R v Lloyd

[2022] NSWSC 906

Supreme Court

New South Wales

Medium Neutral Citation:

R v Lloyd [2022] NSWSC 906

Hearing dates:

1 July 2022

Date of orders:

15 July 2022

Decision date:

15 July 2022

Jurisdiction:

Common Law - Criminal

Before:

Bellew J

Decision:

(1) The offender is convicted of the murder of Lynda Greenwood.

(2) The offender is sentenced to 25 years and 6 months imprisonment commencing on 20 October 2020 and expiring on 19 April 2046.

(3) I fix a non-parole period of 19 years and 1 month imprisonment, commencing on 20 October 2020 and expiring on 19 November 2039.

(4) The offender will be eligible for parole on 20 November 2039 and his sentence will expire on 19 April 2046.

(5) I advise you of s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to this offence.

Catchwords:

Criminal law – Sentence – Murder committed at the front door of the victim’s premises in the context of a long history of domestic violence – Where the offender intended to kill the victim – Use of two separate weapons – Offending in breach of an Apprehended Domestic Violence Order put in place for the protection of the victim – Where offender’s criminal history included previous domestic violence offending – Offending above the mid-range of objective seriousness – Offender’s background supporting a slight reduction in moral culpability – Plea of guilty entitling the offender to a discount of 25% - Subjective case otherwise limited – Need for general and personal deterrence and denunciation

Criminal Law – Offending committed in breach of Apprehended Domestic Violence Order – Observations as to the nature of such orders and the necessity for compliance with their terms – Breaches of such orders to be treated seriously by the Courts – Breach in the present case to be given full weight as a circumstance of aggravation

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Goodbun v R [2020] NSWCCA 77

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

R v Cherry [2017] NSWCCA 150

R v Goodbun [2018] NSWSC 1025

R v King [2013] NSWSC 801

R v Le (No. 2) [2019] NSWSC 763

R v Lulham [2016] NSWCCA 287

R v Medich (No. 43) [2018] NSWSC 886

R v Rae [2001] NSWCCA 545

R v Robinson [2007] NSWSC 460

R v Shankley [2003] NSWCCA 253

R v Yavuz (No. 6) [2019] NSWSC 95

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Veen v The Queen (No. 2) (1998) 164 CLR 465; [1998] HCA 14

ZZ v R [2013] NSWCCA 83

Category:

Sentence

Parties:

Regina – Crown
Jason Lloyd - Offender

Representation:

Counsel:
D Scully – Crown
A Evers – Offender

Solicitors:
Director of Public Prosecutions, NSW – Crown
Legal Aid NSW – Offender

File Number(s):

2020/301156

Publication restriction:

Nil

Judgment

INTRODUCTION

1. Jason Lloyd (the offender) has pleaded guilty to a charge that on 20 October 2020, at Como in the State of New South Wales, he murdered Lynda Greenwood.

2. The maximum penalty for the offence of murder is life imprisonment, and a standard non-parole period of 20 years is prescribed. I should emphasise at the outset that the Crown did not submit that a life sentence was appropriate in the present case.

THE EVIDENCE

3. A sentence hearing took place on 1 July 2022, at which time the Crown tendered the following evidence: [1]

   1. Exhibit A.

1. a statement of agreed facts;

2. CCTV footage depicting the offender apparently cleaning one of the murder weapons shortly after he killed Ms Greenwood; [2]

   2. See agreed facts at [55].

3. an autopsy report prepared by Dr Kendall Bailey, Forensic Pathologist, dated 13 April 2021;

4. an Apprehended Domestic Violence Order made against the offender on 27 March 2019 (and subsequently varied on 27 September 2019) naming Ms Greenwood as the person in need of protection;

5. a Court attendance notice and accompanying statement of facts in relation to charges of assault, and stalking and intimidating, committed by the offender in January 2009;

6. three additional statements of facts pertaining to incidents between the offender and his former partner;

7. the offender's criminal history;

8. the offender's custodial history; and

9. victim impact statements of Don Greenwood (Ms Greenwood’s father) and Robert Higgins (Ms Greenwood’s brother), Mr Higgins’ statement being provided on behalf of Ms Greenwood’s mother, Beverley Greenwood.

4. Counsel for the offender tendered the following evidence on sentence: [3]

   3. Exhibit 1.

1. a report of Dr Sam Calvin, Forensic Psychiatrist, of 13 September 2021;

2. a report of Dr Goran Stevans, Psychiatrist, dated 17 May 2019;

3. a report of Emily Pearse, Clinical Audiologist, dated 28 January 2022;

4. clinical notes of Galina Simonova, Registrar at Sutherland Hospital, dated 12 February 2020;

5. documents pertaining to counselling undertaken by the offender through the “Enough is Enough" organisation;

6. extracts from medical records held by the Jannali Medical Centre;

7. a discharge referral from the Prince of Wales Hospital dated 29 April 2022; and

8. an affidavit of Alexandra Curnick, the offender's solicitor, of 24 June 2022 regarding aspects of the offender's conditions of custody.

5. I was also provided with written submissions by the Crown and counsel for the offender.

THE VICTIM IMPACT STATEMENTS

6. Mr Greenwood and Mr Higgins read their statements to the Court at the sentence hearing. Mr Greenwood spoke of the shattering impact on his life, and on the lives of his family, brought about by his daughter's death. Mr Higgins expressed similar sentiments, and made reference to the fact that following Ms Greenwood’s murder he had assumed a number of responsibilities, including having to give permission for a post-mortem examination to be conducted, as a result of which he became privy to what he described as the “gruesome details" of the circumstances in which his sister was murdered. Both Mr Higgins and his mother are plagued by thoughts of Ms Greenwood's final moments.

7. Whilst all of us in our respective lives have experienced, to some degree, the grief which follows the death of a person to whom we are close, only a very small percentage of us have been forced to experience such grief in circumstances such as the present. I do not pretend to be able to truly appreciate what the members of Ms Greenwood’s family have been forced to endure as a result of her death. I can only convey the sympathy of the Court, and my own personal sympathy, to each of them. I am hopeful that the conclusion of these proceedings today will assist them, even if only in a small way, to obtain some degree of closure.

8. It was the submission of the Crown that I should treat the statements of Mr Greenwood and Mr Higgins in the manner for which provision is made in s 30E of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). In R v Medich (No. 43) [4] I reviewed the authorities relating to the predecessor to s 30E. I concluded[5] that they supported the general proposition that although the nature and degree of harm may vary, any case of murder is harmful to the community. In those circumstances, and bearing in mind the content of the victim impact statements which were read to the Court, I am satisfied that they should be taken into account in the manner for which s 30E(3) provides. Counsel for the offender made no submission to the contrary.

   4. [2018] NSWSC 886 at [17] – [24].

   5. At [25].

THE FACTS OF THE OFFENDING

9. A statement of agreed facts was tendered by the Crown. It is appropriate that those agreed facts be set out in full:

The relationship between the Offender and Ms Greenwood: Overview

1.   The Offender and Lynda Greenwood (DOB 15 December 1980) commenced a relationship in 2016, which continued, on and off, until the date of the murder, 20 October 2020.

January 2017 – Ms Greenwood moves into shared townhouse in Como

2.   In or around January 2017, Ms Greenwood moved into a townhouse at 15/55-61 Cremona Rd, Como, in Southern Sydney. She shared the townhouse with 3 other people. Ms Greenwood was still living at this Como townhouse at the date of her murder on 20 October 2020.

Behaviour at hotels

3.   In 2018 and 2019, the Offender and Ms Greenwood were observed arguing at hotels in Sutherland – including Club on East, Boyles Hotel, the Royal Hotel and Club Kirrawee. The Offender was seen yelling in Ms Greenwood’s face on one occasion at The Club on East, Sutherland.

