37 I have earlier set out the offender’s account of the phone calls made and received in the early hours of 15 June on the journey to the deceased’s home. It will be remembered that he told police that Ms Wells had him call the deceased from a public phone so that the call could not be traced to her mobile phone. Police inquiries revealed that in the early hours of that morning calls were made to the deceased’s mobile from a public phone in the relevant area. It is also apparent that the offender had his own mobile phone at the time. Call charge records disclosed the following:

(1) At 1.18am a call was made from the public telephone to the deceased’s mobile, lasting one minute and 20 seconds.

(2) At 1.21am a second call was made from the same public phone to the same mobile, lasting 7 seconds.

(3) At 1.22am a call was made from the deceased’s phone to the offender’s mobile, lasting 2 seconds.

(4) At 1.28am a call was made from the deceased’s phone to Ms Wells’ mobile, lasting 5 seconds.

(5) At 1.29am another call was made from the deceased’s phone to Ms Wells’ mobile, on this occasion lasting 10 minutes and 27 seconds.

(6) At 4.05am a call was made from the offender’s landline phone to the deceased’s mobile, which was not answered.

38 Why there were two calls from the public phone is not clear, but nothing turns on it. It may be that the second very short call was an attempt by the offender to contact the deceased again after her phone cut out the first time. However that may be, the Crown prosecutor placed significance upon the fact that the offender was in a public telephone box, out of the hearing of Ms Wells. It is the offender’s case that he went to the deceased’s home with Ms Wells, knowing that she wanted him to kill the deceased and her daughter but having no intention of doing so. If that were so, said the Crown prosecutor, he had the opportunity then to warn the deceased but, on his own account, he did not.

39 In truth, the Crown prosecutor argued, he also was concerned that calls could not be traced either to his mobile or Ms Wells’. This was said to explain the third call, the call from the deceased’s mobile to his, which must have been immediately after his calls from the public phone. It is recorded as lasting only 2 seconds. This suggests, said the Crown prosecutor, that he did not answer the call. He saw from the screen of his mobile that it was coming from the deceased and he immediately terminated it.

40 Unfortunately for him, the argument continued, minutes later the deceased rang Ms Wells’ mobile twice, these being the fourth and fifth recorded calls. The fourth call lasted only 5 seconds but the fifth call was quite lengthy, continuing for more than 10 minutes. Presumably, that was the call during which, according to the offender, Ms Wells told the deceased that she and he had had a falling out. By then, said the Crown prosecutor, the offender’s desire that no calls be made which could be traced to either mobile phone was clearly frustrated. It became necessary to concoct an innocent explanation for them. This, he argued, influenced the initial “cover story” which he and Ms Wells told to the ambulance officers and to police on 15 June. It will be necessary to examine that account in a little more detail.

41 As I have said, the effect of the story was that they had gone to the deceased’s home a little before 5.00am in response to a call from her to say that she thought there was an intruder outside the house, and that, upon arriving there, they found her unconscious on the lounge room floor and raised the alarm. What they said was that the deceased had called Ms Wells’ mobile at about 1.30am to report her fear of an intruder. She said that she was going outside to investigate and would ring them back shortly. They fell asleep and woke at about 4.00am, realising that she had not rung back. They called her home phone but the call was unanswered. It was then that they set off to her house.

42 The purpose of this aspect of the cover story, the Crown prosecutor argued, was to provide an innocent explanation for the deceased’s contacting Ms Wells’ mobile at or about 1.30am, the time at which the fourth and fifth recorded calls were made. The cover story must have been conceived between that time and about 4.00am, because it was at 4.05am that the sixth recorded call, the unanswered call from their landline to the deceased’s mobile, was made. This call, said the Crown prosecutor, was part of the cover story. It was not expected that the call would be answered because at that time they believed that the deceased was dead. The same is true of three further unanswered calls made after 5.00am from Ms Wells’ mobile to the deceased’s landline, which were picked up by a telecommunications tower at Bossley Park. These also, argued the Crown prosecutor, were for the purpose of covering their tracks and deflecting suspicion away from themselves.

