R v Newson (No 5)

[2021] NSWSC 1661

Supreme Court

New South Wales

Medium Neutral Citation:

R v Newson (No 5) [2021] NSWSC 1661

Hearing dates:

20 September 2021

Decision date:

17 December 2021

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) The offender is sentenced to a term of imprisonment comprising a non-parole period of 19 years and 9 months and a balance of term of 7 years and 3 months. The total sentence is a term of imprisonment of 27 years, to date from 19 November 2018 and expiring on 18 November 2045. The offender will become eligible for release to parole when the non-parole period expires on 18 August 2038.

(2) Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), direct that this offence be recorded on the offender’s criminal history as a domestic violence offence.

(3) The non-publication order made on 20 September 2021 pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication of the content of the victim impact statement of Andrew Easton which has been read in these proceedings, is to operate for 15 years from today’s date.

Catchwords:

SENTENCING – Murder – Trial by jury – Verdict of guilty to offence of murder – Where deceased’s death caused by blunt force trauma – Where offender and deceased in domestic relationship – Where evidence demonstrated offender was jealous and possessive of deceased – Whether intent to kill could be established by extent of injuries inflicted on deceased and offender’s expertise as a martial arts fighter – Where disposal of deceased’s body in bushland an aggravating factor – Where offender allegedly sexually assaulted as a child – Whether causal connection between offender’s history of child sexual assault and his issues of jealousy and anger – Whether moral culpability reduced by reason of offender’s alleged history of child sexual assault – Where offender subject to conditional liberty at the time of the offence – Where offender diagnosed with substance use disorder – Where offender’s prospects of rehabilitation guarded due to long-standing drug abuse and refusal to accept responsibility for the offence – Where defence case facilitated the procedural administration of justice

Legislation Cited:

Crimes Act 1900 (NSW), ss 18, 19A

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12

Crimes (High Risk Offenders) Act 2006 (NSW), s 25

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 21, 21A, 22A, 61, Pt 4, Div 1A

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cherry v R [2017] NSWCCA 150

Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322

Imbornone v R [2017] NSWCCA 144

Milat v R; Klein v R [2014] NSWCCA 29

R v Hines (No 3) [2014] NSWSC 1273

R v Isaacs (1997) 41 NSWLR 374

R v Johns [2003] VSC 415

R v Morris [2017] NSWSC 637

R v Pilley (1991) 56 A Crim R 202

Category:

Sentence

Parties:

Regina
Sayle Kenneth Newson (Offender)

Representation:

Counsel:
Mr L Carr SC (Crown)
Mr C Watson (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Ramsland Laidler Solicitors (Offender)

File Number(s):

2017/183274

Judgment

1. HIS HONOUR: Following a trial by jury, Sayle Newson (“the offender”) was convicted of murdering Carly McBride (“the deceased”), a First Nations woman, on 30 September 2014 at Muswellbrook, which was the date and place where she was last reported being seen alive. Her remains were located 22 months later, on 7 August 2016, in bushland at Owens Gap, which is approximately 45km North of Muswellbrook and 17km North-West of Scone. The offender was arrested on 19 June 2017 and charged with her murder. A friend of the offender (“the co-accused”) was arrested three days later and charged with being an accessory after the fact of the deceased’s murder.

2. A joint trial of the offender and his co-accused commenced in May 2019 in the Supreme Court sitting at Newcastle. The jury was subsequently discharged, but due to the impact of the COVID-19 virus on the Court’s capacity to conduct jury trials, a fresh trial did not commence until March of this year. On this occasion, the offender was tried alone. The jury returned on 24 June 2021 with a verdict of guilty to the offence of murder. The co-accused’s trial is yet to occur.

3. The sentence hearing took place on 20 September 2021. The maximum penalty for the offence of murder is life imprisonment: Crimes Act 1900 (NSW), s 19A(1), although it may be reduced to a sentence of imprisonment for a specified term: Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”), s 21(1). That is subject to the Court’s finding as to the offender’s level of culpability: CSP Act, s 61(1). Where a sentence of imprisonment for a specified term is imposed, there is a standard non-parole period of 20 years, in the circumstances of this offence: CSP Act, Pt 4, Div 1A.

The circumstances of the offence

4. At the time of the offence, the offender and the deceased were aged 37 years and 31 respectively. The co-accused was aged 23. All three met in October 2013, when they were participants in a residential drug rehabilitation program located on the Central Coast, known as the Dooralong Transformation Centre (“Dooralong”). About six weeks before the offence, in early August 2014, the deceased and the offender commenced a relationship. The essence of the Crown case, which was circumstantial in nature, was that on 30 September 2014, in a fit of jealousy, the offender inflicted fatal injuries on the deceased that were partly observable on her skeletal remains.

5. The deceased had two children, a son and a daughter, who at the time of her death were aged 6 and 3 respectively. Her son was residing with the family of his father, Matthew Laughlan, with the deceased’s consent. Her daughter was residing with her father, Andrew Easton, pursuant to a request made by the New South Wales Department of Community Services (as it was then known). Mr Easton and the deceased’s daughter were residing alone in a suburban house in Muswellbrook. In the months before her death, the deceased was hopeful of regaining custody of her daughter and resuming care of her son as well, so that she would be their primary carer. To that end, in August and September 2014, she regularly visited Mr Easton so that she could rebuild her relationship with her daughter. During that period, she resided at various coastal locations between Newcastle and Wyong. The offender would drive her to Muswellbrook in his vehicle. Typically, he would drop her off at Mr Easton’s home and then visit the co-accused, who resided in Muswellbrook with his parents. The offender would wait with the co-accused until the deceased was ready to leave.

