R v Holdom

[2018] NSWSC 1677

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Holdom [2018] NSWSC 1677
Hearing dates:	28 September 2018
Decision date:	30 November 2018
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Sentenced to imprisonment for life
Catchwords:	CRIME - sentencing - murder of woman and child -offender sexually assaulted woman and inserted objects into vagina and anus around time of death -photographed sexual assault and body of deceased -attempted to sexually assault woman's 2 year old child then suffocated her - disposed of child's body in suitcase on side of highway - sent text messages to deceased's family to allay suspicion - stole $72,000 from deceased's bank account - guilty plea - no expression of remorse - offender with dysfunctional and abusive childhood - offender with substance abuse disorder - lengthy criminal antecedents including sexual assault of 9-year-old child - not established how offender's childhood beared upon his commission of murders - both murders in top range of objective seriousness - worst case category -culpability so extreme that interests of community protection, retribution, punishment and deterrence can only be met by imposition of life sentences
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Pt 2 Div 3A Crimes Act 1900 (NSW) s 19A Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 21(1), 21A(3)(i), 28(4), 61(1)
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Fardon v Attorney General (Qld) (2004) 223 CLR 575; [2004] HCA 46 Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 Imbornone v R [2017] NSWCCA 144 Judge v R [2018] NSWCCA 203 Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep) R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA R v Miles [2002] NSWCCA 276 R v Robinson [2002] NSWCCA 359 R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Valera [2002] NSWCCA 50 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Veen v The Queen (No 2) (1988) 164 CLR 465 at 473, 474; [1988] HCA 14
Category:	Sentence
Parties:	Regina Daniel James Holdom
Representation:	Counsel: Mr M Tedeschi AM QC with Ms V Engel (Crown) Dr G Woods QC with Mr T Woods (Offender)   Solicitors: Solicitor for Public Prosecutions Just Defence
File Number(s):	2015/317223; 2015/367569

Judgment

1. HIS HONOUR: Daniel James Holdom, who is also known as Daniel Marshall and Daniel Bishop, is to be sentenced for the murder of Karlie Jade Pearce-Stevenson in the Belanglo State Forest in the Southern Highlands on 15 December 2008 and for the murder of her daughter, Khandalyce Kiara Pearce at Narrandera on 19 December 2008.

2. Khandalyce Pearce was a child but the automatic statutory prohibition on publishing anything that would identify a child does not apply as I am told that there has been a waiver by her next of kin. [1]

   1. Children (Criminal Proceedings) Act 1987 (NSW), Pt 2 Div 3A

3. The maximum penalty for the crime of murder is imprisonment for the term of the offender’s natural life. [2] There are also standard non-parole periods prescribed for the murder of an adult of 20 years and the murder of a child of 25 years. [3]

   2. Crimes Act 1900 (NSW), s 19A

   3. Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A

4. The offender pleaded guilty to these crimes on 31 July 2018; a week before his trial was due to commence. I received evidence and submissions on sentence on 28 September 2018 and then stood the matter over for sentencing on 9 November 2018. Sentencing could not proceed on that date because I was committed to another case that was proceeding in a country location and so the matter was relisted today.

5. As the offender was brought into the court room this morning, a moment before I was due to come on to the bench, as I understand it he called his lawyers over and gave instructions that he wished to withdraw his plea of guilty to Count 2 (the murder of Khandalyce Pearce). I then came onto the bench and counsel informed me that he had received these instructions and sought an adjournment of the sentencing so that an application could be pursued. Counsel was unable at that time to tell me what the basis of the withdrawal application might be and so I allowed time for counsel and his instructing solicitor to further confer with their client.

6. Counsel subsequently informed me that the offender had instructed that whilst he has had the brief of evidence he had not had an opportunity to digest certain aspects of it because of the circumstances of him being held in segregation. The offender had indicated that he disputed certain allegations that had been made. Counsel submitted that there was a question as to whether the plea to Count 2 was attributable to a genuine consciousness of guilt. When pressed as to why that was so he was only able to put that the offender had not properly considered material in the case against him.

7. A plea of guilty is a formal admission of criminal responsibility for an offence. Once entered, such a plea may only be withdrawn in limited circumstances. For example, a person may be permitted to withdraw their plea if it was not one made in the exercise of a deliberate and informed choice. Another example is, as was put here, that it does not arise from a genuine appreciation of guilt.

8. I cannot discern any way in which there could be an arguable basis for the offender to withdraw his plea of guilty to Count 2. I note, in particular, that at the time the plea was entered on 31 July 2018 he was represented by not only counsel and an experienced instructing solicitor but also by a Queens Counsel who has had a lifetime of experience in the criminal law. He had the benefit of their advice in relation to the matter prior to making his decision to plead guilty. He then had time to reflect upon his having done so in the two months until the hearing on sentence proceeded on 28 September 2018. Then, having heard the way in which the case against him was presented by the Crown at that hearing, he had another two months to reflect. In this context, the fact that the instructions were then only given by the offender a moment before he was due to be sentenced this morning did not give me any confidence that the withdrawal application could be put on any credible basis. It was for these reasons that I refused the application to adjourn the sentencing so that the withdrawal application could be further pursued.

9. The offenders' pleas of guilty will be taken into account on sentence. But whether they might lead to a lesser penalty being imposed is an issue I will discuss later.

The offences

10. Much of the following account of the circumstances pertaining to the two murders is derived from a document called, “Facts in the Crown case not disputed by the defence”. It was clarified that this meant that the facts in the document were “agreed”. I have also drawn upon other documents tendered by the parties so as to provide a coherent account.

Background

11. In 2008 the offender was 34 years of age and he had been in a relationship with Ms Hazel Passmore for about two years. [4] They met in Queensland and then moved to New South Wales and Victoria before settling in Alice Springs. [5] Ms Passmore at that time had three children from a previous relationship. The offender has consistently (but incorrectly) claimed that he is the biological father of Ms Passmore's third child who was born in December 2005. [6]

    4. Exh D p13

    5. Exh D p 15

    6. Exh D p 10; 28

12. Ms Passmore told police that over the course of her relationship with the offender he showed an interest in child abuse material and at times asked her to recount her own sexual abuse as a child to get himself aroused. He also asked her to write stories about child abuse.

13. While they were in Alice Springs, the offender and Ms Passmore met and became friendly with Karlie and Khandalyce (if I may presume to refer to them by their first names; I mean no disrespect). Khandalyce was about the same age as Ms Passmore's youngest child.

14. On 15 September 2008 on the Sturt Highway in northern South Australia the offender and Ms Passmore were involved in a car accident in which the offender was the driver. [7] Ms Passmore’s two eldest children died instantly. Ms Passmore sustained serious injuries (including losing a leg through amputation) and she spent a lengthy period in hospital and then in rehabilitation. The funeral for the two children was deferred until she was sufficiently recovered to be able to attend.

    7. Exh D p 87

15. Ms Passmore said that while she was hospitalised in Adelaide the offender came to visit and he was accompanied by Karlie and Khandalyce. Ms Passmore said that the offender and Karlie had become "really chummy". She realised she could not do anything about it and told the offender in emphatic terms to leave her. [8]

    8. Exh D p 8

16. On the day after the funeral of the two children on 14 November 2008 [9] , the offender travelled with Karlie and Khandalyce to the Australian Capital Territory. There they stayed in the suburb of Charnwood at the home of the offender’s cousin, Christine Lancaster, and her partner, Dereck Dover. At around this time, Ms Passmore messaged the offender, telling him that she was going to sue him over the car accident due to bills and expenses relating to her rehabilitation.

