R v Homann

[2018] NSWSC 757

Supreme Court

New South Wales

Medium Neutral Citation:	R v Homann [2018] NSWSC 757
Hearing dates:	Dates of trial: 28 February; 1, 2, 5, 6, 7, 8, 9, 12, 13 March 2018Proceedings on sentence: 4 May 2018
Date of orders:	25 May 2018
Decision date:	25 May 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Offender convicted of the murder of Kirralee Paepaerei on 21 September 2015 and sentenced to a term of imprisonment for 30 years with a non-parole period of 22 years and 6 months commencing on 22 September 2015 and expiring on 21 March 2038 and a balance of term of 7 years and 6 months years expiring on 21 September 2045
Catchwords:	CRIME – sentencing – murder – offender experiencing symptoms of psychosis at time of offence – whether psychosis drug-induced or due to chronic psychotic illness – whether moral culpability diminished on account of psychosis – whether offence aggravated by offender’s prior personal knowledge of risk of drug-induced psychosis – victim pregnant at time of offence – consideration of significance of that fact – domestic violence – whether offence aggravated by domestic context – whether offence separately aggravated by the fact that the offence was committed in the home of the victim
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(3)(b), 28(4), 54B, Pt 4 Div 1A Table 1, 61(1) Crimes Act 1900 (NSW), ss 19A, 23A, 418
Cases Cited:	Cherry v R [2017] NSWCCA 150 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Jonson v R [2016] NSWCCA 286 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 R v Bell (1985) 2 NSWLR 466 R v Fraser [2005] NSWCCA 77 R v Gagalowicz [2005] NSWCCA 452 R v Halloun [2014] NSWSC 1705 R v Stephenson [2007] NSWSC 672 R v Valiukas [2009] NSWSC 808 Yeung v R [2018] NSWCCA 52
Category:	Sentence
Parties:	Regina Joshua Scott Homann (Offender)
Representation:	Counsel: S Hughes (Crown) P Lange (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Aquila Lawyers (Offender)
File Number(s):	2015/277906
Publication restriction:	None

Judgment

1. HER HONOUR: Joshua Homann has been found guilty by a jury of the murder of Kirralee Paepaerei. He now stands to be sentenced for that offence.

2. The maximum penalty for murder is imprisonment for life. [1] The Crown did not contend that the present offence calls for the imposition of that penalty. [2] The standard non-parole period specified for the offence is 20 years. [3] That is intended (as a guide) to denote the non-parole period for an offence in the middle of the range of objective seriousness. [4]

   1. Crimes Act 1900 (NSW), s 19A(1).

   2. Cf Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1).

   3. Crimes (Sentencing Procedure) Act, Pt 4 Div 1A Table item 1.

   4. Ibid s 54B.

3. Ms Paepaerei and the offender were living in a de facto relationship at the time of the offence and she was pregnant with their child. She died in their home after being stabbed 49 times with a kitchen knife. The offender does not dispute that he stabbed Ms Paepaerei. The central issue at trial was his mental state at that time. The offender raised the defence of mental illness and the partial defence of substantial impairment by abnormality of mind. [5] Two psychiatrists gave evidence on those issues. They agreed that the offender displayed symptoms of psychosis but disagreed as to the cause and extent of those symptoms. The offender had used methylamphetamine (commonly known as “ice”) extensively over a period of some years. Dr Martin, the psychiatrist called by the Crown, considered that the offender’s psychosis was induced by the use of that drug. Dr Allnutt, the psychiatrist called by the offender, considered that the offender was suffering from chronic psychotic illness.

   5. Crimes Act, s 23A.

4. The offender also raised the issue of self-defence[6] on the strength of a claimed recollection that the deceased had attacked him. The jury’s verdict rejects those defences.

   6. Crimes Act, s 418.

Circumstances of the offence

5. Based on the evidence at trial and consistently with the jury’s verdict, I am satisfied as to the following facts.

6. Ms Paepaerei and the offender had been in a relationship since late 2014 and were living together at an address in Mount Druitt. Both had been users of ice during that time. However, at the time she was killed, Ms Paepaerei had stopped using ice because of her pregnancy.