4.   On 22 December 2018 at about 2.30am the Offender, was outside Boyles Hotel Sutherland. He was banned from entering. He was heard yelling at Ms Greenwood who was drinking inside, asking her to come outside. Staff locked the door but the Offender kicked the door a number of times causing the glass to break.

Late 2019 – threat to kill

5.   In or around late 2019, during a period when the Offender and Ms Greenwood were separated, Ms Greenwood told friends that she had found the Offender hiding in her room when she came home and he had threatened to kill her if she did not take him back.

2 January 2019– Assault Occasioning Bodily Harm

6.   On 2 January 2019, the Offender and Ms Greenwood were at her home at Cremona Rd Como, drinking alcohol.

7.   The Offender asked to borrow Ms Greenwood’s mobile phone. He saw text messages on the phone to Ms Greenwood from other men and her ex-partner.

8.   They began to argue about the messages. Ms Greenwood ended the argument and attempted to go to sleep but the Offender told her he was ending the relationship. Ms Greenwood then got up and told the Offender to leave, opening the door. The Offender grabbed Ms Greenwood’s hair with one hand and with the other hand forcefully pushed her in the back pushing her over. He said “You’re a cheating cunt. That’s nothing. I will snap you in half.”

9.   The Offender then contacted an ambulance to assist Ms Greenwood and left the premises. The ambulance attended and Ms Greenwood was treated for a grazed right elbow, a grazed bruised right hip and scratches.

10.   Police attended the Cremona Rd house and spoke to Ms Greenwood. The Offender was not present. That afternoon the Offender and Ms Greenwood attended Sutherland police station together and the Offender was arrested.

11.   The Offender was bail refused until 9 January 2019 when he was granted bail. His bail conditions included that he not enter the suburb of Como, not go within 100 metres of Ms Greenwood’s home or work, and not approach her within 12 hours of drinking. An interim Apprehended Violence Order was also made which mirrored the non-contact conditions of bail.

12.   In relation to his conduct on 2 January 2019 the Offender pleaded guilty, and on 27 February 2019 was convicted of Assault Occasioning Bodily Harm and sentenced to a 2 year community corrections order commencing 27 February 2019, with the following conditions:

The standard conditions:

a) The Offender is not to commit any offence while subject to this Community Correction Order

b) The Offender must appear before the Court if called upon to do so at any time during the term of the Community Correction Order.

The additional conditions:

1.   The Offender is subject to supervision by a Community Corrections Officer at Sutherland Community Corrections Office for the period of the Community Correction Order.

2.    Must report to Community Corrections at Sutherland within 7 days

30 January 2019 - Apprehended Violence Order

13.   On 30 January 2019, upon an application by police, the interim Apprehended Violence Order of 2 January was varied in the Offender’s presence with the following conditions:

1.    The defendant must not do any of the following to Lynda Greenwood or anyone she has a domestic relationship with:

(a) assault of threaten her

(b) stalk, harass or intimidate her, and

(c) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of Lynda Greenwood.

2.    The defendant must not approach Lynda Greenwood or contact her in anyway unless the contact is through a lawyer.

4.    The defendant must not approach or be in the company of Lynda Greenwood for at least 12 hours after drinking alcohol or taking illicit drugs.

9.    The defendant must not go within 100 metres of:

(a) Any place where Lynda Greenwood lives

(b) any place where she works, or

(c) any other place listed here: 16/55-61 Cremorna Rd Como

14.   A final order was made on 27 March 2019 at Sutherland Local Court for 2 years in the following terms:

1.   The defendant must not do any of the following to Lynda Greenwood, or anyone she has a domestic relationship with:

(a) assault or threaten her

(b) stalk, harass or intimidate her

(c) intentionally or recklessly damage any property that belongs to or is in the possession of Lynda Greenwood.

2.    The defendant must not approach or be in the company of Lynda Greenwood for at least 12 hours after drinking alcohol or taking illicit drugs.

Ms Greenwood obtains a quote to install CCTV

15.   In or around the second half of January 2019, Ms Greenwood contacted a local home security company and requested a quote for an alarm and CCTV to be installed at her home due to her fear of the Offender. A few days later CCTV cameras were installed at points inside the house. Their operation lapsed in July 2019.

25 January 2019 – incident at Kirrawee Hotel –breach of interim Apprehended Violence Order by the Offender

16.   On 25 January 2019, Ms Greenwood and the Offender were drinking together at the Prince Hotel, Kirrawee. Ms Greenwood approached a security guard and handed him a handwritten note which included:

“Jamie!! Please help. My boyfriend has an AVO. He breached it last week. He is in trouble. I didn’t go to work tonight as he was in my house…doing things scary. Please secretly call the police. I’m scared. Please don’t tell anyone I’m doing this. Lynda Greenwood.”

17.   Police attended and found the Offender and Ms Greenwood drinking together in the outdoor smoking area. Ms Greenwood was uncooperative with police, telling them she had arranged to meet the Offender at the hotel.

18.   On 30 January 2019 the Offender pleaded guilty to the breach of the interim apprehended violence order relating to the events of 25 January 2019 at the Prince Hotel, Kirrawee

19.   [DELETED BY AGREEMENT]. [6]

6. Sentencing proceedings at T3.35.

19 May 2019 – Prince Hotel, Kirawee

20.   On 19 May 2019, the Offender and Ms Greenwood were drinking at the Prince Hotel, Kirrawee. They were spoken to by security in relation to a loud argument they were having and asked to leave. They agreed. They were escorted by security to the carpark. 10 minutes later Ms Greenwood returned to the hotel and asked for help. The Offender was asked by security to leave.

21.   Ms Greenwood and the Offender then commenced to argue. Ms Greenwood approached a waiting taxi and began to get into the rear seat. She said to the Offender “this is my taxi you can’t come with me.” The taxi driver observed the Offender behaving aggressively towards Ms Greenwood and told him 3 or 4 times “you can’t get in this taxi you have to leave.”

22.   The Offender began to abuse the taxi driver. Hotel security intervened and Ms Greenwood got into the rear of the taxi. The Offender then began to pull the rear door open as Ms Greenwood was pulling it closed. The taxi driver began to drive away but stopped when he realised the Offender was still holding on the door handle. The Offender then walked to the driver’s window and punched the taxi driver in the mouth. He was removed by hotel security and as he walked away shouted at the taxi driver - “I’m going to kill you, I’m going to kill your family, and I’m going to kill her.”

23.   He was arrested a short time later and charged with Contravening the Final ADVO made on 27 March 2019 and Common Assault of the taxi driver. He was refused bail.

Offender in custody – Between 27 September 2019 and 18 November 2019

24.   On 27 September 2019, the Offender was sentenced to 9 months imprisonment with 6 months non parole period for the assault of the taxi driver and the contravention of the ADVO on the 19 May 2019. The CCO for the 2 January matter was called up and he was sentenced to 6 months imprisonment. All sentences were to be served concurrently from 19 May 2019 and the earliest release date was 18 November 2019.

25.    While the Offender was serving his sentence, he regularly called Ms Greenwood. The Offender did not accept their relationship was over and told her they had not broken up. He said he would not accept their relationship was over until “we do it face to face.” He told her that the “stuff” he had done was “completely out of jealousy.”

26.   While in custody, the Offender was anxious to know if Ms Greenwood was socialising with men. He asked his brother to “do me a little favour. I want you to fuckin’ sneak up to the bowling club along the edge, along the fence there and just see if you can see her with anyone.”