    9. Exh E l 407

The murders

17. At about 2.30am on 15 December 2008 the offender and Karlie left Charnwood in her car. Prior to this they had been arguing but what that was about is unknown. They left Khandalyce behind in the care of Ms Lancaster and Mr Dover. They arrived in the vicinity of Sutton Forrest and the Belanglo State Forest not long before 5.00am.

18. The offender murdered Karlie in the Belanglo State Forest late in the morning of 15 December 2008. He sexually assaulted her at around the time of her death. He took a number of photographs of her which he retained.

19. Examination years later of the photographs indicated that at 11.23am, and in the minutes that followed, he took photographs of Karlie with a bourbon whiskey bottle and his hand up to part of his forearm inserted variously in her vagina and anus. A photograph taken at 11.31am showed her upper body and face with his foot on her neck. Another showed the full length of her semi-naked body lying in the forest, apparently deceased. Determination of the precise time of death was not possible.

20. There could have been no dispute that these were photographs taken and kept by the offender. They were found on an SD memory card which also included many "deleted" photographs of the offender and people known to him. They included a roadside photograph of the skull fragment of one of Ms Passmore's deceased children from the accident on 15 September 2008. Police investigations determined that the photographs, including those taken in the Belanglo State Forest, appeared to have been taken by a camera (which I take to mean not with a smartphone).

21. The offender left the area just after midday and drove in Karlie's car back to Canberra. He told Ms Lancaster that he had had a fight with Karlie and had dropped her off at the bus stop. Ms Lancaster (using a nickname for the child) asked, “How could she leave Khandals?” The offender replied that Karlie sometimes did that and said, “I’m taking her to her grandmother’s” (in South Australia).

22. The offender traded in Karlie’s car at a car dealership in Canberra on 17 December 2008 and obtained another car, an old Holden Statesman. He continued staying with Khandalyce at the home of Ms Lancaster and Mr Dover until 19 December 2008 when he packed up his and Khandalyce's possessions and left. Khandalyce was never seen alive again by anyone who knew her.

23. The offender drove with Khandalyce from Canberra towards South Australia. He stopped at a supermarket in Wagga Wagga and purchased a number of items including: body wash gel, multi-purpose wipes, garbage bags, and duct tape.

24. At about 11.00am the offender checked into a motel in Narrandera. Mobile phone tower data shows that he was in Narrandera for about 2½ hours. It was probably here that he killed Khandalyce. The means of causing her death was suffocation.

25. The statement of facts includes the following:

“There was a sexual motive involved in the murder and the offender was at least attempting to or planning to sexually assault Khandalyce at the time of her death.”

26. Khandalyce was only 2½ years old.

27. The offender arrived at the home of a member of Ms Passmore's family in South Australia in the early hours of 20 December 2008. He was alone.

28. Ms Passmore told police in 2015 that she resumed the relationship with the offender after his return to Adelaide at Christmas of 2008. He gave her conflicting accounts of where Karlie and Khandalyce were. She thought they must have remained with the offender's relatives in Canberra. [10] The offender and Ms Passmore stayed together until sometime in 2010 when the relationship ended after an argument over the offender using drugs. [11]

    10. Exh D p31 but see Exh E where she said the offender told her that Karlie had gone off with somebody to Qld

    11. Exh D p 31

Subsequent events

29. On 4 September 2009, Karlie's mother, Ms Colleen Povey went to a police station in the Northern Territory and reported that she had concerns for her daughter and her granddaughter. She had not seen them for almost a year since they left the Territory. Ms Povey said that Karlie had not kept in contact. Call-charge records showed that the last occasion Karlie contacted her mother was on 13 December 2008. Subsequently, calls and texts to Karlie's number went unanswered. Ms Povey filed a missing person report.

30. On 7 September 2009, Northern Territory police spoke to the offender by telephone. He said he understood that Karlie had moved to Queensland and he had not heard from her since February 2009. He told police that he may have a further contact number for her and asked to be called back that afternoon when he would provide it. Further attempts to make contact with him were unsuccessful.

31. Police made contact with a credit union with which Karlie held an account. They were told that her account was being used regularly and had recently (on 7 September 2009) been accessed at an ATM in South Australia. Police took this to be a sign of life. Ms Povey was informed of this but she was told that police would keep the missing person report open until Karlie was sighted or spoken to.

32. On 10 September 2009 Ms Povey contacted police and told them that she had received a text message from Karlie saying that she was okay. She said that Karlie did not want to provide any details about her location. It is an undisputed fact that this contact was made (cruelly I add) by the offender or by someone at his instigation. This feigned contact from Karlie caused the missing person report to be closed. Ms Colleen Povey passed away from breast cancer in February 2012. In a family victim impact statement it was said that Ms Povey's last utterance was to ask, are "Karlie and Khandals here yet?" This was not the only cruel aspect of this deception by the offender.

Discovery of the bodies

33. Karlie's skeletal remains were found in the Belanglo State Forest on 29 August 2010. Forensic examination identified the remains only as being those of a female aged between 13 and 25 at the time of death. It was determined that the remains could have been in the forest from between 6 months and 10 years. Some of the bones had been scavenged by animals by the time they were located.

34. An examination of the remains revealed fractures to multiple ribs on both sides of the chest. They were indicative of peri mortem infliction of injury in the form of forcible compression to the chest. The forensic pathologist was of the opinion that death was the result of one or more applications of blunt force to the trunk and the injuries were strongly suggestive of the application of at least one episode of significant compressive force, perhaps by way of forceful stomping or kneeing.

35. Despite police investigation and significant media attention, the remains were not able to be identified for a number of years. The unidentified female became known as "the Angel of Belanglo" due to a t-shirt located with the remains with an "Angelic" motif.

36. Khandalyce's skeletal remains were found on 14 July 2015. They were within a suitcase on the side of the Karoonda Highway about 1½ km west of Wynarka in South Australia, about half way between Adelaide and the Victorian border. The remains were identified as being those of a young child and were located with various clothing items as well as fauna such as cockroaches and spiders. It was determined that the child's age at death was 1.2 to 4.8 years.

37. Inside the mouth of the child were two balls of blue and white disposable dishcloth and her mouth was taped closed with grey adhesive tape (consistent with the multi-purpose wipes and duct tape purchased by the offender in Wagga Wagga). A disposable nappy had been applied around the right side and front of the skull. A towel, consistent with the type of towel in the motel at Narrandera, was wrapped around the lower part of the torso and also around the skull. The forensic pathologist was of the opinion that the body was not in a skeletal state when put in the suitcase.

38. There were no signs of injury to the skeletal remains and so, in the absence of soft tissue, a cause of death could not be determined. The dish cloth in the mouth and the tape around the lower face and nasal region were consistent with gagging. The forensic pathologist was of the opinion that death could have been caused by asphyxiation.

39. South Australian police conducted an extensive investigation, including the circulation of media posters, in an effort to identify the remains found at Wynarka. There was a break through when a close friend of Karlie's mother recognised clothing depicted in material circulated by the police. She contacted Crime Stoppers on 6 October 2015 and the information ultimately led to the identification of the remains through DNA testing as Khandalyce Kiara Pearce who had been born in June 2006.

40. On 16 October 2015, DNA testing confirmed the identity of the remains found at the Belanglo State Forest as Khandalyce's mother, Karlie. Karlie was born in August 1988 and so she was aged 20 at the time of her death.

