R v Lord

[2020] NSWSC 82

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Lord [2020] NSWSC 82
Hearing dates:	13 February 2020
Date of orders:	21 February 2020
Decision date:	21 February 2020
Before:	Harrison J
Decision:	Sentenced to imprisonment for 10 years and 8 months commencing on 27 February 2017 and expiring on 26 October 2027 with a non-parole period of 8 years expiring on 26 February 2025
Catchwords:	CRIMINAL LAW – sentence – manslaughter – where originally charged with murder – where death caused by unlawful and dangerous act – where act was intentional – where act carried appreciable risk of serious injury – where guilty plea entered at a late stage – where limited evidence of remorse – where good prospects of rehabilitation – domestic violence
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Category:	Sentence
Parties:	Regina (Crown) Edward Kenneth Lord (Offender)
Representation:	Counsel: K Ratcliffe (Crown) J Watts (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Offender)
File Number(s):	2017/62100
Publication restriction:	Nil

REMARKS ON SENTENCE

1. HIS HONOUR: Edward Kenneth Lord was originally indicted on a single count charging that on 20 October 2015 at Tumbulgum in the State of New South Wales he did murder his wife Michele Lord. Mr Lord was not arrested until 27 February 2017 but has remained in custody since then. On the third day of the first week of a trial scheduled to commence in Lismore with an estimate of five weeks, Mr Lord offered to plead guilty to her manslaughter. The Crown accepted that plea in full discharge of the indictment. Mr Lord is now to be sentenced for that offence. Manslaughter carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period.

2. The facts that give rise to the offence are agreed. They are as follows.

3. At the time of the incident Mr Lord and Michele Lord lived on Whiteash Road, Bonogin, Queensland. They had been married for about 25 years and had no children. Mr Lord worked as a concreter and his wife was employed as an after-sales representative with a Ford dealership at Springwood in Queensland.

4. The relationship between the couple had deteriorated over recent years. Ms Lord had told her sisters and closest friends about the problems in her marriage, but wanted to try to make the marriage work.

5. On 26 October 2014, Siew Ping (Margaret) Fong, a Malaysian national, arrived in Australia on a tourist visa. Ms Fong enrolled to study English at a language school on the Gold Coast and subsequently obtained a student visa. Shortly thereafter, Ms Fong commenced working for Thai Orchid Massage at Broadbeach. Mr Lord met her at a nearby coffee shop and began regularly attending upon her for massage. Ms Fong and Mr Lord were in regular contact with each other from 16 November 2014. Mr Lord introduced his wife to Ms Fong by bringing her to see Ms Fong for facial treatments.

6. During early 2015, Mr Lord suggested to his wife that they hire Ms Fong to work as a live-in housemaid. He convinced his wife that it would be a good idea because she worked long hours and had been ill with breast cancer. Ms Fong was given the use of a bedroom downstairs in the Lords' two-storey home, while the marital bedroom was located upstairs. At some stage during the first half of 2015, Mr Lord began an affair with Ms Fong that continued when she moved into their home.

7. On 14 May 2015, Ms Lord travelled to China with her mother for a holiday, returning on 27 May 2015. While she was out of the country, Mr Lord and Ms Fong travelled to Noosa and stayed together at a resort there for two nights.

8. In July 2015, Mr Lord spoke to Ms Fong's immigration agent. During that conversation Mr Lord asked whether Ms Fong was eligible for a partner visa if he was her sponsor. Mr Lord was told that he could be a sponsor for a partner visa if he was no longer in a relationship with his wife. Ms Fong recorded in her personal diary that Mr Lord proposed marriage to her on 28 August 2015 and she accepted it. Mr Lord also told Ms Fong's friend and former manager at the Thai Orchard Massage that he wanted to divorce his wife because he could not live with her and wanted to take Ms Fong back to Malaysia to marry her.

9. Throughout this time Ms Lord became increasingly suspicious of her husband's behaviour and the relationship he had with Ms Fong. She expressed her concerns to a number of friends, work colleagues and family members. Ms Lord booked a holiday to Vanuatu for seven days from 19 September to 26 September 2015 in an effort to restore their relationship. Whilst they were away in Vanuatu, Ms Fong returned to Malaysia and Taiwan for four weeks. Prior to her departure on 15 September 2015, Ms Fong obtained a second sim card, which she gave to Mr Lord so that they could keep in contact while he was out of Australia. Mr Lord and Ms Fong kept in contact during this time.

