R v Fesus (No. 9)

[2018] NSWSC 176

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fesus (No. 9) [2018] NSWSC 176
Hearing dates:	15 December 2017, 6 February 2018,16 February 2018
Date of orders:	23 February 2018
Decision date:	23 February 2018
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	The Offender is sentenced to imprisonment for a term of 22 years with a non-parole period of 16 years and six months to date from 25 October 2016.
Catchwords:	CRIMINAL LAW – sentence following trial - murder - Offender found guilty of murder of his 18-year old wife in 1997 at Mt Warrigal - murder by choking - Offender then buried body in shallow grave near Seven Mile Beach - body located a month later - domestic violence murder - absence of contrition or remorse - relevance of Offender’s recent health issues - approach to sentencing for murder committed in 1997
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Cherry v R [2017] NSWCCA 150 Director of Public Prosecutions v Darcy-Shillingworth [2017] NSWCCA 224 Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 Katsis v R [2018] NSWCCA 9 Keir v R [2007] NSWCCA 149 Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 R v Chetcuti (Court of Criminal Appeal, 17 December 1993, unreported) R v Everett (Court of Criminal Appeal, 13 December 1995, BC9500218) R v Fesus [2014] NSWSC 770 R v Fesus (No. 8) [2017] NSWSC 1423 R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 R v Herring (Badgery-Parker J, 4 December 1995, unreported) R v Isaacs (1997) 41 NSWLR 374 R v Keir [2003] NSWSC 140 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534 R v Nixon (Court of Criminal Appeal, 31 October 1995, BC9501636) R v Obeid (No. 12) [2016] NSWSC 1815 R v Toki [2003] NSWCCA 125 R v Whitmore [1999] NSWCCA 75 R v Wilkinson (No. 5) [2009] NSWSC 43 RLS v R [2012] NSWCCA 236 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Texts Cited:	---
Category:	Sentence
Parties:	Regina (Crown) Steve Frank Fesus (Offender)
Representation:	Counsel: Mr G Smith SC (Crown) Mr K Chapple SC (Offender)   Solicitors: Director of Public Prosecutions (Crown) Nyman Gibson Miralis (Offender)
File Number(s):	2013/207336
Publication restriction:	---

REMARKS ON SENTENCE

1. JOHNSON J: On 7 August 2017, the Offender, Steve Frank Fesus, was arraigned before a jury upon a charge that he, on 11 August 1997, at Mt Warrigal in the State of New South Wales did murder his wife, Jodie Melissa Fesus (“Jodie”). A plea of not guilty was entered to that charge and the trial of the Offender proceeded until, on 3 October 2017, the jury returned a verdict of guilty of murder.

2. A sentencing hearing proceeded on 15 December 2017 and continued on 6 and 16 February 2018 when the Offender was remanded for sentence today.

Penalty for Murder Committed in 1997

3. The maximum penalty for the crime of murder is imprisonment for life: s.19A(1) Crimes Act 1900.

4. As the offence was committed in 1997, the standard non-parole period applicable to murder (which was introduced in 2003) does not apply to this offence.

Facts of Offence

5. The starting point for the Court is to make findings of fact for the purpose of determining sentence. The primary constraint is that the view of the facts adopted by me, for the purposes of sentencing, must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378. The Court may not take a matter into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the Offender relies upon to reduce penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281 [27]-[28].

Background to the Offence

6. At the time of her death on 11 August 1997, Jodie was 18 years old. She was born in April 1979 and was one of three sisters. The evidence demonstrates that Jodie was raised in a loving and caring household. Although her parents separated and later divorced, Jodie had a good relationship with her family.

7. The Offender was born in September 1970. He met Jodie in about 1995 when they were introduced by a mutual friend. In July 1995, Jodie gave birth to her daughter, Kimberly. By this time, Jodie had commenced a relationship with the Offender although he was not Kimberly’s father.

8. By August 1995, Jodie and the Offender were living together. In June 1996, Jodie gave birth to a son, Dylan. The Offender is Dylan’s father.

9. In the mid-1990s, the Offender was working as a security guard at the Shellharbour Workers’ Club. In this capacity, the Offender interacted socially with a number of members and customers of the club including women to whom he was attracted. The evidence demonstrates that the Offender acted upon his attraction to other women both before and after Jodie’s death.

10. On 17 May 1997, the Offender and Jodie were married. At the time of the marriage, the Offender was 26 years old and Jodie was aged 18 years and one month.

11. Evidence was given at the trial by a number of family members and friends of the couple concerning their relationship. Jodie’s mother, Gay Williams, said that the Offender and Jodie had been fighting on occasions and that she did not think that they should have been getting married. The evidence of other witnesses revealed a range of opinions concerning the couple. For the purpose of finding facts in these sentencing remarks, it is not necessary to embark upon a close examination of the evidence or to attempt to make precise findings concerning the state of the relationship at the time of the marriage. It is sufficient to note that Jodie was barely 18 years old at the time of the marriage. Although she had two young children (then aged 22 months and 11 months), she was still a very young woman.