6. On the day of the deceased’s disappearance, the offender dropped her off at Mr Easton’s residence shortly before 1pm. He drove on to McDonald’s in Muswellbrook, which was about 2km away, where he purchased a drink, using a debit card that belonged to the deceased. Closed-circuit television (“CCTV”) images of his vehicle placed him there at about 12:54pm. He proceeded to the co-accused’s residence, a distance of about 3.5km.

7. Mr Easton gave evidence that he had forewarned the deceased that her daughter would be at childcare that morning, but that he was happy to collect her after her morning sleep while the deceased was visiting, so that she could see her. They chatted and passed time by going through some of their relationship property that had been stored in the garage. Mr Easton said that the deceased left his residence at about 1:45pm to 2pm. They were having a conversation when, unexpectedly, she said: “I’m off”. She picked up her bag and said, “I’ll get picked up at Macca’s” and left. Mr Easton in evidence agreed that he was surprised that the deceased left without having seen her daughter. He last saw her walking out of the front yard in a direction that was consistent with her heading to McDonald’s. The evidence was that the most direct walking route was via a concrete pathway through a park to a shopping centre and then on to McDonald’s. There was no evidence of her having arrived at McDonald’s and she was not reported as having been seen again.

8. A short video that the offender recorded on his smart phone at about 2:02pm at the rear of the co-accused’s residence, in which he could be seen, confirmed his presence there at that time. However, a former work colleague of the co-accused gave evidence that he called around to the co-accused’s residence shortly after 2:13pm and stayed for about 10 minutes. He did not see anyone there other than the co-accused.

9. The offender did not give evidence in the trial or the sentence proceedings. Following the deceased’s disappearance, he was interviewed by police on two occasions, 3 October 2014 (“the first interview”) and 31 October 2014 (“the second interview)”. Both interviews were video-recorded and edited versions were received into evidence in the trial. His account to police was to the effect that he remained in the constant company of the co-accused throughout the afternoon of 30 September 2014, while he waited to hear from the deceased that she was ready to be picked up. At some point after 2:02pm, he and the co-accused decided to go for a drive in the offender’s vehicle, a Commodore. They took backroads to a rural property owned by the co-accused’s father about 5km east of Scone, where they walked around looking for feral pigs. They drove on to self-storage sheds in Scone which were used by the co-accused and then to McDonald’s at Scone. They returned to the co-accused’s residence at Muswellbrook, again by backroads. The only independent corroboration of the offender’s account was the visit to McDonald’s at Scone, in the form of a transaction utilising the deceased’s debit card, at 4:40pm.

10. According to phone records, at 5:39pm, a call was attempted from the co-accused’s mobile phone to the deceased’s phone number. The offender told police that he made that call, using the co-accused’s phone, because his phone did not have any credit. Phone records indicated that the call did not connect. At 5:45pm, he sent a text to the deceased’s mobile from the co-accused’s phone, which stated: “Hey how u guys travlin im not hurryin u along cause we can stay all night”.

11. Mr Easton gave evidence that at about 6:30pm that night, the offender arrived at his residence and said: “I’m here to pick Carly up”. Mr Easton responded, “She’s left. She was meant to ring you from McDonald’s”. The offender said something to the effect of: “I haven’t had a call. I’ll go down there”. Before he left, Mr Easton phoned the deceased’s phone number, without success. At about 9:25pm that night, the offender drove to Muswellbrook police station and reported that the deceased was missing.

The victim impact statements

12. The deceased’s mother, Lorraine Williams, read a victim impact statement at the sentence hearing. She said that her daughter was her “best friend”, that they contacted each other every day. I note that the evidence in the trial bore out their close, loving relationship in which they were supportive of each other. Ms Williams spoke of the excruciating agony she endured during the 22 months that the deceased was missing, and how it led to her own life falling apart. A lasting impact of her loss is social isolation from friends and family; she has become a recluse at home, rather than facing the world.

13. A victim impact statement prepared by Mr Easton was read. Pursuant to s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), I ordered that the statement not be published or otherwise disclosed, having regard to the well-being of the deceased’s daughter. I have taken the contents of the statement into account.

The offender’s intent and motive

14. It is unnecessary, for the purpose of formulating the appropriate sentence, to review the circumstantial evidence that persuaded the jury beyond reasonable doubt that the offender killed the deceased. It is necessary, however, to review the evidence as to the offender’s motive and intent at the time he fatally injured the deceased, since those factors are not implicitly disclosed by the jury’s verdict and they contribute to a determination of the objective seriousness of the offence and his moral culpability. Those factual findings must be consistent with the jury’s verdict: R v Isaacs (1997) 41 NSWLR 374 at 374. In that exercise, aggravating circumstances must be established beyond reasonable doubt and mitigating circumstances must be established on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202 at 204.

The offender’s motive

15. The circumstantial evidence that is relevant to a determination of the offender’s motive to inflict the injuries upon the deceased is evidence as to the state of their relationship at that time. The Crown case was that the attack was likely motivated by the offender’s jealousy and possessiveness towards the deceased.

The state of the relationship of the offender and the deceased

16. In the first interview, the offender portrayed the state of his relationship with the deceased in idealistic terms as being loving, caring and respectful. Contrary to his portrayal, evidence of text messages and captured conversations between the offender and others, after the deceased’s disappearance, suggested that there were significant issues in the relationship.