7. The offender continued to use ice at that time. He had consumed a small quantity of that drug at some point in the period leading up to the offence but not so much as to be intoxicated at the time he killed Ms Paepaerei. However, he had been acting strangely over the days and hours leading up to her death and was displaying symptoms of psychosis.

8. In the early evening of 21 September 2015, the offender went with Ms Paepaerei to collect her son and his friend. She was driving and the offender was sitting in the back seat. There was an argument between them as to why he was insisting on sitting in the back.

9. After they arrived home, Ms Paepaerei’s son and his friend made cookies and later left the house to collect a wheel for a bike.

10. At around 8pm two friends, Mr and Mrs O’Brien, visited to help Ms Paepaerei fix her car. Mrs O’Brien gave evidence that the offender was not himself that evening and was vague and agitated whereas she had usually found him to be laughing and happy. Mr O’Brien also gave evidence that the offender was acting strangely that evening. He said the offender had a weird look on his face and was staring at them while Mr O’Brien worked on the car. At some point the offender moved his car out of the driveway, taking some trouble to manoeuvre it around another car and then parking on the other side of the street where he remained in the car, continuing to stare at the three of them. The offender gave evidence at the trial that the reason he moved his car that evening was that he thought Mr O’Brien was trying to put a tracker on it. The paranoid belief that he was being tracked or bugged was a common theme in the offender’s thinking over several years.

11. Ms Paepaerei’s son was not supposed to leave the house unaccompanied at night at that time. At some point after Mr and Mrs O’Brien left, he heard the offender and Ms Paepaerei arguing upstairs. He took the opportunity to sneak out with his friend.

12. At around 11pm, Ms Paepaerei’s nephew visited the house to check up on the son who in fact was still out. Ms Paepaerei greeted her nephew at the front door. The offender then appeared, calling out “close the fucking door”, raising his voice and mumbling under his breath “fucking, fucking cunt”. The nephew told Ms Paepaerei he would come back later.

13. Ms Paepaerei was killed sometime between when her nephew left and when her son returned. Her son arrived home with his friend at around midnight. Upon hearing people in the house, the offender jumped through the upstairs window and drove off in his car.

14. When Ms Paepaerei’s son heard the sounds of the offender smashing through the window and driving off, he thought the car was being stolen. He ran upstairs to tell the offender. When he turned on the light, he found himself standing in his mother’s blood.

15. The post mortem examination found that Ms Paepaerei had 28 incisions and stab wounds on the front of her neck. There were also 21 stab wounds to the chest and a number of wounds to the abdomen and lower limbs. It was determined that the cause of death was multiple injuries. The unborn child of 21 weeks gestation did not survive.

Assessment of objective seriousness

16. An important factor in determining the appropriate sentence is to make an assessment of the objective seriousness of the offence. [7] The Crown submitted that the offence falls above the mid-range of objective seriousness. The submission adopts the language of the provisions relating to standard non-parole periods and is to be taken to refer to the nature of the offending, without reference to matters personal to the offender. [8] I will return to consider the place of the offender’s mental condition in that assessment.

    7. Yeung v R [2018] NSWCCA 52 at [20] per McCallum J, Hoeben CJ at CL and Simpson JA agreeing at [1] and [2].

    8. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The submission correctly acknowledges that it is not necessary to articulate a determination placing the offence at a precise point along a hypothetical range: Yeung at [24].

17. The Crown’s submission relied on the sheer ferocity and sustained nature of the attack. While violence is inherent in any murder, I accept that the present case involved an extreme frenzy of violence. The Crown further submitted, having regard to the number and nature of the injuries, that the offender must have acted with intent to kill. I am satisfied beyond reasonable doubt that he did. The Crown also pointed to the fact that the offence was committed against the offender’s pregnant partner in her home and that the offender knew she was pregnant. The significance I have placed on each of those factors is explained below. The Crown submitted that those matters substantially heighten the objective seriousness of the offence.