12. By mid-1997, the Offender, Jodie and the children were living together in rented premises at 29 Cox Parade, Mt Warrigal. The Offender continued to work part-time as a security guard at the Shellharbour Workers’ Club. He had undertaken other work for a two-week period at a caravan retail business, but that employment did not continue.

Jodie Decides to Leave the Offender and to Take the Children

13. Prior to the events in August 1997, Jodie was expressing concern to a number of persons concerning her marriage to the Offender. Although Jodie had only been married to the Offender for about three months, she was speaking to others about her unhappiness and her intention to leave the Offender and take the children with her. The evidence indicates that Jodie had raised this prospect in conversation with other persons, but had not followed through in the sense that she had not left the Offender.

14. However, by early August 1997, the position appears to have firmed from her perspective. The evidence indicates that Jodie had formed the view that she wished to leave the Offender and take the children with her and that she was speaking to others about that plan.

15. The following evidence points clearly to this conclusion. Jodie spoke to Debra Smith, her stepmother, on about 9 or 10 August 1997. Jodie told her that the Offender had been playing up on her and that she had “had enough” and was going to leave him.

Events on 11 August 1997

16. On the evening of 11 August 1997, Jodie, the Offender and the children went to the home of Jason and Leanne Nowicki for dinner. The Nowickis had been friends of the Offender and Jodie for some time. Shortly before 11 August 1997, Jodie had spoken to Leanne Nowicki and told her that she was not very happy and she thought that the Offender may have been having an affair. Jodie told Leanne Nowicki that she had given the Offender a warning that if nothing changed, she was going to leave him after a specified period.

17. An incident occurred at the Nowicki house on the evening of 11 August 1997 where the Offender and Jodie argued over who was going to change Dylan’s nappy. The Offender was not happy to perform this task and, according to the Nowickis, Jodie hit him in the chest “pretty hard”. Things settled down after that incident and the Offender and Jason Nowicki left the house to buy some ice cream.

18. Whilst Jodie and Leanne Nowicki were alone in the house after the men had left, Jodie told her once again that she was not happy and that she was going to go home and ring her mother as she knew her mother would help her. Jodie said that she did not want to stay and that she “would get a flat or something” on her own although she would take the children with her. According to Leanne Nowicki, Jodie said “She would definitely take the children; she wouldn’t go without them”.

19. After leaving the Nowickis, the Offender, Jodie and the children returned to their house at 29 Cox Parade, Mt Warrigal. At 8.47 pm on 11 August 1997, Jodie’s mother, Gay Williams, rang the house at 29 Cox Parade, Mt Warrigal and had a conversation with Jodie that extended for more than seven minutes. Gay Williams gave evidence of this call in which she spoke to Jodie about a plan for the two of them to visit Jodie’s sister the following Sunday (17 August 1997) to mark her sister’s 21st birthday. Whilst Jodie spoke to her mother, the Offender was within earshot and was heard speaking to Jodie at one point about the arrangement.

20. I am satisfied that, apart from the Offender, Gay Williams was the last person who spoke to Jodie before her death.

21. Following the disappearance of Jodie and the later discovery of her body, the Offender gave several lengthy recorded interviews to police about these events. In those interviews, he maintained that he had not killed Jodie and did not know how she came to leave the house at 29 Cox Parade, Mt Warrigal let alone how she came to be buried (as will be seen) in a shallow grave near Seven Mile Beach. According to the Offender in these interviews, there was no argument between Jodie and himself in the house that night and that they went to bed quietly.

22. A different picture emerges from the discussion which took place on 8 July 2013 between the Offender and an undercover police officer which was both video and audio recorded and was played in evidence before the jury (see Annexure A to R v Fesus (No. 8) [2017] NSWSC 1423). In the course of that lengthy conversation, the Offender moved from a denial of any involvement in Jodie’s death to a number of admissions that he had killed and buried his wife. I am satisfied beyond reasonable doubt (as was the jury) that the Offender made truthful and reliable admissions during the course of this conversation on 8 July 2013 so that what he said revealed the true position concerning the fate of Jodie on the night of 11 August 1997.

23. The Offender told the undercover police officer that they had got into “a heated argument” and that he had “strangulated” or “choked” Jodie in the lounge room of their home during the evening of 11 August 1997 and then conveyed her body to Seven Mile Beach where he buried her. In describing his thought processes at the time of killing his wife, the Offender told the undercover officer that he had been “slaving his arse off working day and night, working at home doing everything else” whilst Jodie had been “lazy”. The Offender said to the undercover officer at one point “… she did say something once. She was going to leave me and take the kids away from me, that I’d never see them again”.