Events upon Offender’s release from prison – November 2019 onwards

27.   The relationship between the Offender and Ms Greenwood resumed on his release in November 2019.

28.   Ms Greenwood was scared of the Offender and told a friend that “If I’m with him, at least he won’t kill me” and “If I’m with him, at least I have some control and he won’t kill me.” The relationship was again off and on and Ms Greenwood told her friend that the Offender would get angry and break things or take her phone.

29.   Ms Greenwood also told friends that she was scared that the Offender would hurt her loved ones.

September 2020 – Ms Greenwood ends the relationship and events thereafter

30.   In early to mid-September 2020, Ms Greenwood broke off the relationship with the Offender. She told a friend that this was because the Offender had given her a split lip.

31.   On the following day, the Offender approached Ms Greenwood at the Union Place Hotel. The Offender appeared agitated and said to Ms Greenwood words similar to “this is all your fault. All you want to do is drink. If I can’t have you, no one else can have you.”

32.   After this the Offender continued to harass Ms Greenwood, calling her and turning up at venues where she was.

33.   On 19 September 2020, the Offender arrived at Ms Greenwood’s home unannounced when Ms Greenwood was out. Her flat mate called to tell her. She told her flatmate to tell the Offender to leave. She told friends that the Offender was stalking her and that she had seen him at venues she went to, and that it was dangerous for her to get an Uber home because they dropped her at the bottom of her driveway and she feared the Offender would be waiting for her “lurking in the shadows and would get her.”

34.   On 26 September 2020 Ms Greenwood was with friends (male and female) at the Como Crocs Rugby league club house when the Offender appeared uninvited. Ms Greenwood was frightened and quickly went and hid in the women’s bathroom. She did not re-emerge until the Offender had been escorted out by members. The following day the Offender sent her a message:

“And you think I didn’t see you with that guy it’s only been a 2 weeks n u do that to me…fuck u… pay”

35.   Later the following day Ms Greenwood messaged a friend:

“Last Sat on Mal’s Jason turned up at my house cos he could see I wasn’t with my friends n locked himself in my room. My flatmates called n had to ask him to leave. He stole my security camera!! And last night he showed up at the Como clubhouse!!!...the whole football team was there..Some guy answered my phone when I wasn’t around n told Jason we were there. They all kicked him out!! Now I’m getting msgs today how I am going to pay for it!! And I have no security camera cos he stole it last week and I have left my phone charger at the clubhouse don’t know how to get it! I cant walk around safely with no phone charger!!..I’m actually quite scare now mate. If some guy didn’t answer my phone he wouldn’t have known where I was. Now he wants to go back to threatening I’m apparently going to pay for being with the guys..And I have no security camera from last week.”

36.   On 28 September 2020 Ms Greenwood messaged a friend:

“Hi Jade. So sorry to bother you but Jason isn’t coping very well since I broke up with him. He has stolen my security camera at home last week n helped himself into my bedroom when I wasn’t home…He has stalked n threatened me again n refuses my decision. He tried taking on Como football club uninvited last Saturday when I was just with friends and wanted to take them all on..Also has threatened suicide today n to take people with him..There is still an AVO n he doesn’t seem to care..”

“I have been a bitch sticking up for myself but in my heart I want him to be ok..I just need him to leave me alone..He is unstable.”

37.   On 29 September 2020 the Offender attended Kmart Sylvania and purchased a new baseball bat.

38.   On 3 October 2020 Ms Greenwood messaged a friend:

“HI to bother you. Jason said he is with Storm today for her birthday. He said he is going to force me to be with him and when I threatened him he just doesn’t seem to care. Can you please have a word with him?”

39.   In October 2020, Ms Greenwood commenced work in the kitchen at Club Kirrawee. She asked the duty manager who was also her friend not to tell the Offender’s brother where she was working as she did not want the Offender to know.

40.   Also in October 2020 Ms Greenwood showed her friend her house keys which were bright pink and said that way she could find them quickly as she didn’t want to be standing on her front step for too long in case the Offender was there waiting for her.

The weeks leading up to the murder

41.   On 10 and 11 October the Offender sent messages to Ms Greenwood and rang her various times:

10/10/2020	22:17:54	22:17:55	Offender	Ms Greenwood	I LOVE YOU LYNDA
10/10/2020	23:29:05	23:29:06	Offender	Ms Greenwood	DONT GHOST ME LYNDA
10/10/2020	23:47:37	23:47:38	Offender	Ms Greenwood	I said dont fucking ghost me lynda are u ok ,, just a simple question
10/10/2020	23:56:20	23:56:56	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
11/10/2020	0:28:16	0:28:19	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
11/10/2020	0:29:29	0:29:32	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.

42.   Ms Greenwood sent responses indicating that she wanted the Offender to leave her alone:

11/10/2020	0:33:10	0:33:14	Ms Greenwood	Offender	I don't appreciate how u speak and my phone is nearly dead.. Don't you ever think you have the right to speak to me like that.. EVER!! \nOK\nI HAVE MADE MY SELF CLEAR OK
11/10/2020	0:34:41	0:34:43	Ms Greenwood	Offender	You are not part of my life Jason anymore