10. Before leaving for Vanuatu, Ms Lord told her family and friends that she had discovered Mr Lord with a second mobile phone. She questioned him about it and was told that he had always had a second phone. When Ms Lord inspected the phone, all call log and other information had been deleted. Ms Lord later told her family and friends when she returned that the holiday did not go so well and that Mr Lord spent time on his phone.

11. Ms Lord was advised by her employer in about September 2015 that she would no longer be paid by Ford for aftermarket work, which would reduce her annual income by around $45,000. This caused her to be concerned about her financial situation. She was due to start a new position with a Ford dealership at Tweed Heads on 20 October 2015.

12. Ms Fong returned to Australia on 4 October 2015. In the days following, Ms Lord prompted her cleaners to discuss the Vanuatu trip with her in front of Ms Fong in an attempt to discourage Ms Fong from continuing her interest in her husband.

13. On 7 October 2015, Ms Lord employed a private investigator to conduct surveillance on Ms Fong and her husband. The investigator reported that on 11 October 2015 Mr Lord and Ms Fong had breakfast together at a coffee shop and then travelled together to visit his mother.

14. That afternoon Ms Lord attended Broadbeach Police Station in Queensland in company with the private investigator to report that her husband had attempted to drug her the previous night and that she suspected him of putting a sleeping tablet in her wine in order to allow him to engage in sexual activities with Ms Fong. She produced a wine glass with a white residue in it and a glass jar containing liquid. Queensland police took a report that included a history of her recent marriage difficulties, but they did nothing further in terms of investigation and the wine glass and jar were discarded.

15. On 12 October 2015, Ms Lord told her family and friends that she had spoken to her husband about spending time with Ms Fong the day before. She said that he told her the reason he took Ms Fong to his mother's was because she had a gift to give her from Malaysia. Ms Lord also said her husband had agreed to see a marriage counsellor and would arrange for Ms Fong to move out of the home by the end of the week. Ms Lord said she was now not certain that they were having an affair and that she would give their marriage another go because Mr Lord had said he would change.

16. On 13 October 2015, Ms Lord met with a solicitor, wanting to initiate divorce proceedings and discuss a property settlement. She told the solicitor that she and her husband were having an "okay conversation yesterday, but all of a sudden he says he doesn't have any time to go to see the counsellor". On either 15 or 16 October 2015, Ms Lord told her close friend Frances Wilson that she had given Mr Lord an ultimatum that they seek marriage counselling together or she was going to leave him. On 16 October 2015, Ms Lord told her friend Catherine Cox that she had planned to spend Sunday with Mr Lord and that they were going to take a drive down to Byron Bay. She thought they might resolve some issues by spending time together.

17. The night before Ms Lord died, at about 11.30pm, Ms Fong recorded an incident in her diary indicating that Ms Lord had discovered her husband with Ms Fong in the downstairs bedroom and that this had led to an argument between them.

18. Ms Lord had told her friends and family about her husband’s tendency to become angry and occasionally react spontaneously and aggressively by punching walls and yelling at her. These incidents included punching a hole in a wall of their bedroom when they were arguing about Ms Fong. Incidents of this nature continued after Ms Lord’s death and included her husband going into a rage when he thought Ms Fong was giving a customer sexual favours after a massage. He telephoned Ms Fong in a loud aggressive manner telling her they were finished and then hung up. He then rang his mother and told her what had happened. He said he had kicked the car, slammed the door, punched the car window so that his hand had become swollen, nearly wrapped his car around a tree and had gone down the wrong side of the highway. There was however no complaint of physical violence by Mr Lord towards his wife.

19. At about 8am on the morning of her death, Mr Lord and his wife left their home together in Ms Lord’s 2003 Nissan 350Z coupe. Mr Lord was driving. They travelled to Mudgeeraba for breakfast before driving to Ballina. From there they drove to Byron Bay where they went shopping and had lunch. Later that evening, they travelled north on the Pacific Highway to Chinderah and detoured south on the Tweed Valley Way to find somewhere to eat.