Findings Concerning the Murder of Jodie

24. In light of all the evidence, including the very substantial circumstantial case mounted by the Crown against the Offender and the evidence of the conversation between the Offender and the undercover officer on 8 July 2013, I am satisfied that the Offender and only the Offender was involved in the murder of Jodie and the subsequent burial of her body.

25. I am satisfied to the criminal standard that, after the telephone call from her mother on the evening of 11 August 1997, Jodie told the Offender that she proposed to leave him and take the children with her. A heated discussion followed in which the Offender took hold of Jodie and choked her to death. There was ample evidence given at the trial of the Offender’s training and experience (as a security officer) in the use of choke holds as a means of controlling persons.

26. I am satisfied beyond reasonable doubt that the Offender choked Jodie with an intention to kill her. This conclusion is fortified by his actions immediately after he choked her to death. Having attacked his wife in anger, the Offender then acted in a cool and calculated way. The Offender’s acts were not consistent with an attack which was intended only to seriously harm his wife which went wrong. The Offender did not call for assistance. At that time, the two young children were in the house. Later in the evening of 11 August 1997, the Offender placed Jodie’s body in the back of their Holden station wagon and drove to a remote location near Seven Mile Beach where he buried her body in a shallow sandy grave. Thereafter, he told people that his wife had left him, a false story which he maintained thereafter.

27. Jodie was dressed in her nightie. This itself formed an important part of the circumstantial case mounted by the Crown. The location of Jodie’s body dressed only in a nightie, and buried in a remote grave, was entirely inconsistent with her having left the house of her own accord. It is entirely clear that Jodie had met a sudden death at the hands of the Offender who then took immediate steps to dispose of the body in a manner which itself pointed to his guilt of the crime.

Acts of the Offender After 11 August 1997

28. The following morning, 12 August 1997, the Offender embarked upon a course of conduct which was designed to serve his own interests and avoid discovery of Jodie’s body, let alone the true facts surrounding her death. He left the house at 29 Cox Parade, Mt Warrigal with the children and went to the Shellharbour Workers’ Club where he acted in a way designed to attract attention to the presence of himself and the children at the Club.

29. On 12 August 1997, the next door neighbours, Len and Vicky Potter, observed the Offender washing the Holden station wagon outside the house at 29 Cox Parade, Mt Warrigal. This was a curious step to take at the time when, on the Offender’s account, his young wife had suddenly gone missing leaving him with the children. An inference is available (and should be drawn) that the Offender was cleaning the vehicle after he had used it to transport Jodie’s body to the burial site the night before.

30. Thereafter, in conversations with various persons, the Offender said that Jodie had gone. When Gay Williams rang the Offender on 13 August 1997, he told her that Jodie had “gone” - that she had “disappeared”.

31. At about 2.55 pm on 13 August 1997, the Offender and his work friend, Kerry Smith, attended the Warilla Police Station to report that Jodie had gone missing. The evidence reveals (and I accept) that the Offender had shown sexual interest in Ms Smith both before and after 11 August 1997. It will be observed that Ms Smith accompanied the Offender at various times after 11 August 1997 as he took steps related to the disappearance of his wife.

32. At about 3.00 pm on 13 August 1997, Robert Hannah and his grandson located a wallet in the carpark of the Oak Flats Railway Station. This was Jodie’s wallet and contained a number of items identifying her. The location of the wallet was reported to the Offender who contacted the police. I am satisfied that it was the Offender who placed Jodie’s wallet in the carpark of the Oak Flats Railway Station in an attempt to mislead police that she had in fact departed of her own accord.

33. At about 12.30 am on 14 August 1997, the Offender and Kerry Smith again attended the Warilla Police Station and the Offender told police that Jodie had been to the house and had taken clothes from the wardrobe since her initial disappearance. This was untrue and the Offender gave this false information to police in an attempt to deflect their investigation.

34. When Jodie had been living with the Offender and the children, she had been in receipt of payments from the Department of Social Security. On 25 August 1997, the Offender, once again accompanied by Kerry Smith, attended the Shellharbour office of the Department of Social Security and lodged application forms for maintenance child support and a pension. In the course of completing these forms with the assistance of a departmental officer, Darryl Carrette, I am satisfied that the Offender made a significant slip in that he noted that his wife was deceased (and not just missing). This was corrected promptly after Mr Carrette commented to the Offender about this response. The Offender was informed that further information would be required with respect to his missing wife before the Department of Social Security application process could be completed.

35. It was the Crown case that the Offender was becoming increasingly unsettled by the non-discovery of Jodie’s body with this being linked to the inability of the Department of Social Security to take further action until the whereabouts of Jodie had been discovered. The Crown argued that the Offender returned to the scene of the burial early in the morning of Sunday, 14 September 1997 to partly uncover the body to assist its discovery. In this regard, the Crown relied upon the evidence of Neil Purton concerning his observation of a Holden motor vehicle at an intersection of Beach Road near Seven Mile Beach with the Crown contending that this was the Offender leaving the beach area after partly uncovering the body. The Crown relied, as well, upon evidence of Lucille Johnstone concerning observations which she later reported to police concerning activities in the carpark area.