Admissions made to Hazel Passmore

41. It has been mentioned that the offender gave conflicting accounts to Ms Passmore about what had happened to Karlie. He told her she had returned to Alice Springs but also claimed she had gone to Queensland. In about mid-2009, Ms Passmore was looking through the boot of the car that the offender had driven back from Canberra and she found items belonging to Karlie. This made her angry because she suspected that the offender had lied and that he was still in some type of relationship with Karlie. When she confronted him he told her that Karlie was dead. He told her that he had raped her with a bottle, he had stomped on her throat and he had crushed her windpipe. She asked him about Khandalyce and he told her that he had suffocated her. [12]

    12. Exh E l229; l1475

42. Ms Passmore asked the offender why he had killed Karlie and he said that it was because he wanted to come back to Ms Passmore. According to her, he said, "He did it for me". [13]

    13. Exh E l 1640

43. Ms Passmore also said that the offender told her in relation to Khandalyce that "he sexually abused the body before he dumped her". She said, "He said he had sexual intercourse with the body and tripped it". Ms Passmore was asked by police to provide more information about this account but she gave details that were clearly incorrect: for example, that Karlie and Khandalyce were killed in the same location. [14] This would indicate a number of possibilities including that the offender was being inaccurate in what he told Ms Passmore or that she recalled what he told her inaccurately. Caution is therefore necessary in accepting this aspect of her account. The least that can be confidently taken into account is what is included in the agreed facts; that the offender was "attempting to or planning to sexually assault Khandalyce at the time of her death".

    14. Exh E l 1961-l 2000

Giving the appearance that Karlie and Khandalyce were alive

44. The offender engaged in a number of activities following the murders that gave the impression that Karlie and Khandalyce were alive. He used her mobile phone to send text messages, including to members of her family such as her mother, purporting to be from her. Such messages were sent as early as a few days after the murder and there was a flurry of them soon after the police made contact with the offender in September 2009. Police subsequently determined that the offender used Karlie's mobile telephone service up until May 2011.

45. The offender also used Karlie's bank account after her death. Funds were transferred to the account by Centrelink and the Australian Taxation Office. The offender's employer credited his wages to the account. Aside from withdrawals and transfers from the account he charged expenses to Karlie's credit card. Ms Passmore also charged expenses to the account. The undisputed facts described this activity continuing through 2009 and up until to 2012.

46. The offender also engaged in fraudulent activities relating to Karlie's social security accounts including Centrelink, Medicare and Child Support. By way of example, on 15 December 2010 an associate of the offender purporting to be Karlie attended a Centrelink service centre and produced a copy of Khandalyce's birth certificate. This interaction resulted in $7806 for arrears of Family Tax Benefit and Rent Assistance payments being credited to Karlie's bank account.

47. The total amount fraudulently debited from Karlie's bank account after her death is in the order of $72,000.

48. A number of Karlie's belongings were found amongst the offender's possessions when police executed search warrants in 2015. These included her mobile phone, Medicare card and a library card.

Other items recovered by police

49. Police came into possession of a notebook belonging to the offender. Within that notebook, in his handwriting, was a list of about 30 children identified by their age (and sometimes their first name) with details such as "rape", "forced" or "consent" next to the entries. One of the entries identified the child as "Khandles", the nickname for Khandalyce.

50. Some of the entries in this list included locations which are places at which the offender stayed during 2006 and 2007. However, the Crown accepts that there is no evidence that the other names mentioned in the list were persons who were in fact assaulted by the offender. The Crown relies upon the list as evidence of fantasies on the part of the offender.

51. Writings pertaining to sexual assaults of children were also found amongst some of the offender's discarded belongings. These were linked to the offender through DNA, fingerprint and/or handwriting evidence. Some of them describe fantasies of children of different ages being sexually assaulted. Some of the acts described also convey similar themes to the sexual acts depicted in photographs he took of Karlie in the Belanglo State Forest.

52. One example of these writings is a notebook which contained writings explicitly detailing child abuse fantasies. They were written by Ms Passmore at the offender's direction when they were living together before the car accident in 2008. [15]

    15. She said that he would ask her to talk about her experiences as a child – to get him aroused for sex Exh D p75-78

The offender's accounts to police

53. The offender was interviewed by police on 21 October 2015. He denied involvement in, or knowledge of, either murder and told some elaborate lies in support of such denials. He was interviewed again on 28 October 2015 when he told police that most of what he had said in the first interview was not true. He then told different lies.

54. Following the interview on 28 October 2015 the offender was arrested and charged with the murder of Karlie. He told police, "You've got the wrong guy. You'll see."

55. On 15 December 2015 the offender was arrested and charged with the murder of Khandalyce.

The offender's account of what he did

56. The only known account by the offender as to what he did in killing Karlie and Khandalyce is what he told Dr Olav Nielssen, forensic psychiatrist, who interviewed the offender on 8 August 2018 for the purpose of preparing a report to be tendered on sentencing. Dr Nielssen reported as follows as to the death of Karlie:

“When asked to say what happened in his own words, he said that he and Ms Pearce had gone for a drive together and left her daughter in the care of his cousin in Canberra. He said 'they were trying to get me away from the drugs … we went on a trip to go sight seeing and have a good time', and said that they had driven off the highway into the forest to 'have a bit of quiet time to ourselves'. He said 'we had just finished having sex and that … I can’t remember exactly what she has said … she has threatened to tell my ex … Hazel something … that we had an affair in Alice Springs before the accident … I grabbed the broom handle [used to hold up the tailgate of the car] and hit her over the rib cage … she started vomiting blood and I panicked and took off'. He said that Ms Pearce was still alive when he left, but said 'she wasn’t going to live … when I saw the blood and that I knew she was not in a good way and I just panicked and took off'. He said 'I had that many drugs in me and I was not thinking straight'.

Mr Holdom said that [redacted by the parties by agreement] her death was the result of a serious assault that followed the argument. He said that he was 'well and truly' intoxicated with a combination of MDMA (ecstasy) and methamphetamine. When asked about the effect of the drugs on his mental state, he said 'I was in lots of different states of mind … I was happy and then I would get angry … I was still struggling to come to terms with the accident'. He did not report any persecutory beliefs involving Ms Pearce, for example, that she planned to harm him, other than to disclose their affair to Hazel."

57. As to the offender's account concerning the death of Khandalyce, Dr Nielssen reported:

“When asked about the death of the child, he said 'it’s horrible I guess … she got suffocated … not turning up with her mum would have raised questions about why her mum was not with her'. When asked, he said that he killed the child while he was in Canberra, and took her dead body with him in the car on the way to Adelaide and left her beside the road.”

58. These accounts of how and why the offender killed Karlie and Khandalyce are substantially inaccurate. It is almost impossible to conceive Karlie's fatal injuries being inflicted by her being hit over the rib cage with a broom handle. The undisputed facts included that "the injuries were well in excess of that expected from, for example, punches to the chest" and that "actions such as stomping or kneeing the chest could have caused" them. It is not possible to reconcile the references to the offender panicking and taking off when he saw the blood, but while Karlie was still alive, with the photographs showing her obviously deceased but with no blood visible. The claim that Khandalyce was killed in Canberra was accepted at the sentence hearing to be wrong. [16]

    16. T15.10

59. Not only are the offender's accounts inaccurate, they are also grossly deficient in explaining (truthfully) why he did what he did. It is unfortunate that Dr Nielssen did not ask the offender to explain matters such as the taking of the photographs and why he did the things that they depict. As will be discussed later, Dr Nielssen was asked specifically for his opinion as to whether aspects of the offender's upbringing were causatively related to the offending. An opinion as to that would surely depend upon having a detailed and complete account from the offender as to what he did and why he did it.