17. During the course of a text message exchange between the offender and the deceased on the evening of 30 August 2014, the offender wrote, at 11:42pm:

“Wat iz ur fukn go. U fukd me around,doNT FUK ME AROUND I lose my shit. I made it crystell clear to u wat I wanted to do then u go on like a f lop … I’m sortin shit u can’t even comprehend ok!!! U sit there n tell me y I’m in trouble and u have noidea bout it and yet you comment ????? I am violent wen in this mood and u have no idea bout this part .”

About three and a half hours later, at 2:55am the following day, the offender wrote:

“Open your legs n shut ur neck”

18. The relationship was characterised by the offender’s jealousy of the deceased’s friendships with other men and the deceased’s co-dependency, an aspect of which was that she was incapable of voluntarily remaining by herself for any period of time. In the week before her disappearance, the offender was in Sydney. Four days before the offence (Friday, 26 September 2014), the deceased told her father’s neighbour that she had been fighting with the offender and that she did not know where he was. That afternoon, she arranged for a male friend to take her out and she spent the night at his place. While she was there, the offender phoned her. The following afternoon, the offender picked her up from her father’s residence. The deceased had arranged for another male friend to come around but managed to cancel that visit before the offender arrived.

19. A laptop computer that was seized from the offender was found to have in its internet search history some searches made shortly after midnight on 29 September 2014, inquiring how to deactivate a Facebook account. Later that day, at 11:52am, the deceased’s Facebook account was deactivated. The offender told a friend that the night before the deceased’s disappearance he and the deceased had an argument about her Facebook account; she had agreed to delete her account but had not done so. In the first interview, the offender referred to a conversation with the deceased after his return in which he said he became “really fucking angry” because of men contacting her. He continued:

“… I just said, um, ‘Look, I said I’m not, not jealous I don’t want to get possessive and all that shit but look either you put a stop to this right now or I’m going to put a stop to it. I’ll go through your phone and, um, go and see each, each person, each guy in there’ and she cancelled her Facebook on the spot.”

20. In his police interviews, the offender stated that he and the deceased were both happy during the journey to Muswellbrook. There is some corroboration of that contention in images captured along the way. During the drive to Muswellbrook, the offender stopped at two service stations; at Charmhaven at about 9:50am and in Muswellbrook at about 12:08pm. In CCTV images that were captured at the Charmhaven service station, the deceased can be seen getting out of the vehicle and standing alongside it, looking at an object, possibly her phone. There was nothing untoward about her demeanour. Nor was there anything untoward about the demeanour of the offender in the CCTV images captured at both service stations. At around midday, the offender took two photographs of the deceased, sitting in the front passenger seat of his vehicle. She appeared happy.

21. In the first interview, the offender expressed difficulty coping with thoughts of jealousy when the deceased was with Mr Easton that day:

“… [the co-accused] and I went for a drive. I didn’t want to, I don’t like annoying her, or won’t annoy her ah, I won’t let the things get into my head about jealousy and, and not trusting when she’s with her daughter and her ex-partner. I’m not going to do that. Like, it did, stuff does go into my head definitely but I, I’m not going to act on it and I will not act on it for the kid and [the deceased’s] sake to have a relationship, you know?”

22. The offender expressed to police thoughts of violence towards Mr Easton. He suggested that Mr Easton bore responsibility for the deceased’s disappearance because he had let her leave when she was “drug affected”; “he’s given her something for a headache and a cough”. When asked if Mr Easton had told him what he had given the deceased, he responded:

“No, he couldn’t remember. Couldn’t remember and I couldn’t, I, mate, like, he had his daughter, she was hugging his leg, man, I just, like, I just wanted to front kick him. I just wanted to front kick through the front door and just, I wanted, I want to bash him to death. I really want to bash him to death.”

23. The offender said that he was affected by methylamphetamine (Ice) on the day of the offence. He told police in his second interview: “I was high on ice that’s, that’s, that’s reality of it. I’d been up two days before [the deceased] went missing”. He elaborated that he had been “taking it all day”, as well as the day before. He said: “couple of days beforehand you know two, two or three days beforehand I started and I’d smoked ice all the way”.

24. He was asked about the effect it had on him:

“Q. And what, what [effect] did that have on you and, and how you were feeling?

A. Ah, I was O.K., yeah, I was, I was fine, I, I, ‘cause I, I eat on it, I, I do get rest you know what I mean, like but I hadn’t had any rest but, um, no, I was fine like, like I said I, I said … I was a heavy, heavy user when I was at the Gold Coast and five to ten days stint for me is not abnormal, O.K. Now I can conduct myself, and, and it, you can ask a wide range of people who know me well between the one and the sixth day mark I can conduct myself pretty normal, you can pretty much, look if, you know I, get me in front of police officers they can obviously see I’m on ice but I can conduct myself normally, I don’t do it, I’m not erratic, you know like, a little bit erratic maybe with driving but you know, things, you know my mum never, would never know, you know what I mean.”

25. He said that the deceased had a small quantity of methylamphetamine before he dropped her off at Mr Easton’s residence:

“A. She, she was, um, not on the ice, um, but she, we pulled up, she did smoke, she had two puffs on the pipe and like when her puffs, she had chest infection they were tiny puffs and [the deceased] had a pretty good tolerance to it as well, um, ah, she had two little puffs on a, about ten minutes before she went into the house because she was tired and not feeling well, you know.”

26. He told Dr Richard Furst, forensic psychiatrist, who provided a report dated 12 September 2021 tendered on sentence, that during his relationship with the deceased, he was using about 0.2g of methylamphetamine per day and “some” Buprenorphine, as well as occasionally cocaine and heroin. He said that they both took “a couple of puffs” of methylamphetamine on the way to Muswellbrook that day.