36. The evidence of Mr Purton was, in my view, reliable and assisted the Crown in this respect. The account of Mrs Johnstone was given to police long after the events and was of limited assistance.

The “000” Calls and the Discovery of Jodie’s Body

37. At 5.50 pm on Sunday, 14 September 1997, a male person made a call to Gerringong Police Station which was automatically diverted to “000”. The caller (who did not identify himself) reported the discovery of a body near Seven Mile Beach. The audio recording of that call was retained and was played to the jury at the trial. Jason Nowicki was asked by investigating police to listen to the recording and he said that he could not recognise the voice. He said in evidence that it was probably three years after he had last spoken to the Offender when he listened to the recording and that the recording “sounded like somebody trying to disguise their voice”.

38. A second call was made at 8.30 pm on 14 September 1997 to Nowra Police Station reporting the apparent grave at Seven Mile Beach, but this call was not audio recorded.

39. On the evening of 14 September 1997, police attended Seven Mile Beach and found Jodie’s body buried in a shallow grave that had been partially uncovered. As mentioned earlier, Jodie was dressed only in a nightie.

40. It was the evidence of Detective Sergeant Gregory Moon that the original disturbance of the burial site prior to the crime scene being fully excavated was more likely to have occurred through human involvement rather than animal activity. I accept this evidence.

41. At 10.40 am on 15 September 1997, a third telephone call was made to the Crime Stoppers’ general phone number reporting that human remains had been found at Seven Mile Beach. This call was not audio recorded.

42. On Monday, 15 September 1997, the Offender and Kerry Smith once again attended the Department of Social Security at Shellharbour and informed Mr Carrette that Jodie’s body had been discovered. The speed with which the Offender reported the discovery of his wife’s body to the Department of Social Security is itself significant. If he had been a grief-stricken husband whose wife had been murdered and the body just discovered, the reporting of this event to the Department of Social Security would be an unimportant (and certainly not urgent) step. Instead, one of the first steps taken by the Offender was to inform the Department of the discovery of the body. This formed part of the Crown’s multi-faceted circumstantial case against the Offender.

37. Although it is not critical to the findings of fact required on sentence, I express my satisfaction to the requisite standard that it was the Offender who made these telephone calls in a concerted effort to ensure that his wife’s body was discovered. He had a close interest in this occurring at that time as manifested by his immediate visit to the Department of Social Security office on Monday, 15 September 1997 to report the location of her deceased body. The accumulation of circumstances on this aspect provides substantial support for a finding (which I make) that it was the Offender’s Holden station wagon which was observed by Mr Purton on the morning of Sunday, 14 September 1997 as the Offender drove away from the grave site where he had disturbed the site to partially uncover the body.

The Offender Visits the Morgue on 18 September 1997

44. On 17 September 1997, the Offender spoke to Gina Burrows, a grief and trauma counsellor at the NSW Institute of Forensic Medicine at Glebe. The Offender arranged to visit the morgue to view Jodie’s body and did so on 18 September 1997.

45. Significantly, the Offender asked Ms Burrows if Jodie “had been strangled” and asked to see behind Jodie’s neck to look for a birth mark. It was the evidence of members of Jodie’s family (which I accept) that she had no birth mark on the back of her neck. Ms Burrows would not allow the Offender to see those parts of the body. I am satisfied that the Offender raised these matters with Ms Burrows because of a concern on his part to check whether there were visible signs of strangulation on Jodie’s body.

46. The post-mortem examination was not able to reveal a definitive cause of death. However, the evidence of Dr Paul Botterill, forensic pathologist, was that the features observed on autopsy were consistent with death by choking or strangulation. I am satisfied on all the evidence that this was the mechanism of death utilised by the Offender, as he admitted to the undercover police officer on 8 July 2013.

The Offender’s Behaviour Throughout the Investigation

47. In the course of the investigation of Jodie’s death, the Offender maintained that he was not involved in her death or burial. He gave accounts to police which were, at times, not consistent on various matters of detail. The Offender’s account at times was critical of Jodie and her behaviour as well as the conduct of others apart from himself. On multiple occasions, the Offender maintained a veneer of distress such as on the occasion of his interview by Justine Ford for “Australia’s Most Wanted” on 7 October 1997. The Offender’s demeanour on other occasions was not consistent with that of a grieving husband whose wife had been murdered by someone else. The Offender demonstrated a capacity to turn his emotions on and off so as to give an appearance of grief when he thought it suited him. The many hours of video police interviews of the Offender did not assist him before the jury.