20. At about 8.36pm Mr Lord and his wife went to the Tumbulgum Hotel. They enquired about food but the kitchen had closed. Mr Lord left the hotel, apparently annoyed, closely followed by his wife. They travelled further south on the Tweed Valley Way to Murwillumbah and to another restaurant that was closed. They ultimately found the Riverside Pizza restaurant on Commercial Road, Murwillumbah where they ate. They left that restaurant at about 9.30pm. Staff at the restaurant did not observe anything untoward in their behaviour.

21. They drove back through Tumbulgum on the Tweed Valley Way, heading in an easterly direction. Around this time a commercial fisherman on the Tweed River at Tumbulgum witnessed a loud, aggressive argument between a male and female (who it is accepted were Mr Lord and his wife) in a car park just off the Tweed Valley Way at the intersection of Tweed Valley Way and Riverside Drive. That car park is in a secluded area adjacent to the Tweed River, away from any houses. It was in darkness. The fisherman heard a deep male voice (who it is accepted was Mr Lord) speaking in an aggressive manner, which became more aggressive as he continued to raise his voice. He heard Mr Lord say words to the effect of "I've had fuckin’ enough of your shit" and Ms Lord say "just take me home". The fisherman spent a bit more time attending to his traps further on from this location before heading back to the boat ramp on the other side of the river, loading his boat onto the trailer and then driving off in the direction of Tweed Heads. At this time he saw emergency vehicle flashing lights travelling from the direction of Tweed Heads towards Tumbulgum. These emergency vehicles were responding to the incident.

22. Sometime between 9.50pm and 10.00pm, immediately following the argument overheard by the fisherman on the side of the river, Mr Lord drove in an easterly direction on the Tweed Valley Way at Tumbulgum. He was extremely angry and had become enraged about what had transpired during the argument with his wife.

23. On the approach to the site of the incident, the sealed bitumen roadway is level and consists of two through lanes, one eastbound and one westbound, which are separated by a wire rope median fence. There is a slight left hand bend for eastbound traffic. Towards the end of the left hand bend is the commencement of an overtaking lane for eastbound traffic, thereby creating two eastbound lanes. The shoulder area for eastbound traffic consists of a one metre wide sealed shoulder with a 4-5 metre wide grass verge which is relatively flat both longitudinally and laterally. There is then a rock sea wall forming the southern bank of the Tweed River which is about four metres wide from the high tide mark to the top of the bank.

24. The posted speed limit for the area was 100 km/h at the time of the incident. Mr Lord was travelling at no more than 60 km/h.

25. Approximately 400 metres east of the car park, Mr Lord in his rage deliberately turned the vehicle’s steering wheel sharply to the left so that the car travelled over the northern solid edge line, continued across the sealed shoulder and the grass shoulder before going down the rock sea wall into the Tweed River. He was aware that the river ran alongside the roadway. His driving into the river was an intentional but spontaneous act carried out purely to vent his rage. It carried an appreciable risk of serious injury to Ms Lord but he had no intention to do her serious bodily harm or to cause her death.

26. The vehicle began to sink front first and eventually came to rest on the river bed, approximately 4.4 metres below the surface, lying on its roof. Mr Lord escaped the sinking vehicle through his open driver's side window and later told police he went back underwater and managed to pull his wife out through the open driver's side window (as the passenger-side window was up). Ms Lord was unconscious. He brought her to the river’s edge where he tried to resuscitate her. He was unable to carry her up the rock embankment.

27. Mr Lord then ran approximately 200m to the nearest house and sought assistance from the residents who contacted emergency services. An off-duty nurse stopped as the first police arrived and assisted him to carry Ms Lord up over the rock embankment. They then conducted CPR until the arrival of an ambulance and paramedics who took over treatment. Ms Lord was subsequently flown to the Gold Coast University Hospital in a critical condition where she was placed on life support.

28. Ms Lord was diagnosed with a non-survivable brain injury. Life support was turned off at 11.20am on 20 October 2015.

29. A post-mortem conducted the following day showed no significant traumatic injuries to her body. She had broken ribs which were caused by resuscitation procedures. Fluid was located in the lungs and the digestive tract, believed to be water. The cause of death was a combination of hypoxic-ischaemic encephalopathy and aspiration pneumonia due to immersion in water.