18. The offender submitted that the offence falls below the mid-range of objective seriousness. The principal basis for that submission was the offender’s mental state at the time of the offence. It must be accepted that he was labouring under a psychosis at the time of the offence, since that was the unanimous view of the two psychiatrists. The offender acknowledged that an intention to kill could be inferred from the injuries but submitted that the presence of psychosis tempers the significance of that finding. He further submitted that the psychosis was the genesis of the offence and that its objective seriousness is accordingly reduced. [9]

    9. Citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (per McClellan CJ).

19. If the question of psychosis is put to one side, the matters pointed to by the Crown clearly place the offence above the mid-range of objective seriousness. Views may differ as to whether the psychosis is to be brought into account as an aspect of that assessment (as submitted by the offender) or whether it is to be treated as a matter personal to the offender which might reduce his moral culpability for an otherwise objectively serious offence. [10] One way or another, its significance must be considered and brought into account in determining the appropriate sentence for the offence. In the present case, however it is classified, I have concluded that the presence of psychosis does not diminish the measure of the offender’s culpability, for reasons I will explain.

    10. Cf Muldrock at [54].

Significance of the offender’s psychosis

20. The starting point is to acknowledge that the jury’s verdict entails a rejection of the matters raised by way of defence. As submitted on behalf of the offender, that does not foreclose the conclusion that his culpability is diminished on account of his psychosis[11] but conversely the existence of psychosis does not mandate that conclusion. The critical task is to assess the degree of impairment operating on the offender’s mind at the time of the offence and the cause of that impairment.

    11. R v Fraser [2005] NSWCCA 77 at [25] (per Grove J); Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 at [136] (per Johnson J); R v Bell (1985) 2 NSWLR 466 at 485 (per Lee CJ at CL).

21. The offender gave evidence at the trial but did not offer any explanation for killing Ms Paepaerei as he claimed to have “blacked out” at the critical moment.

22. To the extent that he has professed any recollection of the events of that night, he has given differing accounts at different times. On the night of the offence, after jumping out the upstairs window, he drove straight to Mount Druitt Police Station and reported that someone had broken into his house and tried to stab him. He told police his partner was still at home and said, “you need to make sure she’s okay”.

23. It is difficult to determine whether that was a deliberate lie or whether the offender was labouring under some form of delusion at that point and genuinely believed he had been attacked. His presentation at the police station was certainly bizarre. To go to the police at all, given what he had just done, suggests an absence of rational thought based in reality. The offender pulled up directly in front of the police station leaving his car badly parked and facing the wrong way. He was wearing only a pair of shorts, which kept falling down. He had blood on his head, elbows and arms. He was breathing heavily and stuttering and his hands were shaking. After insisting that an ambulance be called for his partner, he was taken into an interview room and given a cup of water. He tried to eat the edge of the cup. He then began to slide off the chair and had to be held up by the detectives.

24. An ambulance was called and the offender was taken to hospital under police guard but was later returned to the police station and charged. He did not consent to be interviewed by police at that time. The only complaint he had made by that point was that he had been attacked in his home by an intruder and that his partner, still at home, was at risk.

25. By the time the offender came to be interviewed by the two psychiatrists earlier this year, his version had changed. He told Dr Allnutt, the psychiatrist called as his witness in the trial, that he and Ms Paepaerei had argued earlier that evening about her wanting to use ice while she was pregnant. He said he went to bed and told her he was going to leave in the morning. He said he woke up believing he had been struck on the head with a knife and that he thought Ms Paepaerei was trying to kill him. He said she hit him twice on the head and on the right leg and that he then blacked out. His next memory was of waking up on the bed with Ms Paepaerei lying in the hallway. He said he then heard footsteps in the house and that he became scared. He jumped out the window and went to the police station to get help.

26. The offender gave a similar account to Dr Martin, the psychiatrist called as a witness for the Crown, except he said Ms Paepaerei had stabbed him in the leg.

27. In his evidence at the trial, the offender maintained the version of events he had given to the two psychiatrists. However, it was unclear whether he was claiming to have any actual recollection of being attacked by Ms Paepaerei. In his evidence in chief, he said he was woken up by being hit in the head but specifically said he could not tell who was hitting him. Asked why he had later nominated Ms Paepaerei as the person hitting him, he said, “because after talking to my solicitor later on there was no one else in the house so it had to have been her.” He later said that he had “a vague recollection” that it was her but, when pressed in cross-examination for detail of that recollection, could provide none, simply repeating that he vaguely remembered it was Ms Paepaerei who attacked him.