The offender's background and personal circumstances

60. The information available as to the offender's background and personal circumstances includes the report by Dr Nielssen, a report by Ms Miriam Wyzenbeek, clinical and forensic psychologist, dated 10 March 2014, and a statement and affidavit by the offender's sister. Other sources of information are historical records from the 1980s concerning events in his childhood and adolescence and his own writings about events in his life that he generated when undergoing a rehabilitation program in prison in 2015, prior to his arrest for the present matters. The latter includes a letter apparently written by the offender's mother which confirms aspects of his relationship with his stepfather. [17]

    17. Defence bundle, tab 5, p1626

61. For the reasons that follow it is clear that considerable caution is necessary in accepting things reported to have been said by the offender when he has not given evidence and there is no independent verification. The need for caution in relation to untested out-of-court statements made to third parties is well known in sentencing law. [18]

    18. See Imbornone v R [2017] NSWCCA 144 at [57] (Wilson J, Hoeben CJ at CL and myself agreeing)

62. Some aspects of the history the offender provided to the authors of reports do not coincide with the records from the 1980s. The history he gave to the author of one report is not consistent in all respects with the history he gave to another. These inconsistencies could be attributed to the offender having an unreliable memory but there is also a question about his general credibility.

63. One example of inconsistency in the offender's account of his life history is in relation to something he would be expected to recall with reasonable accuracy. He told Ms Wyzenbeek his father died when he was aged about 20 whereas he told Dr Nielssen this was when he was aged around 15. I note also that in 2015 he wrote that his father passed away on 14 December 1992 (when he was aged 18). [19]

    19. Wyzenbeek report, [14]; Nielssen report, p 6.2; Defence bundle, tab 5, p1585. The offender's sister said in her statement (at [31]) it was in 1994, so the offender would have been aged about 20, but in her more recent affidavit (at [32]) she contradicted that, saying the offender was aged 16.)

64. Another example of inconsistency in respect of a matter where a reasonable degree of accuracy might be expected concerns the offender's relationship with Ms Passmore. He told Ms Wyzenbeek it was of 11 years' duration while he told Dr Nielssen it was for 4 years. [20]

    20. Wyzenbeek report, [23]; Nielssen report, p 6.5

65. Another example of inconsistency is that he told Ms Wyzenbeek he had never been unfaithful in a relationship in his adult years but contradicted that in telling Dr Nielssen that he had a casual relationship with Karlie while he was living with Ms Passmore. [21]

    21. Wyzenbeek report, [27]; Nielssen report, p 6.5

66. A general question concerning the offender's credibility arises from his history of committing dishonesty offences (which is discussed below), his fraudulent use of Karlie's identity and bank and credit card accounts after her death and his callous deception of the family and friends of Karlie and Khandalyce by sending text messages that made people think they were still alive. He is clearly a man capable of deceiving others when it serves his purpose.

Dysfunctional and abusive upbringing

67. The offender was born in 1974 and so he was aged 34 at the time of the murders and is now aged 44.

68. Even with the potential unreliability just noted, it is contended by the defence and not disputed by the Crown that the offender suffered an abusive and neglectful upbringing resulting in significant maladjustment and disadvantage during his formative years. Ms Wyzenbeek opined:

“These experiences, have likely contributed to the mental health, interpersonal and behavioural difficulties that he has experienced throughout his life (including his recurring legal difficulties).”

69. The offender's parents separated when he was an infant. He then lived with his mother, stepfather and sister in Orange in the Central West of New South Wales until he was 8 or 9 years old. His stepfather was an alcohol-abusing, brutal and uncaring man who physically and emotionally abused the offender from the time he was 3 or 4 years of age.

70. There was sexual abuse as well and this is said to have been by both his stepfather and his stepfather's brothers. Precisely when that occurred is not clear, given he was in foster care from the age of about 8 or 9 until the age of 15 by which time the stepfather had separated from his mother and moved to Sydney.

71. The physical abuse included being assaulted, being deprived of food and being locked in rooms. His sister described specific examples including the offender being regularly hit with a thong and a belt and being slapped across the face and ear; sustaining burns to limbs from hot water being poured over him; and being forced to stand in the corner all day on his birthday. She said he was deprived of food and clothes, was often confined to his bedroom and was never given gifts. His mother described an occasion when she intervened to stop the offender being smothered with a pillow and another when he was pinned to the ground in the backyard and was being slapped to the face. The offender ran away from home on occasions but was always returned by police.

72. The offender's stepfather was also violent towards his mother. His sister described their mother being hit over the back with a chair and being sat upon while a knife was put to her throat. Such violence occurred in the presence of the children.

73. The offender told Ms Wyzenbeek that he had extensive non-attendance at school, partly as a result of his stepfather's abuse because he felt ashamed of bruises and marks that were visible following abusive incidents, and partly due to general delinquency. [22] He told Ms Wyzenbeek that he experienced difficulties complying with rules in all contexts (home, school and the community); that he had weekly contact with police as a result of his deviant behaviour; and that he would often initiate fights with his peers.

    22. Wyzenbeek report, [11]

74. The offender told Ms Wyzenbeek that his mother was aware of the abuse but she made no effort to protect or support him. (His sister's account tends to confirm this but his mother's brief account suggests the contrary.) He said that this caused him to feel anger towards her as well as his stepfather. Ms Wyzenbeek wrote that "aggression and violence was readily modelled and the norm in the family unit that Mr Holdom was raised [in]". [23]

    23. Wyzenbeek report, [11]

75. In a report to the Children's Court for a hearing on 20 August 1984 in relation to "incompetent guardianship", a District Officer of the Department then known as Youth and Community Services wrote:

"Over time further information became available to this Officer, the most startling being that the mother admitted that due to circumstances surrounding the birth of Danny, that she had always withheld affection from the child as she felt that he would die in some dramatic way and the mother did not wish to be hurt when that happened. The mother also expressed her concern about the [step]father's physical abuse of the child, although the [step]father has continued to deny any physical abuse." [24]

24. Defence bundle, tab 4, p151

76. The precise details vary because the histories the offender gave to Ms Wyzenbeek and Dr Nielssen are not identical and do not always coincide with the historical records. The offender was taken into foster care at what seems to have been the age of about 9. He lived in some short-term foster homes but then shortly after the Children's Court hearing on 20 August 1984, not long before his 10th birthday, he was placed in to the care of his natural father who lived in the area of Taree on the Mid-North Coast of the State. That worked well for a short time but his father moved away for work purposes and the offender was placed into the care of his paternal grandparents. That did not last long either. Behavioural problems emerged. In mid-1985 he returned to Orange where he was taken into the care of the United Protestant Association and placed in a group children's home.

77. There are frequent "progress reports" within the historical records from 1985 when the offender was aged 10 until early 1990. They contain some references to his involvement in minor stealing incidents and fights at school. Overall, however, they indicate that he lived a far more pro-social life and was better looked after than the histories he gave to the authors of recent reports would indicate. (Compare the account given to Dr Nielssen who referred to the offender's "turbulent behaviour in foster care". [25] ) There are comments about his behaviour having "improved remarkably"; being "very happy" in the group home; being "well-liked by most people he contacts"; that he was "trying hard at school"; seeming to be "quite happy and contented at the moment"; and being "very co-operative in the home and eager to help out if at all possible".

    25. Nielssen report; p. 8.8

78. The records in this period also speak of his participation in pro-social activities: he was involved in Boys' Brigade for a number of years; he enjoyed ten-pin bowling; he was complimented on the enthusiasm and success of his fund raising for charities; and he was congratulated on being selected to represent his school (with some success) at a district swimming carnival.