Findings as to the offender’s motive

27. I am satisfied beyond reasonable doubt that the offender’s attack upon the deceased was motivated by his jealousy of the deceased. When the offender picked up the deceased, it is likely that he became aware that, although he had driven her to Muswellbrook expressly to see her daughter, she had spent an hour alone with Mr Easton and had not in fact seen her daughter. That came after a sequence of events over the previous four days that had excited his jealousy and culminated in him striking the deceased in the manner that I have previously noted, in a jealous rage.

The offender’s intent

28. There was no evidence of admissions by the offender as to his intent at the time he caused the deceased’s death. Accordingly, the evidence of the offender’s relevant intent is confined to the expert evidence concerning the cause and manner (the mechanics) of her death.

The evidence as to the cause and manner of the deceased’s death

29. The majority of the deceased’s skeletal remains were located in bushland 26.1m off a road between Scone and Bunnan that was a single lane in each direction. There was a cleared area at that point that facilitated a vehicle travelling away from Scone pulling completely off the road. The body had been left on the ground’s surface; there was nothing to suggest that it had been covered over.

30. The skeleton was incomplete, most likely as a result of animal activity. The majority of the bones were recovered within an area measuring 6m x 6m. At the time of her disappearance, the deceased had been wearing full-length jeans and a top. The jeans were present and done up and the clasp on the deceased’s bra was clipped, consistent with neither item of clothing having been removed. The deceased’s handbag and mobile phone which she had with her when she was at Mr Easton’s residence were not located. Her phone ceased transmitting a signal by 7:45am the following day, presumably because its battery expired, its last signal being received by a cell tower that was in Muswellbrook, about 1.7km North-East of Mr Easton’s residence.

31. Dr Penny McCardle, a forensic anthropologist and forensic archaeologist, gave evidence at trial that there were 23 fractures to the deceased’s skull; 13 fractures to her torso, being fractures of both scapulae; complete fractures of two ribs (three ribs were missing); and spinous fractures to four vertebrae, being the C7, T2, T3 and T4. All of the fractures were caused peri mortem, meaning that by the time of death they had not yet begun to heal, so that they would have been caused at around the time of death.

32. The features of the fractures were consistent with them having been caused by blunt trauma and not by a sharp instrument, such as a knife. Dr McCardle explained what she meant by the term “blunt trauma” as follows:

“Q. Blunt trauma, what do you mean by blunt trauma, doctor?

A. An impact by an object or a person that [is] not sharp. It might be hitting your head on the wall or being hit with a piece of wood, a hammer, that kind of things.

Q. Are punches and kicks things that could fit in that category?

A. Yes.”

33. Evidence was given in the trial by two forensic pathologists, Dr Leah Clifton, who was called by the Crown and Professor Johan Duflou, who was called by the defence. They were agreed as to the cause of death, namely, severe trauma to the brain, consequent to a high degree of blunt force having been applied to the deceased’s head. That opinion was not in dispute in the trial.

34. As to the mechanics of the injuries to the skull and torso, Dr Clifton was of the opinion that there were a minimum of two impact points on the deceased’s skull:

“… The cause of death is as a result of blunt force head trauma. Examination of the remains identified right and left sided jaw (mandibular fractures).

…

… Left sided facial fractures (maxilla nasal zygoma and orbital floor) right back of head, (occipital skull fractures with separation of sutures) and base of skull fractures. This pattern of skull fractures is in keeping with multiple (at least two impacts) to the head, one directed to the left side of the face and one directed to the back and right side of the head. This pattern of injuries is usually seen in high force trauma (such as motor vehicle trauma) and is likely to have resulted in significant brain trauma and death, especially in the absence of medical intervention.”

35. Dr Clifton was asked in examination if the injuries were also consistent with “punches, kicks and so on”. She replied:

“A. Yes, the facial fractures in particular, is a pattern that’s often seen in assault type injuries, yes.

Q. And what is it about that pattern that gives assault type injuries, doctor?

A. Well the left [sided] mid-face, the zygoma cheek area fractures [are] frequently seen in someone who’s punched by a right handed person or punched from the right of somebody standing opposite them, which is also the face and also the jaw fractures is frequently seen in punch scenarios, so just the overall pattern of the facial trauma is what we often see in assault.”

36. Dr Clifton qualified her reference to “two impacts” as follows:

“Possibly more, yes so when I say two impacts it doesn’t necessarily mean two punches, it could be one punch and then falling and hitting the back of the head on a surface. So at least two impacts is what I can be certain about.”

37. Professor Duflou gave evidence after Dr Clifton. He agreed that the cause of death was at least two impacts of blunt force trauma that was occasioned to the deceased’s head causing brain trauma. He was apparently unaware that Dr Clifton had expressed a view in her evidence that one blow could account for the minimum of two impact points. Professor Duflou said:

“Effectively the major different of opinion I have there is that if a person’s head is - let’s say close to the ground and a significant force is imparted to the head, you can readily get fractures on both sides of the head and communication or fractures between the front and back. So effectively a single blow of very significant force can cause a large number of fractures throughout the skull.”

38. Professor Duflou agreed that “a stomp” to the deceased’s head whilst it was on or close to the ground could account for the fractures.

39. Turning to the injuries observable on the skeletal remains of the deceased’s body, Dr Clifton considered that the fractures to the scapulae, ribs and vertebrae were occasioned “as a result of direct blunt force trauma to the upper back area” and were unrelated to the injuries that caused the skull fractures:

“… it’s anatomically [a] very different location than the head, the back of head or even the facial anatomy, so I wouldn’t have thought it’s part of the same blow.”

40. In examination, Dr Clifton quoted from her report:

“… Scapula fractures are relatively rare and caused by direct trauma involving a large amount of force or violence and associated injuries such as rib injuries also are usually present.