28. By contrast, the offender offered a clear recollection of other parts of the evening. He said that he and Ms Paepaerei had been arguing that night because she said she wanted to take ice on weekends and had taken ice the week before. He said he was upset by this because she was pregnant. He said he was sick of arguing about it because they had talked about it before. He claimed that he had decided he would leave the following morning and that he packed a bag for that purpose. He said the arrival of Ms Paepaerei’s nephew woke him up and that is why he swore at him. However, he specifically denied using the words I have quoted; he suggested different words he thought he had used. He said he went back to sleep and was woken up by “getting hit in the head”. He said he thought someone was trying to kill him and that he tried to kick them away but then passed out or blacked out. The next thing he remembered was waking up and seeing Ms Paepaerei lying in the hallway. He said he heard a bang, which was what woke him up, and that he then heard footsteps and jumped out the window because he was scared. He said he got in his car and drove straight to Mount Druitt Police Station. He described the exact route he took to the station.

29. Other evidence led at the trial flatly contradicts the offender’s account of having been woken up out of bed by a noise and then jumping straight out the window. The forensic evidence clearly established that there was an interlude after Ms Paepaerei was stabbed during which the offender walked around the crime scene with shoes on and that he made some attempt to wash Ms Paepaerei’s blood from his hands. It seems likely that he started packing his bag during that time before being interrupted by the arrival home of Ms Paepaerei’s son. I do not accept the offender’s later account of having made the decision earlier that night to leave following an argument about Ms Paepaerei wanting to take ice while she was pregnant.

30. I am satisfied that the version of events the offender gave to the two psychiatrists suggesting that Ms Paepaerei attacked him or that he believed Ms Paepaerei was attacking him was a lie. It formed no part of the offender’s representation of events on the night of the offence. His complaint to police, whether dishonest or deluded, was that he and Ms Paepaerei were both under threat from an intruder. In my assessment, the embellishment that Ms Paepaerei was part of the threat was a dishonest reconstruction calculated to assist the defence of the charge. However, as submitted by the offender, that later dishonesty does not inform the gravity of the offence.

31. The fact that the offender drove straight to the police station and his bizarre presentation when he arrived there (which included trying to eat a polystyrene foam cup) suggests the existence of some disordered thought within a short period after the offence. As already noted, both psychiatrists thought he was probably experiencing some psychosis at that time.

32. Accordingly, although I disbelieve aspects of the offender’s account, I do not think I can exclude the possibility that he had a delusional belief at the time he attended the police station that he had been attacked and that he needed protection from police. Based on his presentation on the CCTV footage and during the trial, I doubt he would have been capable of constructing a quick-witted lie during the short trip to the police station. By all appearances, his mental state when he spoke to police within a short time after the offence was quite disordered.

33. On that basis, I accept that the offence itself was probably prompted or aided by disordered or psychotic thought. Indeed, having regard to the ferocity of the attack and the absence of any apparent motive for such violence, it seems likely that it was.

34. However, it does not follow that I must regard the offender’s moral culpability as being diminished on that account. The critical consideration in that context is whether the psychosis was caused or at least significantly exacerbated by the offender’s voluntary use of the drug, ice. I am satisfied beyond reasonable doubt that it was.

35. The offender had exhibited signs of delusional thinking for some time. He had experienced auditory hallucinations of voices telling him to do things. His mother gave evidence that he believed his fridge magnets were encrypted. During a previous relationship he developed a delusional belief that his girlfriend was working as a prostitute. He thought she was the centrefold in a men’s magazine and confronted her with a photograph which was obviously not her. He accused her of trying to steal his identity. He also ripped out the walls of a house he owned because he thought the house was bugged. In his evidence, he acknowledged that beliefs he held at that time were not based on fact.