43.   However, the Offender continued to message Ms Greenwood asking to meet her and threatening her:

12/10/2020	10:06:29	10:06:30	Offender	Ms Greenwood	Can u come over sometime this arvo please lets put all the cards on the table ,, this has gone on to long , n im going to disappear im always going to b around
12/10/2020	10:55:04	10:55:06	Ms Greenwood	Offender	I can meet you for a coffee somewhere tomorrow afternoon
12/10/2020	10:58:32	10:58:33	Offender	Ms Greenwood	Ok but why cant we meet at mine so we can talk in private
12/10/2020	11:03:54	11:03:55	Ms Greenwood	Offender	Because I don't want to be in private with you Jason. Did you want to meet tomorrow for a coffee in the afternoon or no..
12/10/2020	11:43:11	11:43:12	Offender	Ms Greenwood	Ok lynda i understand what time would suit you
12/10/2020	12:05:29	12:05:37	Ms Greenwood	Offender	After 2.. I'll confirm tomorrow
12/10/2020	12:33:54	12:33:54	Offender	Ms Greenwood	Ok thanks
12/10/2020	18:24:02	18:24:03	Offender	Ms Greenwood	Can u please confirm a time tonight for coffee tomorrow , because i have to sort out bus n train times thank you
12/10/2020	19:15:19	19:15:19	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
12/10/2020	19:43:35	19:43:39	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
12/10/2020	19:48:28	19:48:35	Offender	Ms Greenwood	Umm. U called me twice n now u cant answer my call Lynda
12/10/2020	20:12:49	20:12:51	Offender	Ms Greenwood	I do appreciate the call , its was nice to hear from you ,, but dont ever think im stupid ok as we spoke their is 1000 million eyeys looking down upon us so just do what we do everything is recorded
12/10/2020	20:20:47	20:20:48	Offender	Ms Greenwood	And i will tell you if you are going away with a another man i will find him n hurt everyone that he loves x
12/10/2020	20:28:54	20:29:01	Offender	Ms Greenwood	U wana stage me up for someone else thay will suffer on your behalf
12/10/2020	20:39:35	20:39:36	Offender	Ms Greenwood	Obviously he has no one or he is lying to his wife , girlfriend saying he is going away for work fucking dog ill find the cheating cunt
12/10/2020	20:41:48	20:41:48	Offender	Ms Greenwood	N yes if will b going to see if your car is parked up ok
12/10/2020	20:56:39	20:56:39	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
12/10/2020	21:08:15	21:08:21	Offender	Ms Greenwood	What you're new boyfriend WONT LET U ANSWER its ok ive done my research
12/10/2020	21:16:25	21:16:32	Offender	Ms Greenwood	U tell that fuck wit im going to pulverize him and his love ones
12/10/2020	21:39:34	21:39:36	Offender	Ms Greenwood	this xx fuck everyone fuck the world Are u cocksuckers hearing me your new man is dead take that to the pigs ill shoot them too fucking police dog cunts , n fuck lynda u so soon you can do
13/10/2020	3:59:49	3:59:49	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
13/10/2020	4:00:29	4:03:30	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
13/10/2020	4:17:18	4:17:20	Ms Greenwood	Offender	Jason I'm asleep n I don't appreciate your violent conversations you have thrown at me tonight
13/10/2020	4:19:01	4:19:02	Offender	Ms Greenwood	You are obviously not asleep Lynda ok you are most probably on drunk n on drugs or druged by who ever u are with
13/10/2020	4:28:04	4:28:05	Ms Greenwood	Offender	Yeah.. Good on you Jason
13/10/2020	4:28:50	4:28:51	Ms Greenwood	Offender	I need to be asleep now so I'm asking that you stop. Thanks
13/10/2020	4:29:02	4:29:02	Offender	Ms Greenwood	Its true isint it
13/10/2020	4:30:40	4:30:41	Offender	Ms Greenwood	Well stop taking drugs n u could sleep ,, its only been 1 month n u are sleeping around all ready n getting used
13/10/2020	4:44:20	4:44:21	Offender	Ms Greenwood	If i find out its true its only going to get worse lynda ,,, u make bad decisions u pay for them as u told me
13/10/2020	7:59:12	7:59:13	Offender	Ms Greenwood	When you get back i want u to come hear ok i wont take no for a answear anymore n thats final im loosing patients
13/10/2020	10:46:53	10:46:56	Ms Greenwood	Offender	How dare you speak to me the way you have Jason. You have no right on this planet to talk the way you do. I've said it before n I'll say it again. There is no future. I wont be with a violent man.
13/10/2020	10:49:50	10:49:52	Offender	Ms Greenwood	Im not violent lynda im just upset im not even drinking anymore please just give it a shot ,, its mums bday on the 2nd i dont want to break her heart when im not here
13/10/2020	10:50:04	10:50:04	Offender	Ms Greenwood	N im sorry for the outburst
13/10/2020	11:07:54	11:07:56	Ms Greenwood	Offender	You are violent Jason. Take a look at your msgs. Sorry isn't good enough. We have broken up and you send me horrible things n I won't be meeting you.
13/10/2020	11:12:38	11:12:40	Offender	Ms Greenwood	thanks to u n ive done alot ov soul searching ,, n i want to continue so please i want to build us up again i can do it off the drink we only fight at night times lynda , no more pain please we can make all this hurt go away n have the life we have been talking about
13/10/2020	11:12:38	11:12:40	Offender	Ms Greenwood	Im not lynda i say that out ov hurt , just like u do when u are hurting ok just please dont punish me anymore ive learnt my lesson ive done alot ov good
13/10/2020	11:14:51	11:14:51	Offender	Ms Greenwood	Please let me for both our mums please ive been so upset tthat ive let mine down i dont wana let your mum down lynda please
13/10/2020	11:16:51	11:16:53	Ms Greenwood	Offender	I can't be with someone violent Jason so please leave me alone
13/10/2020	11:19:19	11:19:20	Offender	Ms Greenwood	Its only on the drink lynda i garrentee im not drinking anymore , we can make this hurt go away just baby steps again start from the beginning, im begging u
13/10/2020	11:20:07	11:20:14	Offender	Ms Greenwood	Im doing alot ov good things now ive got more time n its helping n working
13/10/2020	11:21:42	11:21:44	Ms Greenwood	Offender	Your msgs you sent sober were discustingly violent so it's not the drink. It's you. No.
13/10/2020	11:23:25	11:23:26	Offender	Ms Greenwood	Its not me im lashing out because im hurting i dont mean it just like u do when u hurt u dont mean it but u say it so please hun
13/10/2020	11:24:28	11:24:30	Ms Greenwood	Offender	I can't live like that
13/10/2020	11:26:14	11:26:16	Offender	Ms Greenwood	I dont want to either lynda i can make life happy , we were working towards it im getting my fines paid so we could get a loan for a home etc please just
13/10/2020	11:26:15	11:26:16	Offender	Ms Greenwood	give me a little more time to prove my worth again
13/10/2020	11:27:15	11:27:22	Offender	Ms Greenwood	I can make all this hurt stop
13/10/2020	18:26:47	18:26:48	Offender	Ms Greenwood	Can we catch up tomorrow for a coffee
13/10/2020	18:40:34	18:40:35	Ms Greenwood	Offender	No fricken way.. you are a psycho
13/10/2020	18:41:00	18:41:01	Offender	Ms Greenwood	Please Lynda
13/10/2020	18:42:10	18:42:10	Offender	Ms Greenwood	I will not argue just want to talk please
13/10/2020	18:44:08	18:44:11	Ms Greenwood	Offender	No you can get fucked now.. You are just a horrible pig for everything you have done to me n everything you did after I broke up with you.. And last nigh t was fucked up.. So no..
13/10/2020	18:45:01	18:45:03	Ms Greenwood	Offender	Just fuck off.. You and your stupid fucking text msgs..
13/10/2020	18:46:56	18:46:56	Offender	Ms Greenwood	Dont b like that please lets just sort this out u no me im not like that thats the reason why we have been together so please
13/10/2020	19:02:51	19:02:51	Offender	Ms Greenwood	I have lynda , i promise u if i ever attempt to lay a hand on you again ill hand myself in to the police
13/10/2020	19:03:28	19:03:30	Ms Greenwood	Offender	No\n(sent with Slam Effect)
13/10/2020	19:52:30	19:52:33	Offender	Ms Greenwood	Lynda i just wana b loved n love back u are the only person that i could ever do that with so please understand i no what happened was wrong n ive punnished myself enough ,, my mum is not happy i can feel it by the way god has made me feel every day n night i just want to make it right again please i swear to god if i ever come close to putting a hand on u or even look like it i want u to put me in to the cops ill do it ,, thats how important you are to me please lynda i dont wana fight anymore or hurt anyone ,, please find it in you're heart we have been thro hell n happiness together i want happyness to continue so please hun i admire you're strength lately but please it will never happen again x
13/10/2020	19:56:38	19:56:39	Offender	Ms Greenwood	I loved nothing more then having dinner with u lynda please it was perfect so please
13/10/2020	23:06:41	23:06:43	Ms Greenwood	Offender	U are a stalking psycho who seen nothing.. Call me a cunt again Jason n I promise I'll do something about this situation.. I promise you..
13/10/2020	23:07:10	23:07:11	Offender	Ms Greenwood	Ive lost everything about me i dont care anymore , dead jail or wwhatever
13/10/2020	23:18:53	23:18:55	Offender	Ms Greenwood	As i said i don't care n ive been watching your male mates leave n ive followed then i no where all ov them live so dont fuck with me bitch thay have families, I don’t care
13/10/2020	23:22:02	23:22:04	Ms Greenwood	Offender	I'll let them know.. Good luck to you freak..
13/10/2020	23:23:40	23:23:41	Offender	Ms Greenwood	Please do just the heads up to them ive got nothing to loose
13/10/2020	23:33:15	23:33:16	Offender	Ms Greenwood	Its ok i have a nice sharp knife with me that will do the trick ,, dont ever threaten me u fucking understand i have nothing to lose ill stab any one that comes near me cops or gronks ok

44.   The messages from the Offender continued in the same vein until 16 October 2020 when Ms Greenwood stopped replying:

16/10/2020	1:21:39	1:21:40	Offender	Ms Greenwood	Is that why u are ignoring me ha u think im stupid word gets around quick ,, n i no something else to n yep im going to loose my shit
16/10/2020	1:23:01	1:23:02	Offender	Ms Greenwood	Jannali pub small world n everyone sees everything 🤬
16/10/2020	1:31:45	1:31:52	Missed Call	Ms Greenwood	You have a missed call from Offender. Missed Call Service is free. Call 159 to opt out.
16/10/2020	1:36:29	1:36:35	Offender	Ms Greenwood	If some one tells me u r with that guy again god have help everyone
16/10/2020	1:36:53	1:36:53	Offender	Ms Greenwood	Its been a month lynda

The murder of Ms Greenwood

45.   On the evening of 19 October 2020, the Offender caught a train from Miranda Railway Station at 17:42. He visited hotels in Gymea, Mortdale and Penshurst over the following 4 and a half hours and consumed a quantity of alcohol.