…

… The thoracic vertebrae fractures, scapula and rib fractures are consistent with at least one blunt force blow peri mortem.”

41. Dr Clifton explained that the fractures to the scapulae, vertebrae and ribs could have occurred by being:

“… very forcibly shoved back against a fence, possibly, with the gaps in it. Could have been struck with a large piece of wood …

… She could have fallen back on a pavement or something like that, or if she’d fallen down on her front, something slammed down on her back, possibly.”

42. Professor Duflou agreed that there had been at least one impact of blunt force trauma to the deceased’s back: “I think it’s possible that a single blow probably with an object could have caused all the fractures in one go”.

43. In examination in chief, Professor Duflou agreed with an observation in his report that the possible mechanisms by which the blunt force could have been applied to the skull and upper trunk included “a physical assault with use of one or more blunt objects”. He agreed that:

“If an assumption is made that the skeletal injuries identified are the result of a physical assault it is in my opinion not possible to state with any degree of certainty whether blows with hands or with feet or with some other object was the cause of the injuries. It is certainly possible to sustain all the injuries to the cranium with a fist especially if the skull is fixed against an unyielding surface at the time the blow or blows are delivered.

…

Similarly it is possible for the injuries to the skeletal structures of the back of the trunk to be the result of punches, kicks or blows using one or more objects.”

44. In the second interview, the offender referred to his skill and accomplishments as a boxer and Muay Thai fighter:

“I … have been … a Thai boxing instructor … or coach as well … for eight, ten years … I fought ... at the gyms and then I left Thai boxing and … co-ran Ballina Youth Club … and that’s just straight boxing.

…

Q. … have you got a background yourself in what Martial Arts or boxing?

A. Thai boxing and boxing, yeah, yeah.

Q. And how … far back does that go?

A. … when I was I don’t know 12 to 14 … I was doing like a karate type thing and then, um, a bit of boxing after that and then I left that and just focused on football and work and that and then, um, when I was, you know 24 or something, 25 I, I got serious about it … it was late but I got serious about it and …

… I started to train …

… you know a thousand sit ups a day, twenty kilometres running and four hours in the gym …

…

Q. And did you … go in a path of professional - - -

A. Yeah, I fought, yeah, I fought, yeah.

…

Q. … how many fights would you have had?

A. I had twenty fights, um, twenty wins. … I trained alongside … the best in the country and, and world champions. …

… by the time I got good enough … to make an impact on the Australian scene I was too old, you know I was getting 32, you know ... and my knees, both knees are blown out, my elbows like …

Q. And … was that Thai boxing?

A. … that was Thai boxing, yeah …”

45. The Crown called witnesses who had observed the applicant, whilst in Dooralong, working out with a punching bag and instructing others. A witness who was at Dooralong in September 2013 observed the offender kick-boxing a large boxing bag sufficiently hard for it to “have a bend in the middle where he’d kick it”.

Findings as to the manner of the deceased’s death and the offender’s intent

46. I find that the cause of the deceased’s death was severe trauma to the brain, consequent to the offender having delivered a high degree of blunt force to the deceased’s head.

47. The evidence of the mechanics of that application of force is confined to observations of the deceased’s skeletal remains and what inferences may be drawn from them, with the assistance of the expert opinions of the forensic witnesses. I am satisfied beyond reasonable doubt that the offender caused the deceased’s death by the use of his fists or feet or both, or by the use of an object or objects, or by a combination of those means. I am unable to be any more certain of the means deployed by the offender to inflict the injuries on the deceased.

48. I am satisfied beyond reasonable doubt that the offender inflicted at least one blow to the deceased’s head, and at least one separate blow to the deceased’s back.

49. If the offender delivered one blow to the deceased’s head rather than two or more blows, it was delivered while her head was on, or in close proximity to, a hard surface and with such force that it caused her skull to be extensively fractured on opposite sides from the one blow.

50. If the offender delivered one blow to the deceased’s back rather than two or more blows, it was with an implement that was sufficiently long and applied with sufficient force, to fracture both scapulae, the adjacent vertebrae and two of her ribs.

51. Senior Counsel for the Crown submitted that the Court could not be satisfied on the evidence that the offender’s intention at the time of the attack was to cause her death. I am not of that view.

52. Dr McCardle estimated the deceased’s height as having been between 166 and 174cm. The offender told police that the deceased weighed “under fifty kilos”, which in my opinion is consistent with her appearance in the CCTV images captured on the day of her death, in which she appeared as being of slight build.

53. Until five years before the offence, the offender had fought professionally with considerable success as a martial arts fighter. He was observed to still be working out a year before, at Dooralong. I infer from that evidence that the offender was aware of his physical capacity to cause injury, with or without wielding an object. The injuries inflicted by the offender were extreme, bespeaking an attack of unrestrained brutality. It is inconceivable that the offender could have hit the deceased’s head with the force required to cause the 23 skull and facial fractures without him being aware of the inevitable consequence of him doing so. I am satisfied that the offender, in that moment, intended to end her life. Accordingly, the relevant intent was to kill the deceased, rather than to cause her grievous bodily harm.

54. In coming to that conclusion, I note the offender’s own view of the impact of his ingestion of methylamphetamine on him on the day of the offence, and discount it as a factor affecting his awareness at the relevant time of the inevitable consequence of his actions.

Objective seriousness

55. Both the Crown and the offender submit that the objective seriousness of the offence falls in the mid-range. The offence involved an intention to kill the deceased. It was a killing in the context of a domestic relationship, which calls for particular attention to be paid to general deterrence: Cherry v R [2017] NSWCCA 150 at [78], [79].