43 The Crown prosecutor’s alternative submission was that the offender formed the intention to kill the deceased after he arrived at her home. For this he relied upon the offender’s description in the third interview of the manner in which he strangled her, squeezing her throat until she stopped moving. The Crown prosecutor added that, on this view of the facts, it is unclear why the offender attacked the deceased and I could arrive at no firm finding about that matter. Ms Rigg contended that the attack was spontaneous and that I could be satisfied of no more than an intent to inflict grievous bodily harm. She also argued that the offender regretted what he had done, and that he returned to the house with a genuine desire to help the deceased.

44 Let me turn to the Crown prosecutor’s submissions about that last matter. As I have said, his position was that the return to the deceased’s house was for the purpose of ensuring that she was dead and that the offender did squeeze her throat on that occasion for that very purpose. The 000 call, he said, was no more than part of the cover story. A recording and a transcript of that call are in evidence. For the most part it records a conversation between the offender and the 000 operator, but at times Ms Wells is heard to speak. From what is said, it is apparent that they had already conceived the cover story.

45 The Crown prosecutor relied upon the three calls made from Ms Wells’ mobile to the deceased’s landline after 5.00am, apparently in the Bossley Park area where the deceased lived. The call charge records disclosed that they were made at 5.12, 5.15 and 5.16, but the call to the 000 line from the offender’s mobile was not made until 5.27. He argued that the apparent delay between their arriving in the area and making the 000 call confirms that it was a sham. There is no doubt that, when speaking to the 000 operator, the offender sounds distressed and in a state of panic. He is heard to tell the operator that he is familiar with CPR and is performing it upon the deceased. However, the Crown prosecutor pointed out that it is only towards the end of the call, which lasted for some minutes, that he is heard to be counting compressions of the deceased’s chest and sounds to be exerting himself for that purpose. At that time the operator had told him that ambulance officers were about to arrive at the house. He was concerned, said the Crown prosecutor, to ensure that he was seen by those officers to be performing CPR.

46 Another aspect of the cover up, the Crown prosecutor submitted, was the theft and disposal of the deceased’s handbag. This was to make it appear that she had been killed after she disturbed an intruder who had got into the house to steal property. He argued that I should find that it was the offender who took the bag from the house after he strangled the deceased, and that it was he who disposed of it.

47 Ms Rigg acknowledged the falsity of the offender’s cover story on 15 June. She also acknowledged the obvious inconsistencies between his versions of events in the three recorded interviews. However, she noted certain aspects of his account which were consistent: firstly, that it was Ms Wells who wanted to harm the deceased; secondly, that he maintained the pretence of co-operating with Ms Wells but had no intention to harm her; thirdly, that his attack upon her was spontaneous and not in pursuance of any plan conceived with Ms Wells; fourthly, that he returned to the deceased’s home out of concern for her, not to ensure that she was dead.

48 Ms Rigg argued that I should accept the offender’s account of Ms Wells’ hearing voices and fearing demons, putting this forward, as I have said, as the background to what occurred. In support of it, she relied upon the evidence that the offender, Ms Wells and the deceased shared an interest in the occult: one which, she said, was furthered by Ms Wells. That shared interest developed, as she put it, to “a level of hysteria”, and the deceased took steps to remove herself from it.

49 In my recital of the undisputed facts, I have recounted a souring of their relationship to the extent that the deceased became afraid of the offender and lost contact with him and Ms Wells for some months. Ms Rigg pointed out that that was based upon the untested statements of friends of the deceased about what she had told them, that those statements were unlikely to present the whole picture of the interaction between the two of them, and that I should not reject the offender’s assertion to police that he remained attached to the deceased and wanted to forge a relationship with her. That being so, she said, it is unlikely that he would have planned to harm her and, having attacked her in the heat of the moment, it is probable that he wanted to help her survive.

50 On the primary issue of premeditation, Ms Rigg developed her submissions through a detailed examination of the evidence. This included consideration of the evidence relating to the recorded telephone calls, leading to an argument that they were not inconsistent with the offender’s case. In particular, it was put that his call to the deceased from the public phone was adequately explained by the circumstances as he recounted them to the police and did not point to his complicity in a plan to kill her. She also noted that the offender did not use a weapon and argued that, if he had set off for the deceased’s home bent upon killing her, it is highly improbable that he would have been armed with nothing but his bare hands.