46.   Between 21:51 and 21:58 the Offender sent messages to a female who he had befriended a few days before, and said, with reference to Ms Greenwood “4 years I really did adore her she was everything I wanted” and “she cant even pick her things up.. I respect her n don’t want to talk bad about her to anyone, but if she doesn’t pic her things up I might have to do things I don’t wanna do.”

47.   The Offender caught a train to Como Railway Station, arriving at 22:56 and then walked to Ms Greenwood’s address.

48.   On the evening of 19 October 2020, Ms Greenwood went to the Union Hotel, Jannali and was drinking with friends. She left at 00:06 am on 20 October 2020, drove home, and parked her car outside her garage and walked to her front door.

49.   The Offender approached Ms Greenwood and struck her with the baseball bat, predominantly to the left side of the head but Ms Greenwood was also struck on the arms during the attack.

50.   From being struck with the baseball bat, Ms Greenwood suffered :

(a)   extensive comminuted and displaced fractures to her nose, frontal bone into the frontal and ethmoid sinus, the roof of orbit and the walls of both maxillary sinuses. The frontal fracture extended laterally across the forehead into the left squamous temporal bone.

(b)   the left zygomatic arch was dislocated.

(c)   the post mortem examination found air inside the skull cavity.

(d)   the complete left side of the maxilla (upper jaw bone) was also fractured.

(e)   six teeth on the left of Ms Greenwood’s mouth had been fractured

(f)   an 8.5cm laceration extending from the bridge of the nose to the forehead caused by blunt force splitting and tearing the skin.

(g)   a small subarachnoid haemorrhage was present over the left frontal pole, and extended onto the left frontal lobe, and the margins at the back left of the cerebellum.

(h)   bruises were found on the right upper arm and left forearm, and the forearm (ulna) was fractured.

(i)   mottled bruising was found over the left side of her face.

51.   The Offender inflicted multiple stab wounds to Ms Greenwood’s face and neck. Ms Greenwood may well have been unconscious when these wounds were inflicted. Two stab wounds penetrated between the transverse processes between C3-C4 and C4-C5, severing the right vertebral artery in two places. These wounds continued into the soft tissue of the back of the neck. These wounds were approximately 100mm deep.

52.   The pathologist formed the opinion that death was caused by blunt and sharp force injuries to Ms Greenwood’s head and neck.

53.   Neighbours were woken by screams and thuds at approximately 12:15am to 12:20am on 20 October 2020, and saw the Offender come out of Ms Greenwood’s garage and walk down the driveway, carrying a black backpack.

54.   The neighbours could not immediately see Ms Greenwood lying outside her front door. Lauren Rountree called 000 at 12:27am and again at 12:39am. Greg Durney and Ryan Smith found Ms Greenwood lying in front of her doorway at approximately 12:38am. She was unresponsive.

55.   The Offender walked further along Cremona Rd and, having left a black bag at the front fence, entered the front yard of number 73. He was captured on CCTV footage washing a baseball bat at a tap in the front yard before putting the bat into his black bag and walking off. The CCTV footage will be tendered.

56.   DNA of the Offender and Ms Greenwood was recovered from the tap. Blood of Ms Greenwood was recovered from the wall beside the tap and the underside of the drain lid.

57.   The Offender then walked back onto Cremona Rd and then to Genoa St, being the second street further along on the left.

58.   The Offender walked along Genoa St where he was captured on CCTV. The Offender called a taxi and was picked up at 12.43am in Genoa Street.

59.   The Offender told the driver he wanted to go to Sylvania and that he was going to work. He was dropped off in Pembroke St, Sylvania. The Offender lived in Florida St, Sylvania, being the next street on the left.

60.   At 5:30am police attended the Offender’s address at 39/29 Florida St, Sylvania but no one answered the door.

61.   At 9:20am police again knocked on the Offender’s door, and he opened the door. He was arrested. On body worn camera footage the Offender was cautioned and answered a number of questions and he told the following lies:

•   he had been in his unit the whole week since Sunday afternoon.

•   he had been home since Sunday afternoon.

•   he last time he saw Ms Greenwood was a couple of months ago, probably 1 month ago.

•   he stayed home all day yesterday (19th).

62.   The Offender was arrested and charged with murder.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

10. There is no specific category of domestic violence murder. [7] However, as counsel for the offender accepted, the objective seriousness of the offending in the present case must be assessed having regard to the nature of the relationship which existed between the offender and Ms Greenwood,[8] although I emphasise that such factor does not aggravate the offending. [9]

    7. R v King [2013] NSWSC 801 at [93].

    8. ZZ v R [2013] NSWCCA 83 at [99]; Goodbun v R [2020] NSWCCA 77 at [261].

    9. R v Robinson [2007] NSWSC 460.

11. In the present case, the text messages which passed between the offender and Ms Greenwood leading up to the offending provide direct insight into the nature of their relationship. It is obvious that Ms Greenwood was in fear of the offender. Her decision to install CCTV cameras[10] at her premises is an indication of the level of that fear. Her selection of bright, pink-coloured house keys which could be easily found, and which would thus assist her in ensuring, as far as she could, that she did not remain on the front door step of her premises for any longer than was necessary, in case the offender was in the vicinity waiting for her,[11] was eerily prescient.

    10. Agreed facts at [15].

    11. Agreed facts at [40].

10. The other particular circumstance of the relationship between Ms Greenwood and the offender which warrants comment concerns Ms Greenwood’s decision to end the relationship, and the offender’s refusal to accept that decision. In around mid-October 2020 Ms Greenwood endeavoured to make it clear that as far as she was concerned, the relationship was over. [12] Not only did the offender refuse to accept that, [13] his response was to send Ms Greenwood a barrage of messages threatening violence against her, against any other person with whom she formed a relationship, and against the police in the event that she sought their intervention. [14]

    12. See for example messages at 0:34:41 on 11 October 2020 and 11:03:55 on 12 October 2020.

    13. See for example messages at 4:17:18, 11:07:54, 11:16:51, 11:21:42, 18:40:34, 18:44:08, 19:03:28 and 23:06:41 on 13 October 2020.

    14. See for example messages at 20:20:47; 20:28:54; 20:39:35; 20:41:48; 21:08:15; 21:16:25; 21:39:34 on 12 October 2020; 4:44:20 and 23:18:53 on 13 October 2020.

11. The communications which passed between the offender and Ms Greenwood reflect a relationship defined by the offender’s threatening, jealous, abusive and manipulative behaviour. Whilst his conduct in murdering Ms Greenwood could not be described as “vengeful”, the observations of Sully J in R v Rae [15] are otherwise apt:

The Courts, including this Court variously constituted, have tried to make it clear beyond any doubting that the breakdown of personal relationships, marital and extramarital alike, cannot be allowed to justify vengeful violence of any kind, let alone extreme violence of the kind here relevant. The facts of the present case require, sadly from the points of view of all concerned, that the principles be reaffirmed with all proper resolve.