30. While paramedics were treating Ms Lord at the scene, police spoke to Mr Lord who said: "We were driving along having a laugh. The front left wheel slipped on the verge. I thought it'd just spin out of control in a paddock." He said he had been travelling at 100km/h and that no other vehicles were involved.

31. Mr Lord was taken to Tweed Heads Hospital where he was interviewed as the driver of a vehicle involved in a collision causing death or injury. The interview was recorded. He said, "we were just chatting in the car, I'm just looking at her for a split second, the next thing you know obviously I must have turned the wheel a little bit and I have hit the grass on the side of the highway, next thing you know I have speared the car into the Tumbulgum river ... and that's when all hell broke loose and the car submerged".

32. Mr Lord was breath-tested with a negative result before being taken to hospital where mandatory blood and urine samples were obtained. Whilst at the hospital Mr Lord was further interviewed by police in which he said that nothing untoward had occurred. He said, "No nothing, no, no, I was just joking, carrying on, we were having a bit of a joke when the incident happened, so ah yeah that's about all I can tell you".

33. On 26 October 2015, Mr Lord attended Tweed Heads Police Station where he participated in an electronically recorded interview with crash investigators. During that interview he claimed that his marriage was harmonious and that they were in a happy relationship.

34. He expanded on his earlier versions provided to police: he described travelling at night when he took his eyes off the road for a split second and "sort of leant over" to look at his wife who he said was showing him some photos on her mobile phone. In doing so, Mr Lord said he must have pulled the steering wheel a little bit, causing the vehicle to go sideways onto the grass shoulder before it went down the rocky embankment. He said he hit the brakes. He described how he managed to climb out of the open driver's window. Upon realising that his wife did not follow him to the surface, he dived down to the submerged vehicle. He said that he was up to his waist inside the driver's side window, feeling for his wife, before grabbing her and dragging her out and to the surface. He managed to drag his wife to the base of the rock wall where he noticed she was unconscious and not breathing. After performing CPR for five minutes, he said she was still unresponsive so he climbed to the top of the embankment to wave down passing motorists for help. No one stopped. He then ran to a farmhouse for help where 000 was contacted.

35. On 21 October 2015, the Police Crash Investigation Unit and Police Dive Unit examined the crime scene on Tweed Valley Way. The vehicle was still submerged in the river and was retrieved after being located by police divers. Police found the vehicle with the driver's side window down and the passenger's side window up. The vehicle was facing nose-in to the bank and was lying on its roof.

36. An examination of the roadway showed no evidence that the vehicle had lost control or conducted any braking on the road, sealed shoulder or grass shoulder. There were no tyre marks located at the scene that could be attributed to the vehicle braking or losing control. The grass shoulder had tyre marks (flattened grass, consistent with the tyres rotating rather than side slipping or braking), which showed the path of the vehicle, commencing one metre east of the end of the left-hand bend and continuing in a consistent diagonal direction towards the top of the rocky embankment. A number of the rocks forming the embankment wall had marks on them identified by the experts as caused by the underside of the vehicle (which had longitudinal scratch marks on it) coming into contact with those rocks. The marks were in alignment with the tyre marks on the grass shoulder, showing a continuous uninterrupted path.

37. The road surface was in good condition. There were no visible potholes, and no damage or irregularity that would constitute a likely contributing factor to the collision.

38. The vehicle was submerged in approximately 4.4 metres of water. Ms Lord’s handbag, containing her mobile phone, was located between the seats. Nothing had spilt from the bag. The vehicle underwent a mechanical examination that confirmed that there was no mechanical defect that may have been a contributing factor to the incident.

39. Investigations by police included the installation of listening devices in Mr Lord’s home, and at that of his mother, as well as the interception of his mobile phone and physical surveillance of both he and Ms Fong. It revealed that the relationship between Mr Lord and Ms Fong continued until at least June 2016.

40. Mr Lord was arrested on 27 February 2017. He participated in an electronically recorded interview in which he claimed to have been in a loving relationship with his wife. He said that Ms Fong was simply the housekeeper. He confirmed that everything he had told the investigators was the truth. He otherwise refused to answer any further questions. He was then charged.

