R v Joyce

[2007] NSWSC 218

CITATION:	R v Joyce [2007] NSWSC 218
HEARING DATE(S):	17/11/06, 23/02/07
JUDGMENT DATE :	23 March 2007
JUDGMENT OF:	James J at 1
DECISION:	Sentence - Non-parole period of 16 years commencing 12/07/05 and expiring 11/07/21 and a balance of term of 5 years commencing on 12/07/21 and expiring on 11/07/26. The earliest date on which you will be eligible for release on parole will be 11/07/21.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
CASES CITED:	R v Isaacs (1997) 90 A Crim R 587 The Queen v Olbrich (1999) 199 CLR 270 Weininger v The Queen (2003) 212 CLR 629.
PARTIES:	Regina v Bevan Phillip JOYCE
FILE NUMBER(S):	SC 2005/2542
COUNSEL:	L Lungo - Crown P Young SC - Prisoner
SOLICITORS:	Solicitor for Public Prosecution -

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

JAMES J

Friday 23 March 2007

2005/2542 REGINA v Bevan Phillip JOYCE

REMARKS ON SENTENCE

1 HIS HONOUR: On 19 July 2006 after a trial presided over by me a jury found the prisoner Bevan Phillip Joyce guilty of having murdered on 10 April 2005 at Colyton, Rosemary Joyce, who was his estranged wife.

2 After the jury had returned their verdict of guilty the proceedings on sentence were stood over to 17 November 2006. On 17 November 2006 counsel for the prisoner applied for a further adjournment of the proceedings on sentence to enable medical reports about the prisoner to be obtained and the proceedings on sentence were adjourned to 23 February 2007. On 23 February 2007 a hearing of the proceedings on sentence took place and I reserved my sentencing decision.

3 As a sentencing judge I have to determine, so far as I can, what are the facts relevant to the sentencing of the prisoner. The principles to be applied by me in determining those facts have been stated in such cases as R v Isaacs (1997) 90 A Crim R 587 and The Queen v Olbrich (1999) 199 CLR 270. Any facts I find must be consistent with the verdict of the jury and I must accept such facts as are necessarily established by the verdict of the jury. Subject to this constraint, the onus is on the Crown to prove beyond reasonable doubt facts which would be adverse to the prisoner and the onus is on the prisoner to prove on the balance of probabilities facts which would be favourable to the prisoner. There may be matters which would be relevant to sentencing but as to which the state of the evidence does not permit a sentencing judge to make any finding, either a finding beyond reasonable doubt adverse to the prisoner or a finding on the balance of probabilities favourable to the prisoner. That a sentencing judge may not have sufficient evidence to be able to make a finding on a matter which is relevant to sentencing was recognised by the High Court in Olbrich and in Weininger v The Queen (2003) 212 CLR 629.

4 In the present case there are some difficulties in determining some of the facts relevant to the commission of the offence. Only the prisoner and the victim were present at the time of the murder, so that there is no evidence from any eye witness other than the prisoner. The prisoner himself did not give evidence at the trial. He gave brief evidence in the proceedings on sentence but was not asked any questions about the facts of the offence. On 10 April 2005 and 11 April 2005 the prisoner gave a number of accounts of what he said had happened on the evening of 10 April 2005, including in answers in a long recorded interview by police and in a walk through recorded interview conducted by police but important parts of these accounts are inconsistent with the jury’s verdict of guilty of murder and, accordingly, must be rejected.

Facts Relevant to Sentencing

5 I am satisfied that the following facts have been established to the requisite standard.

6 The prisoner met the victim in the year 2002 and in December 2003 they were married. After their marriage the prisoner and the victim lived together in a house owned by her at 33 Orchard Road, Colyton. There was a swimming pool in the backyard of the premises.

7 In January 2005 the victim broke her arm in an accident at her work and was incapacitated from working. Because the victim was unable to work and was receiving only compensation payments, she became subject to financial pressures.