The Offender is Arrested and Charged with Murder

48. It was not until the conclusion of the police covert operation on 8 July 2013 that the Offender was arrested and charged with Jodie’s murder. He remained in custody until 16 June 2014 when he was released on bail: R v Fesus [2014] NSWSC 770.

49. The Offender remained on bail until found guilty of murder by the jury on 3 October 2017 when he was remanded in custody.

Some Features Bearing Upon the Objective Gravity of the Offence

50. The Offender murdered his young wife in the course of a domestic dispute arising from her declaration that she proposed to leave him and take the children with her. Although the Offender and Jodie had lived together for about two years, they had only been married for three months at the time of her death. Jodie was a young mother who, despite her considerable life experience at that time, was barely an adult. The Offender was 26 years old at the time of the offence.

51. The fact that the marriage was breaking down (after only three months) does not assist the Offender. It has been observed that killings within a domestic situation occur very often when there has been a build-up of tension between the killer and victim over a period of years: R v Whitmore [1999] NSWCCA 75 at [16]. That is not the position in this case. Here, the Offender murdered his very young wife at a time of marital strain after just three months of marriage.

52. Whatever the Offender’s perception of the relationship (and that perception is not consistent with what Jodie was reporting to others at the time concerning his conduct) there was no warrant for the use of any violence towards his wife let alone lethal force.

53. This was a gross abuse of trust to kill his very young wife, compounded by his act of burying her body in a remote grave. The Offender’s actions deprived Jodie’s children of their mother and have left them with a false and distorted understanding of what had happened in their own family.

54. Rather than foster and promote the marriage and act to protect his wife, the Offender choked her to death with an intention to kill her.

55. The evidence does not suggest a prior history of domestic violence on the part of the Offender towards Jodie. That said, their relationship was not a particularly long one and his response to Jodie’s desire to leave was a savage and homicidal one.

56. The use of choking in the course of domestic violence is now well recognised as a gross form of control with a capacity (as occurred here) to cause death: Cherry v R [2017] NSWCCA 150 at [75].

57. The fact that the Offender buried Jodie’s body in a comparatively remote area in itself is an aggravating circumstance of the offence: R v Wilkinson (No. 5) [2009] NSWSC 43 at [61]. He did not treat Jodie’s body with dignity and respect. He did the opposite. It was a cruel, heartless and gratuitous act which had the effect of maximising the grief, worry and stress upon Jodie’s family. It was the Offender’s intention at the time of burial that Jodie’s body would never be found. The Offender did this to protect himself until he decided (about four weeks later) that it was in his interests for the body to be discovered.

58. The fact that the Offender failed to reveal the whereabouts of Jodie’s body to police is relevant to the absence of remorse and contrition but cannot itself be taken into account in the assessment of the objective gravity of the murder: R v Wilkinson (No. 5) at [62].

59. Jodie’s age and circumstances were such that she herself was a vulnerable victim in the circumstances of this offence. She was murdered in her own home. The very young children were in the house at the time, although the evidence does not permit a finding as to where precisely they were at the time of the killing.

60. The objective gravity of this offence is high indeed.

The Offender’s Subjective Circumstances

61. The Offender was 26 years old at the time of the offence and is now 47 years of age.

62. The Offender has no prior criminal history.

63. The Offender continues to deny that he committed the offence. He has not demonstrated any remorse or contrition.

64. Tendered at the sentencing hearing was a report of Dr Kerri Eagle, forensic psychiatrist, dated 3 December 2017. Dr Eagle interviewed the Offender on 22 November 2017. He displayed no signs or symptoms of a major mental illness. As will be seen, the Offender’s principal health difficulties arise from a condition diagnosed in 2016.

65. A number of character references were tendered with respect to the Offender, including letters written by Kimberly (now 22 years old) and Dylan (now 21 years old). The authors spoke positively about the Offender.

66. Some 20 years have passed between the offence and the verdict of the jury convicting the Offender of murder. The Offender has not committed any further offences in that period. The Offender informed Dr Eagle that he had worked as a security officer until 2013. Following his arrest and charging in 2013, his security licence was revoked.

67. There was a period of nearly 16 years between the offence in August 1997 and the arrest and charging of the Offender in July 2013. There is no evidence that the Offender lived in a state of uncertain suspense or was otherwise disadvantaged in this period: R v Keir [2003] NSWSC 140 at [36]. Having taken Jodie’s life criminally in 1997, the Offender got on with his own life. He is entitled to have his offence-free conduct in this period taken into account (together with the character reference material), but the delay in prosecution does not operate otherwise to assist the Offender on sentence.

68. Also tendered were reports of Dr Amanda Glasgow, oncologist, dated 4 July 2017 and 7 November 2017 and Dr Divina Brillante, cardiologist, dated 6 July 2017 together with a report of Stephen Dunn, nurse consultant, of 4 October 2017. In addition, Justice Health records concerning the Offender were tendered.