56. The offender’s use of methylamphetamine is relevant to an understanding of the offence but is not a mitigating circumstance: s 21A(5AA) of the CSP Act.

57. The offence falls slightly above the mid-range in objective seriousness. However, I do not impose the standard non-parole period, having regard to the offender’s moral culpability, which I consider later in this judgment.

Aggravating factors

58. I have regard to the relevant aggravating factors which are identified in s 21A(2) of the CSP Act and which do not constitute elements of the offence. In relation to s 21A(2)(c), namely, “the offence involved the actual or threatened use of a weapon”, as I have explained, I am not satisfied beyond reasonable doubt that a weapon was used. However, I found that if a weapon was not used, the offender used his body. As a former professional martial arts fighter, the offender’s use of his fists and/or legs was tantamount to him using an object as a weapon to inflict the fatal injuries: R v Johns [2003] VSC 415 at [22]. The use of a weapon in the commission of the offence of murder is common, which reduces its significance as an aggravating factor: Milat v R; Klein v R [2014] NSWCCA 29 at [95]. The same applies to s 21A(2)(b), “the offence involved the actual … use of violence”.

59. Section 21A(2)(d) concerns whether the offender has a record of previous convictions, particularly if the offender is being sentenced for an offence of personal violence and has prior convictions of that nature. As is noted below, the offender’s record includes a conviction for assault occasioning actual bodily harm in 1997. The sentence imposed for that offence suggests that it was an offence of some seriousness. However, I note that this is his only prior offence of serious personal violence and that it occurred more than 20 years ago.

60. As to s 21A(2)(j), that is, the offender being subject to conditional liberty at the time of the offence, it was committed while he was on bail for Queensland offences for which he was sentenced in July 2015.

61. The dumping of the deceased’s body in the bush is an aggravating circumstance. It demonstrated the offender’s callousness to the deceased’s dignity and his indifference to the suffering of her family.

Mitigating factors

62. As to mitigating factors, pursuant to s 21A(3)(b), I am satisfied that the attack was unplanned, in the sense that the offender did not intend to attack the deceased before he met with her after she had left Mr Easton’s residence.

63. The offender maintains his innocence, a corollary of that position being that there is no question of remorse.

Subjective factors: the offender’s background

Criminal history

64. The offender’s first entry for violence on his criminal record is an assault occasioning actual bodily harm committed when he was aged 16, which was dealt with in the Children’s Court. In 1997, he was convicted of another offence of assault occasioning actual bodily harm, committed when he was aged 19. Sentencing was deferred upon him entering into a recognisance pursuant to s 558 of the Crimes Act, conditional upon him being of good behaviour for a period of 3 years, supervision and a fine of $2,000.

65. He has convictions for driving with a high-range prescribed concentration of alcohol (“PCA”) in 1998 and two mid-range PCAs in 1995 and 2008. Other offences on his record in New South Wales until 2014 include the possession of prohibited drugs and the possession of prohibited weapons. None involved a custodial sentence.

66. The offender has a criminal record in Queensland. The most serious were five charges, preferred against him and a co-offender on 2 July 2013, of possession of a dangerous drug. The drugs were methylamphetamine, cocaine, cannabis, ecstasy and 3,4-methylenedioxypyrovalerone (“MDVP”). The sentencing magistrate accepted that the offender’s share of each drug was intended for his personal use. On 1 January 2015, the offender received an effective total sentence of imprisonment for a period of 1 year, to qualify for release on that date. There is conflicting information before me as to how long the offender actually served of that sentence. However, it is clear that it had expired before he was arrested and refused bail for this offence.

67. The offender has further convictions in New South Wales for offences committed after the deceased’s death in 2014. He was fined for driving with an illicit drug in his blood in January 2015 and again in January 2017. On 28 November 2016, he was fined for possessing a prohibited drug. In May 2020, he was sentenced in the Newcastle District Court for damaging property with a value in excess of $15,000 by fire (“the Damage Property by Fire offence”). He received a sentence of imprisonment of 3 years, with a non-parole period of 2 years 3 months, commencing on 19 June 2017. The non-parole period expired on 18 September 2019 and the total sentence expired on 18 June 2020.

68. The offender’s disciplinary record in prison includes entries for prohibited drug-related matters in August and October 2019.

69. The offender has been remanded in custody since his arrest on 19 June 2017 for the instant offence and for the Damage Property by Fire offence. As of today, the period of his remand in custody on this matter is 4 years, 5 months and 4 weeks. Excluding the total sentence for the Damage Property by Fire offence, the period of time he has spent in custody since his arrest exclusively for this offence is 1 year, 5 months and 4 weeks.

70. I was informed by the Crown Prosecutor, without contradiction by counsel for the offender, that the offender was released on bail following his arrest in Queensland on the aforementioned drug possession charges, on 2 July 2013. It follows that he was on bail at the time of the commission of this offence.

Personal history, mental health and drug issues

71. Tendered on behalf of the offender and without objection was the report of Dr Furst dated 12 September 2021. Dr Furst recounted the offender’s background. He is presently aged 44. Dr Furst related a history of the offender having five siblings, although a brother, in a letter to the court, refers to there being five children altogether. The offender has a son aged 21. At the time of his arrest, he was unemployed and living between his mother’s house and that of his girlfriend. They separated in the months after his arrest. He is a builder and roofer by trade.