8 The victim discovered that the prisoner had withdrawn a substantial amount of money from a joint bank account and had spent it on gambling. The victim demanded that the prisoner move out of her house. The prisoner complied and went to live in a rented house in Magga Dan Avenue, which was not far away from Orchard Road. The prisoner hoped that cohabitation between himself and the victim might be resumed.

9 On 10 April 2005 the prisoner on a number of occasions went by car to the victim’s house from his house in Magga Dan Avenue. Some of the prisoner’s belongings were still at the victim’s house.

10 On one of these visits on the afternoon of 10 April 2005 the prisoner observed that the victim was having coffee with a next-door neighbour, a Mr Rukavina, with whom the victim had been friendly for many years and of whom the prisoner was jealous.

11 On another visit the prisoner arrived at 33 Orchard Road at approximately 5.50 pm. The victim was then inside the house.

12 On this visit an argument occurred between the prisoner and the victim, which led to a physical encounter. When police examined the premises later in the night, they found items of personal jewellery scattered in rooms of the house and I infer that these items of jewellery had become detached from the wearer in the course of a violent struggle. When interviewed by police the prisoner said that, when he had tried to embrace his wife, she had told him to get his hands off her and had grabbed a chain he was wearing around his neck and had ripped it off. I am prepared to find that these events happened.

13 In a bedroom of the house the prisoner strangled the victim from behind, using a necktie as a ligature. The pathologist who performed the post mortem examination on the victim’s body observed horizontal bands of abrasions on the front and the sides of the victim’s neck and petechial haemorrhages on her face and in her eyes, which, in the pathologist’s opinion, were caused by an obstruction of her airways, thus causing increased pressure on the blood vessels in her head. The victim struggled, as she was being strangled, as was shown by the appearance of the abrasions on her neck.

14 The victim was rendered unconscious by being strangled. The prisoner then carried or dragged the victim to the backyard swimming pool and put her in the water in the pool.

15 The pathologist who performed the post mortem examination found a large amount of frothy fluid in the victim’s lungs and expressed the opinion, which I accept, that the victim was still alive when she was put in the pool and then drowned in the water in the pool.

16 At the trial the Crown relied on the act of strangling as being the act of the prisoner causing the victim’s death, on the basis that the act of strangling had at least substantially or significantly contributed to the victim’s death, in that, even if it did not of itself kill the victim, it rendered her unconscious and incapable of resisting being put in the pool or of rescuing herself or of surviving after she was put in the pool.

17 At the trial the Crown, although alleging that the prisoner had performed both acts, that is the act of strangling and the act of putting the victim in the water, did not rely on the act of putting the victim in the water as an act causing the death of the victim done with intent to kill the victim, because at the time of performing the latter act the prisoner might have believed that the victim was already dead.

18 After putting the victim in the water in the swimming pool the prisoner left 33 Orchard Road by car. He travelled to the rented house in Magga Dan Avenue, where he was seen by neighbours.

19 While the prisoner was away from 33 Orchard Road, he made a telephone call and used an automatic teller machine; he bought petrol at a service station which had closed circuit television and he is shown in closed circuit television film at about 7.20 pm; and at another service station he bought a bottle of Coca Cola and a bottle of another kind of soft drink which his wife liked. It was part of the Crown case at the trial, and I accept, that the prisoner engaged in this conduct for the purpose of bringing into existence evidence that, at times proximate to the time of the killing, he had been at places other than 33 Orchard Road and had bought a drink of a kind his wife liked, thereby rendering it less likely that he could have been the killer.

20 The prisoner returned to 33 Orchard Road. He telephoned an emergency number and said that he had found his wife floating face down in the swimming pool. He dragged the victim out of the swimming pool and laid her body beside the swimming pool. Ambulance officers arrived soon afterwards.