15. [2001] NSWCCA 545 at [21].

14. The report of Dr Bailey following the post-mortem examination makes for chilling reading. The cause of Ms Greenwood’s death was blunt and sharp force injuries to the head and neck. As to the former, there were significant blunt force head injuries, including large lacerations of the forehead, fractures of the cranial vault and facial bones, and damage to the anterior teeth. As to the latter, a minimum of 10 stab wounds were present on the anterior neck, with would tracks extending to the musculature of the posterior neck. There were associated injuries to the trachea, oropharynx, thyroid cartilage, thyroid gland, larynx, vertebral column and the right vertebral artery. There was also a fracture of the ulna. Bruising of the right upper arm and the left forearm were considered likely to represent defence-type injuries. [16]

    16. At p. 4 – 5.

15. Any further observation about these injuries would be superfluous. Ms Greenwood’s screaming, which was sufficiently loud to wake the neighbours, and the defence-type injuries which were identified during the post-mortem examination, provide a disturbing picture of the absolute terror with which Ms Greenwood must have been gripped in the final moments of her life. Having killed her, and in a final callous act, the offender left Ms Greenwood to die on the front doorstep of her home before utilising a tap in the front of nearby premises to wash the baseball bat, in an apparent attempt to remove anything incriminating. The offender’s attack was inhumane, and was characterised by a level of brutality and ferocity which satisfies me beyond reasonable doubt that in acting as he did, he intended to kill Ms Greenwood.

AGGRAVATING FACTORS

16. There was no dispute between the parties that the offending was aggravated by the offender’s use of two separate weapons[17] . There were, however, a number of issues between the parties regarding other potentially aggravating factors.

    17. Sentencing Act s 21A(2)(c).

The offender’s breach of the Apprehended Domestic Violence Order

17. On 27 March 2019, an Apprehended Domestic Violence Order (ADVO) was made against the offender in the Local Court. That ADVO was later varied on 27 September 2019 and was operative for a term of 2 years. [18] It prohibited the offender from, amongst other things, assaulting or threatening Ms Greenwood, approaching her, or contacting her in any way. It specifically reiterated the necessity to comply with its terms, and warned that breaching those terms was a criminal offence.

    18. Agreed facts at [14].

18. There was some issue between the parties as to whether the breach of the ADVO amounts to a breach of conditional liberty within the meaning of s 21A(j) of the Sentencing Act. Whilst there are some observations which support the conclusion that it does,[19] this is not an issue I have to decide given that it was accepted by counsel for the offender that however it might be categorised, the offender’s breach of the ADVO per se aggravated the offending. To also have regard to the fact that it was a breach of conditional liberty would be to engage in double counting. I make it clear that I have not done so.

    19. See for example Goodbun at [266] and R v Cherry [2017] NSWCCA 150 at [80].

19. However, the fact that the offending was aggravated in that way is a matter about which I find myself compelled to make some further observations. In doing so, it is appropriate to call to mind the nature of the legislative scheme pursuant to which ADVOs are made, which was described by Spigelman CJ in John Fairfax Publications Pty Limited v Ryde Local Court [20] in the following way:

[20] The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking and intimidation, and harassment. Apprehended Violence orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.

[21] The [Crimes Act] makes parallel but separate provision for the making of orders in domestic, as defined, and other situations, referred to as an apprehended domestic violence order and an apprehended personal violence order. … In each case, the Court is empowered to make an order, on complaint, if it is satisfied that a person “has reasonable grounds to fear and in fact fears” personal violence, harassment, intimidation or stalking.

20. [2005] NSWCA 101; (2005) 62 NSWLR 512 at 519; [20]-[21] (Mason P and Beazley JA agreeing).

20. The fact that domestic violence is a profoundly serious problem in our community has been the subject of previous judicial comment. [21] Its proliferation has led to an increased necessity for Magistrates in the Local Court to make ADVOs for the purposes of protecting people such as Ms Greenwood, who find themselves in controlling and abusive relationships and who, as a consequence, fear for their safety. However, the efficacy of an ADVO depends upon the person against whom it is made strictly complying with its terms. The present case demonstrates the catastrophic consequences that may follow when such an order is breached.

    21. See for example R v Goodbun [2018] NSWSC 1025 at [202]-[203].

21. The ADVO which was in force against the offender at the time of Ms Greenwood’s murder was made by a Magistrate in the Local Court, for the specific purpose of ensuring Ms Greenwood’s safety. It was not to be regarded as some empty rhetorical flourish, pronounced by a functionary in the performance of some rote administrative procedure. The pervasion of domestic violence in our community in recent years is such that the point has been reached where one thing needs to be made clear: any person who is subject to an ADVO is not at liberty to treat it as a piece of paper, containing an insignificant and inconvenient form of words, which can be ignored when it suits them, or worse still, when they wish to set about committing some nefarious and violent act against the person for whose protection the order has been made. A person who acts in breach of an order of the kind made against the offender should expect that any such breach will be treated seriously by the Courts. In the context of the present case, the offender’s breach of the ADVO which was put in place for Ms Greenwood’s protection is to be given full weight as a circumstance of aggravation.

Planning and pre-meditation

22. Whilst it is clear that the offender intended to kill Ms Greenwood when he attacked her, there was an issue between the parties as to when that intention was formed, and an associated issue as to the existence of any planning or premeditation in which the offender may have engaged.

23. The Crown did not submit that the offender's purchase of the baseball bat was part of any specific plan to kill Ms Greenwood. The Crown's position was that the offender had purchased it because he was intending, or at least contemplating, using it as “an instrument of violence against [Ms Greenwood] or the man or men [the offender] perceived that she was seeing”. [22] It was the Crown’s ultimate submission that the offender formed the intention to kill Ms Greenwood when he boarded the train to Como in possession of the baseball bat and the knife. [23]

    22. T12.46 – T12.50.

    23. Agreed facts at [47]; T18.24 – T18.28.

24. Counsel for the offender submitted that it was open to conclude that the offender’s purchase of the baseball bat was for an entirely innocent purpose, and one which was completely unrelated to the offending. Counsel further submitted that there was an available inference that when the offender travelled to Ms Greenwood’s premises on the night of her murder he was not intending to kill her, but had gone there in the hope of convincing her to resume their relationship, albeit in the knowledge that there was a possibility that she had formed a relationship with another man. Counsel submitted that on the whole of the evidence, there was an available inference that the offender was in possession of the weapons to deal with any threat that any such man may have presented. All of that said, counsel for the offender accepted that at some point the offender had formed an intention to kill Ms Greenwood, but submitted that the precise time at which he had done so was not clear.

25. I am mindful of the fact that in resolving any issue between the parties for the purposes of sentence, aggravating circumstances must be established by the Crown beyond reasonable doubt, and mitigating circumstances must be established by the offender on the balance of probabilities. [24] It is, in my view, stretching limits of credibility to accept that the offender’s purchase of the baseball bat was for some entirely innocent purpose. However, notwithstanding that in the end result the baseball bat was one of the weapons used to murder Ms Greenwood, I am not satisfied beyond reasonable doubt that its purchase was part of a preconceived plan on the part of the offender to kill Ms Greenwood, nor am I satisfied beyond reasonable doubt that when the offender boarded the train to travel to Ms Greenwood’s premises, he had at that time formed an intention to kill her. The text messages in which the offender expressed a general intention to perpetrate violence on any man with whom Ms Greenwood may have formed a relationship [25] sustains a competing inference that the offender initially travelled to Ms Greenwood’s premises for the purpose of ascertaining whether she was in the company of another man and, if he found that she was, with the intention of violently remonstrating with that man or perhaps, as counsel for the offender submitted, dealing with any actual or threatened violence by such man. Whilst it is clear that at some stage the offender did form an intention to kill Ms Greenwood, I am not able to determine precisely when that occurred. I can only conclude that it was sometime between the point at which he boarded the train and the point at which he attacked her. It follows that I am not satisfied beyond reasonable doubt that the offender’s intention to kill Ms Greenwood was part of any long standing plan.