Objective seriousness

41. By reason of the infinite range of circumstances that generate criminal liability for manslaughter, sentencing judges have historically sought to isolate the elements or characteristics of the instant offence in order to arrive at a sentence that properly reflects the particular criminality with which they are concerned. In the present case, the Crown emphasised that the offence occurred in the context of a domestic relationship. That submission was promoted as a factor contributing to the enhanced seriousness of Ms Lord’s death. By way of contrast, Mr Watts of counsel for Mr Lord placed stress upon the fact that the death occurred as the result of the use or misuse of a motor vehicle, arguing that offences in that category were by their very nature idiosyncratically often viewed as being less serious.

42. The facts as agreed make it clear that the offence was not planned. In that respect I note that the facts do not invite a conclusion or suggest an inference to the contrary. The evidence of apparent disharmony between Mr Lord and his wife, and of the formation of an intimate relationship between him and Ms Fong, might have achieved significance in a different context. However, Mr Lord’s plea of guilty in this case forecloses any suggestion that his decision to drive his vehicle into the river was anything other than an immediate and spontaneous act.

43. Mr Lord’s actions obviously carried an appreciable risk of serious injury to Ms Lord and to him. That risk included both physical injury as the result of the vehicle leaving the roadway and colliding with the water as well as the risk of drowning from an inability to escape as it sank. Ms Lord sustained no physical injuries as the result of the incident. Her death was caused by drowning.

44. The agreed facts indicate that Mr Lord retrieved his wife from the vehicle at some stage after it entered the water. Her window was closed. His was open. I am not able to discern precisely how Mr Lord is said to have retrieved his wife in the circumstances. Mr Lord is the only person able to offer a description of how he did it. The agreed facts are regrettably lacking in such detail.

45. The offence also occurred in the context of a domestic dispute. Mr Watts emphasised that it followed a day during which it would appear that Mr Lord and his wife enjoyed a drive in the country. Even accepting that fact, the apparent harmony of that trip was tragically truncated when Mr Lord became enraged. I do not understand there to be any dispute that Ms Lord was both the subject and object of that rage.

46. Viewed objectively, I consider that this offence is a serious example of a death caused by the commission of an unlawful and dangerous act.

Subjective circumstances

47. Mr Lord is currently 56 years old. He has no criminal record. He is a person of otherwise good character prior to the commission of this offence. The report prepared by John Machlin, a clinical psychologist, contains the following relevant details:

“Family of Origin

Mr Lord was born in Melbourne, the only child of his parents’ union. He had a half-brother on his father’s side who was six years older and raised separately. His father was a car salesman. When Mr Lord was 7, the family relocated to the Gold Coast where his father continued in car sales and later started a real estate agency in Broadbeach.

Mr Lord said he ‘couldn’t have had a better childhood’. He recalled no particular adversities and denied any familial problems in the form of violence, substance use, mental illness, or any other social disadvantage. Leisure activities centred on the beach. He entered surfing competitions, and he acquired his Bronze Medallion, a nationally recognised surf lifesaving qualification.

Mr Lord maintained good relations with family in adulthood. His father died of dementia in 2000. His 83-year-old mother lives in the Gold Coast area. She has problems with her balance and receives some home care from a visiting nurse. Mr Lord’s elder brother died in 2018 at age 62 of cancer.

Education and Employment

Mr Lord attended school in the Gold Coast suburbs of Broadbeach and Miami to the end of Year 10. He depicted himself as an average student with no social or behavioural problems.

He worked for a security company for three years, and then became a labourer and concreter. He worked for himself for several years, focusing largely on decorative concreting which was popular at the time. A lumbar back injury disrupted his business though he persisted as long as he could. He returned to security for a short while and then took a job as the night manager at Brian’s Auto Centre, a large service station on the Gold Coast Highway for seven years. He returned to concreting in 2000 and continued in that occupation up to the time of his arrest.

Relationships

Mr Lord’s only long-term relationship was with the deceased, Michele Lord, his wife of approximately 25 years. They did not have children.

He formed a relationship with a Malaysian National, Siew Ping (Margaret) Fong as described in the Agreed Facts. He stated that the relationship has ended and he is single.

Physical Health

Mr Lord informed me that he suffered a lumbar back injury in the mid-1990s which eventually caused him to put concreting on hold in favour of other jobs for a while. He believes the painkillers he was taking affected the lining of his stomach causing subsequent sensitivity and intolerance to painkillers and other medications.