69. On 6 February 2018, a report of Associate Professor Craig Lewis dictated on 12 December 2017 was also tendered. A further report of Associate Professor Lewis dated 14 February 2018 was tendered at the resumed sentencing hearing on 16 February 2018.

70. The Offender stood trial for murder in 2015, but the jury could not agree on a verdict and was discharged. In late 2016, the second trial of the Offender commenced, but the jury was discharged a few days into the trial because of health difficulties affecting the Offender. Dr Glasgow’s report of 7 November 2017 reveals that the Offender undertook surgery in October 2016 for the removal of a left-sided atrial mass. He has been a patient at the Illawarra Cancer Centre since late 2016 with a diagnosis of Stage III left-sided atrial myxoid sarcomatoid malignancy (intimal sarcoma). Dr Glasgow described this as “a rare cardiac sarcoma”. Following surgery, the Offender proceeded to have adjuvant treatment for his disease which is intended to reduce the risk of disease relapse and improve the cure rate. He had cardiac irradiation followed by adjuvant chemotherapy with the treatment being completed in July 2017. During the course of treatment, the Offender was found to have micro-emboli in his brain from an unknown origin. The Offender’s treatment progressed well.

71. I note that the Offender was on bail throughout the trial which proceeded from 7 August to 3 October 2017 and travelled daily to and from his residence in the Wollongong area. It did not appear at trial that he was experiencing any particular difficulty nor was any reported to me by Senior Counsel who appeared for him.

72. Dr Glasgow stated that the prognosis of cardiac sarcomas is difficult to predict as it is a rare disease and there is limited literature on the condition. The available literature predicts that, with the therapy delivered, the median survival was approximately four years. In other words, 50% of patients live less than four years and 50% of patients live over four years. There is a risk of relapse and when and if this occurs, it will become a chronic and terminal disease.

73. The evidence revealed that, since the Offender has been in custody, he has undertaken tests at the Prince of Wales Hospital at the request of Associate Professor Lewis of the Department of Medical Oncology, Prince of Wales Hospital. Associate Professor Lewis noted that the Offender had been reviewed on three occasions at Prince of Wales Hospital following his incarceration in October 2017. In his report dated 14 February 2018, Associate Professor Lewis states that the Offender “does not describe any specific symptoms to suggest recurrence of the sarcoma and physical examination has been uneventful”. Associate Professor Lewis concluded his report in the following way:

“In summary, based on recent imaging, there is currently no clinical or radiological evidence of recurrent disease. In the setting of a treated cardiac sarcoma, his prognosis remains guarded as he is at risk of both local and distant recurrence, especially in the next 3-5 years. However, at this time there is no evidence of recurrence.

With regards [to] medical follow-up he will require regular review including cardiac echo and CT scans at least [every] 6 months over the next two years.”

74. The Offender did not give evidence at trial or at the sentencing hearing. There is no evidence concerning any difficulties which he is experiencing in treatment whilst in custody nor of any difficulty with Justice Health providing necessary treatment to him. Senior Counsel for the Offender relied upon some generalised comments of Dr Eagle in her psychiatric report concerning the possibility of difficulty in the treatment of the Offender in custody. However, the evidence indicates that the Offender has undertaken tests as described by Associate Professor Lewis whilst in custody. It may be taken that the Offender will be monitored by way of review and further testing as advised by Associate Professor Lewis.

75. It is necessary for the Court to keep in mind the principles in R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [117]ff in taking into account the Offender’s health issues on sentence. In R v Obeid (No. 12) [2016] NSWSC 1815, Beech-Jones J summarised helpfully the principles emerging from R v Achurch and associated decisions. His Honour said at [116]-[120]:

“116   The principles relevant to a submission that a penalty should be mitigated on account of health concerns and the relevance of the length of a sentence to a person’s life expectancy can be briefly stated as follows.

117   First, in circumstances where illness is relevant to the determination of a sentence, its weight must be assessed in light of ‘all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life’ (R v Achurch [2011] NSWCCA 186; 216 A Crim R 152, ‘Achurch’ at [117] per Johnson J citing: R v Sopher (1993) 70 A Crim R 570 at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23]-[31]).

118   Second, although the health of an offender is relevant to the type and length of any sanction imposed, generally it will only be a mitigating factor ‘when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health’ (R v Badanjak [2004] NSWCCA 395 at [9] per Wood CJ at CL with McClellan AJA and Smart AJ agreeing; R v Smith (1987) 44 SASR 587 at 589; Achurch at [118]).