21 I summarise some of the more important objective facts of the offence, by saying that the prisoner killed his estranged wife by strangling her and putting her, while unconscious, in the water in the backyard swimming pool, where she drowned. I find that in strangling his wife the prisoner intended to kill her. The commission of the offence was not premeditated or planned. When the prisoner arrived at 33 Orchard Road at about 5.50 pm he had not formed any intention to kill his wife. He formed the intention to kill her during the argument with her at 33 Orchard Road.

22 At the trial I gave directions to the jury about provocation. By returning their verdict of guilty of murder the jury showed that the Crown had proved beyond reasonable doubt that the prisoner had not acted under provocation within s 23 of the Crimes Act. I do not find that there was any conduct on the part of the victim which could properly be described as provocation. However, I accept that the act of killing was done while the prisoner was subject to some loss of self-control.

23 The prisoner asked the Court to take into account, and I take into account, in sentencing the prisoner for the offence of murder, three offences under the Firearms Act, of possessing an unregistered firearm, possessing an unauthorised firearm and not keeping a firearm safely. All three offences were committed on 10 April 2005, when police attending 33 Orchard Road after the murder discovered a single firearm in a room of the house. There was no ammunition for the firearm.

24 The firearm had belonged to the prisoner’s grandfather. After his grandfather’s death about twenty years previously the prisoner’s brother had insisted on all their grandfather’s property being sold at auction and the prisoner had bought the firearm at the auction. I do not consider that such minor offences should have any effect on the sentence for murder.

Subjective Features

25 Evidence of the prisoner’s subjective features can be found in a pre-sentence report and a report by a psychologist and, to some extent, in answers given by the prisoner when he was interviewed by police and in evidence given by the prisoner in the proceedings on sentence.

26 The prisoner was born on 22 August 1967 in country New South Wales. He was the youngest of six children of his mother, who had married twice. The prisoner performed poorly at school and left school at the age of fourteen.

27 When the prisoner was about sixteen years old he was the victim of sexual assaults, not involving penetration, by a friend of his family. A psychologist who saw the prisoner on or about 1 November 2006 expressed the opinion in a report that the prisoner was still suffering from post-traumatic stress disorder as a result of these sexual assaults. In the absence of any direct evidence from the prisoner of the symptoms on which this diagnosis is said by the psychologist to be based, I do not propose to give much weight to this factor.

28 After leaving school the prisoner worked in the family fruit shop. He later worked as a printer. More recently he worked as a security officer with a supermarket chain, sometimes working as a bouncer or as a member of security patrols or cash escorts.

29 As a teenager and a young adult the prisoner was convicted of some comparatively minor criminal offences, his last appearance in a court, before the proceedings for the offence of murder, being in August 1989. I do not regard the prisoner’s record of previous criminal convictions as an aggravating factor.

30 The prisoner has had relationships with a number of women. He was previously married to a Tongan woman, who was an illegal immigrant being held in a detention centre. The prisoner’s wife was deported to Tonga and the marriage was dissolved.

31 In stating the facts relevant to the offence I have referred to aspects of the prisoner’s marriage to the victim.

32 The Probation and Parole service officer who prepared a pre-sentence report stated in the report, and I accept:-

“(The prisoner) would appear to have experienced great difficulty in coping with rejection by (the victim) and to have had an unrealistic expectation that if he was sufficiently persistent she would reverse her earlier decision”.

33 In a summary in the report the author of the report said:-

“Mr Joyce has experienced significant disadvantages in life, which he has struggled to overcome and has achieved some success, despite low self esteem and limited inter-personal skills. However, he remains fairly immature and presents as contributing to the rejection he seeks to avoid by being too needy in his personal relationships. He also seems to have a range of emotional issues that have never been really addressed”.

34 While he has been in custody the prisoner has been subject to a form of protective custody. I accept that the prisoner’s legal representatives attempted to obtain from the Department of Correctional Services a report describing the incidents of the prisoner’s custody but this attempt was unsuccessful. In the absence of any report from the Department, I accept evidence given by the prisoner in the proceedings on sentence.