79. On a darker note, a "regressional therapist", Mr Warwick Evans, who the offender saw on a number of occasions for what seems to have been some quite intensive sessions of counselling during 1988 (at the ages of 13-14), is said to have described him as "a very damaged young boy". [26]

    26. Defence bundle, tab 4, p272

80. By about the end of 1985 (when the offender was aged 11) his mother and stepfather had separated. The stepfather ultimately moved to Sydney but returned to Orange periodically to see his children. Efforts were made for the offender to spend time with his mother and his step-brothers but they were often thwarted by the attendance of the stepfather. There does not appear to be any further physical abuse but there were instances of psychological abuse. This appears to have had a negative effect upon the offender's behaviour and attitude but only in the short-term. It had a tendency, however, to thwart attempts for the offender to spend more time in the family environment. This seems to have largely resolved by the end of 1989 (when the offender was aged 15) and from early 1990 he returned to live full-time with his mother and step-siblings. [27]

    27. Defence bundle, tab 4, p228; 243, 245

Education

81. The offender told Ms Wyzenbeek that his education was marred by his behavioural and social difficulties as well as by the disruption caused by moving between foster homes and from being expelled. He told her he left school at the age of 14 to work in a factory. He said he had been in trouble at school for fighting with students, being disruptive in class, truanting frequently and for lengthy periods, being under the influence of drugs and generally being non-compliant with rules. He identified himself as a "bully". Ms Wyzenbeek considered that such behavioural problems and poor social competence at school reflected the offender's maltreatment and abuse at home.

82. The offender wrote in a similar vein in his 2015 writings; for example, that he was asked to leave school or be expelled half way through Year 7 so he left as he had a job to go to. [28]

    28. Defence bundle, tab 5, p 1583-4

83. A completely different picture emerges from the historical records. Although they include multiple mentions of incidents of stealing and comments about the offender's distractibility, there are many descriptions of a more positive nature. For example, there was a report in 1985 that "his general behaviour has been good". [29] In 1986 he was said to have "worked reasonably well in the top groups in the class in all areas throughout the year". [30] The records showed that he remained in school until Year 9 in 1990. Attendance records are available for Years 7 and 8 (1988 and 1989) and they contradict the offender's claim as to frequent and lengthy truancy. A mid-year report in 1989 includes a comment endorsed by the Principal that "Daniel has worked very hard and should be pleased with his achievements. Daniel has become a very co-operative student who always tries to please." [31]

    29. Defence bundle, tab 4, p 184

    30. Defence bundle, tab 4, p 196

    31. Defence bundle, tab 4, p 304

Employment history

84. The offender told Ms Wyzenbeek that he worked in a white-goods factory from the ages of 16 to 21 and then as a kitchen hand for two years. He also said he worked in a travelling circus, in hospitality and as a labourer. He told Ms Wyzenbeek that since the car accident in September 2008, aside from two brief periods of employment, he was primarily unemployed and he attributed this to difficulties associated with his mental state and drug use. [32] In his own writings, however, he said that at some stage in that period, "I held 2 jobs in 15 months both resulting in me overworking to the point of exhaustion or breakdown, it was a way of punishing myself". [33]

    32. Wyzenbeek report [18]-[19]

    33. Defence bundle, tab 5, p1592

85. Ms Passmore's account includes that when they moved from Queensland to Taree they started a business involved with metal recycling and car detailing and when they moved to Alice Springs he had a job with a business she thought was called Sprint Autos. [34] In one of his accounts he said that he and Ms Passmore started a car detailing business there. [35]

    34. Exh D, p15-16

    35. Defence bundle, tab 5, p1589

Relationship history

86. The offender has had four long-term relationships. The first was for a period of about 6 years from about 1994 and he has acknowledged being violent towards this partner on multiple occasions. A son and a daughter were born to this relationship. In his 2015 writings, the offender gave an account of resenting his wife talking him into giving up playing football because of the number of serious injuries he had sustained. He reverted to drug use and ultimately, after a move to Coffs Harbour where his drug use continued, the relationship ended. [36]

    36. Defence bundle, tab 5, pp.1587-8

87. The offender's second relationship was for about 2 years. He told Ms Wyzenbeek he was verbally abusive towards this partner. He wrote (in 2015) that it was "based on drugs and dealing [with the] wrong crew of people". This may be the short-lived relationship in which there was an incident of attempting to choke his partner on 20 December 1999 that will be more fully described later (at [98]).

88. The next relationship was formed with Ms Passmore who he met after he moved to Queensland.

89. Finally, the offender told Ms Wyzenbeek that at the time of a child sexual assault offence he committed in April 2013 (which will be described later – at [99]) he had been in a relationship for eight months but he was not committed to this partner.

Substance use history

90. The offender told Ms Wyzenbeek that he commenced using cannabis at age 11 and had been a regular user throughout his life since the age of 15. He reported smoking amphetamines from the age of 26, using ecstasy at certain times, and that there was problematic use of methylamphetamine in the form of "ice" from the age of 32 (2006) until incarceration in 2013. He gave a similar account to Dr Nielssen although he appears to have placed more emphasis on the car accident, saying that his use of stimulant drugs was "intermittent" before but "heavy and continuous" afterwards. [37]

    37. Nielssen report, p.5.5

91. The history provided to Dr Nielssen included a claim by the offender that following the car accident in September 2008 he had recurring nightmares and "lost all interest in everything", "did not care", "went on all sorts of drugs", "tried suicide three times" and "just could not forgive myself". Given he was already an ice user for some years it is difficult to gauge the accuracy of this in the absence of evidence from the offender himself or independent confirmation, although it is probably safe to accept that he suffered some psychological trauma as a result of such a serious and tragic accident. Evidence confirming the claim of suicide attempts is not at all clear (compare what he has said with Exhibit B) but I do not think it is sufficiently significant to dwell upon.

Criminal history

92. The offender has a criminal record in this State, Queensland, South Australia and the Northern Territory. From 1997 his crimes have included matters such as assault; contravention of an apprehended domestic violence order; break, enter and steal; various types of fraud and general dishonesty offences; having custody of a knife in public; and having sexual intercourse with a child under the age of 10. The offender has breached various court orders such as intensive correction orders.

93. The offender's first experience of serving a gaol sentence was in 2005-6 when, on appeal, he was sentenced to an effective total term of imprisonment of 12 months with a non-parole period of 8 months, for making a false representation resulting in a police investigation as well as for multiple offences involving passing bad cheques. He served the non-parole component from September 2005 until May 2006. (I note that the offender told Dr Nielssen that "he served a two year sentence for public mischief and other offences from about 2002 and was at liberty from 2004 to 2013" and "he served eighteen months or two years for public mischief up to 2004". [38] )

    38. Nielssen report, pp 2.1; 5.5; 6.7

94. The offender received 4 month terms of imprisonment in Queensland in December 2006 for various offences and breaches of court orders.

95. The offender was arrested on 1 May 2013 for a child sexual assault offence and has remained in custody since. He received an aggregate sentence of 2 years with a non-parole period of 8 months backdated to 1 May 2013 for various fraud and dishonesty offences, the non-parole period expiring 31 December 2013. He remained in custody because he was refused bail on the child sexual assault offence. That matter came before the District Court on 24 March 2014 when a sentence of 4 years 3 months with a non-parole period of 2 years backdated to 1 October 2013 was imposed. He became eligible for parole in respect of this sentence when the non-parole period expired on 30 September 2015.

96. The offender was refused parole in 2015; the State Parole Authority was of the view that (a) the offender needed to complete a sex offending and alcohol and other drugs program to address his offending behaviour; and (b) there was a need for structured post-release plans and/or accommodation to be finalised. Parole was refused again on 15 September 2016 because he still needed to complete a program but also because the offender had outstanding charges (the present matters) that needed to be finalised.

97. I will date the sentences from 15 September 2016 because the offender may well have received favourable parole consideration then, if it were not for the present charges. It is appropriate to partly accumulate upon the sentence for the child sexual assault matter because it represents entirely separate and distinct criminality.