51 I am indebted to Ms Rigg and to the Crown prosecutor for their careful analysis of the evidence. However, I need not recite any further Ms Riggs’ submissions on the question of premeditation. This is, of course, a crucial issue for the purpose of sentence and I have taken time to reflect upon it. On the significance of the phone calls, the Crown prosecutor did not produce any expert evidence about the transmission of calls from landlines or mobiles or about the compilation of call charge records. Nevertheless, his arguments about the calls are plausible. Generally, the case he presented on premeditation was well reasoned and the scenario for which he contended is consistent with the evidence and entirely possible.

52 On the other hand, he acknowledged the lack of any satisfactory evidence of a motive for a premeditated killing. He did not rely upon the motive suggested in the first recorded interview, that is, that the deceased was effectively blackmailing the offender. Equally, he argued that I would not accept the offender’s assertions in the second and third interviews about the influence of voices and the fear of demons. In particular, he described the proposition that Ms Wells was hearing the offender’s voices as “just nonsense”. It is trite that a premeditated killing might be established in the absence of satisfactory evidence of motive, but in a case such as this the significance of a motive cannot be denied.

53 The evidence in the present case is unsatisfactory and in significant respects conflicting. Premeditation is a matter which the Crown must establish beyond reasonable doubt. While there is room for considerable suspicion, I am not satisfied that it has been made out.

54 If I had been, it would have been necessary to deal with submissions about whether, and, if so, to what extent, the killing was the product of the malign influence of Ms Wells. That is not a matter about which I need make any finding. As I have said, the question whether Ms Wells bears any criminal responsibility for the murder is yet to be tried. I should say at this point that I considered whether these sentence proceedings should be stood over until after that trial, so that, if Ms Wells were found guilty, the two of them could be sentenced by the same judge. The Crown prosecutor raised that matter but did not press such an application, as an application for an adjournment had earlier been refused by Barr J. Ms Riggs’ position was that the matter should proceed, and I decided that that was the appropriate course. The sentencing of the offender turns largely upon evidence admissible only against him, and I anticipate that Ms Wells, if she were found guilty, would be sentenced upon a different evidentiary basis.

55 That brings me, then, to the offender’s state of mind at the time of the killing. I have given this matter careful thought also, and have concluded that the Crown prosecutor’s alternative submission must be accepted. Given the offender’s description of his strangling the deceased and, in particular, of his squeezing her throat until she stopped moving, I am satisfied to the requisite degree that he did intend to kill her. Nevertheless, I accept that he did so spontaneously and in the heat of the moment.

56 It may well be that the background to this incident is to be found in some bizarre interest in the supernatural which these three people shared. Nevertheless, I can make no firm finding about why the offender went to the deceased’s house that morning, or about what it was which triggered his attack upon her. There is inconsistency in his account of the circumstances of that attack between the first and second interviews, on the one hand, and the third interview, on the other. Whether the deceased produced a knife or was holding her phone, about to ring Ms Wells, I cannot say. I can say no more than that the offender is to be sentenced for the murder on the basis that it was spontaneous.

57 The question whether he returned to the house to help the deceased was agitated primarily on the issue of premeditation. However, Ms Rigg dealt with it also as a matter going to the objective gravity of the offence. The evidence on this issue is as conflicting as it is on the other aspects of the case. On any view of it, what occurred after his return to the house was, at least in part, in pursuance of the cover story. Some of the evidence points to his having gone back there to ensure that the deceased was dead, although on that point Ms Rigg relied on statements by him in the third interview to the effect that he squeezed the deceased’s throat on that occasion only lightly, with a view to satisfying Ms Wells. I have referred to other statements in that interview conveying that he believed that the deceased was already dead or, at least, so close to death as to be beyond help. I have also summarised the evidence about the 000 call and the Crown prosecutor’s submission in relation to it. In doing so, I noted that the offender does sound genuinely distressed during that call. If it were a sham, it certainly was, to use the Crown prosecutor’s expression, “a class A performance”. As to the delay between his arrival in the Bossley Park area and the 000 call, Ms Rigg relied on his account that it took some time to rouse the deceased’s daughter and gain access to the house.

58 Having considered all the material concerning the offender’s return to the house, I can arrive at no finding about it, one way or the other. I am not persuaded that he went back to ensure that the deceased was dead. The proposition that he returned there with a genuine desire to help her is a matter in mitigation, as to which he bears the burden of proof on the balance of probabilities. I am not persuaded of that either. For the purpose of sentence, I put aside the evidence on this aspect.