    24. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 as 280 – 281; [24] – [27].

    25. See for example agreed facts at [31]; [34]; text messages on 12 October 2020 and 13 October 2020.

The offender’s level of intoxication

26. Some of the text messages sent by the offender to Ms Greenwood made reference to his history of consuming excessive alcohol. [26] The Crown relied on this evidence as establishing an appreciation on the part of the offender that he was particularly prone to violent outbursts after he had been drinking. In circumstances where it was an agreed fact that the offender had visited a number of hotels prior to going to Ms Greenwood’s premises on the night that he murdered her,[27] the Crown submitted that the evidence established that the offender was intoxicated, and that this was an aggravating factor. Counsel for the offender took issue with that position, and submitted that there was no evidence of what alcohol the offender may have consumed before travelling to Ms Greenwood’s premises.

    26. See for example text messages from the offender at 10.49.50 and 11.19.19 on 13 October 2020.

    27. Agreed facts at [45].

27. There is evidence that the offender was prone to excessive drinking, and that he had some awareness that doing so had a tendency to increase his level of aggression. It is also not in dispute that in the period leading up to Ms Greenwood’s murder the offender had attended a number of hotels. Whilst these circumstances arouse considerable suspicion, there is no evidence of how much alcohol the offender may or may not have consumed before he travelled to Ms Greenwood’s premises. The evidence tendered by the Crown included a DVD depicting the offender washing the baseball bat in the front yard of premises nearby those of Ms Greenwood. [28] Although the footage is brief, there is nothing about the offender’s demeanour depicted on that footage which would suggest that he had consumed an excessive amount of alcohol. For these reasons, I am not satisfied that intoxication is an aggravating factor.

    28. Agreed facts at [55].

The location of Ms Greenwood’s murder

28. Ms Greenwood was murdered at the front door of her premises. [29] This gives rise to the question of whether the offending is aggravated by being committed in her home. [30]

    29. Agreed facts at [48]-[49].

    30. Sentencing Act, s 21A(2)(eb).

29. In R v Lulham [31] Bathurst CJ said the following in relation to what constitutes a “home”:

The word “home” must be considered in the context in which it appears in the legislation. … The reason it can be taken into account as an aggravating factor is that an offence to which the subsection applies involves a violation of the victim’s reasonable expectation of safety and security in his or her home. It seems to me this expectation would extend not only to the actual physical residence but to the area on the same premises, at least reasonably adjacent to that building.

31. [2016] NSWCCA 287 at [5].

30. In R v Yavuz (No. 6) [32] Davies J concluded that the offending was aggravated by the fact that it had occurred on the front steps of the premises at which the victim was staying at the time. His Honour said:

The point about the aggravation of an offence occurring in the home of the victim is that the person is entitled to feel safe in that place. That feeling of safety is not confined to the rooms of the house but is equally applicable to the property as a whole and, certainly in the present case, to the front steps on which [the victim] was sitting. The feeling of safety is justified because a person coming wrongfully onto the property will be a trespasser.

32. [2019] NSWSC 95 at [55].

31. A similar approach was taken by Wright J in R v Le (No. 2) [33] where, having referred to the judgment of Bathurst CJ in Lulham, his Honour accepted a submission of the Crown (which was not contested) that the garage and car park area of the deceased’s unit block formed part of the same building as his residence, and was an area where he could reasonably have the same expectation of safety and security as he would have in his home. In those circumstances, his Honour found that the offending was committed in the deceased’s home.

    33. [2019] NSWSC 763 at [26].

32. In the present case, counsel for the offender submitted that because the offending occurred on common property, albeit immediately outside Ms Greenwood’s front door, the aggravating factor in s 21A(2)(eb) of the Sentencing Act did not apply. That said, counsel expressly accepted that the offender was waiting outside Ms Greenwood’s home when she arrived and that she had an entitlement to expect that she could approach the front door and enter her home without interference. In these circumstances, he submitted that if s 21A(2)(eb) was found to apply, “it may not have much work to do”.

33. The authorities cited above support a conclusion that for the purposes of s 21A(2)(eb) of the Sentencing Act, the concept of a “home” can extend beyond the physical residence. However, where an offence occurs outside, as opposed to inside, the physical residence, it remains a matter for a sentencing judge to determine whether, on ordinary sentencing principles, that aggravates the offending. [34] In my view, Ms Greenwood had a legitimate expectation that having arrived home, she would be able to walk to the front door and enter her premises safely. So much was effectively conceded by counsel for the offender. Accepting that to be the case, I am satisfied that the offending is aggravated by the fact that it was committed at Ms Greenwood’s home, although in my view the degree of aggravation is less than would have been the case if the offender had found his way inside premises and committed the offence.

    34. Lulham at [6] per Bathurst CJ.

The offender’s criminal history

34. Leaving aside matters in respect of which he appeared in the Children’s Court, the offender has a criminal history dating back to November 1999. He has been dealt with on several occasions for contravening ADVOs. [35] One of those occasions was on 28 October 2010 when the offender was sentenced to a term of imprisonment. The victim of his offending on that occasion was his former partner. The breach involved (inter alia) the offender abusing his former partner in the context of alleging infidelity, and sending her repeated text messages.

    35. On 17 March 2010; 28 October 2010; 27 September 2019.

35. In 2009, the offender was given the benefit of a bond under s 9 of the Sentencing Act for offences of common assault and stalk and intimidate. Those offences were committed against a victim (at his home) who was giving evidence against the offender in criminal proceedings alleging sexual assault. The assault by the offender was accompanied by repeated threats to kill the victim.

36. In January 2019 the offender was sentenced to a Community Correction Order for two years in respect of an offence of assault occasioning actual bodily harm, in the context of domestic violence towards Ms Greenwood. [36] On 27 September 2019 he was sentenced to a term of imprisonment for (inter alia) contravening the ADVO which was put in place for Ms Greenwood’s protection.

    36. Agreed facts at [6] and following.

37. It was the Crown’s submission that the offender’s criminal history for personal violence offences should be regarded as an aggravating factor under s 21A(2)(d) of the Sentencing Act, and that it should be taken into account in the manner articulated in Veen v The Queen (No. 2). [37] Counsel for the offender submitted that when viewed as a whole, the offender’s criminal history was relatively minor and exhibited a limited history of violent offending.

    37. (1998) 164 CLR 465; [1998] HCA 14 at [14].

34. I am unable to accept counsel’s categorisation of the offender’s criminal history as relatively minor. In my view, that history demonstrates an attitude of disobedience and, to a degree, violence. The offender’s criminal history is to be taken into account in the manner explained by Howie J in R v Shankley [38] (by reference to the decision in Veen No. 2):

The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed, but rather that ‘retribution, deterrence and protection of society may indicate a more severe sentence is warranted’.

38. [2003] NSWCCA 253 at [31]; see also R v Johnson [2004] NSWCCA 76 at [35]-[37].

CONCLUSION

39. In the circumstances I have outlined, this offending sits above the mid-range of objective seriousness. The background against which it occurred, and the offending itself, call for a strong measure of specific deterrence, an equally strong measure of general deterrence, and the imposition of a sentence which will denounce the offender’s reprehensible conduct.