71. The offender’s parents separated in his early childhood and thereafter he and his siblings were raised by their mother. The offender told Dr Furst that he “did okay” in primary school but his academic performance deteriorated in high school. He was suspended on multiple occasions and left school, working as a drover on local farms in the Bathurst area, where he and his family resided at that time. At around the age of 15, he commenced a mechanics apprenticeship. After three years of that apprenticeship, when he was aged 18 or 19, he switched to an apprenticeship in roof tiling, working in that capacity intermittently over the following 10 years, but not formally qualifying as a licensed roofer.

72. The offender disclosed to Dr Furst that he was sexually assaulted by an adult male, a counsellor with Lifeline, which he had contacted for assistance, shortly before his 13th birthday. He was sexually assaulted by two other men over the following two years. He commenced drinking alcohol in occasional binge patterns and smoking cannabis. By the ages of 14 to 15, he was smoking 1-2g of cannabis a day, a pattern which continued until his late 20s. From his late teens onwards, his drug use expanded to include amphetamines, methylamphetamine, codeine, heroin, MDMA and LSD. His primary drugs of abuse in his 20s were cannabis and amphetamines. Dr Furst diagnosed the offender as satisfying the criteria for a substance use disorder (methylamphetamine, opiates).

73. Dr Furst noted that, although the offender had attempted counselling and drug therapy over the years, he had a significant trust issue consequent to his abuser being a Lifeline counsellor. Altogether, he spent about 11 months as a resident of Dooralong between July 2013 and June 2014. The offender told Dr Furst that it was only upon being incarcerated that he realised how the sexual abuse had affected him.

74. I note that a psychologist, Jaclyn Wilson, in a report dated 2 March 2013 and tendered by the offender without objection, related a history provided by the offender of having been sexually assaulted by an adult male, who was a friend of his mother’s, when he was aged 12, over a period of six months. He left home and school shortly afterwards.

75. An undated letter from the offender’s brother was tendered without objection. He stated that he, the offender and their other siblings were encouraged by their mother to spend time with a male friend of hers who was a volunteer with Lifeline. The offender went droving with the man, consequent to his mother’s encouragement. The offender’s brother became aware that the male had sexually assaulted the offender and believed that he had been unable to “move on” from the experience. An undated letter from a friend of the offender, who stated that she had known him for 23 years, also attested to the offender disclosing that he was a victim of child sexual assault.

76. Although the Crown did not object to the tender of the material alleging that the offender had been sexually assaulted as a child, it submitted that the material should be disregarded because it had not been the subject of sworn evidence by the offender. Untested out of court statements should be treated with considerable caution, particularly if an offender relies upon such material to reduce their criminality or otherwise mitigate the penalty: Imbornone v R [2017] NSWCCA 144 at [57]. There are discrepancies between the four accounts of the child sexual assault of the offender, but I accept the essence of his contention that when he was aged 12 years he was repeatedly sexually assaulted by an adult male. I am not satisfied that he was subsequently sexually assaulted by two other men.

77. Dr Furst briefly reviewed some literature as to the impact of childhood sexual assault on later development, noting an article by Professor Paul Mullen, psychiatrist ^[1] :

“Paul Mullen also found that an established body of knowledge links a history of child sexual abuse with higher rates in adult life of depressive symptoms, anxiety symptoms, substance abuse disorders, eating disorders and post-traumatic stress disorder.”

1. Mullen, P. E., & Fleming, J. (1998). Long-term effects of child sexual abuse (NCPC Issues No. 9). Melbourne: Australian Institute of Family Studies.

79. Dr Furst noted two studies of twins where one reported child sexual assault and the other did not. In relation to one such study, he observed:

“Similarly, Nelson et al. (2002) ^[2] in another Australian study involving 1,991 twin pairs found that in twins where one had been sexually abused and the other not, the abused twins had significantly higher rates of major depression, attempted suicide, conduct disorder, alcohol dependence, nicotine dependence, social anxiety, rape as an adult, and divorce.”

2. Nelson, E. C., Heath, A. C., Madden, P. A., Cooper, M. L., Dinwiddie, S. H., Bucholz, K. K. et al. (2002). Association between self-reported childhood sexual abuse and adverse psychosocial outcomes: Results from a twin study. Archives of General Psychiatry, 59(2), 139–45.

80. Dr Furst concluded:

“If jealousy and/or anger are found to be causally related to his offending, then I would regard his unstable emotional and personality structure, stemming from his childhood sexual abuse victimisation and exacerbated by drug use, as the most relevant factors in helping to explain his excessive emotional reactions of anger and jealousy when killing the deceased … at Muswellbrook on 30 September 2014.”

81. I accept Dr Furst’s opinion of a causal connection between the child sexual abuse of the offender and his issues of jealousy and anger which, as I have found, were his motivation to commit the offence. Accordingly, his moral culpability is reduced.

The offender’s moral culpability and other considerations

82. The offender’s moral culpability is reduced by the absence of planning of the offence. Having regard to the evidence of the relationship on, and leading up to, the day of the offence, I am satisfied that his decision to attack the deceased was made in the moment of a jealous rage, provoked by something said by the deceased, most likely that she had not seen her daughter, and to be understood against the background of his increasingly jealous behaviour over the preceding days.

83. The offender submitted that the evidence of the circumstances of the offender’s upbringing, in particular, the sexual assaults perpetrated on him as a child, constituted a background of deprivation that warranted a reduction in his moral culpability, pursuant to the observations in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [40]. In that paragraph, the plurality said:

“In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.”

84. The material tendered by the offender that refers to his upbringing is to the effect that he was one of five children who were brought up by a single parent. There is no suggestion of violence, including domestic violence in the family other than a single reference in the psychologist’s report in 2013 that “his mother was both verbally and physical abusive towards him and his siblings”. The offender’s brother, in his letter to the court, makes no mention of family physical or verbal violence. Rather, he speaks positively of their mother, doing the best she could in difficult circumstances. There is no mention in any of the material of alcohol or drug abuse in the family or in the community in which the offender was raised.