119   Third, the relative strictness that is applied to a consideration of whether some matter affecting the health of an offender operates as a substantial mitigating factor does not necessarily apply when such matters are considered in combination with other factors such as age in determining whether ‘special circumstances’ are established for the purposes of s 44(2) of the Sentencing Act (see Griffiths v The Queen (1989) 167 CLR 372 at 379 per Brennan and Dawson JJ; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704). However, double counting of matters affecting the length of the head sentence and matters that might constitute special circumstances must be avoided (R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ (‘Fidow’)).

120   Fourth, an otherwise appropriate sentence of imprisonment should not be reduced on the basis that it is likely to extend to most of the offender's remaining life expectancy (Goebel-McGregor v R [2006] NSWCCA 390 at [128] per James J, with whom Hidden and Hislop JJ agreed; Barton v R [2009] NSWCCA 164 at [22]).”

76. In the course of dismissing Mr Obeid’s appeal against sentence, the Court of Criminal Appeal made no criticism of his Honour’s summary of these principles: Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221.

77. The evidence before the Court on sentence indicates that the Offender’s present condition is being monitored whilst he is in custody. There is no evidence that there is a serious risk that imprisonment will be a greater burden on him by reason of ill health or that there is a serious risk that imprisonment will have a grave adverse effect on his health. It may be taken that the Offender’s living conditions in custody will be less pleasant than would be the case if he was at large in the community. However, he is a convicted murderer and must serve an appropriate and proportionate sentence for his grave crime.

78. It is the case that persons with serious health problems are managed within the prison system. The Court should approach sentencing upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Offender whilst in custody: R v Achurch at 171 [125]-[126].

79. Like other persons who have suffered a form of cancer, a process of testing will be undertaken with the Offender to monitor any risk of relapse. If the Offender’s condition does recur, it may be taken that it will be detected as a result of periodic testing. Of course, recurrence of the condition may or may not occur. There is no scientific certainty as to what will happen. If the Offender’s condition recurs and is terminal, then the law provides for measures which might be taken. The State Parole Authority may direct the release of an offender on parole before an offender’s parole eligibility date if the offender is dying, or if the State Parole Authority is satisfied that it is necessary to release an offender on parole because of exceptional or extenuating circumstances: s.160(1) Crimes (Administration of Sentences) Act 1999. Further, the exercise of the prerogative of mercy is preserved: s.270 Crimes (Administration of Sentences) Act 1999: R v Achurch at 171 [124].

80. It is necessary for the Court to have regard to the Offender’s state of health whilst ensuring that an appropriate sentence of imprisonment is imposed for the grave crime of murder committed by the Offender.

Victim Impact Statements

81. The Court received victim impact statements from the following members of Jodie’s family:

1. Gay Williams, Jodie’s mother;

2. Greg Kotvojs, Jodie’s stepfather;

3. Belinda Wright, Jodie’s sister;

4. Tracey Smith, Jodie’s sister;

5. Roland Smith, Jodie’s father; and

6. Debra Smith, Jodie’s stepmother.

82. The death of Jodie at such a young age has had a devastating effect upon her entire family. The different perspectives of Jodie’s parents, stepparents and sisters made clear how each of them was harmed in many different ways as a result of Jodie’s death. The situation was made all the more difficult by the passage of years since 1997.

83. Apart from the loss of a daughter, stepdaughter and sister, each of these family members has not had the experience which would have resulted, if Jodie had lived, with Jodie’s own children being part of the extended family in the many ways in which family life develops. Kimberly and Dylan were raised by the Offender and apparently do not accept that he killed their mother.

84. Although they may have difficulty accepting it as a fact, it is the case that Kimberly and Dylan were deprived of the love and nurturing of a mother whom they never knew. This was because the Offender murdered Jodie so many years ago and has deceived the children since then as to what, in truth, happened to their mother. Although there are no victim impact statements from Kimberly and Dylan, each of them is as much a victim of the Offender’s crime as the members of Jodie’s family who have made victim impact statements.

85. In truth, the Offender has wreaked havoc upon the entire family. The social and mental harm caused by the Offender in the circumstances of this case extends far beyond that witnessed in many other cases where the consequences of a murder are described to the sentencing court.

86. The Crown made application under s.28(4) Crimes (Sentencing Procedure) Act 1999 that the victim impact statements given by the family victims be considered and taken into account by the Court, in connection with the determination of the punishment for the offence of murder, on the basis that the harmful impact flowing from Jodie’s death on the members of the family constituted an aspect of harm done to the community. I am satisfied that the contents of the victim impact statements should be taken into account for the purpose of recognising the harm done to the victims of the crime and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999.

82. As I did at the sentencing hearing, it is appropriate that the Court, on behalf of the community, once again express publicly its condolences to each member of Jodie’s family for the loss which they have suffered, and will continue to suffer, arising from these terrible events.

Sentencing for a 1997 Murder

88. The Court is required, insofar as it is possible, to sentence the Offender in accordance with sentencing practices as at the date of the commission of the offence in 1997: R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534; R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129.