THE OFFENDER'S CASE

40. The report of Dr Calvin tendered in the offender's case on sentence was prepared following an assessment on 6 August 2021 for the purposes of determining whether or not the offender had a defence of mental illness available to him, or partial defence of substantial impairment by abnormality of mind. The fact that this is so does not detract, in any way, from the opinions provided by Dr Calvin. However, it should be emphasised that counsel for the offender accepted that there were limitations to be placed upon parts of the report, particularly those parts in which Dr Calvin recorded the offender’s account of the circumstances in which Ms Greenwood was murdered. In the end result, counsel relied upon the report firstly to provide some background in relation to the offender, and, secondly to establish the diagnoses which were reached. Counsel specifically eschewed reliance on the report to establish any aspect of the circumstances of the offending [39] and I have proceeded on that basis.

    39. Set out by Dr Calvin at p. 5 – 6.

41. In terms of the offender's personal history, Dr Calvin reported as follows: [40]

[The offender] was born in Liverpool, NSW, the oldest in a sibship of two. He had limited contact with his father, who was in and out of prison. He said his mother died when he was around six years old due to brain aneurysm.

He described his childhood as unstable and chaotic. He described anxiety as a child and said that he displayed severe behavioural problems, which led to him being shunted between grandparents, making [the offender] feel unwanted. He developed deep insecurities and started acting out violently at school, which led to him being moved to a boy’s home for troubled youth. [The offender] said that he was “hard to control” and was kicked out of most programs, leading to feelings of abandonment. He was expelled from school in Year 11 for stealing. After his grandparents died, [the offender] said his problems worsened because he felt he had caused them stress and blamed himself for their death. He lived with his aunt and uncle and reported a brief period of stability when working with his uncle repairing tyres.

In terms of relationships, [the offender] said that he met his ex-wife Stephanie in the year 2000, and they subsequently had two children together. The relationship soured around 2008 after allegations of domestic violence. His ex-wife had an AVO against him after they separated.

He met [Ms Greenwood] in late 2017 at a pub and they began a volatile relationship. He said that he was often controlling in their relationship and would accuse her of infidelity. The relationship ended in 2019, but they continued to have some contact until her death.

In terms of his forensic history, [the offender] said he had four prior terms of imprisonment. The first was in 2002 for around 8 months which he said were for unpaid fines; the second was in 2010 for 9 months for breaching an AVO against his ex-wife Stephanie and the third and fourth time in custody was in 2019 for breaches of a AVO against the victim of the current offending. He has been in prison since October 2020 for the current offences.

40. At p 4 – 5.

42. Having reviewed other medical material which was made available to him which I have summarised further below, Dr Calvin diagnosed the offender as suffering from:

1. an alcohol use disorder; and

2. an adjustment disorder.

43. As to the second of those diagnoses, Dr Calvin said: [41]

From time to time, he has reported various symptoms of anxiety and depression in the context of life stress and relationship difficulties. I am of the view these are best conceptualised as an Adjustment Disorder rather than a manifestation of an underlying depressive or psychotic illness. There is no evidence of depression, pervasive anxiety, or psychosis.

There is no evidence to suggest that [the offender] had a mental illness that might have impaired his capacity to understand the wrongfulness of his actions.

41. At p 10 – 11.

44. Having expressed those views, Dr Calvin went on to say: [42]

It is essential to take a longitudinal view to understand [the offender’s] presentation. The offender’s father had a significant criminal history and was absent through his early formative years. His mother died when he was six years old, leaving him with no attachment figures or supports. [The offender] was shunted between various family members, further adding to the chaos of his life and insecure attachment. He started displaying externalising behaviours and severe conduct symptoms, and it appears that he did not receive support commensurate to his developmental needs. He was sent to a boy’s home and expelled from school, which made him feel like an outcast, both at home and at school.

These early childhood experiences led to an abnormal sense of self, chronic emptiness, affective instability, impulsive behaviours, and an instability in interpersonal relationships. These early experiences have contributed to the development of a deeply ingrained pattern of abnormal behaviour in relationships. [The offender] describes controlling behaviours, jealousy, and frantic efforts to avoid abandonment. These above-mentioned deficits in his sense of self and abnormal way of relating to others suggest that he has a significant personality disorder, which needs further exploration in therapy. [The offender] has abused alcohol throughout his adult life, which has further accentuated his abnormal personality traits and contributed to his aberrant behaviour. The reported symptoms of hearing his grandmother's voice and other paranoid thoughts are all manifestations of his deep-rooted insecurities and underlying personality deficits rather than a manifestation of a mental illness.

42. At p.10 – 11.

45. Although nothing turns on it, Dr Calvin’s description of the offender’s behaviour as an aberration tends to ignore the offender’s history of violent behaviour. In any event, the offender’s disadvantaged upbringing reduces his moral culpability, albeit (as counsel for the offender accepted) only to a minimal degree.

46. The report of Emily Pearse confirms that the offender suffers from mild to severe sensorineural hearing impairment bilaterally, necessitating the wearing of hearing aids. The discharge report from the Prince of Wales Hospital establishes that the offender underwent arthroscopic and reconstructive surgery on his knee in April of this year. All of these matters will have some bearing upon his conditions of custody and I have taken them into account.

47. There is no dispute between the parties that the offender is entitled to a discount of 25% to reflect the utilitarian value of his plea of guilty. That plea is the sole evidence of any remorse. There is no evidence that the offender has ever actually expressed any remorse to anyone for his offending.

48. The clinical notes of Dr Simonova indicate that on 11 February 2020 the offender presented with suicidal thoughts and thoughts of hurting others. Anti-depressant medication was prescribed. Between 8 January 2019 and 11 September 2020 the offender attended 14 counselling sessions through the “Enough is Enough” organisation. An accompanying report from Theo Simos, of 25 February 2019 (was obviously tendered in Local Court proceedings) described the offender as having implemented strategies to address his psychological issues, and made reference to the fact that the offender had “presented punctually and engaged well”. An accompanying mental health plan stated that the offender’s goals included wanting to feel less anxious, managing his alcohol consumption and wanting to feel “less sad”. The offender was referred to Dr Stevans, Psychiatrist, in 2019 for what were described as “symptoms of Depression and Anxiety.” [43] Dr Stevans diagnosed the offender as suffering from alcohol dependence (in remission) and an alcohol induced mood disorder. Continuation of anti-depressant medication was prescribed.

    43. Exhibit 1 at p.12.

49. There is no evidence that the offender suffered from any mental illness at the time of the offending. The fact that he apparently sought some treatment of his own volition is positive sign, even though such treatment was not successful. However, I take a very guarded view about the offender’s prospects of rehabilitation, and the likelihood of his reoffending. Both depend, largely if not exclusively, on the offender satisfactorily addressing his propensity for violence and the issues related to it. Whether he will do so is impossible to determine with any degree of certainty.

50. I have had regard to the affidavit of Ms Curnick regarding the impact of the Covid-19 pandemic upon the offender’s conditions of custody. That impact has manifested itself in (inter alia) a large number of lockdowns in which his movements within custodial facilities was restricted. There is no doubt that the pandemic has had an adverse effect on the conditions of custody experienced by all inmates in Correctional Centres in this State and I have taken those matters into account.

51. The offender has been in custody since 20 October 2020 and his sentence should commence from that date.

ORDERS

52. I make the following orders:

1. The offender is convicted of the murder of Lynda Greenwood

2. The offender is sentenced to 25 years and 6 months imprisonment commencing on 20 October 2020 and expiring on 19 April 2046.

3. I fix a non-parole period of 19 years and 1 month imprisonment, commencing on 20 October 2020 and expiring on 19 November 2039.

4. The offender will be eligible for parole on 20 November 2039 and his sentence will expire on 19 April 2046.

5. I advise you of s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to this offence.

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Endnotes