Facts relating to some prior offences

98. The Crown tendered (without objection) papers relating to some of the previous charges, one being an assault offence which occurred on 20 December 1999. The facts in relation to that offence include that the offender and the victim had been in a relationship for a short period of time. One night she told him that the relationship was over. It is said that he did not take this information well and attempted to have the victim change her mind. Later that night he went into her bedroom, told her that she had destroyed his life, and placed grey sticking tape across her mouth and a pillow over her face. He then removed the pillow and placed both hands around her throat and squeezed, pushing his thumbs in. She was able to beg him to stop. He apologised, told her not to report the matter and he left. The only matter of violence on the offender's record at that stage was a prior matter of assault in 1997 for which he was fined $200. For this matter he was fined $2000.

99. The child sexual assault offence for which the offender was sentenced in the District Court in 2014 was an offence of sexual intercourse with a child under the age of 10. It occurred at the Blue Bay Caravan Park on the New South Wales Central Coast. On two occasions within two days while his girlfriend was away on a trip to Canberra he had a 9-year-old girl who lived in a neighbouring caravan in his own caravan. The girl's mother was unaware that the offender's girlfriend was away. On the first occasion the offender removed the girl's pyjamas and underpants and licked her vagina. He asked her, "Did that feel nice?" and she replied that it did not. He told her not to tell her mother about what had happened.

100. Two days later the child's mother found her in the offender's caravan after he had told her that the child was elsewhere. The mother subsequently spoke to the child and found out what had occurred. The offender was interviewed by police and denied the complaint. DNA testing of the child's underwear confirmed his guilt. He later told Ms Wyzenbeek that he was under the influence of methylamphetamine at the time and had not slept for a period of three days prior. He claimed the offence was something that occurred on the "spur of the moment" and was "stupid"; he realised almost immediately that it was "wrong" and stopped. He told Dr Nielssen "I don't know what I was thinking or why I did it".

Psychological and psychometric assessment

101. I do not propose to place any reliance upon that part of Ms Wyzenbeek's report which discusses the results of psychological and psychometric assessment. Such assessment was carried out for the sentencing in respect of the child sexual assault offence and in circumstances in which the offender had not disclosed his responsibility for the two murders in 2008. How, if at all, his knowledge of his responsibility for committing such terrible crimes affected his performance in testing, is impossible to determine. Interpretation of the results could well have been different as well. For example, significant indications of anxiety and depression may have been more related to his fear of discovery for his terrible hidden secret than any of the other matters that were available to consider.

Psychiatric assessment

102. The offender gave an account to Dr Nielssen of having a family history of mental illness. It included that "schizophrenia … PTSD … ADHD and personality disorders run through the family". [39] Only one example was mentioned; a paternal uncle who the offender said had been diagnosed with schizophrenia. No family history of mental illness is mentioned in the offender's sister's affidavit which post-dates Dr Nielssen's report.

     39. Nielssen report, p.3.7

103. The offender provided an account to Dr Nielssen of having regular contact with psychologists and counsellors during his childhood, adolescence and early-adult life. There is no reason to doubt this given the circumstances of his upbringing. He gave an account of being prescribed psychotropic medications in both the community and in prison, the suicide attempts referred to earlier, and of having experienced persecutory beliefs and transient hallucinations. He claimed to be currently prescribed a combination of quetiapine, mirtazapine and amitriptyline.

104. Dr Nielssen made diagnoses of "depressive illness", "substance use disorder, in remission" and "probable personality disorder". The diagnosis of depressive illness was said to be made on the basis of the offender's account of long term feelings of depression, the history of several suicide attempts and the diagnoses made by previous treating doctors and the antidepressant medications they prescribed. The diagnosis of substance use disorder is unsurprising. The diagnosis of probable personality disorder was said to be a reference to enduring maladaptive personality traits. However, Dr Nielssen said:

"[T]here were some aspects of Mr Holdom's history that were not consistent with an inability to regulate his emotions or abide by social rules, including the history of fairly consistent employment, including around four years at a factory, and the history of long term relationships, including one seven years from which he had two children. Hence it is possible that despite the understandable effects of an horrific childhood that the observed features of adult personality disorder are at least partially due to his pattern of substance use." [40]

A causal connection between the circumstances of the offender's upbringing and commission of the murders

40. Nielssen report, p.8.5

105. Dr Nielssen was asked by the offender's solicitors to include in his report his responses to a number of questions. The first question was whether, on the balance of probabilities, the offender's abuse as a child contributed to the commission of the offences, and he said the answer was "obviously yes". Some of the other questions brought answers that were general and not necessarily applicable to the offender. [41]

     41. Questions 2 to 4, pp 8-9

106. Before I discuss this subject I stress that the establishment of a causal link between the circumstances of the offender's upbringing and the commission of the offences is not essential for his upbringing to be a matter properly to be taken account in the assessment of sentence. [42]

     42. Judge v R [2018] NSWCCA 203 at [29]-[32] (White JA, Bellew and Wilson JJ agreeing)

107. There are a number of reasons to be cautious about accepting Dr Nielssen's opinion in relation to a causal link. First, it is an opinion that is based upon an unquestioning acceptance of the offender's untested account, significantly as to his substance use history and, more significantly as to the circumstances pertaining to the offences.

108. As to the history of substance use, Dr Nielssen was told that the use of "stimulant drugs" (I assume he was referring to ice) was intermittent until the car accident in September 2008. However, he described to Ms Wyzenbeek a use of such drug that was "problematic" from the age of 32 (2006). The account provided to Dr Nielssen seems to have involved the offender placing particular emphasis on the car accident, claiming that he lost interest in everything and "went on all sorts of drugs". Dr Nielssen appears to have regarded this as significant, but whether the version he received, or the one Ms Wyzenbeek received, or something altogether different is correct is difficult to say.

109. As to the circumstances pertaining to the offences, one example is that Dr Nielssen was given an account that Khandalyce was killed because "not turning up with her mum would have raised questions about why her mum was not with her". What Dr Nielssen might have opined if he had been told that the offender now does not dispute that there was a sexual element to the murder of Khandalyce (in that he was "at least attempting to or planning to sexually assault Khandalyce at the time of her death") is unknown. It is also unclear whether Dr Nielssen had regard to the child abuse writings, fantasies and admissions described in the Crown Case Statement, a copy of which he was provided.

110. A related question Dr Nielssen was asked to address in his report was "what psychological process or processes can assist in explaining such a causal connection". His response does not directly correlate with the present offender's life in a number of respects and it is a response which I find, with respect, difficult to understand. Dr Nielssen wrote: [43]

"The psychological processes arising from early life neglect and abuse include an enduring increased perception of threat, the lack of basic moral education and socialisation that is the usual situation households that also condone the abuse of children, the tendency to imitate callous behaviour towards other people, a reduced capacity to self sooth in distressing situations without recourse to mind altering substances and the state of chronically dysphoric mood that usually accompanies severe personality disorder."

43. Nielssen report, pp.8-9

111. I do not know whether Dr Nielssen was suggesting that the offender in fact had a personality disorder and, if so, that it was "severe". (I note that when stating his formal diagnoses he qualified the personality disorder diagnosis as "probable" and then discussed the fact that its attributes may be at least partially due to the offender's pattern of substance use). He referred to the offender's "turbulent behaviour in foster care" but that is not a description that is borne out by the historical records. Dr Nielssen appears to have proceeded upon the basis that a large proportion of the offender's upbringing was one of physical, sexual and psychological abuse whereas that was the case up until he was aged 8 or 9 but not so much thereafter, if at all.

112. Another indication of Dr Nielssen not appearing to focus upon the actual life experience of the offender, particularly after he was aged 8 or 9, appears in his response to a question about cases or research demonstrating childhood abuse and later homicide. In responding to this he referred to the most common condition associated with homicide offences being substance use disorder and to it being also more likely that homicide offenders have a pattern of antisocial conduct beginning in adolescence. [44] If Dr Nielssen was suggesting that the offender in the present case had a pattern of antisocial conduct in adolescence, it is not borne out by any of the objective historical material and certainly not by his criminal record which did not commence until he committed a driving offence at the age of 19 and then an assault at the age of 23.