59 In arriving at these conclusions, I have not overlooked the material bearing upon the relationship between the offender and the deceased. On the whole of that material, it seems clear enough that at the relevant time she wanted nothing to do with him. It may be that he retained an affection for her, but I can make no finding about that matter either. Nor, on the question of premeditation, have I overlooked the cover story and the fact, which I accept, that the deceased’s handbag was removed and disposed of to make it appear that it was an intruder who had killed her. However, it is the experience of this Court that, not infrequently, elaborate steps are taken to cover up a killing which was spontaneous.

Victim impact statements

60 I received victim impact statements from Ms Mayfield’s parents, her step-sister, and a former partner, the father of one of her children. Those statements express eloquently their outrage, grief and sense of loss following her brutal and untimely death. They also express the serious and enduring effects which this tragedy has had upon their lives. The heart of any right thinking member of this community must go out to all of them. They have my deepest sympathy.

61 The Court’s approach to victim impact statements in a case of this kind has been guided for some years by the decision in R v Previtera (1997) 94 A Crim R 76. The Crown prosecutor submitted that I should reconsider that approach in the light of subsequent legislative developments, referring to R v Lewis [2001] NSWCCA 448. In response, Ms Rigg referred to subsequent cases, including R v Tzanis [2005] NSWCCA 274, in which a bench of five sat with a view to re-examining the approach to this issue but, in the event, decided that the case was not an appropriate vehicle to do so. I would certainly not attempt to do so in the present case, and I see no reason to depart from the approach sanctioned in Previtera.

Sentencing

62 The offender presented no subjective case. The little I know about him is what emerges from the material in the Crown case. That includes his criminal history, which comprises one old entry for an apparently minor offence of dishonesty, which is of no present significance. He was 36 years old at the time of the offence and is now 38. The Crown prosecutor properly raised the question whether the offence demonstrates that he is a danger to the community, so that emphasis should be placed upon the protection of society in determining the appropriate sentence. That would be an easier question to answer if I knew more about his background and psychological make-up. However, in the light of my findings, this is a not unfamiliar case of a spontaneous killing, although the circumstances giving rise to it are obscure. There is nothing in his criminal history to suggest violence in the past, and there appears to be no reason to fear that he might commit such an offence again. As best I can judge it, he should have reasonable prospects of rehabilitation.

63 The crime of murder carries a maximum sentence of imprisonment for life and a standard non-parole period of 20 years. It has never been suggested that this offence calls for the maximum sentence and, in the light of my findings, it clearly does not. The standard non-parole period is reserved for offences falling into the mid range of objective gravity. I consider that this offence falls short of that range, although it is close to it. In any event, there are other reasons for departing from the standard non-parole period, particularly the offender’s early plea of guilty.

64 That plea has considerable utilitarian value. It averted what would have been a lengthy trial, in which it may have been necessary for the Crown to call the deceased’s daughter. The plea also represents an early acknowledgement of criminal responsibility by the offender, and is some evidence of his remorse. That said, I remain guarded about the extent to which he is contrite. He has not expressed contrition in this Court, the Crown case against him was undoubtedly strong and, as is apparent, I am far from persuaded that he told police the whole truth about this matter.

65 Ms Rigg made no submission about special circumstances. No doubt, the offender, a man with no criminal history of significance required to serve his first term of imprisonment, and a lengthy one at that, would benefit from the opportunity for release into the community for an extended period under supervision and subject to the sanction of parole. However, the sentence I must impose is such that that end would be achieved by the application of the statutory proportion between sentence and non-parole period. Further, I do not believe that any lesser non-parole period than that which I propose would be sufficient to reflect considerations of retribution and deterrence. But for his plea of guilty, I would have imposed a head sentence of imprisonment for 24 years. In recognition of the utilitarian value of his plea, I will reduce that to 19 years, a discount of roughly 20 percent. I will fix a non-parole period of 15 years. The sentence will date from 3 July 2006, and he will be eligible for release on parole on 2 July 2021.

66 David Maxwell Shepherd, for the murder of Malissa Mayfield you are sentenced to a non-parole period of 15 years, commencing on 3 July 2006 and expiring on 2 July 2021, and a balance of term of 4 years, commencing on 3 July 2021 and expiring on 2 July 2025.

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