He suffered an accident in 2005 when he was hit by a jet ski in the chest. His medical records from Mermaid Beach Medical Centre indicate that he was hospitalised for 12 days with multiple rib fractures and lung contusions. He recovered, but might have sustained some lasting chest deformity.

Mental Health

The first known indication of mental health difficulties occurred in 2000 when Mr Lord faced a ‘violent confrontation’ while working at the service station. Mr Lord struggled to describe the incident because the memory triggered panic-like symptoms which he controlled by breathing into a paper bag. He was eventually able to relate that he witnessed a member of staff ‘bashing’ his (the staff member’s) wife; Mr Lord intervened and a struggle ensued in which the staff member then assaulted Mr Lord. My impression was that the incident left him with trauma symptoms and marked the onset of an anxiety and panic condition that continues to affect him today. He said he carried a paper bag wherever he goes in case of a panic attack, even though they happen infrequently now.

His medical records from Mermaid Beach Medical Centre cover the period from 2001 to 2007. He presented to the practice due to anxiety and panic symptoms in 2002 and 2003. He was prescribed Zoloft, an antidepressant which is also used in the treatment of anxiety and panic. He told me he had to cease the medication due to an intolerance because painkillers had affected his stomach lining in the 1990s.

There is no known history of psychological or psychiatric attention prior to the offence. He has sought psychological treatment since then, as discussed below.

Substance Use

Mr Lord denied any problems of alcohol or drug abuse. He said his drinking habits were generally limited to a glass of beer at dinner. He denied any history of illegal drug use.”

48. Mr Machlin diagnosed Mr Lord as suffering from an adjustment disorder with mixed anxiety and depressed mood with a history of panic disorder. He expanded upon this in the following terms:

“Mr Lord’s medical records confirm that he presented to his GP with anxiety and panic, and was treated with Zoloft, in 2002/2003. In interview, he revealed that severe anxiety arose from a workplace trauma in 2000, and he has since been prone to panic attacks that continue to affect him today. He probably suffered some post-traumatic stress, but more likely the incident was a salient trigger of a Panic Disorder to which other factors probably contributed. He has not sustained a diagnosable Panic Disorder over the years since then, unless there have been further times when panic attacks were frequent or inhibited his life, but he has maintained a vulnerability to panic, hence his reliance on the safety behaviour of carrying a paper bag with him for a breathing technique.

He has since the incident suffered intense emotional effects arising, for example, from the trauma of the crash, the loss of Michele, the demands of his legal proceedings, his incarceration, deaths of family members, and isolation. He has ongoing symptoms of grief, guilt, anxiety, panic, and distress. His symptoms are largely explainable by his circumstances and have changed accordingly over the four years since the incident. He also has a pre-existing vulnerability to anxiety. A variable range of diagnoses might have applied at different times over the past four years. I believe the diagnosis of best fit now is Adjustment Disorder with Mixed Anxiety and Depressed Mood. The diagnosis of an adjustment disorder reflects Mr Lord’s decline in emotional and lifestyle functioning in reaction to an identifiable set of stressors.”

49. Mr Machlin observed that Mr Lord is also burdened by the separation from his mother who he used to see almost every day. She lives alone and in his absence is now reliant on home care. Mr Watts submitted that in all of the circumstances a custodial sentence may weigh more heavily upon Mr Lord and that a reduced sentence is indicated.

Guilty plea

50. Mr Lord’s plea of guilty came at what in the events that occurred, was close to the latest opportunity for him to do so. Notwithstanding that fact, it operated to avoid the expense and inconvenience of a trial with the associated inconvenience and emotional burden that would otherwise have been cast on many people. Moreover, even though it was not emphasised in submissions before me, Mr Lord has had a somewhat indifferent experience attempting to secure legal representation. Earlier attention to his legal predicament may well have resulted in an earlier opportunity to consider his position in an informed way. It is obvious that his current legal representatives have acted in what are clearly his best interests.

51. I consider that Mr Lord is entitled to a discount for his plea of guilty calculated at 15 percent.

Remorse and contrition

52. Mr Lord did not give evidence before me at the sentencing hearing. He relied instead upon statements he gave to Mr Machlin, a clinical psychologist, whose psychological report dated 24 October 2019 was tendered without objection. Mr Machlin reported following his consultation with Mr Lord in these relevant terms:

“On the circumstances that brought him to prison, he said tearfully, ‘I can’t say how sorry I am for what’s happened, losing Michele in this horrific way, also to all her nieces and nephews, to my mum. She was one in a million, can never be replaced…she was my lover, soul mate, best friend…she’ll be in my heart forever’.”