     44. Nielssen report, p.9.3

113. Another example of Dr Nielssen seeming to have misapprehended the factual material provided to him appears in his explanation for the causal link where in contrasting what he described as the offender's "turbulent behaviour in foster care" (a conclusion inconsistent with the historical records - see above at [77]) he said the offender's "life seems to have stabilised by his early twenties, with consistent employment and marriage". [45] The factual material provided to Dr Nielssen showed that in his twenties the offender was in a marriage that might have offered stability for a while but it ended when (as the offender described it in his writings [46] ) his wife "gave up trying to keep me on the straight and narrow" because she could not cope; he described how he had:

"[H]ooked up with the wrong crew and started getting into the drugs heaps and fighting and constant run in's with the law again".

45. Nielssen report, p.8.8

46. Defence bundle, tab 5, p1588

114. I note as well that the offender told Ms Wyzenbeek that this marriage, which he said commenced in approximately 1994 (when he turned 20) and lasted for about five years involved violence by the offender towards his partner on multiple occasions.

115. Dr Nielssen also appears to have accepted the offender's accounts of how and why he killed Karlie and Khandalyce whereas such accounts were inaccurate and deficient in the ways I have earlier described.

116. As a result of all of this, I find that it is not possible to have regard to the opinions expressed by Dr Nielssen as to how the offender's experience in childhood might bear upon his commission of the two murders.

Remorse

117. Remorse may be taken into account as a mitigating factor on sentence if the offender provides evidence that he/she accepts responsibility for what was done and acknowledges the injury, loss or damage caused. [47] It is necessary to refer to that because at the beginning of his submissions, senior counsel for the offender announced that his client apologised for his offences to the relatives of the victims and to the Court. [48] That clearly does not satisfy the statutory requirement for remorse and it was later clarified that it was not intended to. [49]

     47. Crimes (Sentencing Procedure) Act, s 21A(3)(i)

     48. T36.41. He does not appear now to be apologetic in relation to the murder of Khandalyce.

     49. T50.34

118. Dr Nielssen's report contains the only attempt made by the offender to explain what he did and why he did it. This was a report specifically prepared for the purpose of sentencing but even there, there is no suggestion that the offender said anything to indicate he was remorseful.

Family victim impact statements

119. Statements were read at the sentencing hearing on behalf of Mr Bruce Pearce, Karlie's father and Khandalyce's grandfather; Ms Lorna Pearce, Karlie's grandmother and Khandalyce's great grandmother; and Mr Scott Povey, husband of Ms Colleen Povey, the late mother of Karlie and grandmother of Khandalyce. There are many aspects of the grief they and all of the family and loved ones of Karlie and Khandalyce have suffered. They were cruelly given to think that they were alive, which gave rise to the torment and despair of not knowing where Karlie and Khandalyce were or what they were doing and, to some extent, anger as to why they had not returned home or at least why Karlie was not making contact. Sadly, Karlie's grandmother Connie passed away in September 2011 and her mother Colleen passed away in February 2012 and still there was no contact. The dreadful news that came in October 2015 compounded the pain and anguish for the rest of the family.

120. Recognition of harm caused to the community is one of the purposes of sentencing. In this case the impact of the death of Karlie and Khandalyce upon their immediate family is substantial but otherwise unquantifiable. It will be taken into account in determining the punishment to be imposed upon the offender. [50] I respectfully extend my most sincere sympathy.

     50. Crimes (Sentencing Procedure) Act, s 3A(g); 28(4)

Gravity of the offences

121. In making findings about matters that are adverse to the offender it is necessary that I be satisfied of them to the standard of beyond reasonable doubt. The lesser standard of the balance of probabilities applies to findings that operate favourably to the offender. [51]

     51. Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28]

The murder of Karlie Pearce-Stevenson

122. I accept completely the Crown submission that the last moments of Karlie's life must have been horrendous. She was physically separated from her child, alone in an isolated location in a forest with a man she had trusted and had romantic feelings for. He was a man of considerable height, size and weight whereas Karlie was described as being of child-like stature. She was killed brutally, most likely by the infliction of severe blunt trauma by the offender either stomping or dropping his knees on her chest and throat region.

123. Karlie was sexually assaulted – shortly before her death or afterwards. The offender compounded the indignity she suffered, whether in life or in death, of violating her in a most callous and sadistic way. He compounded this further when he took photographs of his unspeakable mistreatment which he kept as a vile trophy of his own inhumanity.

124. The final indignity inflicted by the offender was to abandon the body, half-naked, in the forest. Karlie's remains were not discovered for almost two years and it was not possible to identify them for a further five years.

125. The combined force of all of the circumstances point unequivocally to the offender having had nothing less than an intention to kill Karlie. His treatment of her showed complete disdain for her existence as a human being. To him, she was just flesh with a life that could be extinguished for his vile pleasure.

126. The Crown contended that there were four features which motivated the offender to kill Karlie. First, in order to gain access to her young daughter in whom he had a sexual interest. Secondly, there was asserted to be the prospect of financial gain by the subsequent fraud. Thirdly, there was the sexual motive in relation to Karlie herself. Fourthly, there was what the Crown described as a "thrill kill" as evidenced by the taking and keeping of the photographs.

127. I accept that there may possibly have been some or perhaps even all of these factors operating on the offender's mind. However, for these matters to be found against the offender it is necessary that there is proof beyond reasonable doubt and I am not satisfied that there is. The main reason for that is that the offender has chosen not to provide a reliable and detailed account of why he did what he did. The first two matters referred to by the Crown did subsequently occur but whether they were the subject of forethought by the offender – after all, he had an interest in the sexual abuse of young children and he had a history of fraud and larceny – or the product of an opportunity that occurred to him after the killing is difficult to discern. [52] The third and fourth matters were features of the killing and are part of what must be taken into account in assessing its objective seriousness. But whether the offender planned to act in this way or whether he did so as the opportunity occurred to him is once again, difficult to discern.

     52. The Crown Prosecutor conceded this in oral submissions in relation to the asserted financial motivation (T20.3).

128. Even without being able to be satisfied beyond reasonable doubt what it was that motivated the offender to do what he did, I am satisfied that the manner in which the offender killed Karlie Pearce-Stevenson and the circumstances in which it occurred amount to a murder of extreme gravity and appalling depravity. It is a murder at the top of the range of objective seriousness.

The murder of Khandalyce Pearce

129. With her mother having been murdered, Khandalyce became the two-year old child entrusted to the care of the offender when he assumed the responsibility of (so he said) taking her from Canberra to her grandmother in South Australia. He, in fact, planned to kill Khandalyce when a suitable opportunity and location became available. Hours in advance of doing so he purchased items that he would use in killing and disposing of her little body.

130. What precisely the offender did in killing Khandalyce is unable to be completely determined because of the circumstances in which he did so and the manner in which he disposed of her body. If she was conscious when her mouth was stuffed with dishcloth and duct tape was wrapped around her head, her death must have been attended by significant suffering before she passed into unconsciousness.

131. There was a sexual aspect to this murder in that it is accepted by the offender that he was "at least attempting to or planning to sexually assault Khandalyce at the time of her death". Given this, it is difficult to think why, when she would have been unable to resist him, he would not have gone ahead and done so, but whether he in fact did is indeterminable.

132. Whether the child was dead when she was placed in the suitcase is not known. He wrapped a disposable nappy around her head and a towel around her head and torso.