20. In my assessment, however, the evidence clearly established that those episodes of disordered thought were directly linked to the offender’s use of ice. As submitted by the Crown, the suggestion that the offender had symptoms of psychosis pre-dating his use of drugs had the ring of invention and found no support in any objective evidence. A former partner of the offender gave evidence in the trial which was significant in this context. She said their relationship was happy and normal for the first 18 months until the the offender started using ice. [12] She said when he was using ice he became paranoid, agitated and highly irritable; he experienced delusions and his behaviour was bizarre. [13] Dr Martin relied on that evidence in forming the opinion that the offender’s psychosis was drug-induced. He thought it would be “highly unlikely for a person with established schizophrenia to not show any signs or symptoms of that in the absence of treatment.” He also thought it would be unlikely that such a person would have “a sustained functioning normal relationship in the absence of treatment.”

    12. T206, 208.

    13. T206-207.

21. Dr Allnutt preferred a diagnosed of chronic psychotic illness primarily on the basis that the offender’s auditory hallucinations had persisted after he stopped using ice. He considered those hallucinations to be the residual symptoms of a resolving psychosis. Dr Allnutt also considered that the offender had incorporated the deceased into a “persecutory delusional belief system” in the time leading up to the offence. Dr Allnutt regarded that as a factor indicating a more chronic psychotic condition or an internal vulnerability to psychosis, “something that's inside the person rather than just the drug.” That aspect of his opinion was based on the information provided to him by the offender. For the reasons I have explained, I am satisfied that the offender did not give Dr Allnutt an honest account of his perceptions regarding Ms Paepaerei. Dr Allnutt took a history of the offender believing Ms Paepaerei was trying to kill him and positively recalling that she hit him on the head and on the leg. I do not accept that the offender in fact ever had any such perception or recollection.

22. For those reasons, I am persuaded by Dr Martin’s evidence that the offender’s psychotic mental state was substantially if not wholly due to his use of ice. Before assessing the significance of that finding, it is necessary to address a further issue raised by the Crown.

Knowledge of the risk of psychosis

39. The Crown submitted that the Court should find that the offender knew from his own past history that his use of ice might have the effect of making him violent and that I should take that into account as a matter of serious aggravation. [14]

    14. In accordance with the remarks of the Court of Criminal Appeal in R v Gagalowicz [2005] NSWCCA 452 at [36].

40. The offender started taking cocaine in about 2007 when he was aged 30 years. He gave evidence in the trial that cocaine made him paranoid but that he kept taking it. In 2010, he went to Thailand where he first took ice. He said ice made him “very paranoid…just really, really paranoid.”

41. In April 2013, the offender attacked his own ear with a Stanley knife. He was at his parents’ house at the time. When they tried to help him he took off and went to St Mary’s police station. He was bleeding profusely. Police called an ambulance but the offender resisted treatment and became violent. He was restrained by police and conveyed to hospital in a caged police vehicle. Upon arrival at the hospital he again resisted treatment and ultimately had to be sedated and strapped to the bed.

42. In his evidence in the trial, the offender agreed that, following that event, he knew he had an addiction to ice; he knew he had gone to the hospital having cut his ear after using ice; he agreed he had been told he had had a drug‑induced psychosis and he agreed he had been referred for drug and alcohol counselling at a hospital. His glib response when asked why he did not follow up the drug and alcohol counselling was that he “didn't want to”. He agreed that there continued to be a connection between using ice and ending up “in a bad shape”.

43. Although it is troubling, the significance of that evidence must be assessed with caution. I accept it establishes that the offender was on notice that his use of ice made him prone to drug-induced psychosis. At the very least, that informs the weight to be given to specific deterrence. However, the degree of dangerousness that posed was uncertain. It was noted on the offender’s behalf that his previous experience under psychosis involved only self-harm rather than violence towards others. The extent of the offender’s understanding of the nature of his psychosis is unclear. Further, while a readiness to accept treatment might have been a mitigating factor, the offender cannot be punished for not accepting treatment.

Conclusion as to psychosis

44. I am not persuaded that the offender’s knowledge following the ear-cutting incident aggravates his criminality in the manner contended by the Crown.