53. It is trite to observe that remorse may be taken into account as a mitigating factor but only if the offender has provided evidence that he or she has accepted responsibility for his or her actions and acknowledged any injury, loss or damage that they may have caused. Mr Lord wishes to rely upon his statement to Mr Machlin as well as his plea of guilty to the charge as indicating an acknowledgment of responsibility for his wife’s death.

54. In the somewhat curious and troubling circumstances of this case, Mr Lord accepts by his plea that he intentionally committed the unlawful and dangerous act that led to the death of his wife. That is an acceptance to which he has come slowly, as the agreed facts demonstrate. For example, Mr Lord’s first response to the police investigation was to insist that his marriage was harmonious, later to be compared with evidence that he had been having an affair with Ms Fong and that his wife had consulted a solicitor about a divorce. He also maintained the lie that the vehicle he was driving left the roadway and entered the river when its front wheel slipped on the verge and spun out of control. He now agrees that he drove it into the river in what is accepted to have been a fit of rage in the course of an argument with his wife.

55. The fact that the death was caused by an intentional act, as opposed to momentary carelessness or inadvertence, and the presumed dispute that spawned it, seems to me to make the presence or absence of a genuine apology a matter of some significance. I hasten to observe, however, that Mr Lord is not to be punished for failing to express remorse directly to the Court from the witness box or otherwise directly to Ms Lord’s family: the absence of remorse does not aggravate his offence.

56. In my opinion, Mr Lord has failed to demonstrate remorse in this case. I appreciate that courts are often very intimidating venues and public expressions of emotion in such circumstances are inevitably difficult. However, words offered to a sympathetic clinician, far removed from public scrutiny, are a somewhat feeble substitute. In my experience, genuine remorse is difficult to suppress and easy to express.

General deterrence, denunciation and punishment

57. In line with my view about the seriousness of this crime, Mr Lord should receive a sentence that reflects what might be thought to be the community’s understandable disapprobation of his conduct. It must be borne in mind that Mr Lord is not to be sentenced for a crime based upon the existence of an intention to kill his wife or even to cause her serious harm. It is also timely to observe that courts play no role in the exercise of the prosecutorial discretion. Mr Lord is to be sentenced for the commission of an unlawful and dangerous act that led to Ms Lord’s death. I wish to emphasise that although originally charged with her murder, Mr Lord has not been convicted of that offence and is not liable to be punished for that offence.

Specific deterrence

58. This is not a case that calls for specific deterrence. The prospect that Mr Lord would ever again commit or even contemplate a similar offence seems to me to be remote in the extreme.

Prospects of rehabilitation

59. In a similar vein, I consider that Mr Lord has good prospects of rehabilitation. He has no recorded history of violence. I am confident that the significant impact his actions and their consequences will have had upon him by the time he is released from gaol will operate as a continuing and ever-present disincentive to repeat anything of this kind.

Victim impact statements

60. Several very powerful statements were read to the Court by Ms Lord’s close relatives. They included in particular a statement from her mother which was delivered with a quite remarkable dignity and grace. I have had regard to all of these statements to the extent that I am permitted to do so in the exercise of my sentencing discretion.

Special circumstances

61. It was submitted on behalf of Mr Lord that the desirability for him to undertake therapeutic individual psychological counselling recommended by Mr Machlin supported a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999. Mr Machlin’s conclusion also included a recommendation for such counselling for Mr Lord whilst in custody. Whereas the organisation of that therapy within the prison system might not be without its own administrative difficulties, there does not seem to me to be a need for treatment that is so pressing as to warrant a variation of the statutory ratio in order to ensure that it is undertaken in the community.

Sentence

62. Edward Kenneth Lord, for the unlawful killing of your wife Michele Lord you are convicted. I sentence you to imprisonment for 10 years and 8 months commencing on 27 February 2017 and expiring on 26 October 2027 with a non-parole period of 8 years expiring on 26 February 2025.

63. I direct pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 that this offence be recorded on your criminal record as a domestic violence offence.

64. I am also required to warn you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006.

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Decision last updated: 21 February 2020