35 The prisoner gave evidence that after he was arrested on 12 July 2005 he spent four weeks in the general prison population, during which he worked in the Correctional Centre’s print shop. It came to the attention of the Correctional Services authorities that the prisoner had formerly worked as a security officer. The authorities formed the view that the prisoner was at some risk of harm from other prisoners if he remained in the general prison population and he was required to enter a form of protective custody. He has remained on protection ever since and is likely to remain on protection.

36 The form of protective custody to which the prisoner is subject is relatively benign. He does, however, suffer from some disadvantages compared to prisoners in the general prison population, in that he is unable to work; while he has access to courses, he has to undertake most of these courses alone in his own cell rather than as part of a class of prisoners; he spends more time each day locked in his cell than do prisoners in the general prison population; when staff shortages occur from time to time, he is more likely than a prisoner in the general prison population to be locked in his cell for a whole day or the whole of a half day.

37 The prisoner has a family history of bowel cancer, his father having died from bowel cancer.

38 On 22 August 2006 a colonoscopy and an endoscopy were performed on the prisoner. The prisoner had been reporting abdominal pain and rectal bleeding. Nothing abnormal was found in either procedure.

39 The sentence hearing due to be held on 17 November 2006 was adjourned, because a further investigative procedure was about to be performed on the prisoner. The prisoner was reporting continued rectal bleeding. A colonoscopy was performed on 30 November 2006 but nothing abnormal was found.

40 There was no further medical report about the prisoner. The parties were content that I should proceed, without having any further medical report. The prisoner gave evidence, which I am prepared to accept, that, while the procedures which have been carried out have not detected anything abnormal, doctors have not categorically ruled out the possibility of the prisoner having cancer. The procedures have detected non-malignant growths, which will require surgery. This surgery can be arranged within the Correctional system.

41 Since he has been in custody the prisoner, despite being on protection, has successfully undertaken a number of courses, including courses in bible studies and counselling about gambling. He has favourable references from prison Chaplains.

42 The Court received victim impact statements from three sisters and the daughter of the victim, in which the makers of the statements expressed the grief and loss they have suffered as a result of the victim’s death.

43 I do not consider that any of the aggravating factors in s 21A(2) have been established. Contrary to submissions made by the Crown in written submissions, I do not consider that either par (d) or par (g) have been established as aggravating factors.

44 As to s 21A(3), I consider that the mitigating factor in par (b), that the offence was not planned, has been established. I do not find that the mitigating factor in par (c) has been established, although, as stated previously, I consider that the offence was committed while the prisoner was subject to some loss of self-control. I consider that the mitigating factors in pars (g) and (h) have been established. As regards par (i) I do not consider that the prisoner has shown remorse. In giving evidence in the proceedings on sentence the prisoner said that he was sorry for the members of the victim’s family. However, in the pre-sentence report he is reported as continuing to maintain his innocence.

45 The maximum sentence for an offence of murder is imprisonment for life. However, a life sentence is reserved for cases falling within the worst category of cases and it was not suggested by the Crown that a life sentence would be an appropriate sentence for the prisoner.

46 The standard non-parole period for the offence of murder is twenty years “for an offence in the middle of the range of objective seriousness”. All offences of murder are serious offences. However, I have concluded that the present offence is somewhat below the middle of the range of objective seriousness for offences of murder generally. I have found that the offence was unpremeditated and unplanned and committed during an argument with the victim in which the prisoner was subject to some loss of self-control. I further take into account that the prisoner’s custody is somewhat more onerous than that to which prisoners in the general prison population are subject.

47 The prisoner has been in custody since 12 July 2005 and I will make the sentence I impose commence from that date. It was not submitted that there were any special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act and I do not make any finding of special circumstances.

48 Bevan Joyce stand up. For the offence of the murder of Rosemary Joyce I sentence you to a non-parole period of sixteen years commencing on 12 July 2005 and expiring on 11 July 2021 and to a balance of term of five years commencing on 12 July 2021 and expiring on 11 July 2026. The earliest date on which you will be eligible for release on parole will be 11 July 2021.

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