45. Conversely, while it may be accepted that the offender’s psychosis had a causal role in the commission of the offence, in circumstances where that was due to his persistent, voluntary ingestion of an illicit drug which he knew rendered him prone to psychosis, I do not regard that as a factor which diminishes his moral culpability for this very serious offence.

46. On the strength of that conclusion, I consider that significant weight should be given in this case to the objects of denunciation, punishment and deterrence. Ice is a scourge. It is freely accessible and highly addictive. The experience of the courts is that it not infrequently makes ordinary people violent and irrational. An offence of extreme violence committed by a chronic user of ice familiar with its psychotic effect should be denounced in the strongest terms.

Other consideration of the offender’s mental state

47. At the proceedings on sentence, the offender relied on an updated report from Dr Allnutt. Dr Allnutt considers that there has been an improvement in the offender’s mental state since he last saw the offender (earlier this year). He remains of the view that the offender has a chronic psychotic disorder but accepts that he cannot definitively rule out a drug-induced psychosis which has not resolved. For the reasons I have explained, I am satisfied that the psychosis is drug-induced but on either view, the offender requires ongoing antipsychotic medication, regular review by a psychiatrist and drug and alcohol rehabilitation. I accept that a custodial sentence is likely to weigh more heavily on him for that reason and have given some weight to that consideration.

48. It is clear that if, upon his ultimate release from prison, the offender resumes the use of illicit drugs, he will present a danger to the community. However, given the length of the sentence I am about to impose and the inherent uncertainties of addiction and rehabilitation, that is an issue more appropriately addressed by parole authorities after the conclusion of the non-parole period.

Aggravating factors

49. I have placed significant weight on the fact that the killing occurred in a domestic context. The victim was the offender’s partner, pregnant with his child, killed in her own bedroom. The Crown relied on authorities that emphasise the importance, in sentencing for such offences, of specific and general deterrence, the requirement for denunciation and the need for protection of the community. [15]

    15. Cherry v R [2017] NSWCCA 150 at [76]-[79] (per Johnson J with whom MacFarlan JA and Harrison J agreed).

50. The Crown also relied on the fact that the offence was committed in the victim’s home. [16] It is now accepted that the fact that an offence was committed in the home of the victim can be an aggravating factor within the meaning of the statute[17] even where that was also the home of the offender. [18] However, as submitted on behalf of the offender, the section does not automatically apply in every case of an offence committed in the victim’s home. [19] In the present case, the fact that the offence occurred in the victim’s home is an aspect of the domestic context. For that reason only, I have not treated it as a separate aggravating factor. [20]

    16. Crimes (Sentencing Procedure) Act, s 21A(2)(eb).

    17. Ibid.

    18. Jonson v R [2016] NSWCCA 286 at [40] (per Bathurst CJ with Beazley P, Hall, Bellew and N Adams JJ agreeing at [55], [57], [63] and [78]).

    19. Ibid at [52] (per Bathurst CJ).

    20. Cf R v Valiukas [2009] NSWSC 808 at [32] (per R A Hulme J).

51. The offender submitted that the Court should not find that the domestic context aggravates the offence to any significant degree as it is not in the recognised category of cases where the offence was “part of a pattern of physical abuse by a man who dominated his weaker partner, born of a sense of entitlement to treat her in that way.”[21] Certainly, an offence fitting that description would have been worse, but it does not follow that the domestic nature of the offender’s violence is to be regarded as an anodyne feature of the present case. The offender had a role in a family as the victim’s partner, father of her unborn child, step-father to her sons, son-in-law, brother-in-law and de facto uncle. Family should be the people who make you feel safe. The significance of violence within the context of family relationships is the harm it does not only to the primary victim but to other family members and the wider community.

    21. R v Stephenson [2007] NSWSC 672 at [17] (per Hidden J).

52. Members of Ms Paepaerei’s immediate family read victim impact statements at the proceedings on sentence which addressed that issue. The Crown applied to have those statements considered and taken into account by the Court in connection with the determination of the punishment for the offence. [22] In the circumstances of this case, I consider it appropriate to do so.