85. I find that the evidence does not permit a finding that the offender had a background of deprivation such as to warrant a diminution of his moral culpability in the manner that was approved in Bugmy. However, in view of the causal connection between the child sexual abuse and his excessive emotional reactions of jealousy and anger, I find that there is a modest reduction in his moral culpability by reason of his history of child sexual assault.

86. The offender tendered positive character assessments, in his brother’s letter and that of his long-standing friend. Both referred to his willingness to help strangers, if he became aware of a need that he was in a position to address. However, the prospects of the offender’s rehabilitation are necessarily guarded, in view of his long-standing drug abuse, his interpersonal relationship issues, his refusal to accept responsibility for the offence and the continuing impact of the childhood sexual abuse which I accept he suffered. There is no evidence that he has sought treatment in relation to that condition. Dr Furst proposed counselling with a psychologist “to address his childhood trauma issues and his current adjustment issues” but does not suggest that such treatment is available while he is in prison. He recommended specific programs for the offender to undertake while he is in custody that address drug and alcohol abuse and domestic violence. I do not accept the genuineness of a comment attributed to him by Dr Furst that he has recently become aware of its impact on his life for the first time, in view of the earlier psychologist’s report.

87. Specific deterrence remains a matter of some significance in the formulation of the sentence, as does general deterrence, particularly in view of the context of the offence being a domestic relationship. The killing of a woman by extreme physical violence in a domestic context, prompted by jealousy and possessiveness, warrants a significant element of general deterrence.

The procedural facilitation of justice

88. The offender submitted, and the Crown accepted, that the defence case was conducted in an efficient manner, which avoided many witnesses being called. As well, the defence facilitated the Crown leading evidence that was uncontentious. I accept that is so. I note that the counsel originally briefed to appear for the defence was obliged to withdraw after one week, due to an unexpected serious health issue. Fresh counsel was briefed and within a fortnight the trial was able to resume. The saving to the community was considerable and a further extended delay, with the consequent further anguish to the families of the deceased and offender, was avoided.

89. The facilitation of the administration of justice, pursuant to s 22A of the CSP Act, is reflected in the sentence to an extent that is not unreasonably disproportionate to the nature and circumstances of the offence. It has been observed to vary between 5 per cent and 10 per cent: R v Hines (No 3) [2014] NSWSC 1273 at [9]; R v Morris [2017] NSWSC 637 at [60]. In this case, the approach taken by the defence, in my view, warrants a significant reduction. That being so, it is appropriate to specify the quantum of the discount, which I determine to be 7 per cent: Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [105].

Special circumstances

90. The sentence must incorporate a significant period on parole so that the offender will transition back into the broader community with a degree of supervision, in view of his entrenched abuse of prohibited drugs and need for therapy to counter the other criminogenic consequences of the abuse he suffered as a child. I am satisfied that the normal ratio ensures there is a sufficient period on parole, but I have nevertheless slightly adjusted the ratio of the non-parole period to the total sentence, for reasons of totality.

Consideration

91. Section 61(1) of the CSP Act mandates the imposition of a life sentence if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. I am not satisfied that the level of the offender’s culpability rises to that level and accordingly I will hand down a determinate sentence.

92. I have regard to the statutory guideposts for the offence, which are a maximum penalty of life imprisonment and a standard non parole period of 20 years, and the purposes of sentencing, as set out in s 3A of the CSP Act. That section requires the court to ensure that the offender is adequately punished for the offence, to protect the community from the offender, to promote his rehabilitation, to make him accountable for his actions, to denounce his conduct and to recognise the harm done to the victim and the community.

Crimes(Domestic and Personal Violence) Act 2007 (NSW), s 12(2)

93. Section 12(2) of the Crimes(Domestic and Personal Violence) Act 2007 (NSW) provides that if a person is found guilty of a “domestic violence offence”, the Court is to direct that the offence be recorded on the person’s criminal record as a domestic violence offence. I will make an order to that effect.

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

94. I have asked the offender’s solicitor to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its application to him.

Sentence

95. The appropriate starting point for the sentence is 29 years. I adjust the starting point to 27 years to reflect the facilitation of the administration of justice by the defence, which I note is a reduction of about 7 per cent. The non-parole period will be 19 years and 9 months, which is a ratio of 73 per cent of the total sentence.

96. As noted, the offender was arrested on 19 June 2017 for this offence and also for the offence of damage property by fire. The sentence he received in May 2020 for the offence of damage property by fire, which was imprisonment for 3 years with a non-parole period of 2 years and 3 months, was backdated to commence on the date of his arrest. In those circumstances, the principle of totality requires that there be an overlap of this sentence with the earlier sentence. The starting date will be 19 November 2018, being 18 months after his arrest for this offence.

Sentence

97. Sayle Kenneth Newson, for the murder of Carly McBride, you are convicted.

1. You are sentenced to imprisonment comprising a non-parole period of 19 years and 9 months and a balance of term of 7 years and 3 months. That is a total sentence of 27 years, to date from 19 November 2018 and expiring on 18 November 2045. You will become eligible for release to parole when the non-parole period expires on 18 August 2038.

2. Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct that this offence be recorded on the offender’s criminal history as a domestic violence offence.

3. The non-publication order made on 20 September 2021 pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication of the content of the victim impact statement of Andrew Easton which has been read in these proceedings, is to operate for 15 years from today’s date.

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Endnotes

Decision last updated: 23 March 2023