133. The killing of Khandalyce was likely prompted, at least in part, by the offender's need to cover up the murder of Karlie. Leaving Adelaide with the both of them and only returning with the child would have been difficult for the offender to explain. If this was not part of his motive, then he must have killed the child because she was a hindrance to him. Worse explanations for his conduct easily come to mind but must be put aside because of the requirement of proof beyond reasonable doubt.

134. Having regard to the method by which the child was suffocated and the body wrapped and put in a suitcase, I am satisfied that the offender's intention was nothing less than to kill.

135. This murder is also at the top of the range of objective seriousness. That is so even if only on the bare fact that the victim was a completely defenceless two-year old who was intentionally killed (with some forethought) by being suffocated and stuffed in a suitcase and dumped. Adding to this the sexual assault element only makes it the more despicable.

Relevance of the offender's mental condition

136. The various ways in which a mental disorder or disability at the time of offending or at the time of sentencing may be taken into account have been described in many well-known appellate cases. [53] For the reasons already given I am satisfied that the offender's actions were deliberate, purposeful and subject of some prior consideration. I am satisfied that the offender completely understood what he was doing and its wrongfulness.

     53. For example, in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL)

137. I am not satisfied that the offender had a mental health condition that contributed to the commission of the murders in a material way. His moral culpability is not reduced on such account. There is nothing to justify less weight being given to either general or personal deterrence, nor anything that means that a custodial sentence may weigh more heavily upon the offender.

A life sentence?

138. Murder is an offence that carries a maximum penalty of imprisonment for the term of a person’s natural life: s 19A Crimes Act. No non-parole period can be fixed if a life sentence is imposed; the offender must serve the remainder of his or her life in gaol with no prospect of release.

139. The Crown has submitted that this is a case in which the maximum penalty of life imprisonment should be imposed in respect of each murder. On behalf of the offender, it has been submitted that there should be determinate, albeit very lengthy, sentences.

140. Section 61(1) of the Crimes (Sentencing Procedure) Act provides that a court is to impose a sentence of life imprisonment if it is satisfied that the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

141. It is the combined effect of the findings concerning those four indicia in s 61(1) that must be considered. [54] It is for the Crown to prove beyond reasonable doubt that a case falls within s 61(1). [55]

     54. R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [52]-[54]

     55. R v Merritt at [35]

142. Section 21(1) of the Crimes (Sentencing Procedure) Act provides that, even though liable to a sentence of life imprisonment, an offender may receive a sentence for a specified term. It has been said that a court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty and then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty. [56]

     56. R v Miles [2002] NSWCCA 276 at [204]. See also R v Valera [2002] NSWCCA 50 at [8]; and R v Merritt at [37]

143. In R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469, it was held that the common law in relation to imposing the maximum penalty for murder still applied. Under the common law the maximum penalty is intended for cases within the “worst case category”: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46. Wood CJ at CL in R v Harris referred to authority for what constitutes the “worst case” as follows:

“[84] The features required for qualification in the ‘worst case category’ were defined in Twala NSWCCA 4 November 1994, where it was said:

‘in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)…’

[85] ‘Heinousness’ has been described as follows:

‘The adjective ‘heinous’ which gives the noun ‘heinousness’ its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one’. R v Reginald Keith Arthurell (Hunt CJ at CL unreported 3 October 1997).”

144. A life sentence may be imposed even though, as here, the offender has pleaded guilty. [57]

     57. R v Miles at [213]; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [157]-[158]; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at [37]

145. Ill-treatment of the deceased’s body can be taken into account in the assessment of seriousness. [58]

     58. R v Knight at [28]-[29]

146. The future dangerousness of an offender is a highly relevant factor. However, dangerousness alone is not sufficient to bring a murder into the worst case category. [59] It is impermissible to increase an otherwise appropriate sentence merely to achieve preventative detention. [60] On the other hand, the absence of a finding of future dangerousness does not rule out the applicability of s 61(1). [61]

     59. R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at [24]

     60. Veen v The Queen (No 2) (1988) 164 CLR 465 at 473, 474; [1988] HCA 14

     61. R v Merritt at [54]

147. It is sufficient if a risk of re-offending is established by the Crown; it is not necessary that it be established beyond reasonable doubt that an offender will in fact re-offend. [62]

     62. R v Robinson [2002] NSWCCA 359 at [48]–[50] and R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310 at [40]

148. The circumstances of the offence at hand may be taken into account in determining the question of future dangerousness: R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep) where it was also said (at p 11):

“It is now well settled that the protection of society — and hence the potential dangerousness of the offender — is a relevant matter on sentence (Veen v The Queen (No 2) (1988) 164 CLR 465). This factor cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. But it can be used to offset a potentially mitigating feature of the case, such as the offender’s mental condition, which might otherwise have led to a reduction of penalty … in the case of homicides involving a high degree of culpability, the fact that the offender will be likely to remain a danger to the community for the rest of his or her life might justify the imposition of life imprisonment.”

149. Care is required in assessing future dangerous, however, as prediction of what might occur, sometimes many years into the future, is recognised as being notoriously difficult. [63]

     63. See, for example, Fardon v Attorney General (Qld) (2004) 223 CLR 575; [2004] HCA 46

150. There is force in the Crown submission that the offender's conduct in murdering Karlie and Khandalyce provides a picture of a man devoid of real empathy and care for other people and motivated largely, if not solely, by self-interest and self-gratification. [64] The fact that the offender was prepared to do what he did to each of them, including the sexual aspects; his conduct afterwards such as the retention of "trophy" photographs of the indignities he inflicted; his lack of a proper and credible explanation of what he did; his lack of remorse; his history of violence towards women; and his sexual assault of a 9-year old child which post-dated the murders; all contribute to a conclusion that the offender, at least for the foreseeable future, represents a danger to society.

     64. T35.11

151. The subjective mitigating factors that are available to take into account in the offender's favour are few. The most significant matter is, of course, that he was the victim of atrocious abuse from his stepfather when he was very young. The offender's pleas of guilty are another matter that must be taken into account. There is nothing else in terms of statutory or general law mitigating factors.

152. It is possible that the circumstances of the offender's upbringing did play a role in shaping the course of his future life. It may have rendered him more susceptible to depression and to engage in the abuse of illicit drugs, if not all the time then at least at times of personal stress. There may have been in some way an imbalance in the offender's moral compass as a result of the harsh physical abuse and indignity of the sexual abuse he experienced at the hands of his stepfather which was not counterbalanced by having the love and support of his mother. That is about as much weight as may be given to this subject.

153. In the end, however, I am satisfied beyond reasonable doubt that the offender has a level of culpability for each of the two murders that is so extreme that the community interest in its protection and in retribution, punishment and deterrence can only be met through the imposition of a life sentence. That does not necessarily mean that life sentences must be imposed. But aside from consideration of the statutory provision[65] I am also satisfied that each of the offences meet the common law description of being in the worst case category. [66] They are crimes that meet the description of being of very great heinousness. Having regard to either basis, I am satisfied beyond reasonable doubt that offender's culpability is so extreme, and that his crimes are of a level of heinousness, that no objective or subjective factor(s) mitigates the need to impose the ultimate sentence.

     65. Crimes Act, s 61(1)

     66. The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at 265-6 [18].

Sentence

154. The offender is convicted for the murder of Karlie Jade Pearce-Stevenson at Belanglo State Forest on 15 December 2008 and the murder of Khandalyce Kiara Pearce at Narrandera on 19 December 2008.

For the murder of Karlie Jade Pearce-Stevenson the offender is sentenced to imprisonment for life.

For the murder of Khandalyce Kiara Pearce the offender is sentenced to imprisonment for life.

Both sentences are to date from 15 September 2016.

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Endnotes