    22. Crimes (Sentencing Procedure) Act, s 28(4).

53. That is not to suggest that the law will regard some lives as being more valuable to the community than others. [23] But the statute acknowledges that the harmful impact of the primary victim’s death on family members is an aspect of harm done to the community. I consider it appropriate in this case to have regard to the victim impact statements to the extent that they address that issue.

    23. R v Halloun [2014] NSWSC 1705 at [46].

54. The victim impact statements gave a heart-wrenching account of the utter devastation inflicted on this previously happy family. Kirralee Paepaerei had four sons with her former partner, Ti Paepaerei and was step-mother to his fifth son. She herself came from a blended family of seven children. She had two loving parents and two loving step-parents. Ti Paepaerei described her as a caring, loving mother, loved by his family and hers and the love of his life. He described in his own gentle terms how the boys are struggling, their lives forever shaped by the brutal murder of their mother. Kirralee’s sisters, Kylee, Jodie and Tammy and her step-sister Natalie spoke of her unfailing support to them, her infectious laugh, her warmth, her beauty and her outspokenness. Her mother and step-father described Kirralee as a strong, independent woman who would go out of her way to help anyone in need and who brought humour and laughter to family gatherings. Her father and his partner also remembered her infectious laugh and her beautiful smile.

55. A significant aspect of the family’s grief is the loss of Ms Paepaerei’s unborn child. She knew she was going to have a girl and had chosen a name – Mia. The murder of a pregnant woman carries that additional, tragic dimension of the loss of a future life. That is a significant aspect of the immense harm done to the community by this offence.

56. A troubling aspect of the harm described by the family victims is their ongoing guilt that they could have done something to prevent Kirralee’s death. That is a common source of angst in cases of domestic violence. I hope to dispel the haunt of any such thought. Kirralee Paepaerei was killed within a short space of time without warning by a man her family was entitled to expect would keep her safe. Responsibility for her death is borne by Josh Homann and him alone. A function of the sentencing process is to determine that fact and denounce the offence on that basis.

Mitigating factors

57. There is no evidence to suggest the offence was premeditated. I have taken that into account as a mitigating factor, as required by s 21A(3)(b) of the Crimes (Sentencing Procedure) Act.

The offender’s criminal history

58. The offender has several criminal convictions, including offences of violence. The Crown contended that one of the prior convictions was for violence against a former partner but the statement of facts for that offence is no longer available. Accordingly, apart from the fact of the conviction, I am bound to disregard that aspect. The prior history denies the offender the benefit of good character as a mitigating factor. It also reinforces the conclusion which emerges from the evidence in the trial that he cannot be described as a person with good prospects of rehabilitation.

Circumstances of the offender

59. In his updated report tendered at the proceedings on sentence, Dr Allnutt recorded that the offender has said he wants to stay off drugs and that he is willing to continue with his anti-psychotic medication. While that is a positive step, given the period he will be in custody serving the sentence I am about to impose, the issue of rehabilitation is best assessed by the parole authority at the conclusion of the non-parole period.

60. The offender did not otherwise put forward any subjective case apart from the extensive evidence as to his mental state which I have already considered.

Special circumstances

61. The offender submitted that the Court should make a finding that there are special circumstances for adjusting the statutory ratio of the balance of term to the non-parole period to allow for a longer period of supervision on parole so as to ensure compliance with psychiatric treatment and medication.

62. I do not accept that submission. The usual ratio is that the non-parole period should be three quarters of the total sentence. The length of the sentence I am about to impose is such that the potential period on parole dictated by that ratio will be adequate to address the concerns identified.

63. I note that the offender’s legal advisors have undertaken to advise him of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [24]

    24. Crimes (High Risk Offenders) Act, s 25C(1).

Sentence

64. In all the circumstances, I have determined that the appropriate sentence is imprisonment for a term of 30 years.

65. Joshua Homann, please stand. You are convicted of the murder of Kirralee Paepaerei on 21 September 2015. I sentence you to a term of imprisonment with a non-parole period of 22 years and 6 months commencing on 22 September 2015 and expiring on 21 March 2038 and a balance of term of 7 years and 6 months years expiring on 21 September 2045. The first date on which you will be eligible for release on parole is 21 March 2038.

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Endnotes

Decision last updated: 04 June 2018