89. The Crown referred to the following sentencing decisions as examples of domestic violence murders committed between 1989 and 1996:

1. R v Nixon (Court of Criminal Appeal, 31 October 1995, BC9501636) - a 1994 murder - sentenced to imprisonment for 18 years, with a non-parole period of 13 years and six months;

2. R v Herring (Badgery-Parker J, 4 December 1995, unreported) - a 1989 murder - sentenced to imprisonment for 22 years and three months with a non-parole period of 18 years;

3. R v Everett (Court of Criminal Appeal, 13 December 1995, BC9500218) - a 1992 murder - sentenced to imprisonment for 21 years with a non-parole period of 16 years;

4. R v Whitmore - a 1996 murder - sentenced to imprisonment for 25 years with a non-parole period of 15 years;

5. R v Chetcuti (Court of Criminal Appeal, 17 December 1993, unreported) - a 1991 murder - sentenced to imprisonment for 24 years with a non-parole period of 18 years.

90. In addition, I have had regard to the observations of the Court of Criminal Appeal in R v Toki [2003] NSWCCA 125 at [27]-[32]. In that decision, reference was made to R v Keir, a case with some similarities to the present case. The offender in R v Keir murdered his wife in 1988 and buried her body and then falsely told persons that she had left him. He was sentenced to imprisonment for 22 years with a non-parole period of 16 years: Keir v R [2007] NSWCCA 149.

91. I have considered these sentencing decisions which involved domestic violence murders. Of course, each case involves different factual circumstances. Care must be taken when comparisons are sought to be drawn between one case and another for the simple reason that no two cases are the same: RLS v R [2012] NSWCCA 236 at [122].

92. Further, the Court of Criminal Appeal has observed that there are difficulties in attaching precise labels to a particular offence so as to seek to identify “an ordinary domestic murder”: Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at 140-141 [26]. The Court has not accepted that a category of family or domestic murder should be devised: Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 at 280 [175].

93. Insofar as possible, I have had regard to sentencing penalties, principles and practices as they stood in 1997 with respect to murder committed in 1997. The available maximum penalty and the place of this offence in the range of objective gravity are of great importance on sentence: Katsis v R [2018] NSWCCA 9 at [85].

Determining an Appropriate Sentence

94. This was a grave offence of domestic violence culminating in the murder of a young woman. The murder was callous and selfish and deprived Jodie of her adult life and her children of their mother. The Offender’s act of burying Jodie’s body in a remote location was itself a degrading step which exacerbated the crime of murder itself.

95. The Offender has expressed no remorse or contrition.

96. General deterrence is an important feature in crimes of domestic violence: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at 195-196 [86]. The response of the criminal law to domestic violence requires rigorous and demanding consequences for the purpose of protecting partners, family members and the wider community: Director of Public Prosecutions v Darcy-Shillingworth [2017] NSWCCA 224 at [84].

97. As I have explained, the Offender’s present health is to be taken into account on sentence whilst ensuring that appropriate punishment is imposed for the crime of murder.

98. Having regard to the objective gravity of the offence and the subjective circumstances of the Offender, and taking into account all aspects relevant to sentence, a head sentence of imprisonment of 22 years is appropriate in this case. I am not persuaded that a finding of special circumstances should be made so as to vary the usual proportion between the non-parole period and the head sentence. The balance of term of five years and six months provides for an adequate period of conditional liberty if the Offender is released to parole. I am satisfied that a period of 16 years and six months represents the minimum period of imprisonment required to be served by the Offender for his crime having regard to all the purposes of punishment: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.

99. The Offender will receive appropriate treatment whilst in custody and in the event that the Offender’s condition brings him within the terms of s.160 Crimes (Administration of Sentences) Act 1999, the State Parole Authority possesses powers to make an order for his release if it was considered appropriate. The prerogative of mercy is available for exercise as well if it was considered appropriate.

100. As noted earlier, the Offender remained in custody from the time he was charged on 8 July 2013 until his release on bail on 16 June 2014. He remained on bail from that date until the verdict of guilty of murder was returned on 3 October 2017. A total period of 343 days in custody will be taken into account in setting the commencement date of the sentence. The sentence will operate from 25 October 2016 to give effect to this period of pretrial custody.

101. As the Offender is convicted of a “serious violence offence”, it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006. I ask the Offender’s solicitor to undertake that task on the Court’s behalf.

102. Will the Offender please stand.

103. Steve Frank Fesus, you have been found guilty by a jury of the murder of Jodie Melissa Fesus. On 3 October 2017, you were convicted of that offence by the Court. For that offence, I sentence you to imprisonment comprising a non-parole period of 16 years and six months commencing on 25 October 2016 and expiring on 24 April 2033 with a balance of term of five years and six months commencing on 25 April 2033 and expiring on 24 October 2038.

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Decision last updated: 23 February 2018